# Miller v. Warden, Chillicothe Correctional Institute

> District Court, S.D. Ohio · May 27, 2025

URL: https://www.frixlaw.com/law-library/cases/11059964

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 27, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES C. MILLER,
Petitioner, : Case No. 3:24-cv-105

-vs - District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
TIM SHOOP, WARDEN,
Chillicothe Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS

Petitioner James Miller brought this habeas corpus action pro se to obtain relief from his
conviction for murder in the Montgomery County Court of Common Pleas. The case is ripe for
decision on the Petition (ECF No. 1), the State Court Record (ECF No. 5), and the Return of Writ
(ECF No. 6). Magistrate Judge Silvain set a reply date of twenty-one days after the Return was
filed (Order for Answer, ECF No. 3, PageID 23). That deadline was reached on July 8, 2024, but
Petitioner has neither filed a reply nor obtained an extension of time to do so.
The Magistrate Judge reference in the case has recently been transferred to the undersigned
to help balance the Magistrate Judge workload in the District (ECF No. 7).
Litigation History

On October 26, 2020, a Montgomery County grand jury returned an indictment charging
Miller with one count of murder (proximate result of committing felonious assault – serious
physical harm) in violation of Ohio Revised Code § 2903.11(A)(1), one count of murder

(proximate result of committing felonious assault – deadly weapon) in violation of Ohio Revised
Code § 2903.11(A)(2), one count of felonious assault (serious physical harm) in violation of Ohio
Revised Code § 2903.11(A)(1), and two counts of felonious assault (deadly weapon) in violation
of Ohio Revised Code § 2903.11(A)(2). (Indictment in Case No. 2020-CR-02034, State Court
Record, ECF No. 5, Ex. 1). A trial jury found Miller guilty on all counts. Id. at Ex. 16.
After merging the first four counts, Common Pleas Judge Mary Katherine Huffman
sentenced Miller to a mandatory term of imprisonment for fifteen years to life to be served
consecutively before a consecutive term of four to six years on Count 5 (Termination Entry, State
Court Record, ECF No. 5, Ex. 19).

Miller appealed to the Second District Court of Appeals and that court affirmed the lower
court’s judgment. State v. Miller, (Ohio App. 2d Dist. 2022-Ohio-213)(Jan. 28, 2022). Miller
could have filed an appeal of right to the Ohio Supreme Court by March 14, 2022, but did not do
so. That court granted him leave to file a delayed appeal when he asked in January, 2023, but then
dismissed the delayed appeal when he failed to file a required memorandum in support of
jurisdiction (State Court Record, ECF No. 5, Ex. 28, ECF No. 5-1, Exs. 30, 31).
On March 18, 2022, Miller filed an application to reopen his appeal on claims of ineffective
assistance of appellate counsel. Id. at Ex. 32. The Court of Appeals denied relief. Id. at Ex. 35.
Miller failed to appeal.
On April 15, 2022, Miller filed a petition for post-conviction relief under Ohio Revised
Code § 2953.21. Id. at Ex. 36. The Common Pleas Court dismissed the petition. Id. at Ex. 39.
Miller did not timely appeal and the Second District dismissed an untimely appeal on September
13, 2022. Id. at Ex. 45. The Ohio Supreme Court declined jurisdiction over a further appeal. Id.
at Ex. 48.

On April 9, 2024, Miller filed his Petition for Writ of Habeas Corpus in this Court by
depositing it in the mail on that date.1 He pleads the following grounds for relief:
Ground One: Miller’s constitutional rights of equal-protection to
the right-of-access-to-the-courts was violated by inadequate state
procedural rules which prejudiced Miller, because his notice of
appeal was determined to be untimely and not reviewable due to no
fault of his own, but due to delay by the neglect of prison authorities
and/or USPS and/or clerk of court.

Supporting Facts: Notice of appeal bears a time stamp of July 25,
2022 from Chillicothe Correctional Institution, 7-days before due;
notice filed by Clerk of Court August 2, 2022, notably 1-day late;
notice of appeal is a mandatory e-filing, and pro se litigants are
exempted from mandatory e-filing. And, Miller does not have
access to e-filing.

