Palmer v. Watson

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY PALMER, ) CASE NO. 4:22-CV-01958-CAB

)

Plaintiff, )

) JUDGE CHRISTOPHER A. BOYKO

vs. ) UNITED STATES DISTRICT JUDGE

)

WARDEN THOMAS WATSON, ) MAGISTRATE JUDGE

) JONATHAN D. GREENBERG

Defendant. )

) REPORT & RECOMMENDATION

)

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the

Petition of Jeffrey Palmer (“Palmer” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28

U.S.C. § 2254. Palmer is in the custody of the Ohio Department of Rehabilitation and Correction pursuant

to journal entry of sentence in the case State v. Palmer, Mahoning County Court of Common Pleas Case

No. 2018-CR-00660. For the following reasons, the undersigned recommends that the Petition be DENIED.

Table of Contents

I.   Summary of Facts .................................................................................................................. 2

II.   Procedural History ................................................................................................................. 4

III. Exhaustion and Procedural Default ..................................................................................... 18

IV.    Non-Cognizable Claim ........................................................................................................ 38

V. Review on the Merits ........................................................................................................... 39

VI. Conclusion ........................................................................................................................... 58

OBJECTIONS............................................................................................................................... 58

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state

court, factual determinations made by state courts are presumed correct unless rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir.

2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the

facts underlying Palmer’s conviction as follows:

{¶2} T.B. lived in Boardman, Ohio along with her three children. In May

of 2015, T.B. met Appellant through an online dating site where he went

by the name “Israel.” Appellant moved into T.B.’s apartment sometime in

June or July of 2015 and lived there until May or June of 2016.

{¶3} T.B.’s child, A.B., was ten years old when Appellant moved into the

apartment. T.B. was employed as a home health aide. Appellant was

unemployed. At trial in this matter, T.B. stated that she worked two hours

in the morning from 8:00 to 10:00 a.m. and two hours in the evening, from

around 8:00 to 10:00 p.m. She explained that while she only worked two

hours at a time, she was away from home longer than that because she

used public transportation to get to and from work. She worked seven days

a week and was off every other weekend. While T.B. was at work and

when she ran errands, Appellant was home alone with her children. T.B.

noticed that A.B.’s behavior began to change after Appellant moved in.

She became quiet and kept to herself. T.B. questioned A.B. about her

change in behavior but A.B. denied that there was a problem. T.B. testified

that her sexual relationship with Appellant was not typical. Eventually, the

relationship ended and Appellant moved out. Subsequently, Appellant

asked T.B. to move with her children into his house in Cleveland, but she

refused.

{¶4} In April of 2018, A.B. told her mother that Appellant had been

sexually abusing her the entire time he lived in their apartment. T.B. took

the child to the emergency room to be examined. A.B. told her mother that

Appellant had different types of sex with her multiple times a day, every

day. She said the abuse occurred while T.B. was at work. At trial, A.B.

testified that at night, while getting ready to shower or getting her clothes

out for the next day, Appellant would comment on her clothing and

compliment A.B. on her appearance. A.B. testified that she stopped

wearing nightgowns and wore pajamas because Appellant’s comments

made her feel uncomfortable. A.B. testified that the abuse almost always

occurred in her mother’s room because it was the only room with a lock

on the door, however, Appellant abused her multiple times in other rooms

while her mother and the younger children were sleeping. Appellant

offered to buy her toys and snacks as the abuse continued but threatened

A.B. not to tell her mother. A.B. said she never told anyone about the

abuse while Appellant was living in the apartment. She testified that the

abuse lasted for about one year until Appellant moved out. After Appellant

moved to Cleveland, he continued to contact A.B. and talked about having

her family move in with him. She finally told her mother after she had a

nightmare about her mother leaving her.

{¶5} In Appellant’s direct appeal we summarized the testimony offered at

trial as follows:

The testimony of A.B. and her mother provided additional details

of the sexual acts. A.B. testified that when she was ten years old,

appellant came to live with them, and he watched her and her

siblings while her mother worked. (Tr. at 175).

She testified that the first time that appellant touched her, she was

on the couch in the living room on her tablet when he started

asking her about the birds and the bees. (Tr. at 179). She stated he

told her to get up and go to her mom’s room, he shut the door, laid

her down on the bed, and touched her vaginal area. (Tr. at 180).

She testified that appellant’s conduct then escalated each time,

such as taking out his penis and rubbing it against her “private

part.” (Tr. at 81). She testified that they went into her mother’s

room because it was the only door that locked. While initially she

stated that appellant did not put his penis or his fingers inside her

vagina, she testified that it hurt when appellant touched her

“private part.” (Tr. at 183-185). She later testified that it would

hurt when appellant kept forcing his penis inside of her vagina and

he did this at least ten times. (Tr. at 190-193). She also testified

that sometimes when he rubbed his fingers on her “privates,” it

would hurt and this happened more than five times. (Tr. at 193).

She stated that appellant put his mouth on her “private area” more

times than she could count, but then narrowed it to more than 10

times but less than 15 times. (Tr. at 191-192). She also provided

detail about times when the acts would occur, such as once when

she came inside to get a glass of water while her siblings were

outside and appellant called her into her mother’s room, pulled her

pants down, bent her over the bed, and put his penis “between her

legs.” (Tr. at 185). She further testified that sexual acts would

occur twice a week and sometimes more than once per day. (Tr. at

191). A.B. also related that appellant would rub Vaseline on his

penis and told her that if he could continue with her, he would

never touch her mom again. (Tr. at 189).

State v. Palmer, 7th Dist. Mahoning No. 19 MA 0108, 2021-Ohio-4639, ¶

21-22.

{¶6} Appellant was indicted by direct presentment to the Mahoning

County Grand Jury on twelve counts of rape of a minor under the age of

thirteen and one count of gross sexual imposition of a minor under the age

of thirteen. A jury trial began on September 3, 2019. Along with the

testimony of A.B. and her mother, the State’s witnesses included a

neighbor, Boardman Township police officers, a social worker employed

by Akron Children’s Hospital, a nurse practitioner at Akron Children’s

Hospital in the Child Advocacy Center, and a second social worker from

the Child Advocacy Center who had interviewed A.B. Appellant was the

only witness to testify for the defense.

{¶7} At the conclusion of the trial, the jury returned guilty verdicts on all

counts. Appellant was sentenced to 10 years to life in prison on each of

the twelve rape convictions and 5 years on the gross sexual imposition

conviction. The court ran Counts 1, 2 and 3 for rape concurrently with

each other; Counts 4, 5 and 6 for rape concurrently with each other but

consecutively to Counts 1, 2, and 3; Counts 7, 8 and 9 for rape

concurrently with each other but consecutively to Counts 1, 2 and 3, and

Counts 4, 5, and 6; Counts 10, 11 and 12 for rape concurrently with each

other; but consecutively to Counts 1, 2, and 3, 4, 5 and 6, and 7, 8, and 9;

and Count 13 for gross sexual imposition concurrently with all

sentences. In total, Appellant was sentenced to 40 years to life in prison.

State v. Palmer, 2022-Ohio-2339, 2022 WL 2443273, at **1-2 (Ohio Ct. App. June 28, 2022).

II. Procedural History

A. Trial Court Proceedings

On June 28, 2018, the Mahoning County Grand Jury indicted Palmer on twelve counts of rape in

violation of O.R.C. § 2907.02(A)(1)(b) (Counts 1-12) and one count of gross sexual imposition in violation

of O.R.C. § 2907.05(A)(4)(C)(2) (Count 13). (Doc. No. 7-1, Ex. 1.) The indictment specified that all acts

occurred between May 1, 2015, through June 30, 2016, and the victim was less than 13 years old. (Id.)

Palmer pleaded not guilty. (Doc. No. 7-1, Ex. 2.)

On July 11, 2018, Palmer requested a bill of particulars. (Doc. No. 7-1, Ex. 3.) On July 26, 2018,

the trial court ordered the State to furnish a bill of particulars setting forth the nature of the offenses charged

and the conduct alleged to constitute the offenses charged. (Doc. No. 7-1, Ex. 4.) On July 18, 2019, the

State provided a bill of particulars, explaining that the range of dates were the dates that Palmer moved in

and out of A.B.’s residence and specifying that Palmer digitally penetrated A.B.’s vagina, forced her to

engage in vaginal and anal intercourse, and performed oral sex on her, at least three times as to each act,

while he lived in A.B.’s home. (Doc. No. 7-1, Ex. 5.)

The case proceeded to a jury trial on September 3, 2019. (Doc. No. 7-1, Ex. 6.) On September 5,

2019, the jury returned its verdict, finding Palmer guilty on all counts. (Id.)

On September 9, 2019, Palmer filed a motion for a new trial. (Doc. No. 7-1, Ex. 7.) The State

opposed the motion. (Doc. No. 7-1, Ex. 8.) On September 30, 2019, the trial court overruled Palmer’s

motion for a new trial. (Doc. No. 7-1, Ex. 9.)

On September 9, 2019, and September 23, 2019, the state trial court held a sentencing hearing. (Doc.

No. 7-1, Ex. 10.) The trial court sentenced Palmer to ten years to life on each count for Counts 1-12 and

five years on Count 13. (Id.) The trial court ordered Counts One, Two, and Three were to run concurrently

to each other. (Id.) Counts Four, Five, and Six were to run concurrently to each other but consecutively to

Counts One, Two, and Three. (Id.) Counts Seven, Eight and Nine were to run concurrently to each other

but consecutively to Counts One, Two, and Three and Counts Four, Five, and Six. (Id.) Counts Ten, Eleven,

and Twelve were to run concurrently to each other but consecutively to Counts One, Two, and Three, Counts

Four, Five, and Six, and Counts Seven, Eight, and Nine. (Id.) Count Thirteen was to run concurrently to

all cases. (Id.) The trial court sentenced Palmer to a total of 40 years to life in prison. (Id.) The trial court

determined Palmer was a Tier III sexual offender and notified him of his duties to register as such. (Doc.

No. 7-1, Ex. 11.)

B. Direct Appeal

Palmer, through counsel, timely appealed to the Seventh District Court of Appeals. In his appellate

brief, Palmer raised the following assignments of error:

I. Appellant Was Denied Due Process Because the Indictment, Bill of Particulars,

Jury Instructions, and Verdict Failed to Differentiate Between the Different Types

of Conduct Said to Constitute Rape.

II. The trial court erred and denied Appellant due process of law, equal protection

and the right to have justice administered without denial when it failed to instruct

the jury on the lesser offenses of gross sexual imposition. U.S. CONST., amend.

XIV, OHIO CONST., art. I, §§1, 2, and 16.

III. Appellant was denied due process of law and liberties protected by the Ohio

Constitution because there was insufficient evidence as to the counts alleging oral

rape.

IV. Appellant was denied due process of law and equal protection of the law, and his

rights guaranteed by the Ohio Constitution, when the state was permitted to

introduce impermissible and inflammatory “other acts” evidence.

V. Appellant was denied a fair trial because of the ineffectiveness of his trial counsel.

VI. Appellant was denied due process when the State was permitted to impermissibly

bolster the testimony of the victim by using “expert” medical testimony to bolster

the victim’s testimony.

VII. Appellant was denied due process and the effective assistance of counsel because

there were repeated references made to the child as the “victim,” to which trial

counsel failed to object.

VIII. The trial court erred by failing to record all sidebars as required by OHIO CRIM.

R. 22, thus depriving Appellant the liberty secured by U.S. CONST., amend XIV

and OHIO CONST., art. I, §§1, 2 and 16.

IX. Appellant was denied a fair trial because of the effect of cumulative errors.

(Doc. No. 7-1, Ex. 12.) On January 26, 2021, the State filed a responsive brief. (Doc. No. 7-1, Ex. 13.) On

March 8, 2021, Palmer filed a reply brief. (Doc. No. 7-1, Ex. 14.) On August 19, 2021, Palmer filed a

citation to supplemental authority. (Doc. No. 7-1, Ex. 15.)

On September 29, 2021, the Court of Appeals affirmed the judgment of the trial court. (Doc. No. 7-

1, Ex. 16.) See also State v. Palmer, No. 19 MA 108, 2021-Ohio-4639, 2021 WL 6276315 (Ohio Ct. App.

Sept. 29, 2021).

On November 15, 2021, Palmer, through counsel, filed a timely notice of appeal with the Supreme

Court of Ohio. (Doc. No. 7-1, Ex. 17.) In his memorandum in support of jurisdiction, Palmer raised the

following propositions of law:

I. The Fourteenth Amendment to the United States Constitution, and Ohio

Constitution, Article I, Sections 1, 2, 10, and 16 require enough differentiation

between multiple counts charging rape, when the date range on each charge is the

same and when the language in each count is virtually identical, and when the bill

of particulars fails to differentiate between counts, to allow an accused to fairly

defend himself and to avoid double jeopardy.

II. When an accused question the effectiveness and adequacy of counsel, it is the

duty of the trial judge to inquire into the complaint, and to make such inquiry a

part of the record. Sixth and Fourteenth Amendments, United States Constitution,

and Ohio Constitution, Article I, Sections 10 and 16; State v. Deal, 17 Ohio St.2d

17, 17, 244 N.E.2d 742 (1969), modified.