Ground Two: Miller is constitutionally entitled to equitable tolling
because the state’s ordinarily adequate procedural rule proved
inadequate to protect Miller’s rights of equal-protection to the right-
of-access-to-the-courts, which prejudiced him.

Supporting Facts: Notice of appeal bears a time stamp of July 25,
2022 from Chillicothe Correctional Institution, 7-days before due;
notice filed by Clerk of Court August 2, 2022, 1-day late; notice of
appeal is a mandatory e-filing, and pro se litigants are exempted
from mandatory e-filing. And, Miller does not have access to e-
filing.

Ground Three: Miller’s trial attorneys were ineffective, because
they failed to effectively present evidence, and failed to present
evidence which Miller urged was pertinent to his affirmative-
defense, resulting in prejudice to Miller.

1 See Houston v. Lack, 487 U.S. 266 (1988).
Supporting Facts: Trial attorneys failed to present evidence, which
Miller repeatedly said he wanted the jury to know, which goes to the
heart of his affirmative-defense; trial attorneys failed to question
Miller regarding “victims prior conduct,” in order to establish
Miller’s “state of mind”; trial attorneys failed to question Griffie Jr.,
regarding his prior felony record; trial attorneys failed to get a
second medical opinion.

Ground Four: The trial court abused its discretion by dismissing
Miller’s petition for post-conviction relief without a hearing and
without granting his motions for admittance of evidence or
appointment of counsel.

Supporting Facts: Miller’s pro se pleading of facts were not
liberally construed; Miller’s evidentiary support was ignored;
discussion of evidentiary rule limiting evidence only partially
explained its scope; Judge Huffman ignores the heart of Miller’s
affirmative defense regarding his “state of mind,” and replaces
Miller’s point of view with her own “state of mind”; Huffman re-
characterizes Miller’s words; Miller’s claim of ineffective-
assistance-of-counsel was rejected, and was not permitted evidence
from outside-of-the-record.

Ground Five: Miller is constitutionally entitled to equitable tolling,
because state’s ordinarily adequate procedural rule proved
inadequate to protect miller’s rights of equal-protection to the right-
of-access-to-the-courts, thus prejudiced him.

Supporting Facts: Miller timely filed for an extension of time in
which to file his Memorandum in Support, which was denied; Cash
receipt for mailing of Memorandum in Support of Jurisdiction bears
a time stamp of May 10, 2023, from Chillicothe Correctional
Institution; records of the Supreme Court of Ohio indicate that the
Memorandum in Support of Jurisdiction did not arrive by May 11,
2023; Miller’s memorandum arrived late due to delays in institution
and United States mail delivery system, and COVID-19-based
restrictions on his access to legal resources.

Ground Six: Miller was denied a fair trial based on the trial court’s
biased comments on the admissibility of evidence and bias towards
Miller and legislature.

Supporting Facts: Judge Huffman denied Miller from presenting
self-defense evidence; made disparaging remarks regarding the
Legislature and what it permits to be testified; and made disparaging
remarks toward Miller.
Ground Seven: Miller was denied a fair trial based on prosecutorial
misconduct, where prosecutor inflamed the passions of the jury
urging to identify personally with the victim.

Supporting Facts: Prosecutor appealed to the emotions of the jury,
by urging the jury to identify personally with the victim; prosecutor
made gratuitous, irrelevant and prejudicial comments in questioning
Miller.

Ground Eight: Miller was denied a fair trial based on Judge
Huffman’s disparaging comments regarding a jury instruction on the
definition of reasonable doubt.

Supporting Facts: Judge Huffman made disparaging comments
regarding a jury instruction on reasonable doubt.

Ground Nine: Miller was denied a fair trial due to ineffective
assistance of counsel in failing to request a jury instruction on the
lesser-included-offense of aggravated assault.

Supporting Facts: Counsel failed to request a lesser-included
aggravated assault instruction; evidence of serious provocation was
presented.

Petition, ECF No. 1.
Respondent concedes the Petition was timely filed (Return, ECF No. 6, PageID 1151).

Analysis

Ground One: Denial of Equal Protection and Access to the Courts

In his First Ground for Relief Miller asserts he was denied equal protection of the laws and
access to the courts by inadequate Ohio procedural rules regarding appeal from denial of post-
conviction relief.
However, post-conviction state collateral review is not a constitutional right, even in capital
cases. Murray v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551 (1987);
Estelle v. Dorrough, 420 U.S. 534, 536 (1975); Hugueley v. Mays, 964 F.3d 489 (6th Cir. 2020),
citing Murray and Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 402 (2001); Kirby v. Dutton,
794 F.2d 245 (6th Cir. 1986)(claims of denial of due process and equal protection in collateral
proceedings not cognizable in federal habeas because not constitutionally mandated). Accord,

Greer v. Mitchell, 264 F. 3d 663, 681 (6th Cir. 2001); Johnson v. Collins, 1998 WL 228029 (6th
Cir. 1998); Trevino v. Johnson, 168 F.3d 173 (5th Cir.1999); Zuern v. Tate, 101 F. Supp. 2d 948
(S.D. Ohio 2000), aff’d.,336 F.3d 478 (6th Cir. 2003). Miller has not sufficiently pleaded that other
inmates pursuing post-conviction relief were treated differently from him on some invidious basis.
Ground One should be dismissed for failure to state a claim on which habeas corpus relief
can be granted.

Ground Two: Entitlement to Equitable Tolling

In his Second Ground for Relief, Miller claims he is entitled to equitable tolling of time
limits. To the extent this claim is intended to refer to federal time limits, it is moot because the
Petition was filed within the statute of limitations, as Respondent concedes. To the extent it is
intended to apply to state time limits, it is beyond the power of this Court to consider on the
authority cited as to the First Ground for Relief.
Ground Two should be dismissed as either moot or non-cognizable.
Ground Three: Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Miller asserts he was deprived of his Sixth Amendment
right to effective assistance of counsel when counsel (1) failed to ask him on direct examination
about statements Young, the decedent, had made to Miller which could have affected his state of

mind; (2) failed to impeach witness James Griffie with his prior felony record; and (3) failed to
obtain a second medical opinion.
The governing standard for ineffective assistance of counsel claims is found in Strickland
v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. 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. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)
counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The 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. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
Respondent asserts this Ground for Relief is procedurally defaulted because Miller failed
to fairly present it to the Ohio courts. The Sixth Circuit Court of Appeals requires a four-part
analysis when the State alleges a habeas claim is precluded by procedural default. Barton v.
Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d
286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v.
Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.
1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407,
417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).

Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Ohio has a relevant procedural rule which requires that any trial court error which can be
addressed on the original appellate record must be raised on direct appeal or be later barred as res
judicata. State v. Perry, 10 Ohio St. 2d 175 (1967); State v. Davis, 119 Ohio St.3d 422, ¶ 6 (2008).
citing State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, 797 N.E.2d 948, ¶ 37; State v.
D'Ambrosio (1995), 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995).. The Perry rule has been
held to be an adequate and independent basis for state court decisions. Durr v. Mitchell, 487 F.3d

423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268
F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17
F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899,
913 (S.D. Ohio 2001). The Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio
St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981).
None of the alleged deficiencies in counsel’s performance pleaded in the Third Ground for
Relief was raised on direct appeal. Miller’s assignment of error related to ineffective assistance of
trial counsel on direct appeal was limited to his claim that counsel should have sought a lesser
included offense instruction (See Appellant’s Brief, State Court Record, ECF No. 5, Ex. 25,

PageID 126).
Miller raised these claims of ineffective assistance of trial counsel in his Petition for Post-
Conviction Relief which he filed pro se on April 15, 2022 (State Court Record, ECF No. 5-1, Ex.
36). Judge Huffman dismissed the Petition as untimely. Id. at Ex. 39. The Second District
dismissed an appeal from that order as itself untimely. Id. at Ex. 45. The Ohio Supreme Court
declined to exercise jurisdiction over a further appeal. Id. at Ex. 48.
Thus Miller procedurally defaulted Ground Three by not raising on direct appeal those
portions which could have been raised there and also by filing his petition for post-conviction relief
untimely in the Common Pleas Court and his failing to timely appeal from that decision.
Ground Three should be dismissed as procedurally defaulted.