III. It is a denial of Due Process and the freedoms secured by Ohio Constitution,

Article I, Section 16 in a trial where a child is repeatedly referred to as the

“victim,” and where trial counsel failed to object.

(Doc. No. 7-1, Ex. 18.)

On December 28, 2021, the Ohio Supreme Court declined jurisdiction pursuant to S.Ct.Prac.R.

7.08(B)(4). (Doc. No. 7-1, Ex. 19.)

C. Post-Conviction Filings

On February 1, 2021, while his direct appeal was pending, Palmer, pro se, filed a petition to vacate

or set aside the judgment of conviction or sentence. (Doc. No. 7-1, Ex. 20.) Palmer argued his trial counsel

was ineffective for: misleading him into signing a speedy trial waiver; failing to investigate or prepare for

trial; failing to call an expert; failing to object to the identical counts of the indictment; failing to object to

the state’s use of peremptory challenges; and failing to convey a plea offer. (Id.) Palmer also asserted that

trial counsel’s cumulative errors denied him a fair trial. (Id.) Palmer requested an evidentiary hearing,

appointment of counsel, and expert assistance. (Id.) Palmer attached notes from his trial counsel, police

records, medical records, and a screenshot of a social media page, in addition to other exhibits. (Id.)

On March 11, 2021, the State moved for judgment on the pleadings. (Doc. No. 7-1, Ex. 21.) On

April 23, 2021, Palmer filed a response in opposition (Doc. No. 7-1, Ex. 22), to which the State replied.

(Doc. No. 7-1, Ex. 23.)

On May 4, 2021, the trial court granted the State’s motion for judgment on the pleadings and

dismissed Palmer’s petition for post-conviction relief. (Doc. No. 7-1, Ex. 24.) The trial court held that the

claims were barred by the doctrine of res judicata, and Palmer failed to produce competent, credible

evidence outside the record to support his claims. (Id.) The trial court also denied Palmer’s motions for an

evidentiary hearing, appointment of counsel, and expert assistance. (Id.)

On June 3, 2021, Palmer, pro se, appealed the dismissal of his petition for post-conviction relief.

(Doc. No. 7-1, Ex. 25.) In his appellate brief, Palmer raised the following assignments of error:

I. Appellant was denied due process and the effective assistance of counsel, a

violation of the 5, 6, and 14th Amendment to the U.S. Constitution; Section 16

Article 1 of the Ohio Constitution, when trial counsel misleads Appellant into

unknowingly and involuntarily waived his speedy trial right.

II. Appellant was denied effective assistance of counsel, a violation of due process

of the 6th and 14th Amendment to the United States const. and Section 16, Article

1 of the Ohio Const., when trial counsel failed to conduct a reasonable

investigation to determine possible defenses.

III. Trial counsel was constitutionally ineffective for failing to present expert

testimony to rebut the prosecution’s case and expert testimony, and failing to

provide expert testimony regarding Petitioner’s erectile dysfunction and

medication side effects, violating his 6th and 14th Amendments of due process.

IV. Petitioner was denied due process and the effective assistance of counsel when

his trial attorney failed to raise a timely carbon copy objection on the 12 rape

counts pursuant to Crim.R.12(C) in violation of his 6th and 14th Amendment,

Section 16, 10, art 1.

V. Petitioner was denied effective assistance of counsel, a violation of due process

of the 6th and 14th amendment of the U.S. Constitution and section 10 and 16 of

the Ohio Constitution, when counsel failed to use information in discovery to

make a defense and assist him in preparing the case before trial.

VI. Petitioner was denied effective assistance of counsel, a violation of due process

of the 6th and 14th amendments to the U.S. Constitution and Section 16 Art. 1 of

the Ohio Constitution, when trial counsel failed to argue and make a record that

the state had exercised its peremptory strikes in a racially discriminatory manner.

VII. Appellant was denied due process and the effective assistance of counsel, a

violation of the 6th and 14th Amendment to the U.S. Constitution and Section 16

Article 1 of the Ohio Constitution, when counsel failed to convey the state’s plea

offer to Appellant.

VIII. Appellant was denied a fair trial because of cumulative errors.

(Doc. No. 7-1, Exhibit 30.) On September 16, 2021, the State filed a responsive brief. (Doc. No. 7-1, Ex.

31). On October 25, 2021, Palmer filed a reply. (Doc. No. 7-1, Ex. 32.)

On June 28, 2022, the Court of Appeals affirmed the judgment of the trial court. (Doc. No. 7-1, Ex.

33.) See also State v. Palmer, No. 21 MA 52, 2022-Ohio-2339, 2022 WL 2443273 (Ohio Ct. App. June 28,

2022). The state appellate court held that Palmer’s claims were barred by the doctrine of res judicata

because they could have been or were raised on direct appeal and Palmer failed to provide evidence outside

the record to support them. (Id.)

On August 8, 2022, Palmer, pro se, filed a timely notice of appeal with the Supreme Court of Ohio.

(Doc. No. 7-1, Ex. 34.) In his memorandum in support of jurisdiction, Palmer raised the following

propositions of law:

I. Counsels [sic] waiver of a speedy trial right without a defendants [sic] knowledge

and consent violates his 6th and 14th Amendment rights of the U.S. Const.

II. Counsel must conduct a prompt and reasonable investigation or render ineffective

assistance.

III. Failure to consult with and or provide an expert in the particular case amounts to

constitutionally ineffective assistance.

IV. Failure to raise a timely carbon copy objection pursuant to Crim.R.12(C)(2) is

ineffective assistance.

V. Failure to use readily available evidence to impeach witnesses is ineffective

assistance.

VI. Failure to timely object to racially motivated preemtory [sic] strikes violates the

right to effect [sic] counsel.

VII. Failure to timely convey plea offers to a client is prejudicial representation.

VIII. Cumulativeness of an attorneys [sic] deficient performace [sic] bears a substantial

level of ineffectiveness that cannot be underminded [sic].

(Doc. No. 7-1, Ex. 35.)

On September 27, 2022, the Ohio Supreme Court declined to accept jurisdiction of the appeal

pursuant to S.Ct.Prac.R. 7.08(B)(4). (Doc. No. 7-1, Ex. 36.)

D. Application to Reopen Appeal under Ohio App. R. 26(B)

On December 28, 2021, Palmer, pro se, filed an application to reopen his appeal pursuant to Ohio

App. Rule 26(B). (Doc. No. 7-1, Ex. 37.) Palmer argued that his appellate counsel was ineffective for the

following reasons:

I. Palmer argues that appellate counsel was ineffective when he failed to argue that

trial counsel failed to object to the admission and eliciting of hearsay, and

testimonial statements, in violation of Palmer’s 5th, 6th, and 14th Amendments to

the U.S. Constitution and Art. 1, Section 10 of the Ohio Constitution.

II. Petitioner was denied the effective assistance of appellate counsel, a violation of

due process of the 6th and 14th Amendments to the U.S. Constitution and section

16 Art. 1 of the Ohio Constitution, when counsel failed to raise on appeal trial

counsels [sic] failures to object to prosecutorial misconduct and the trial courts

[sic] abuse of discretion in admitting inadmissible testimony.

III. Palmer argues that it was also ineffective assistance of appellate counsel not to

argue on appeal that trial counsel failed to object to the states [sic] misconduct in

closing argument when she stated that everybody is in some big conspiracy to,

again, as he put it, railroad him, just like Gorsuch lied. The police lied.

IV. Palmer also argued that appellate counsel should have raised on appeal that is [sic]

Constitutional 6th and 14th Amendments to due process and effective counsel

were violated when trial counsel failed to request a mistrial after the judge at trial

violated his right to the presumption o [sic] innocents [sic] by asking the jury the

prejudicial question “Were any of you formerly a juror in the same case or in a

civil case brought against the defendant for the same act?” (Trial Tr.22).

V. Palmer was also denied effective counsel, a violation of the 6th and 14th

Amendments, when trial counsel failed to object to the states [sic] cross

examination which compelled Palmer to testify to the veracity and credibility of

the multiple witnesses against him.

VI. Palmer argues that his counsel intentionally prejudiced him by informing the jury

pool, “Okay, You’ve been a corrections officer. You know – I keep nothing back

– You’ll wonder why. He is in jail because this is a serious offense, and the bonds

are high. And he could not make bond. That is the reason he’s incarcerated. I

don’t want you to think any other reason. So when you see deputies walking with

him, that’s the reason. They have a duty to be with him. They have to be

everywhere with him because technically he’s a prisoner of the jail.” (Trial. Tr.

82-83.)

VII. Palmer also raises the issue that appellate counsel failed to raise trial counsel’s

ineffective representation due to counsel’s failure to object to prosecutorial

conduct in closing argument.

VIII. Petitioner was denied effective appelate [sic] counsel when counsel failed to raise

the issue that trial counsel was ineffective for failing to object to prosecutorial

misconduct, a violation of due process of the 6th and 14th Amendments to the

U.S. Constitution and section 16 Art. 1 of the Ohio Constitution.

IX. Palmer also raises the issue that, without objection from trial counsel, nurse Janet

Gorsuch was permitted to repeat testimonial hearsay statement that were entirely

for forensic purposes rather than for diagnosis or treatment.

X. Appellate counsel was ineffective for failing to argue the courts [sic] abuse of

discretion violated his right to due process through the 6th and 14th Amendments

by permitting the following. Q: “Were there changes in your sex life with the

defendant?” [Zena: “Objection.”] A. “Yes.” [The Court: “Overruled.”] A. “It was

just different. Like he wasn’t sexually into me like your boyfriend supposed to be.

Like he wasn’t the same like how you would be sexually.” (Trial Tr. 145).

(Id.) The State opposed reopening. (Doc. No. 7-1, Ex. 38.)

On July 18, 2022, the court of appeals denied Palmer’s application to reopen his appeal on the merits.

(Doc. No. 7-1, Ex. 39.) See also State v. Palmer, No. 19 MA 108, 2022-Ohio-2643, 2022 WL 3077235

(Ohio Ct. App. July 18, 2022).

Palmer failed to timely appeal the state appellate court’s decision to the Ohio Supreme Court.

E. Federal Habeas Petition

On October 11, 2022,1 Palmer filed a Petition for Writ of Habeas Corpus in this Court and asserted

the following grounds for relief:

GROUND ONE: In violation of due process of U.S. Const., amend. XIV and Ohio Const.,

art. I § 1, 2, 10 and 16 the state failed to state the different conduct said to constitute rape.

Supporting Facts: Neither the indictment, bill of particulars, jury instructions,

verdict forms, nor the verdict itself distinguished between several types of conduct

said to constitute rape. i.e., digital penetration, fellatio, anal penetration, or penise

[sic] to vagina penetration. Neither was sufficient to alert the jury, the defendant,

nor the court as to which counts related to which alleged act of rape. In closing

argument the state conceded that there’d been no evidence of fellatio, anal

penetration, digital penetration, or any other kind because the declarant AB said

neither had happened at trial. Yet, none of the counts were dismissed. The state

treated them as interchangeable and urged the jury to do the same. The failure to

differentiate left no indication of which counts the jury may have reasonably found

Palmer not guilty of even upon the state conceding which form of crimes were not

proven. So if the jury chose to find Palmer not guilty of anal penetration, digital

penetration, or any other form of rape in line with what the evidence of the declarant

failed to establish, the jury had no way of knowing which counts to dismiss. This

issue of the undifferentiated counts, and the failure to provide the specific nature of

the acts said to support each count also deprived Palmer of the fair opportunity to

avoid double jeopardy.

GROUND TWO: The court denied appellant due process and equal protection of the

law when it failed to instruct the jury on the lesser offenses of gross sexual imposition.

Supporting Facts: The declarant testified that although appellant would

sometimes hurt her body when he’d “touch” her inappropriately, that he had never

at any point put anything inside of her. (T.p. 182,185). Then, only after being led

by the state, did she give inconsistent testimony that suggested that vaginal

penetration did occur. (T.p.186). But even upon the contradicting testimony, she

never alleged where the penetration supposedly occurred. Palmer was charged with

12 counts of rape and 1 count of gross sexual imposition. And while AB stated that

Palmer had never put his penis, finger, or any other object inside of her anus or

vagina, nurse Gorsuch claimed that AB told her that Palmer had put his penis inside

her vagina and inside her anus. (T.p.282).

GROUND THREE: Appellant was denied due process of law because he was convicted

of 12 counts of rape where the eveidence [sic] was insufficient to support rape.

1 Under the mailbox rule, the filing date for a pro se petition is the date that a petitioner delivers it to prison

authorities. See Houston v. Lack, 487 U.S. 266 (1988). While the Petition herein did not arrive at the Court

for filing until October 31, 2022, Palmer states that he placed it in the prison mailing system on October 11,

2022. (Doc. No. 1 at 17.) Thus, the Court will consider the Petition as filed on October 11, 2022.

Supporting Facts: While sexual conduct is defined as vaginal intercourse between

a male and female; anal intercourse, fellatio, and cunnilingus between persons

regardless of sex; and, without privilege to do so, the insertion, however slight, of

any body part or instrument into the vaginal or anal opening of another- the law

nonetheless requires evidence of penetration. In this case, the evidence meant to

constitute rape was only estimations, estimations where it was the state who alleged

any penetration and not the declarants [sic] own testimony.