Ground Four: Abuse of Discretion in Adjudicating Petition for Post-Conviction Relief

In his Fourth Ground for Relief Miller claims Judge Huffman abused her discretion in

dismissing his Petition for Post-Conviction Relief without appointing counsel or admitting
evidence presented with the Petition.
This claim is not cognizable in federal habeas corpus because abuse of discretion is not a
federal constitutional claim. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). Furthermore Miller has
procedurally defaulted this claim by not timely appealing Judge Huffman’s decision or timely
appealing the Second District’s denial of his appeal from Judge Huffman’s timeliness decision.
Ground Four should therefore be dismissed as non-cognizable or procedurally defaulted.

Ground Five: Denial of Equitable Tolling by Ohio Supreme Court

In his Fifth Ground for Relief, Miller asserts the Ohio Supreme Court should have excused
his late filing of his Memorandum in Support of Jurisdiction on the basis of equitable tolling.
While the doctrine of equitable tolling can apply to late filings in federal actions, it is not
constitutionally mandated to be applied by state courts. Ground Five should therefore be dismissed
as pleading a non-cognizable claim.
Ground Six: Biased Judicial Comments

In his Sixth Ground for Relief, Miller asserts he was denied a fair trial because of biased
comments Judge Huffman about the admissibility of evidence and about Miller and the Ohio
General Assembly.

Any comments made by Judge Hoffman would have been of record on direct appeal, but
the only claim about judicial comments made on direct appeal relates to those dealt with in Ground
Eight. Any other claims of this nature are procedurally defaulted because they were not raised on
direct appeal.
Ground Six should be dismissed with prejudice.

Ground Seven: Prosecutorial Misconduct

In his Seventh Ground for Relief Miller claims he was denied a fair trial by the prosecutor’s

misconduct in argument to the jury and in cross-examination.
Miller raised prosecutorial misconduct as his Fourth Assignment of Error on direct appeal
and the Second District decided it as follows:
¶ 19 In his fourth assignment of error, Miller contends prosecutorial
misconduct deprived him of a fair trial. He cites three comments
from the prosecutor. First, the prosecutor began opening statements
with rhetorical questions to the jury about "how much money would
justify stabbing your friend in the neck" and "proceeding to hit your
friend with your car after that?" Second, the prosecutor asked Miller
whether he usually drove while Young did the "dirty work" in
dumpster diving. Third, the prosecutor noted during closing
arguments that Miller had hit Young with a car after stabbing him.
The prosecutor commented, "[t]hat's some friend."
¶ 20 The test for prosecutorial misconduct is whether the
prosecutor's comments were improper and, if so, whether they
prejudicially affected Miller's substantial rights. State v. Hanna, 95
Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ,r 61. "However,
the touchstone of analysis 'is the fairness of the trial, not the
culpability of the prosecutor.' "Id., quoting Smith v. Phillips, 455
U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78. At trial, Miller did not
object to any of the three instances about which he now complains.
Therefore, we are limited to plain-error review.

¶ 21 We see nothing improper about the prosecutor's rhetorical
questions to begin opening statements. The State's theory of the case
was that a money dispute between two friends, Miller and Young,
had culminated in Miller's stabbing Young and hitting him with a
car. The prosecutor's questions were a colorful way of setting the
stage for the jury. Strictly speaking, of course, the legal issue was
not whether the amount of money in dispute justified Miller's
actions. Based on the entirety of the prosecutor's remarks, no juror
would have thought so. The attention-grabbing opening lines of the
prosecutor's statement should not be read in isolation to establish
impropriety.

¶ 22 The _prosecutor's comment about Miller's driving and Young's
doing the "dirty work" of entering dumpsters was factually correct.
Miller appears to believe that the phrase "dirty work" was
derogatory. But the fact is that Miller had a car and drove, while
Young searched the dumpsters, which fairly may be characterized
as the "dirty work."

Regardless, any negative inference that may be drawn from the
prosecutor's choice of words is too insignificant to have prejudiced
Miller's right to a fair trial.