GROUND FOUR: Petitioner was denied due process and equal protection of the law

where the state was permitted to introduce irrelevant inflammatory “other act” evidence.

Supporting Facts: The state sprinkled Palmer’s trial with inflammatory, non-

relevant evidence which had nothing to do with the issues on trial, namely, rape

and gross sexual imposition. They included things like how Palmer’s sex life

supposedly changed with his ex-girlfriend, the declarants mother Tanisha; whether

Palmer disciplined or mistreated Tanisha’s children by locking them out the house,

being dismissive toward certain kids while favoring others; and how the declarants

[sic] behavior and activities allegedly changed from how she was years before

meeting Palmer in comparison with after he began to live at their home, and so

forth.

GROUND FIVE: When an accused questions the effectiveness and adequacy of counsel,

it is the duty of the trial judge to inquire into the complaint, and to make such inquiry a part

of the record. Petitioner Palmer complained of the adequacy of his trial counsel to the trial

judge in a letter in June of 2019. Palmer also complained directly to counsel in a letter.

After receiving both letters, counsel entered a motion to withdraw as counsel, asserting

irreconcilable differences between he and Palmer. A hearing was held the same day where

counsel was permitted to state his version of whatever issues. After asking Palmer what he

had to say, the judge cut him off before he could utter one complete sentence. The judge

failed to make a good faith investigation into whether there had been such a dissolution of

the attorney-client relationship that they could not work effectively so that Palmer could

receive effective counsel and therefore have a fair trial. Please consult exhibits 2 and 3 of

Palmer’s post-conviction evidence. This ground also asserts that counsel failed to object to

and request a limiting instruction to prejudicial and immaterial other acts evidence, and

that he failed to file a motion to suppress Palmer’s statements to police.

GROUND SIX: Petitioner was denied due process when the state was permitted to

impermissibly permitted to bolster the testimony and vouch for the credibility of the

declarant in the guise of a medical “diagnosis” of sexual abuse. While the rules of law and

evidence may permit an expert to give such testimony in the form of an opinion, an actual

diagnosis which states that a declarant has in fact been raped is always prejudicial and

reversible conduct. Especially so where no such findings to support such diagnosis existed.

And counsel failed to object to this prejudicial violation of petitioner. Though appellate

counsel did raise this ground on direct appeal, he for some reason did not raise this issue

in the memorandum for jurisdiction to the state Supreme Court. This claim was also raised

in petitioners [sic] 26(B) motion to reopen. The claim was said by the court to have been

argued already on direct appeal by appellate counsel, and that it had no merit.

GROUND SEVEN: Petitioner was denied due process and the effective assistance of

counsel because the state was permitted to make repeated references to the declarant as

“the victim”, to which trial counsel failed to object to.

GROUND EIGHT: The trial court erred by failing to record all sidebars as required by

C.R.22, thus depriving Petitioner of the liberty secured by U.S. CONST., amend. XIV.

While it is true that trial counsel should have objected to the failure to record sidebars in

the trial proceedings, certain obligations fall upon the trial judge even where there was no

objection. Denial of the creation of a complete record for review on appeal is a denial of

meaningful access to the courts guaranteed by our Constitution. While appellate counsel

did initially raise this ground on direct appeal, he failed to raise this issue in the

memorandum for jurisdiction to the Ohio Supreme Court for some reason unbeknownst to

appellant.

GROUND NINE: Petitioner Palmer was denied due process and the right to a fair trial

because of the effect of cumulative errors. The nature of these types of cases and the duty

to safeguard against improper convictions has been discussed elsewhere. Under the

doctrine of cumulative error, “a conviction will be reversed when the cumulative effect of

errors in a trial deprives a defendant of a fair trial even though each of the numerous

instances of trial-court error does not individually constitute cause for reversal.” State v.

Powell,132 Ohio St.3d *273. Palmer did not have a fair trial, and in the interest of true

justice, we cannot allow to pass uncorrected any number of errors which, perhaps in the

mind of the Court, do not themselves constitute reversible error, but certainly taken togther

[sic] must.

(Doc. No. 1.)

On January 12, 2023, Warden Thomas Watson (“Respondent”) filed the Return of Writ. (Doc. No.

7.)

On March 1, 2023, Palmer filed a motion for leave to amend his habeas petition. (Doc. No. 9.)

On March 17, 2023, Respondent filed an opposition to Palmer’s motion for leave to amend. (Doc.

No. 10.)

On July 24, 2023, after moving for and receiving extensions of time to reply, Palmer filed his reply

in support of his motion for leave to amend his Petition. (Doc. No. 17.)

On August 17, 2023, the Court granted Palmer’s motion for leave to amend. (Doc. No. 20.) The

Court ordered Palmer to file a Traverse within thirty days of the date of the Order, in which he should

address each of the grounds raised in his original Petition, as well as the additional claims raised in his

motion to amend. (Id. at 19.) The Court further ordered Respondent to file a response within thirty days of

the filing of the Traverse and present a complete response to Palmer’s new claims and address all arguments

relative thereto, including the statute of limitations, any applicable arguments regarding procedural default,

and the merits. (Id.)

On September 21, 2023, Palmer filed a motion for extension of time seeking a 90-day extension to

file his Traverse (Doc. No. 21), which the Court granted. (Non-document Order dated September 22, 2023.)

On December 4, 2023, Palmer filed a motion for stay and abeyance because he was transferred to

the Cuyahoga County Jail (Doc. No. 22), which the Court denied. (Doc. No. 23.)

On January 29, 2024, Palmer filed a motion for extension of time seeking a 180-day extension to

file his Traverse. (Doc. No. 25.)

On February 12, 2024, Palmer filed an Amended Petition and asserted the following grounds for

relief: (1) trial counsel intentionally misled Petitioner to unknowingly waive his right to a fast and speedy

trial; (2) trial counsel failed completely to conduct any investigation; (3) trial counsel failed to present any

rebuttal expert testimony; (4) trial counsel failed to timely object to the carbon copy charges; (5) trial counsel

failed to impeach adverse witnesses with available impeachment evidence; (6) trial counsel failed to object

to the State’s racially motivated jury strike; (7) trial counsel completely failed to convey the prosecution’s

plea to client; (8) Petitioner was denied a fair trial and due process due to cumulative errors; (9) trial counsel

failed to object to the admission of testimonial hearsay; (10) trial counsel failed to object to the admission

and eliciting of an actual diagnosis of abuse from an expert witness; (11) trial counsel failed to object to the

State’s improper closing argument which suggested Petitioner was guilty because he was prosecuted and

indicted; (12) trial judge prejudicially eroded Petitioner’s presumption of innocence right by asking a highly

misleading and incriminating question to jurors; (13) trial counsel failed to object to Petitioner being

repeatedly compelled to either call other witnesses liars or to call himself the liar in the case; (14) trial

counsel was prejudicially ineffective for having unnecessarily informed the jury of Petitioner’s pretrial

incarceration; (15) the State’s Golden Rule argument reprehensibly impaired Petitioner’s right to a fair trial;

(16) trial counsel failed to object to hearsay being asserted for its truth value; (17) the State was erroneously

permitted to introduce statements that were hearsay and did not meet a hearsay exception rule; and (18) the

trial judge abused its discretion by permitting over objections improper testimony regarding Petitioner’s

past sexual moments. (Doc. No. 27.) Palmer argued the first eight grounds were presented in his petition

for post-conviction relief and were “only a portion of the claims he argued to have added to his original

habeas petition.” (Id. at 4.) Palmer argued grounds nine through eighteen were presented in his 26(B)

Application and “are also claims Petitioner argued to have added to his original habeas petition.” (Id.)

On February 13, 2024, the Court granted in part and denied in part Palmer’s motion for extension of

time, ordering Palmer to file his Traverse by May 13, 2024. (Non-document Order dated February 13,

2024.)

On May 8, 2024, Palmer filed a motion for extension of time seeking a 90-day extension to file his

Traverse. (Doc. No. 28.)

On May 9, 2024, the Court granted in part and denied in part Palmer’s motion for extension of time,

ordering Palmer to file his Traverse by June 27, 2024. (Non-document Order dated May 9, 2024.)

On June 27, 2024, Palmer filed a motion for extension of time seeking a 90-day extension to file his

Traverse. (Doc. No. 30.) The Court granted Palmer’s motion for extension of time, ordering Palmer to file

his Traverse by September 25, 2024, and warned Palmer that no further extensions of time would be granted.

(Non-document Order dated June 27, 2024.)

On September 27, 2024, Palmer filed a motion for extension of time seeking a 45-day extension to

file his Traverse. (Doc. No. 32.)

On September 30, 2024, given the information presented in the motion for extension of time, the

Court granted Palmer’s motion, ordered Palmer to file his Traverse by November 14, 2024, and again

warned Palmer that no further extensions would be granted. (Non-document Order dated September 30,

2024.)

On November 15, 2024, Palmer filed motion for extension of time seeking a 30-day extension to file

his Traverse. (Doc. No. 33.) The Court granted the motion for extension of time and ordered Palmer to file

his Traverse by December 30, 2024. (Non-document Order dated November 15, 2024.) The Court again

warned Palmer that no further extensions would be granted. (Id.) The Court noted it had granted multiple

extensions of time for Palmer to file his Traverse given the circumstances presented in his previous motions.

(Id.) The Court warned Palmer that if he was unable to file a Traverse by December 30, 2024, no Traverse

would be allowed. (Id.)

On January 10, 2025, Palmer filed a second Motion to Amend. (Doc. No. 34.)

On February 6, 2025, after seeking and receiving an extension of time to respond, Respondent filed

an opposition to Palmer’s second Motion to Amend. (Doc. No. 36.)

On March 3, 2025, Palmer filed a motion for extension of time to file his Traverse. (Doc. No. 38.)

On March 4, 2025, the Court granted in part and denied in part Palmer’s motion for extension of

time, ordering Palmer to file his Traverse by April 18, 2025. (Non-document Order dated March 4, 2025.)

On March 26, 2025, the Court denied Palmer’s second Motion to Amend (Doc. No. 34). (Doc. No.

39.) The Court ordered that Palmer was to file a Traverse by April 18, 2025, as previously ordered. (Id.)

If Palmer failed to file a Traverse by April 18, 2025, no Traverse would be allowed. (Id.)

On April 30, 2025, Palmer filed a motion for extension of time of at least 90 days to file his Traverse.

(Doc. No. 40.) That same day, the Court granted in part the motion for extension of time. (Non-document

Order dated April 30, 2025.) The Court gave Palmer until June 1, 2025, to file his Traverse. (Id.) The

Court explained it had granted multiple extensions of time to Petitioner to file his Traverse given the

circumstances presented in his previous motions. (Id.) Out of an abundance of caution, as it appeared that

as of April 11, 2025, Palmer had not received the Court’s March 26, 2025 Order denying his motion to

amend, the Court granted Palmer one final extension of time. (Id.) The Court warned Palmer that if he was

unable to file a Traverse by June 1, 2025, no Traverse would be allowed, and any filing would be stricken.

(Id.)

On June 25, 2025, Palmer filed a Traverse. (Doc. No. 42.) The postmarked envelope bears a date

of June 18, 2025. (Doc. No. 42-1.)

As Palmer failed to file his Traverse by June 1, 2025, as ordered, after multiple extensions, the Court

STRIKES Palmer’s belated Traverse and shall not consider it herein.

III. Exhaustion and Procedural Default

A. Legal Standard

Petitioners must exhaust their state remedies prior to raising claims in federal habeas corpus

proceedings. See 28 U.S.C. § 2254(b), (c). This requirement is satisfied “when the highest court in the state

in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s

claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990).

Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner

demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim

would result in a fundamental miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.

2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A claim may

become procedurally defaulted in two ways. Id. First, a petitioner may procedurally default a claim by

failing to comply with state procedural rules in presenting his claim to the appropriate state court. Id.; see

also Maupin v. Smith, 785F.2d 135, 138 (6th Cir. 1986). If, due to petitioner’s failure to comply with the

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

independent and adequate grounds for precluding relief, the claim is procedurally defaulted.2 Id.

Second, a petitioner may also procedurally default a claim by failing to raise and pursue that claim

through the state’s “ordinary appellate review procedures.” O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119

S.Ct. 1728, 144 L.Ed.2d 1 (1999). If, at the time of the federal habeas petition, state law no longer allows

the petitioner to raise the claim, it is procedurally defaulted. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102

S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731–32, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991); Lovins, 712 F.3d 283, 295 (6th Cir. 2013) (“a claim is procedurally defaulted where

the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the

federal petition is filed because of a state procedural rule.”) This second type of procedural default is often

confused with exhaustion. Exhaustion and procedural default, however, are distinct concepts. AEDPA’s

exhaustion requirement only “refers to remedies still available at the time of the federal petition.” Engle,

456 U.S. at 125 n.28. Where state court remedies are no longer available to a petitioner because he failed

to use them within the required time period, procedural default and not exhaustion bars federal court review.

Id. In Ohio, a petitioner is not entitled to raise claims in post-conviction proceedings where those claims

could have been raised on direct appeal. Id. Thus, if an Ohio petitioner failed to raise a claim on direct

appeal, which could have been raised, the claim is procedurally defaulted. Id.

2 In Maupin, the Sixth Circuit established a four-step analysis to determine whether a claim is procedurally

defaulted. 785 F.2d at 135. Under this test, the Court decides (1) whether the petitioner failed to comply

with an applicable state procedural rule, (2) whether the state courts actually enforced the state procedural

sanction, (3) whether the state procedural bar is an “independent and adequate” state ground on which the

state can foreclose federal review, and (4) whether the petitioner has demonstrated “cause” and “prejudice.”

Id. at 138–39; Barkley v. Konteh, 240 F. Supp.2d 708 (N.D. Ohio 2002). “In determining whether a state

court actually enforced a procedural rule, we apply the ‘plain statement’ rule of Michigan v. Long, 463 U.S.

1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).” Lovins v. Parker, 712 F.3d 283, 296 (6th Cir. 2013) (“a

procedural default does not bar consideration of a federal claim on either direct or habeas review unless the

last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on the

procedural bar.”) (citations omitted).

A claim is adequately raised on direct appeal if it was “fairly presented” to the state court. To fairly

present a claim to a state court a petitioner must assert both the legal and factual basis for his claim. See

McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a “petitioner must present his claim

to the state courts as a federal constitutional issue-not merely as an issue arising under state law.” Koontz

v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A petitioner can take four actions in his brief which are

significant to the determination as to whether a claim has been fairly presented as a federal constitutional

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

A petitioner’s procedural default, however, may be excused upon a showing of “cause” for the

procedural default and “actual prejudice” from the alleged error. See Maupin, 785 F.2d at 138–39.

“Demonstrating cause requires showing that an ‘objective factor external to the defense impeded counsel's

efforts to comply’ with the state procedural rule.” Franklin v. Anderson, 434 F.3d 412, 417 (6th Cir. 2006)

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Meanwhile, “[d]emonstrating prejudice requires

showing that the trial was infected with constitutional error.” Id. Where there is strong evidence of a

petitioner’s guilt and the evidence supporting petitioner’s claim is weak, the actual prejudice requirement is

not satisfied. See United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Perkins

v. LeCureux, 58 F.3d 214, 219–20 (6th Cir. 1995); Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994).

Prejudice does not occur unless petitioner demonstrates “a reasonable probability” that the outcome of the

trial would have been different. See Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003) (citing Strickler

v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

Finally, a petitioner’s procedural default may also be excused where a petitioner is actually innocent

in order to prevent a “manifest injustice.” See Coleman v. Thompson, 501 U.S.722, 749–50, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991). Conclusory statements are not enough—a petitioner must “support his allegations

of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S.

298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). See also Allen v. Harry, 497 F. App’x 473, 480 (6th Cir.

2012).

B. Application to Petitioner

1. Ground One

In Ground One, Palmer argues he was denied due process in violation of the Fourteenth Amendment

of the U.S. Constitution and Article 1 of the Ohio Constitution when the State “failed to state the different

conduct said to constitute rape.” (Doc. No. 1 at 5.)

Respondent argues that this claim is procedurally defaulted because Palmer failed to object to the

“undifferentiated counts.” (Doc. No. 7 at 22.)

Because Palmer failed to timely file a Traverse as ordered, and the Court struck his untimely filing,

Respondent’s arguments are uncontroverted.

On direct appeal, Palmer raised an argument regarding the allegedly undifferentiated counts. (Doc.

No. 7-1, Ex. 12.) In its decision, the state appellate court found Palmer had waived this argument at the trial

level and conducted a “plain error” review of the issue:

{¶7} Appellant asserts that his due process and double jeopardy

protections were violated by having 12 identical counts presented in the

indictment. He contends that this denied him a fair opportunity to defend

against those charges and to avoid double jeopardy because there was no

way to determine the evidence that the jury relied upon to convict him on

all rape counts. He asserts that the jurors therefore had no idea which count

they were considering or whether each of them were considering the same

type of sexual conduct for each particular count.

{¶8} Appellant relies on Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005)

for support. There, Valentine was indicted on 20 identical counts of child

rape and 20 identical counts of felonious sexual penetration of a child. The

indictment alleged that the offenses occurred between March 1, 1995 and

January 16, 1996, mimicked the language of the statutes, and identified

the victim's birthdate. The bill of particulars stated that the offenses

occurred at the family home. The minor was the only witness to testify and

she stated that Valentine forced her to perform fellatio on “about” 20

occasions, he digitally penetrated her vagina on “about” 15 occasions, and

he anally penetrated her on “about” 10 occasions. The minor altered the

numbers during cross-examination. The jury convicted Valentine on all

counts and he was sentenced to 40 consecutive life terms.

{¶9} On appeal, the Eighth District Court of Appeals affirmed all of the

rape convictions, but only 15 of 20 of the felonious sexual penetration

counts. Valentine, 395 F.3d 626. The court found no evidence to support

five of the latter counts. Id.

{¶10} Valentine filed a federal habeas corpus petition asserting that he

was denied due process because he was tried and convicted on an

indictment that did not specify dates and did not distinguish between

conduct on any specific date. The district court granted the petition and

found that the indictment violated due process because its identical

language in each count failed to notify Valentine of the crimes with

reasonable certainty so that he could protect himself against double

jeopardy. Id. at 630-631. The district court relied upon Russell v. United

States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), where the

United States Supreme Court outlined the criteria that an indictment must

contain in order to be found sufficient. Valentine, 395 F.3d at 630-631.

The Russell Court determined that an indictment is sufficient if it (1)

contains the elements of the charged offenses, (2) gives the defendant

adequate notice of the charges, and (3) protects the defendant against

double jeopardy. Russell, 369 U.S. at 763-764. While acknowledging that

the federal right to a grand jury indictment has never been found to apply

to the states, the Sixth Circuit cited cases applying the due process rights

of the indictment elements in Russell to state criminal indictments.

Valentine, 395 F.3d at 631 (citations omitted).

{¶11} Applying Russell in Valentine, the Sixth Circuit held that

Valentine’s rights to due process and double jeopardy were violated.

Valentine, 395 F.3d at 632. The Court explained that the wide date range

set forth in the indictment was sufficient, but there were no distinctions

between each set of 20 counts for each offense because Valentine was

charged for 2 criminal acts that each occurred 20 times, rather than for 40

separate criminal acts. Id. The Court found that the prosecution did not

present the factual bases for 40 separate acts in either the indictment or in

evidence at trial. Id. at 633. The Court noted that at trial, the child victim

described “typical” abusive behavior by Valentine and testified that the

“typical” abuse occurred 15 or 20 times. Id. The Court found that the jury

would not be able to consider each count on its own and could not have

found Valentine guilty of counts 1-5, but not counts 6-20, because there

was no differentiation between these sets of counts. Id. The Sixth Circuit

held that Valentine would therefore not be able to adequately defend

against some of the charges without defending against all of the charges

and could not distinguish between the charges. Id. The Court also held that

Valentine would be unable to protect himself against double jeopardy

because he could be punished multiple times for the same offense. Id. at

634.

{¶12} Here, appellant acknowledges that this Court does not follow

Valentine. However, he asserts that our reasons for rejecting Valentine are

“less than persuasive.” He posits that Valentine was not based on a direct

challenge under the United States or Ohio Constitutions, but was based

upon the much higher standard delineated in federal habeas corpus law.

Appellant contends that in State v. Billman, 7th Dist. Monroe Nos. 12 MO

3, 12 MO 5, 2013-Ohio-5774, we “misperceived” Valentine’s

constitutional analysis because we held that it applied the Fifth

Amendment provisions regarding grand jury indictments, which did not

apply to the Ohio Grand Jury indictment requirement. He asserts that

Valentine relied upon the double jeopardy clause of the Fifth and

Fourteenth Amendments, and no case has rejected Valentine’s

constitutional reasoning.

{¶13} Appellant adds that his right to present a defense is also hindered

by allowing “such vague and duplicative allegations” with no

corroborative evidence. He reasons that A.B. testified that she was

sexually assaulted multiple times a day when her mother was at work, but

no daycare records, mother’s employment records, or A.B.’s school

records were offered. Appellant asserts that since all 12 counts against him

were identical, he was left without the ability to determine when, where,

or what allegations were alleged against him and he could not offer

evidence showing A.B. was in school or daycare when the alleged assaults

occurred, or that her mother worked more or different hours than she

testified.

{¶14} A person accused of a felony in Ohio is “entitled to an indictment

setting forth the ‘nature and cause of the accusation’ pursuant to Section

10, Article I of the Ohio Constitution.” State v. Moats, 7th. Dist. Monroe

No. 14 MO 0006, 2016-Ohio-7019, quoting State v. Sellards, 17 Ohio

St.3d 169, 170, 478 N.E.2d 781 (1985). The Ohio General Assembly has

defined a sufficient indictment as one:

(A) [t]hat is entitled in a court having authority to receive it,

though the name of the court is not stated; * * *

(B) * * * that it was found by a grand jury of the county in which

the court was held, * * *

(C) [t]hat the defendant is named, * * *

(D) [t]hat an offense was committed at some place within the

jurisdiction of the court, * * *

(E) That the offense was committed at some time prior to the time

of finding of the indictment * * *

R.C. 2941.03.

{¶15} R.C. 2941.04 allows two or more offenses to be charged in a single

indictment. R.C. 2941.05 indicates that each count of an indictment:

Is sufficient if it contains in substance, a statement that the accused

has committed some public offense therein specified. Such

statement may be made in ordinary and concise language without

any technical averments or any allegations not essential to be

proved. It may be in the words of the section of the Revised Code

describing the offense or declaring the matter charged to be a

public offense, or in any words sufficient to give the accused

notice of the offense of which he is charged.

{¶16} The indictment need not demonstrate underlying facts that are not

elements of the offenses because this is the function of the bill of

particulars. State v. Pepka, 125 Ohio St.3d 124, 2010-Oho-1045, 926

N.E.2d 611, ¶ 23.

{¶17} The State should supply specific dates in response to a bill of

particulars or demand for discovery with regard to an alleged offense

where it possesses such information. State v. Sellards, 17 Ohio St.3d 169,

171, 478 N.E.2d 781 (1985) (due process not violated when State cannot

be more exact with specific dates unless defendant demonstrates

prejudice). Moreover, “when the state allows open file discovery, a bill of

particulars is not required.” State v. Oliver, 7th Dist. Mahoning No. 07

MA 169, 2008-Ohio-6371, ¶ 38; see also State v. McQueen, 7th Dist.

Mahoning No. 08 MA 24, 2008-Ohio-6589, ¶ 24.

{¶18} The indictment in this case is sufficient. It identified the proper

court, indicated that it was a presentment to the Mahoning County Grand

Jury, and it named appellant and A.B. It also informed appellant of the

offenses charged against him, stated the jurisdiction where the offenses

were committed, and the range of dates of the acts, which showed that they

occurred before the indictment. The indictment also tracked the language

of the rape and GSI statutes, included a range of dates during which the

offenses occurred, and indicated A.B.’s birthdate.

{¶19} As we have held, indictments that charge sexual offenses against

children do not need to specify the exact date of the alleged abuse if the

State establishes that the offense was committed within the time frame

alleged because specific dates and times are not elements of the offenses

charged. See State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5,

2013–Ohio–5774, ¶ 30; State v. Yacov, 8th Dist. No. 86674, 2006–Ohio–

5321, ¶ 17; State v. Gus, 8th Dist. No. 85591, 2005–Ohio–6717. Further,

“[t]here is no inherent defect in an indictment that charges a defendant

with repetition of the same crime over a defined period of time.” Id. at ¶

33. We also explained that many child victims are not able to remember

exact dates and times, especially where the crimes involve a repeated

course of conduct over an extended period. Billman at ¶ 30, citing State v.

Mundy, 99 Ohio App.3d 275, 296, 650 N.E.2d 502, (2d Dist.) (1994). “The

problem is compounded” where, as here, “the accused and the victim are

related or reside in the same household, situations which often facilitate

an extended period of abuse.” Billman at ¶ 30, citing State v. Robinette,

5th Dist. No. CA–652, 1987 WL 7153, *3 (Feb. 27, 1987). An exception

exists when failing to provide specific dates “results in material detriment

to the accused's ability to fairly defend himself, as where the accused

asserts an alibi or claims that he was indisputably elsewhere during part,

but not all, of the interval specified.” (Internal citations omitted.). Billman,

supra, at ¶ 30, citing Yacov at ¶ 18. That did not occur in this case since

appellant asserted that he was not living in the home or in the area during

the time that A.B. stated that the offenses occurred. Thus, we find that the

indictment is sufficient.

{¶20} The bill of particulars in this case is also adequate. It identified that

the range of dates provided were the dates that appellant moved in and out

of A.B.’s residence. It identified the address as where they resided and

where the offenses occurred. It also identified A.B. and her birthdate, and

specifically stated that appellant digitally penetrated her vagina, forced her

to engage in vaginal and anal intercourse, and performed oral sex on her,

at least three times as to each act, while he lived in A.B.’s home. It also

identified the proper statutes.