¶ 23 Finally, Miller had testified that he and Young were friends and
that he had stabbed Young purely in self-defense. In closing
argument, the prosecutor noted that Miller had hit Young with a car
after stabbing him. The challenged comment, "[t]hat's some friend,"
appears to have been a response to Miller's claim that he would not
have hurt his ''friend" unless it was necessary for his own safety.
Given the wide latitude given to counsel in closing arguments, we
see nothing improper about the remark. We also do not believe the
comment violated Miller's right to a fair trial. Plain error has not
been established. The fourth assignment of error is overruled.

State v. Miller, supra.
First of all, the Second District reviewed this claim only for plain error. As noted above,
that is an enforcement of Miller’s procedural default in failing to object at trial.
Secondly, the Second District reasonably applied controlling Supreme Court precedent on
the issue of prosecutorial misconduct, exemplified by Smith v. Phillips.
Ground Seven should therefore be dismissed as procedurally defaulted and on the merits.

Ground Eight: Denial of a Fair Trial by Judge’s Comments on Jury Instruction

In his Eighth Ground for Relief, Miller asserts he was denied a fair trial by Judge
Huffman’s comments in her preliminary jury instructions on the definition of reasonable doubt.
He raised this claim as his Second Assignment of Error on direct appeal which reads: “Appellant
was denied a fair trial based on the trial court's disparaging comments regarding a jury instruction
on reasonable doubt.” (Appellant’s Brief, State Court Record, ECF No. 5, Ex. 25, PageID 126).
The Second District decided that assignment of error as follows:

¶ 14 In his second assignment of error, Miller contends the trial court
made inappropriate disparaging comments regarding a jury
instruction on reasonable doubt. In particular, he cites the following
remark during preliminary jury instructions:

Reasonable doubt is based on reason and common sense,
and not mere possible doubt. Personally, I think that's the
worst definition of anything ever; because if you're an
English teacher, which I am not, your English teacher
always told you, don't use the word in the definition and it
does. But nonetheless I will give you the legal definition
of beyond a reasonable doubt at the conclusion of the trial.
* * *
(Trial Tr. Vol. II at 143.)

¶ 15 We are unpersuaded that the trial court's editorial comment
about the definition of reasonable doubt deprived Miller of a fair
trial. In its subsequent jury instructions, the trial court fully
instructed the jury on the meaning of reasonable doubt. (Trial Tr.
Vol. IVat710.) Miller failed to object to the remark quoted above,
thereby waiving all but plain error. We see no plain error here. Plain
error exists when "but for the error, the outcome of the trial clearly
would have been otherwise." State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph two of the syllabus. The trial court's
personal observation about the definition of reasonable doubt does
not constitute plain error. The second assignment of error is
overruled.

(State v. Miller, Opinion of January 28, 2022, State Court Record, ECF No. 5, Ex. 27, PageID 198-
99).
The claim raised in Assignment of Error Two is procedurally defaulted by lack of a
contemporaneous objection. Ohio requires that asserted trial court error be objected to at the time
it occurs so as to permit correction at a time when the error could have been avoided or corrected.
State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason,
82 Ohio St. 3d 144, 162 (1998). The Second District enforced this rule by reviewing the claim
only for plain error. An Ohio state appellate court’s review for plain error is enforcement, not waiver,
of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell,
538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v.
Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle
v. Randle, 271 F.3d 239 (6th Cir. 2001).
However, the opinion of a state court on plain error review is still entitled to AEDPA
deference if the federal court reaches the merits despite the procedural default. Fleming v. Metrish,
556 F.3d 520, 532 (6th Cir. 2009); Kittka v. Franks, 539 Fed. Appx. 668, 672 (6th Cir. 2013); Bond
v. McQuiggan, 506 Fed. Appx. 493, 498 n. 2 (6th Cir. 2013); Stojetz v. Ishee, 2014 U.S. Dist.
LEXIS 137501 *231 (S.D. Ohio Sept. 24, 2014)(Frost, D.J.). Although the Magistrate Judge finds
this claim procedurally defaulted, if the Court were to reach the merits, it should find the Second
District’s opinion is not an objectively unreasonable application of clearly established federal law
and is therefore entitled to deference.
Ground Eight should be dismissed as procedurally defaulted and on the merits.