{¶21} The testimony of A.B. and her mother provided additional details

of the sexual acts. A.B. testified that when she was ten years old, appellant

came to live with them, and he watched her and her siblings while her

mother worked. (Tr. at 175). She testified that the first time that appellant

touched her, she was on the couch in the living room on her tablet when

he started asking her about the birds and the bees. (Tr. at 179). She stated

he told her to get up and go to her mom’s room, he shut the door, laid her

down on the bed, and touched her vaginal area. (Tr. at 180).

{¶22} She testified that appellant’s conduct then escalated each time, such

as taking out his penis and rubbing it against her “private part.” (Tr. at

181). She testified that they went into her mother’s room because it was

the only door that locked. While initially she stated that appellant did not

put his penis or his fingers inside her vagina, she testified that it hurt when

appellant touched her “private part.” (Tr. at 183-185). She later testified

that it would hurt when appellant kept forcing his penis inside of her

vagina and he did this at least ten times. (Tr. at 190-193). She also testified

that sometimes when he rubbed his fingers on her “privates,” it would hurt

and this happened more than five times. (Tr. at 193). She stated that

appellant put his mouth on her “private area” more times than she could

count, but then narrowed it to more than 10 times but less than 15 times.

(Tr. at 191-192). She also provided detail about times when the acts would

occur, such as once when she came inside to get a glass of water while her

siblings were outside and appellant called her into her mother’s room,

pulled her pants down, bent her over the bed, and put his penis “between

her legs.” (Tr. at 185). She further testified that sexual acts would occur

twice a week and sometimes more than once per day. (Tr. at 191). A.B.

also related that appellant would rub Vaseline on his penis and told her

that if he could continue with her, he would never touch her mom again.

(Tr. at 189). Based upon the indictment, bill of particulars, and A.B.’s

testimony, sufficient details were provided to separate the acts, the number

of acts, and where and when the acts occurred.

{¶23} Moreover, appellant did not object to the indictment or to the bill

of particulars, or allege any defects by pretrial motion. He also did not

seek more information about the charges. Without an objection, we

conduct a plain error review. A three-part test is used to determine whether

plain error exists. State v. Parker, 7th Dist. Mahoning No. 13 MA 161,

2015-Ohio-4101, ¶ 12, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002). “First, there must be an error, i.e., a deviation from a

legal rule. Second, the error must be plain. To be ‘plain’ within the

meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial

proceedings. Third, the error must have affected ‘substantial rights.’”

Parker at ¶ 12, citing Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5,

2013-Ohio-5774, ¶ 25. Plain error does not exist here.

{¶24} As appellant acknowledges, we are not bound by Valentine and do

not follow Valentine. State v. Miller, 7th Dist. Mahoning No. 17 MA 120,

2018-Ohio-3430; State v. Adams, 7th. Dist. Mahoning, No. 13 MA 130,

2014-Ohio-5854, 26 N.E.3d 1283; State v. Moats, 7th Dist. Monroe, No.

14 MO 0006, 2016-Ohio-7019; State v. Billman, 7th Dist. Monroe, Nos.

12 MO 3, 12 MO 5, 2013-Ohio-5774; State v. Clemons, 7th Dist. Belmont

No. 10 BE 7, 2011-Ohio-1177. 2020-Ohio-633, ¶ 11-16.

{¶25} One of our most recent decisions declining to follow Valentine is

State v. Thomas, 7th Dist. Mahoning No. 18 MA 0025, 2020-Ohio-633, ¶

14-17. There, Thomas was convicted of 19 counts of rape of a minor child.

Id. The indictment charged him with 16 counts of rape and 3 counts of

rape by force or threat of force. The first 16 counts identically charged that

“on or between August 12, 2011 and August 11, 2015,” Thomas engaged

in sexual conduct with the victim, the victim was less than 13 years old,

and he compelled the child victim to submit by force or threat of force. Id.

at ¶ 9. The other three counts charged that “on or between August 12, 2015

and February 29, 2016,” he engaged in sexual conduct with the victim and

compelled him to submit by force or threat of force. Id. On appeal, Thomas

relied upon Valentine and argued that the indictment violated his due

process and double jeopardy protections. He asserted that the “carbon

copy” charges of multiple counts of child rape failed to put him on notice

of the charges or protect him from any future prosecution for the same

offenses.

{¶26} In deciding not to follow Valentine, we looked to our previous

explanation in State v. Triplett, 7th Dist. Mahoning No. 17 MA 0128,

2018-Ohio-5405:

As we recently stated in Miller, this court does not follow Valentine.

State v. Miller, 7th Dist., 2018-Ohio-3430, [118] N.E.3d [1094], ¶

30, citing, e.g., State v. Adams, 7th Dist., 2014-Ohio-5854, 26

N.E.3d 1283, ¶ 36; Billman, 7th Dist. Monroe Nos. 12 MO 3, 12

MO 5 at ¶ 34-36; State v. Clemons, 7th Dist. Belmont No. 10 BE 7,

2011-Ohio-1177, 2011 WL 861847 (finding no due process

violations and opining potential double jeopardy concerns can be

cured if they arise in the future). This type of argument would

improperly protect a defendant who committed multiple instances

of the same offense against a child in his care. Miller, 7th Dist.,

2018-Ohio-3430, [118] N.E.3d [1094], at ¶ 31, citing Billman, 7th

Dist. Monroe Nos. 12 MO 3, 12 MO 5 at ¶ 36. Contrary to the

Valentine majority's claim, there is no indication the jury would

believe its finding of guilt on one count of child endangering would

require a conviction on another count of child endangering merely

because it contained the same elements and the same date range.

Furthermore, the Sixth Circuit does not rely on Valentine as

precedent. Miller, 7th Dist., 2018-Ohio-3430, [118] N.E.3d 1094].

At ¶ 22, citing Coles v. Smith, 577 Fed.Appx. 502, 507-508 (6th Cir.

2014) (rejecting this argument by a defendant in a case of 43

undifferentiated counts of rape regarding his step-daughter as

Valentine used an incorrect standard for habeas).

{¶27} In declining to follow Valentine, we found that Thomas had not

offered any new arguments or new reasons why we should follow

Valentine. 2020-Ohio-633, ¶ 17. We also cited to the victim’s testimony

that while he did not recall the exact number of times Thomas raped him

because it was too many to count, he recalled that when he was nine, ten,

eleven and twelve years old, Thomas raped him at least once per season,

and once per season when he was thirteen years old. Id. at ¶ 18. We found

that this sufficiently established each count of the charges. Id.

{¶28} The analysis in Thomas applies here as well since A.B.’s testimony

is similar, but even more specific. A.B. testified that when appellant lived

with her and her family during the dates identified in the indictment, he

forced his penis inside of her vagina at least 10 times, put his mouth on

her “private area” more times than she could count, but more than 10 times

and less than 15, and digitally penetrated her more than five times. (Tr. at

191-193). She testified that these sexual acts would occur twice a week

and sometimes more than once per day. (Tr. at 191).

{¶29} Further, even looking to Valentine, it is distinguishable from the

instant case. In Valentine, the Sixth Circuit noted that the bill of particulars

did not provide further differentiation among the rape counts alleged in

the indictment. 395 F.3d at 629. Here, the bill of particulars provided

differentiation as it identified acts of digital penetration, vaginal

intercourse, anal intercourse, and oral sex, and stated that each of these

acts occurred at least three times. Further, in Valentine, the Court found

that the prosecution failed to present the factual bases for 40 separate

incidents which took place and the victim testified to only “typical”

abusive behavior and stated that the “typical” abuse happened 15 or 20

times. 395 F.3d at 632-633. Here, A.B. testified more specifically,

indicating that appellant put his mouth on her vagina more times than she

could count, but narrowed it down to more than 10 times and less than 15.

(Tr. at 191-192). She testified that he put his penis inside of her vagina at

least 10 times, and digitally penetrated her vagina more than 5 times. (Tr.

at 192-193). She stated that appellant started these acts at the end of spring

and over summer break, and once they began, they happened twice a week

and sometimes more than once per day when her mother was at work. (Tr.

at 191). She testified that all but one of the acts occurred in her mother’s

bedroom because it was the only room with a lock on the door, and one

act took place in the dining room.

{¶30} NP Gorsuch also testified that she watched social worker, Ms.

Wilson, conduct the forensic interview of A.B. (Tr. at 282). She testified

A.B. disclosed that appellant would take her into her mother’s bedroom

while her mother was at work and exclude her siblings. (Tr. at 282). She

testified that A.B. stated that in the bedroom, appellant would put his

finger inside of her vagina, put his penis inside of her vagina and inside

her anus, and he would put his mouth on her vagina. (Tr. at 282). NP

Gorsuch testified that A.B. told Ms. Wilson that this would happen four to

five times per week. (Tr. at 282).

{¶31} While the indictment, bill of particulars, and verdict forms were not

as specific as appellant would like, they provided adequate notice and

adequately informed him of the charges against him to conform with due

process and double jeopardy concerns.

{¶32} Accordingly, appellant’s first assignment of error lacks merit and is

overruled.

State v. Palmer, 2021-Ohio-4639, 2021 WL 6276315, at **1-7.

In Ohio, a petitioner waives an alleged error when he fails to make

a contemporaneous objection. Osborne v. Ohio, 495 U.S. 103, 124, 110 S.Ct. 1691, 109 L.Ed.2d 98

(1990) (recognizing Ohio’s long-standing contemporaneous objection rule). The Sixth Circuit has held that

Ohio’s “contemporaneous objection rule is an adequate and independent state ground barring federal habeas

review, Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005), and that plain-error review is not inconsistent

with the procedural default.” Awkal v. Mitchell, 613 F.3d 629, 648–649 (6th Cir. 2010) (citing Lundgren,

440 F.3d at 765); Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001). “The state court’s plain error review

did not constitute a waiver of the procedural default.” Mason v. Brunsman, 483 F. App’x 122, 130–31 (6th

Cir. 2012). See also Shafer v. Wilson, 364 F. App’x 940, 945 (6th Cir. 2010) (finding the State of Ohio

expressly enforced its contemporaneous objection rule where “the last state court to render a reasoned

opinion in this case, the Ohio Court of Appeals on direct appeal, noted the failure to object, applied plain-

error review, and denied [appellant’s] claims for relief.”)

As the state appellate court correctly noted, Palmer’s counsel did not raise these objections to the

trial court. Accordingly, the first three elements of the Maupin test are satisfied as Palmer failed to comply

with the contemporaneous objection rule, the state appellate court actually enforced the rule,3 and the rule

3 Error! Main Document Only.Palmer does not argue this claim is not defaulted because the state appellate

court also addressed the merits of this claim. Even if he had, this argument would be without merit. The

Sixth Circuit has held that a state court may actually enforce its procedural sanction and still review the

merits of the case, as long as the decision on the merits is considered an alternative holding. See Bowling

v. Parker, 344 F.3d 487 (6th Cir. 2003). See also Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S.Ct. 1038,

103 L.Ed.2d 308 (1989) (a state court “need not fear reaching the merits of a federal claim as an alternative

holding.”); Gooden v. Jeffreys, Case No. 1:05 CV 0075, 2005 WL 2002362 (N.D. Ohio 2005). Here, the

record reflects the state appellate court enforced the procedural rule at issue (i.e., the contemporaneous

objection rule) since the state appellate court explicitly stated the claim would be reviewed for plain error

and that plain error did not exist in this case. See also Bacon v. Klee, No. 15-2491, 2016 WL 7009108, at

constitutes an “independent and adequate” state ground on which the state can foreclose federal review. As

set forth above, the state appellate court’s plain error review did not waive the procedural default. As such,

the Court finds Ground One is procedurally defaulted.

Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner

demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim

would result in a fundamental miscarriage of justice. See Lundgren, 440 F.3d at 763 (citing Wainwright,

433 U.S. at 87.) As noted above, “[d]emonstrating cause requires showing that an ‘objective factor external

to the defense impeded counsel’s efforts to comply’ with the state procedural rule.” Franklin, 434 F.3d at

417 (6th Cir. 2006) (quoting Murray, 477 U.S. at 488). Prejudice does not occur unless the petitioner

demonstrates “a reasonable probability” that the outcome of the trial would have been different. See Mason,

320 F.3d at 629. Here, Palmer has neither presented any cause for his default, nor has he alleged ensuing

prejudice.4 In addition, Palmer fails to present any new, reliable evidence to support a credible claim of

actual innocence.

Accordingly, and for all the reasons set forth above, it is recommended Ground One be dismissed as

procedurally defaulted.

*6 (6th Cir. Nov. 30, 2016) (“While the state trial court also addressed the merits of Bacon’s claims, this

review does not compromise the state trial court’s procedural default ruling.”)

4 The Court notes that while Palmer raised a claim of ineffective assistance of trial counsel claim based on

failure to object to “carbon copy” charges in his PCR petition, the state appellate court found that this claim

was addressed on direct appeal; therefore, it was barred by res judicata and overruled. (Doc. No. 7-1, Ex.

33.) See also State v. Palmer, 2022-Ohio-2339, 2022 WL 2443273. Error! Main Document Only.“[T]he

Sixth Circuit has stated that res judicata ‘is an actually enforced, adequate and independent state ground

upon which the Ohio state courts consistently refuse to review the merits of a defendant’s claims.’” Collins

v. Warden, Ross Correctional Inst., No. 1:12 CV 1925, 2014 WL 575727, at *11 (N.D. Ohio Feb.11, 2014)

(quoting Powers v. Bobby, 2008 WL 4823134 (N.D. Ohio Nov.3, 2008)). See also Coleman v. Mitchell,

268 F.3d 417, 427 (6th Cir. 2001); Williams v. Bagley, 380 F.3d 932, 966–67 (6th Cir. 2004); Jacobs v.

Mohr, 265 F.3d 407, 417 (6th Cir. 2001). Therefore, any claim of ineffective assistance of trial counsel is

also procedurally defaulted and cannot serve to excuse the procedural default.

2. Ground Two

In Palmer’s second ground for relief, he argues he was denied due process and equal protection of

the law when the trial court failed to instruct the jury on the lesser offenses of gross sexual imposition. (Doc.

No. 1 at 7.)

Respondent argues that, like Ground One, this claim is procedurally defaulted because Palmer failed

“to object to the jury instruction on rape or request a GSI instruction.” (Doc. No. 7 at 32.)

Because Palmer failed to timely file a Traverse as ordered, and the Court struck his untimely filing,

Respondent’s arguments are uncontroverted.

On direct appeal, Palmer raised an argument regarding the failure to give a lesser included instruction

on gross sexual imposition. (Doc. No. 7-1, Ex. 12.) In its decision, the state appellate court found Palmer

had waived this argument at the trial level and conducted a “plain error” review of the issue:

{¶33} Appellant’s second assignment of error states:

The trial court erred and denied Appellant due process of law,

equal protection and the right to have justice administered without

denial when it failed to instruct the jury on the lesser offenses of

gross sexual imposition. U.S. Const., amend. XIV, Ohio Const.,

art. I, §§ 1, 2, and 16.

{¶34} Appellant contends that A.B.’s testimony was inconsistent and did

not assign a specific act to a specific event. He asserts that A.B. denied

that appellant put anything inside of her, then said he put his penis into her

private area, and said that this happened only once, and then “sometimes.”

(Tr. at 185-192). He notes that no one testified as to oral penetration.

Appellant acknowledges that a court is not required to give lesser-included

or inferior offense instructions every time it is requested, but it must give

such instructions if the evidence reasonably warrants in order to prevent a

failure of justice. He states that failing to instruct on lesser offenses when

the evidence warrants leaves the jury only the choices of convicting or

acquitting in total, even though they may conclude that something

happened, but not exactly what the evidence demonstrated. He contends

that this happened here because the jury could only convict him of 12

counts of rape or acquit him, even if they believed something else

happened based on A.B.’s testimony.

{¶35} We usually review the trial court’s rulings on jury instructions

under an abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541

N.E.2d 443 (1989). However, appellant did not object to the jury

instructions or request a lesser-included instruction at trial. Crim.R. 30

provides, in pertinent part: “[o]n appeal, a party may not assign as error

the giving or the failure to give any instructions unless the party objects

before the jury retires to consider its verdict, stating specifically the matter

objected to and the grounds of the objection.” Under Crim.R. 52(B),

“[p]lain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” Plain error

should be noticed and corrected, “if the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings’ [.]” State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting United

States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).

{¶36} GSI is a lesser-included offense of rape. State v. Foust, 150 Ohio

St.3d 137, 161-162, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 54, citing State

v. Johnson, 36 Ohio St.3d 224, 226, 522 N.E.2d 1082 (1988). However,

merely because an offense can be a lesser-included offense of another does

not mean that a court must instruct on both offenses whenever the greater

offense is charged. Id. A lesser-included offense charge is required only

when the evidence presented at trial would reasonably support both an

acquittal on the crime charged and a conviction on the lesser-included

offense. State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d

1207, ¶ 21, quoting State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286

(1988). The court must view the evidence in favor of the defendant when

determining whether to include a lesser-included offense jury instruction.

Wine, 2014-Ohio-3948, quoting State v. Monroe, 105 Ohio St.3d 384,

2005-Ohio-2282, 827 N.E.2d 285, ¶ 37.

{¶37} The difference between rape and GSI is that rape requires proof of

“sexual conduct” and GSI requires proof of “sexual contact.” “Sexual

conduct” includes “sexual contact,” and therefore GSI under R.C.

2907.05(A)(4) is a lesser-included offense of the offense of rape under

R.C. 2907.02(A)(1)(b). R.C. 2907.01(A) defines “[s]exual conduct” as

“vaginal intercourse between a male and female; anal intercourse, fellatio,

and cunnilingus between persons regardless of sex; and, without privilege

to do so, the insertion, however slight, of any part of the body or any

instrument, apparatus, or other object into the vaginal or anal opening of

another. Penetration, however slight, is sufficient to complete vaginal or

anal intercourse.” R.C. 2907.01(B) defines “[s]exual contact” as “any

touching of an erogenous zone of another, including without limitation the

thigh, genitals, buttock, pubic region, or, if the person is a female, a breast,

for the purpose of sexually arousing or gratifying either person.”

{¶38} Viewing the evidence in a light most favorable to appellant, it

appears that a GSI charge was not required as a lesser-included offense to

the rape charges. In State v. Johnson, 36 Ohio St.3d 224, 522 N.E.2d 1082

(1988), the Ohio Supreme Court held that a criminal defendant is not

entitled to a lesser-included offense jury instruction on GSI where he

denies any participation in the alleged offense, and the jury, in its

consideration of the defense “could not reasonably disbelieve the victim’s

testimony as to ‘sexual conduct’ and, at the same time, consistently and

reasonably believe her testimony of mere ‘sexual contact.’” If the trial

court would provide such an instruction, it would allow the jury to make

an unreasonable conclusion. Id. at 227.

{¶39} We followed the holding of Johnson in State v. Wright, 7th Dist.

Jefferson No. 97 JE 12, 2000 WL 652542, at *3-4 (May 15, 2000), where

we found no merit to Wright’s assertion that the trial court erred by failing

to charge the jury on the lesser-included offense of GSI as to his rape

charge. We found that the jury instruction was not required in such

situations because “‘it is difficult to perceive how a person could engage

in sexual conduct and not at the same time be involved in sexual contact.’”

Wright, 2000 WL 652542, at *4, quoting State v. Gregory, 2d Dist.

Montgomery No. 14187 (Aug. 19, 1994).

{¶40} Applying Wright, we find that the trial court did not err in the instant

case when it failed to charge the jury with the lesser-included offenses of

GSI on appellant’s rape charges. Appellant denied any participation in the

offenses. He testified that A.B. was never in his care alone and when her

mother worked, A.B. and her siblings were placed either in daycare or

with their grandmother. (Tr. at 357, 372, 384-385). Further, the testimony

of A.B., her mother, and NP Gorsuch did not reasonably support acquittal

on the rape charges. As mentioned earlier, A.B. testified to appellant

putting his mouth on her vagina more than 10 times and less than 15,

putting his penis inside of her vagina at least 10 times, and digitally

penetrating her vagina more than 5 times. She recalled when this conduct

began and stated that these acts happened twice a week and sometimes

more than once per day, when her mother was at work and once when her

mother was home. A.B.’s mother testified that when she worked, appellant

watched her children. (Tr. at 143). She also testified that A.B. disclosed to

her that every day while she was at work, and sometimes multiple times

per day, appellant sexually molested A.B. anally and vaginally, and

touched her or inserted his finger into her vagina. (Tr. at 16). NP Gorsuch

testified that A.B. disclosed that appellant would take her into her mother’s

bedroom when her mother was at work and he would exclude her siblings.

(Tr. at 282). She stated that in the bedroom, appellant put his finger inside

of her vagina, put his penis inside of her vagina and inside her anus, and

put his mouth on her vagina. (Tr. at 282). NP Gorsuch testified that A.B.

stated that this would happen four to five times per week. (Tr. at 282).

{¶41} There are some inconsistencies in A.B.’s testimony as she did

initially testify that appellant did not penetrate her vagina with his penis

or engage in anal intercourse with her. However, her later testimony, and

the testimony of her mother and NP Gorsuch, provided evidence that did

not reasonably support an acquittal on 12 counts of rape and guilty verdicts

on only GSI. Thus, adequate evidence of sexual conduct was presented to

sustain the rape charges.

{¶42} Accordingly, appellant’s second assignment of error lacks merit and

is overruled.

State v. Palmer, 2021-Ohio-4639, 2021 WL 6276315, at **7-9.

As set forth above, a petitioner waives an alleged error when he fails to make

a contemporaneous objection. Osborne, 495 U.S. at 124 (recognizing Ohio’s long-

standing contemporaneous objection rule). The Sixth Circuit has held that Ohio’s

“contemporaneous objection rule is an adequate and independent state ground barring federal habeas

review, Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005), and that plain-error review is not inconsistent

with the procedural default.” Awkal, 613 F.3d at 648-49. “The state court’s plain error review did not

constitute a waiver of the procedural default.” Mason, 483 F. App’x at 130–31. See also Shafer, 364 F.

App’x at 945 (6th Cir. 2010) (finding the State of Ohio expressly enforced

its contemporaneous objection rule where “the last state court to render a reasoned opinion in this case, the

Ohio Court of Appeals on direct appeal, noted the failure to object, applied plain-error review, and denied

[appellant’s] claims for relief.”)

As the state appellate court correctly noted, Palmer’s counsel did not raise these objections to the

trial court. Accordingly, the first three elements of the Maupin test are satisfied as Palmer failed to comply

with the contemporaneous objection rule, the state appellate court actually enforced the rule, and the rule

constitutes an “independent and adequate” state ground on which the state can foreclose federal review. As

set forth above, the state appellate court’s plain error review did not waive the procedural default. As such,

the Court finds Ground Two is procedurally defaulted.

Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner

demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim

would result in a fundamental miscarriage of justice. See Lundgren, 440 F.3d at 763 (citing Wainwright,

433 U.S. at 87.) As noted above, “[d]emonstrating cause requires showing that an ‘objective factor external

to the defense impeded counsel’s efforts to comply’ with the state procedural rule.” Franklin, 434 F.3d at

417 (6th Cir. 2006) (quoting Murray, 477 U.S. at 488). Prejudice does not occur unless the petitioner

demonstrates “a reasonable probability” that the outcome of the trial would have been different. See Mason,

320 F.3d at 629. Here, Palmer has neither presented any cause for his default, nor has he alleged ensuing

prejudice.5 In addition, Palmer fails to present any new, reliable evidence to support a credible claim of

actual innocence.

Accordingly, and for all the reasons set forth above, it is recommended Ground Two be dismissed

as procedurally defaulted.

3. Grounds Three, Four, Six, and Eight

In Ground Three, Palmer argues he was denied due process when he “was convicted of 12 counts of

rape where the evidence was insufficient to support rape.” (Doc. No. 1 at 8.) In Ground Four, Palmer argues

he was denied due process and equal protection of the law when the State “was permitted to introduce

irrelevant inflammatory ‘other act’ evidence.” (Id. at 9.) In Ground Six, Palmer argues that he was denied

due process when the State “was permitted to impermissibly . . . bolster the testimony and vouch for the

credibility of the declarant in the guise of a medical ‘diagnosis’ of sexual abuse.” (Id. at 12.) In Ground

5 The Court that Palmer failed to raise an ineffective assistance of trial counsel claim based on failure to

object to the jury instructions or request an instruction on gross sexual imposition. Therefore, any claim of

ineffective assistance of trial counsel is also procedurally defaulted and cannot serve to excuse the

procedural default.

Eight, Palmer argues that the trial court erred in “failing to record all sidebars as required by C.R.22, thus

depriving Petitioner of the liberty secured by U.S. CONST., amend. XIV.” (Id.)

Respondent argues that Grounds Three, Four, Six, and Eight are procedurally defaulted, as Palmer

failed to raise these claims to the Ohio Supreme Court. (Doc. No. 7 at 41, 47-48, 60, 67.)

Palmer appears to argue that ineffective assistance of appellate counsel serves as cause and prejudice

to excuse the procedural default, as he states that appointed appellate counsel raised these grounds to the

state appellate court “but for some reason unknown to appellant did not raise this ground in the memorandum

for jurisdiction to the Ohio Supreme Court.” (Doc. No. 1 at 9-10, 12-13.)

While the ineffective assistance of appellate counsel may constitute cause for a procedural default,

Murray, 477 U.S. at 488, 106 S.Ct. 2639, Palmer did not have a constitutional right to counsel when filing

his appeal with the Supreme Court of Ohio. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he

right to appointed counsel extends to the first appeal as of right, and no further.”). Because he did not have

a constitutional right to counsel when filing his appeal with the Supreme Court of Ohio, he cannot claim

constitutional right to the effective assistance of that counsel.

As Palmer is unable to establish cause to excuse his procedural default, the Court declines to address

the issue of prejudice. See Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (“When a petitioner fails to

establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.”);

Group v. Robinson, 158 F. Supp. 3d 632, 651 (N.D. Ohio Jan. 20, 2016).

4. Ground Five

As part of his fifth ground of relief, Palmer argues that trial counsel “failed to object to and request

a limiting instruction to prejudicial and immaterial other acts evidence, and that he failed to file a motion to

suppress Palmer’s statements to police.” (Doc. No. 1 at 12.)