Ground Nine: Ineffective Assistance of Trial Counsel: Failure to Seek a Lesser-included
Instruction on Aggravated Assault

In his Ninth Ground for Relief, Miller claims he received ineffective assistance of trial
counsel when his trial attorney did not request a jury instruction on the lesser included offense of
aggravated assault.
Miller raised this claim as his Third Assignment of Error on direct appeal and the Second
District decided it as follows:
¶ 16 In his third assignment of error, Miller alleges ineffective
assistance of counsel based on his attorney's failure to seek a jury
instruction on aggravated assault. Miller notes that aggravated
assault is an inferior-degree offense to felonious assault with an
additional mitigating element of "serious provocation:" In other
words, the two offenses are similar except aggravated assault
requires proof that the defendant acted under the influence of sudden
passion or in a fit of rage brought about by serious provocation.
Miller contends the evidence justified an aggravated-assault
instruction and that defense counsel provided deficient
representation by failing to request it. [footnote omitted]

¶ 17 We find Miller's argument to be unpersuasive. This court has
recognized that a self-defense argument generally is inconsistent
with a serious-provocation theory. State v. Brown, 2d Dist.
Montgomery No. 27738, 2018-Ohio-3068, 1147 (citing cases). For
that reason, self-defense and aggravated-assault instructions are
incompatible in most cases. Id. Nevertheless, we recognized in
Brown that the two theories conceivably might be compatible where
a defendant is found to have exceeded the degree of force necessary
to defend himself because he acted out of passion or rage.

¶ 18 In the present case, however, nothing in Miller's testimony
suggests that he acted in a sudden passion or fit of rage. He admitted
that he was not agitated and not raising his voice before the stabbing.
(Tr. Vol. IV at 644.) He was not upset and not "challenging" Young.
(Id. at 673.) Miller claimed he moved backward when Young orally
threatened him. (Id. at 644-647.) He only stabbed Young because he
was afraid. (Id. at 646.) But "[f]ear alone is insufficient to
demonstrate the kind of emotional state necessary to constitute
sudden passion or fit of rage." State v. Mack, 82 Ohio St.3d 198,
201, 694 N.E.2d 1328 (1998); see also State v. Mcclendon, 2d Dist.
Montgomery No. 23558, 2010- Ohio-4757, 1[ 23-24, vacated in part
on other grounds, State v. McClendon, 128 Ohio St.3d 354, 2011-
Ohio-954, 944 N.E.2d 235 (upholding the trial court's refusal to give
an aggravated-assault instruction where the defendant shot the
victim out of fear that the victim might be retrieving a weapon from
a coat). Absent evidence that Miller acted under the influence of
sudden passion or in a fit of rage caused by serious provocation,
defense counsel did not provide ineffective assistance by failing to
seek an aggravated-assault instruction.4 The third assignment of
error is overruled.

4 The State also argues that Miller's attorney reasonably
may have elected to purse [sic] an all-or-nothing strategy
by arguing self-defense rather than seeking an aggravated-
assault instruction. The State reasons that if Miller had
been successful on his self-defense claim, he would have
been acquitted rather than potentially convicted of
aggravated assault. However, Miller is not arguing that his
attorney should have pursued aggravated assault rather
than self-defense. Miller appears to argue that this is the
unusual case where the evidence potentially supported both
theories. If this were true, we would see no strategic reason
to foregoing pursuing an aggravated-assault instruction. In
such a case, the jury would have the option to find sudden
passion or a fit of rage and serious provocation and to
convict Miller of aggravated assault rather than felonious
assault if it rejected selfdefense. We see no potential
downside to Miller in such a scenario. Here, however,
Miller's testimony does not support a finding that he acted
out of sudden passion or in a fit of rage. Therefore, there
simply was no basis for an aggravated-assault instruction.

State v. Miller, supra.
It is a question of state law whether the evidence presented in a given case is sufficient to
allow an instruction on a lesser-included offense. Here the Second District decided the evidence
did not support such an instruction and that decision is conclusive on this Court. It was therefore
not deficient performance to fail to request an aggravated assault instruction.
Ground Nine should therefore be dismissed on the merits.

Conclusion

On the basis of the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
May 27, 2025.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11059964. Public record. Not legal advice.