Respondent argues this portion of Ground Five is procedurally defaulted, as Palmer failed to raise

this claim to the Ohio Supreme Court. (Doc. No. 7 at 53.)

A careful review of the record reveals that while Palmer raised his claim of ineffective assistance of

trial counsel based on counsel’s failure “to object to and request a limiting instruction as to prejudicial and

immaterial other acts evidence” and failure to file a motion to suppress with the state appellate court (Doc.

No 7-1, Ex. 12), Palmer failed to present these claims to the Supreme Court of Ohio. (Doc. No. 7-1, Ex.

18.) The Court finds Palmer’s failure to appeal these issues to the Supreme Court of Ohio resulted in a

procedural default.

Here, Palmer has neither presented any cause for his default, nor has he alleged ensuing prejudice.6

In addition, Palmer fails to present any new, reliable evidence to support a credible claim of actual

innocence.

Accordingly, and for all the reasons set forth above, it is recommended this portion of Ground Five

be dismissed as procedurally defaulted.

5. Grounds Raised in 26(B) Application

In his Amended Petition, Palmer raised the following grounds for habeas relief that he asserts he

presented in his 26(B) Application: (1) trial counsel failed to object to the admission of testimonial hearsay;

(2) trial counsel failed to object to the admission and eliciting of an actual diagnosis of abuse from an expert

witness; (3) trial counsel failed to object to the State’s improper closing argument which suggested Petitioner

was guilty because he was prosecuted and indicted; (4) trial judge prejudicially eroded Petitioner’s

6 While ineffective assistance of appellate counsel may constitute cause for a procedural default, Murray,

477 U.S. at 488, 106 S.Ct. 2639, Palmer did not have a constitutional right to counsel when filing his appeal

with the Supreme Court of Ohio. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to

appointed counsel extends to the first appeal as of right, and no further.”). Because he did not have a

constitutional right to counsel when filing his appeal with the Supreme Court of Ohio, he cannot claim

constitutional right to the effective assistance of that counsel.

presumption of innocence right by asking a highly misleading and incriminating question to jurors; (5) trial

counsel failed to object to Petitioner being repeatedly compelled to either call other witnesses liars or to call

himself the liar in the case; (6) trial counsel was prejudicially ineffective for having unnecessarily informed

the jury of Petitioner’s pretrial incarceration; (7) the State’s Golden Rule argument reprehensibly impaired

Petitioner’s right to a fair trial; (8) trial counsel failed to object to hearsay being asserted for its truth value;

(9) the State was erroneously permitted to introduce statements that were hearsay and did not meet a hearsay

exception rule; and (10) the trial judge abused its discretion by permitting over objections improper

testimony regarding Petitioner’s past sexual moments. (Doc. No. 27.)

Because Palmer failed to timely file a Traverse that addressed all of his claims, including those in

his Amended Petition, as ordered, and the Court struck his untimely filing, Respondent did not have the

opportunity to address these claims.

However, a review of the record reveals that Palmer failed to appeal the denial of his 26(B)

Application to the Supreme Court of Ohio. Palmer has neither presented any cause for his default, nor has

he alleged ensuing prejudice. In addition, Palmer fails to present any new, reliable evidence to support a

credible claim of actual innocence.

Accordingly, and for all the reasons set forth above, it is recommended these claims be dismissed as

procedurally defaulted.

IV. Non-Cognizable Claim

In Ground Nine, Palmer argues that he “was denied due process and the right to a fair trial because

of the effect of cumulative errors.” (Doc. No. 1 at 13.)

Respondent argues that this claim is non-cognizable on habeas review. (Doc. No. 7 at 69.)

The Sixth Circuit recently reaffirmed the unavailability of cumulative error as a ground for habeas

relief: “Lastly, Stober claims that the cumulative effect of the alleged errors he identifies should entitle him

to relief, but this court has held that ‘post-AEDPA [(Antiterrorism and Effective Death Penalty Act)], not

even constitutional errors that would not individually support habeas relief can be cumulated to support

habeas relief.’ Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005); see also Lorraine v. Coyle, 291 F.3d

416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct constitutional claims can be

cumulated to grant habeas relief.”).” Stober v. Warden, No. 19-3980, 2020 WL 1698589, at *4 (6th Cir.

February 18, 2020). Therefore, Ground Nine is non-cognizable.

V. Review on the Merits

A. Legal Standard

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997). The relevant provisions of AEDPA

state:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings

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) (1996).

Clearly established federal law is to be determined by the holdings (as opposed to the dicta) of the

United States Supreme Court. See Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012);

Renico v Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865-1866 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120

S.Ct. 1495, 146 L.Ed.2d 389 (2000); Shimel v. Warren, 838 F.3d 685, 695 (6th Cir. 2016); Ruimveld v.

Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Indeed, the Supreme Court has indicated that circuit precedent

does not constitute “clearly established Federal law, as determined by the Supreme Court.” Parker, 567

U.S. at 48-49; Howes v. Walker, 567 U.S. 901, 132 S.Ct. 2741, 183 L.Ed.2d 612 (2012). See also Lopez v.

Smith, ––– U.S. ––––, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (“Circuit precedent cannot ‘refine

or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has

not announced.’”) (quoting Marshall v. Rodgers, 569 U.S. 58, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540

(2013)).

A state court’s decision is contrary to clearly established federal law “if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides

a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v.

Taylor, 529 U.S. at 413. By contrast, a state court’s decision involves an unreasonable application of clearly

established federal law “if the state court identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. See also

Shimel, 838 F.3d at 695. However, a federal district court may not find a state court’s decision unreasonable

“simply because that court concludes in its independent judgment that the relevant state court decision

applied clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. at 411.

Rather, a federal district court must determine whether the state court’s decision constituted an objectively

unreasonable application of federal law. Id. at 410-12. “This standard generally requires that federal courts

defer to state-court decisions.” Strickland v. Pitcher, 162 F. App’x 511, 516 (6th Cir. 2006) (citing Herbert

v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)).

In Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court

held that as long as “fairminded jurists could disagree on the correctness of the state court’s decision,” relief

is precluded under the AEDPA. Id. at 786 (internal quotation marks omitted). The Court admonished that

a reviewing court may not “treat[ ] the reasonableness question as a test of its confidence in the result it

would reach under de novo review,” and that “even a strong case for relief does not mean the state court's

contrary conclusion was unreasonable.” Id. at 785. The Court noted that Section 2254(d) “reflects the view

that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems” and does

not function as a “substitute for ordinary error correction through appeal.” Id. (internal quotation marks

omitted). Therefore, a petitioner “must show that the state court’s ruling ... was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 786–87. This is a very high standard, which the Supreme Court readily

acknowledged. See id. at 786 (“If this standard is difficult to meet, that is because it is meant to be.”)

1. Ground Five

As part of his fifth ground for relief, Palmer argues as follows:

When an accused questions the effectiveness and adequacy of counsel, it

is the duty of the trial judge to inquire into the complaint, and to make

such inquiry a part of the record. Petitioner Palmer complained of the

adequacy of his trial counsel to the trial judge in a letter in June of 2019.

Palmer also complained directly to counsel in a letter. After receiving both

letters, counsel entered a motion to withdraw as counsel, asserting

irreconcilable differences between he and Palmer. A hearing was held the

same day where counsel was permitted to state his version of whatever

issues. After asking Palmer what he had to say, the judge cut him off

before he could utter one complete sentence. The judge failed to make a

good faith investigation into whether there had been such a dissolution of

the attorney-client relationship that they could not work effectively so that

Palmer could receive effective counsel and therefore have a fair trial.

Please consult exhibits 2 and 3 of Palmer’s post-conviction evidence.

(Doc. No. 1 at 12.)

Respondent argues that “[s]ince there is no clearly established Supreme Court precedent on a duty

to inquire, the state court decision cannot be considered contrary to clearly established Supreme Court

precedent warranting habeas relief.” (Doc. No. 7 at 59.)

Because Palmer failed to timely file a Traverse as ordered, and the Court struck his untimely filing,

Respondent’s arguments are uncontroverted.

Palmer raised this claim to both the state appellate court and the Supreme Court of Ohio. (Doc. No.

7-1, Ex. 12, 18.) The state appellate court considered this claim on the merits and rejected it as follows:

{¶60} In his fifth assignment of error, appellant asserts:

Appellant was denied a fair trial because of the ineffectiveness of

his trial counsel.

{¶61} Appellant asserts that counsel was ineffective because he admitted

that he was unprepared for trial and failed to file a motion to suppress

appellant’s statement to police, which was used against him. He also

argues that his counsel failed to file a motion in limine concerning “other

acts” evidence, failed to object to such evidence, and failed to request a

limiting instruction at trial. Finally, appellant asserts that the trial court

was angry and annoyed at him, which caused the court to unreasonably

find that he was trying to “play the system” by requesting new counsel in

order to delay his trial. Appellant concludes that counsel violated

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984) and prejudice resulted because the verdict would have been

different, especially when no physical evidence existed. He cites Hodge v.

Hurley, 426 F.3d 386 (2005), as support for reversal when counsel failed

to object to comments by the prosecutor and no physical evidence

confirmed illicit sexual activity.

{¶62} The test for determining whether counsel was ineffective is: (1)

whether counsel’s performance was deficient; and (2) if so, whether the

deficiency resulted in prejudice. State v. Harrison, 7th Dist. Jefferson No.

19 JE 0009, 2020-Ohio-3624, ¶ 16, citing State v. White, 7th Dist.

Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing Strickland, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v. Williams, 99 Ohio

St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. Appellant must prove

both prongs of the test and if one prong is not met, this Court need not

address the remaining one. Harrison, 2020-Ohio-3624, at ¶ 17, citing

Strickland, 466 U.S. at 697. In order to meet the deficient performance

prong, appellant must show that counsel’s performance fell below an

objective standard of reasonable representation. Id. In order to meet the

prejudice prong, appellant must show a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.

Id. In Ohio, a licensed attorney is presumed competent. State v. Calhoun,

86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). Further, a reviewing court

is highly deferential to trial counsel’s strategy and must indulge in a strong

presumption that counsel’s performance fell within a wide range of

reasonable professional assistance. State v. Bradley, 42 Ohio St.3d 136,

141-142, 538 N.E.2d 373 (1989).

{¶63} On July 17, 2019, appellant’s counsel filed a motion to withdraw as

counsel, citing irreconcilable differences, and indicating that he would

stop preparing the case. The trial court held a hearing on that same date,

with appellant, his counsel, and the assistant prosecuting attorney present.

Appellant’s counsel stated that he had received a letter from appellant

about his request for counsel to withdraw. (Tr. at 3). Counsel took a

moment at the hearing to speak with appellant and after doing so, he stated

that “Mr. Palmer now tells me that he’s not necessarily asking that I not

be his lawyer.” (Tr. at 3). Counsel explained that appellant wanted him to

file a motion for a speedy trial under R.C. 2945.72, but he ethically could

not do so because appellant had already signed a speedy trial waiver. (Tr.

at 3). Counsel told the court that appellant thought that he was signing a

waiver of speedy trial to a specific date and had he known he was waiving

speedy trial rights as to any date, he would not have signed it. (Tr. at 3).

{¶64} The court asked appellant’s counsel if the waiver was initialed by

the court, and counsel responded that it had. (Tr. at 3). The court asked

appellant whether he wanted the court to put the court’s bailiff on the stand

to testify that appellant’s counsel had reviewed the waiver with appellant.

(Tr. at 4). Counsel replied that it was not necessary. (Tr. at 4). The

following then took place on the record:

THE COURT: Well, then how could he not know -- Mr. Palmer,

how could you not know you're signing a waiver if somebody asks

you the question?

THE DEFENDANT: The way --

THE COURT: I’m tired of this crap. Everybody in that jail says

they want a new attorney to delay their trial. Guess what? It’s not

going to happen. You’re going to trial on Monday, and you could

tell all your little friends back at that Justice Center if they want to

pull this stunt, too, they’re not getting a new attorney either.

(Tr. at 4). Appellant’s counsel informed the court that upon receiving

appellant’s letter, he “maybe wrongfully” contacted other people to tell

them he was not going forward with representing appellant and he “put

the file down. I will not be prepared to go Monday.” (Tr. at 5). Counsel

stated that he could be prepared to go to trial in a week, on July 24, 2019,

but the trial court continued the trial date only until July 22, 2019. (Tr. at

5).

{¶65} However, on July 22, 2019, the trial court issued a judgment entry

overruling the motion to withdraw as counsel and continued the July 22,

2019 trial date to September 3, 2019. (7/22/19 J.E.). Since the trial court

ultimately continued the trial date, no prejudice exists as to counsel’s

failure to fully prepare for trial. Further, appellant’s counsel did file the

motion to withdraw, but the court denied it. Accordingly, we find that

counsel did not deficiently perform.

{¶66} As to the trial court’s denying the motion to withdraw, the court

appeared to become angry and should have inquired further into the

motion. However, the court allowed appellant and his counsel time to

speak off the record, and appellant did not object or challenge counsel’s

subsequent statement to the court that appellant was not requesting that

counsel withdraw, but rather, he was requesting that counsel file a motion

to withdraw the speedy trial waiver he had signed. Moreover, appellant

does not identify to us any reason for requesting the withdrawal of counsel

and he fails to explain how the court abused its discretion in denying the

motion. He merely states in his appellate brief that he “may, or may not,

have had a legitimate reason for seeking the removal of counsel.” This

Court can only rely upon the evidence in the record on appeal. State v.

Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 171.

From the record, we find that the trial court committed no prejudicial error

by failing to inquire further of appellant about the motion to withdraw or

by denying the motion based upon counsel’s representations at the

hearing.

{¶67} As to appellant’s assertion that counsel was ineffective by not filing

a motion to suppress appellant’s statement to the police, this failure alone

does not constitute per se ineffective assistance of counsel. State v.

Patterson, 8th Dist. No. 105265, 2017-Ohio-8318, 99 N.E.3d 970. When

a defendant asserts ineffectiveness of counsel based upon a failure to file

a suppression motion, the defendant must prove there was a valid ground

to suppress the evidence in dispute. Spaulding, 151 Ohio St.3d 378, 2016–

Ohio–8126, 89 N.E.3d 554, at ¶ 94, citing State v. Brown, 115 Ohio St.3d

55, 2007–Ohio–4837, 873 N.E.2d 858, ¶ 65; see also State v. Dawson, 7th

Dist. Mahoning No. 15 MA 0081, 2017-Ohio-5709. The defendant must

also show there is a reasonable probability the result of the trial would

have been different if the evidence had been suppressed. Id.

{¶68} It appears that appellant is talking about his statements to Sergeant

Hillman during an interview on May 8, 2018, after appellant read the

Miranda warnings and signed a waiver. (Tr. at 323-324). Sergeant Hillman

testified at trial that appellant initially denied residing at any time in

Boardman, Ohio, where A.B. lived, and then he stated that he lived with

A.B., her siblings, and her mother for two to three months in Boardman.

(Tr. at 324). Appellant denied to Sergeant Hillman that he was ever left

alone with any of the children for any period of time when he resided with

them. (Tr. at 324-325). Appellant offers no valid grounds for filing a

motion to suppress and he makes no showing of a reasonable probability

that the verdict would have been different if the statements were

suppressed. Thus, this assertion is without merit.

{¶69} Appellant lastly asserts that his counsel was ineffective by failing

to object, failing to file a motion in limine, and failing to request a limiting

instruction as to “other acts” evidence presented at trial. However, as

previously explained, the acts that appellant identifies are not “other acts”

evidence under Evid. R. 404 and thus counsel did not deficiently perform

by failing to object or file motions concerning this evidence.

{¶70} Accordingly, appellant’s fifth assignment of error lacks merit and

is overruled.

State v. Palmer, 2021-Ohio-4639, 2021 WL 6276315, at **12-14.

“The Sixth Amendment guarantees that ‘[i]n all criminal prosecutions, the accused shall enjoy the

right ... to have the assistance of Counsel for his defense.’ U.S. Const. Amend. VI. The Supreme Court has

held that although the Sixth Amendment does not entitle an indigent criminal defendant to his counsel of

choice, it does guarantee him a right to adequate representation. Caplin & Drysdale, Chartered v. United

States, 491 U.S. 617, 624 (1989).” Cody v. McConahay, 2022 WL 1572573, at *6 (6th Cir. Jan. 7, 2022).

“[T]he right to counsel does not include a right to a meaningful or peaceful relationship between counsel

and the defendant.” See Morris v. Slappy, 461 U.S. 1, 13 (1983). As the Sixth Circuit explained in a case

where the petitioner also argued the trial court had a duty to inquire into whether he had good cause for

requesting new counsel:

In order for Brooks to prevail, he must demonstrate that the state court

decision was contrary to clearly established law as determined by the

Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). For the

purposes of AEDPA, however, the clearly established law does not

indicate that the trial court had a duty to conduct a good cause inquiry

before determining whether to grant or deny Brooks’s request for new

counsel. Indeed, the Supreme Court has held that the Sixth Amendment

“guarantees defendants in criminal cases the right to adequate

representation, but those who do not have the means to hire their own

lawyers have no cognizable complaint so long as they are adequately

represented by attorneys appointed by the courts.” Caplin & Drysdale, 491

U.S. at 624, 109 S.Ct. 2646. Brooks, therefore, had a right to be

represented by the counsel of his choice only if he could afford to hire that

counsel, or if that counsel was willing to represent him regardless of his

inability to pay. Here, Brooks made no mention of having retained or

planning to retain counsel on his own. Instead, he requested that his court

appointed lawyer be replaced. Given these facts, the new counsel Brooks

sought would have been, in all likelihood, court appointed. To the extent

that Brooks would invoke Caplin because his representation was

inadequate, we are unpersuaded. Nothing before us suggests that Brooks’s

counsel did not represent him “adequately.” Id. Brooks sought a new

attorney because he did not receive discovery materials in a manner he

found timely and because his attorney did not meet with him as often as

he would have liked. These allegations do not implicate the Supreme

Court’s instruction that those with no means to hire counsel do, indeed,

have just cause for constitutional complaint if their representation is

subpar and they suffer prejudice as a result. See Evitts v. Lucey, 469 U.S.

387, 395–96, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

Brooks directs us to Benitez v. United States, in which we stated that once

a defendant wishing to substitute counsel brings “any serious

dissatisfaction ... to the attention of the district court,” the court “is

obligated to inquire into the defendant's complaint and determine whether

there is good cause for the substitution.” 521 F.3d 625, 632 (6th Cir.2008)

(internal quotations and citations omitted). True though this may be, and

regardless whether the district court’s inquiry was sufficient under

Benitez, we are not permitted to base our decision on that case. Rather, as

we have explained, Brooks’s habeas petition rises or falls on the existence

of clearly established law as determined by the Supreme Court. Because

Brooks offers no such law supporting his claim, and we are unaware of

any such law, he has not shown that he is entitled to relief under AEDPA.

See 28 U.S.C. § 2254(d)(1).

Brooks v. Lafler, 454 F. App’x 449, 452 (6th Cir. 2012).

Because there is no clearly established Supreme Court precedent on a duty to inquire, Palmer fails

to show he is entitled to habeas relief under the AEDPA. Therefore, the undersigned recommends the Court

deny this portion of Ground Five.

2. Ground Seven

In Ground Seven, Palmer argues he was “denied due process and the effective assistance of counsel

because the state was permitted to make repeated references to the declarant as ‘the victim,’ to which trial

counsel failed to object to.” (Doc. No. 1 at 12.)

Respondent argues that to the extent Palmer is raising a prosecutorial misconduct claim, Palmer fails

to show the state appellate court’s decision was contrary to Darden v. Wainwright, 477 U.S. 163 (1986).

(Doc. No. 7 at 64, 66.) Respondent argues that Palmer also fails to show that the state appellate court’s

decision “involved an unreasonable application of Strickland.” (Id. at 66.)

Because Palmer failed to timely file a Traverse as ordered, and the Court struck his untimely filing,

Respondent’s arguments are uncontroverted.

Palmer raised this claim to both the state appellate court and the Supreme Court of Ohio. (Doc. No.

7-1, Ex. 12, 18.) The state appellate court considered this claim on the merits and rejected it as follows:

{¶81} Petitioner’s seventh assignment of error asserts:

Appellant was denied due process and the effective assistance of

counsel because there were repeated references made to the child

as the “victim,” to which trial counsel failed to object.

{¶82} Petitioner broadly asserts that repeated references at trial to A.B. as

the “victim” is similar to State v. Almedom, 10th Dist. Franklin No. 15AP-

852, 2016-Ohio-1553, where the Tenth District Court of Appeals

unanimously reversed the conviction of a defendant in a child sexual abuse

case based upon an aggregate of comments and defense counsel’s

deficiency. However, appellant in this case fails to identify who made the

references to A.B. as a victim and he fails to cite to the portions of the

transcript where the references were made. Loc.R. 16(E)(5) provides that

references to the record and citations to authorities are required and sets

forth that (a) “each contention supporting an issue presented for review

shall be followed by references to the relevant parts of the record and

citations to the relevant authorities.” It is not this Court’s “‘duty to search

the record for evidence to support an appellant’s argument as to alleged

error.’” State v. Pyles, 4th Dist. Scioto No. 2018-Ohio-4034, ¶ 45, quoting

Lias v. Beekman, 10th Dist. Franklin No. 06AP1134, 2007-Ohio-5737, ¶

6, quoting State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-

943, 850 N.E.2d 1218, ¶ 94 (10th Dist.).

{¶83} Appellee identifies that the assistant prosecutor referred to A.B. as

a victim one time during voir dire. (Tr. at 61). Appellee also notes that

Detective Hillman referred to A.B. as a victim 4 times in his testimony.

(Tr. at 313, 316, 318, 322). Appellee contends that Almedom is

distinguishable because it involved defense counsel’s failure to object to,

among other things, the trial judge’s repeated use of the word “victims” to

describe the minor girls that the defendant was accused of sexually

abusing. Appellee also cites State v. Aboytes, 11th Dist. Lake No. 2020-L-

001, 2020-Ohio-6806, ¶ 181 where the Eleventh District distinguished

Almedom because it involved the trial judge’s repeated references to the

girls as “victims” and noted that the Tenth District had more recently

recognized that other courts had found that the use of the word “victim” is

not the same as expressing an opinion that a defendant is guilty of a crime.

Aboytes, supra, citing State v. Madden, 10th Dist. Franklin No. 16AP-259,

2017-Ohio-8894, 100 N.E.3d 1203, ¶ 33.

{¶84} Appellant’s assignment of error lacks merit. Again, in order to show

the ineffective assistance of trial counsel, appellant must show: (1) that

counsel’s performance was deficient; and (2) if so, that the deficiency

resulted in prejudice. Harrison, 7th Dist. Jefferson No. 19 JE 0009, 2020-

Ohio-3624, ¶ 16, citing White, 7th Dist. Jefferson No. 13 JE 33, 2014-

Ohio-4153, ¶ 18, citing Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Both prongs must be met and if one is not met, the

appellate court does not need to address the remaining one. Harrison,

2020-Ohio-3624, at ¶ 17, citing Strickland, 466 U.S. at 697.

{¶85} Although appellant asserts that Almedom is almost a “carbon copy”

of the instant case, Almedom is easily distinguishable. Almedom involved

charges against the defendant for the sexual abuse of three girls under the

age of 13 and the defendant denied having any sexual contact with the

girls. 2016-Ohio-1553, at ¶ 2. As the court explained, it was the trial judge

in that case who referred to the girls as “victims” before the jury on two

occasions. Id. at ¶ 3, 4. The assistant prosecutor also referred to the girls

as “victims” once in jury selection. Id. at ¶ 4.

{¶86} In vacating the verdict, the appellate court found that defense

counsel deficiently performed and resulting prejudice occurred from “the

conduct of defense counsel linked with the prejudicial comments of the

trial judge when added to those of the assistant prosecuting attorney during

jury selection undermined the proper function of the adversarial process.”

Id. at ¶ 10. The appellate court held that the defendant was portrayed as a

“disgusting person” who sexually abused children well before the

presentation of evidence. Id. at ¶ 11. It reasoned that the trial judge, who

was the ultimate authority in the courtroom, told the jury repeatedly that

the defendant victimized the girls and defense counsel “stood idly by and

made no objection to the trial judge's accusation that his client was a child

abuser.” Id.

{¶87} The appellate court also cited to counsel’s numerous other

deficiencies, such as failing to move for a mistrial and failing to request

that the court tell the jury that it could not consider part of the testimony

of one of the children after her charges against the defendant were

dismissed. Id. at ¶ 7. The appellate court noted that trial counsel also failed

to file any pre-trial motions except a bill of particulars even though

appellant was facing life in prison, and even though one of the girls was

six years old and counsel should have filed a motion to determine her

competency. Id. The court noted that defense counsel also repeatedly

failed to object to direct examination questions and to “huge” portions of

the State’s evidence. Id. at ¶ 8.

{¶88} In the instant case, appellant does not assert that the trial judge made

any reference to A.B. as a victim. Further, while the prosecution referred

to A.B. as a victim once in voir dire, and Detective Hillman referred to her

in this capacity four times, it does not rise to the level of prejudice as that

in Almedom since Almedom was primarily concerned with the trial judge’s

references and the numerous other deficiencies of defense counsel in that

case.

{¶89} In addition, the Tenth District distinguished Almedom in State v.

Nichols, Franklin Nos. 19AP-113, 19 AP-116, 2020-Ohio-4362, ¶ 39.

There, the defendant’s counsel argued that the prosecutor’s references to

the minor as the victim constituted prosecutorial misconduct and was

grounds for a mistrial. The Nichols Court found Almedom “readily

distinguishable” from the case before it because “[fi]irst and foremost,”

the trial judge was the one who made references to the minor as a victim,

not the prosecutor. Id. The court explained that the judge is neutral and

detached on matters before it, but a prosecutor does not have to be. Id. The

court further found that the improper references in Almedom were made

throughout the entire trial, while the references by the prosecutor in the

case before it were only in rebuttal closing argument. Id. The court found

no error by the prosecutor in referring to the minor as a victim in closing

because the prosecutor is permitted to comment on what the evidence has

shown and the inferences that could be made from it. Id.

{¶90} Similar to this case, the trial judge did not make references to A.B.

as a victim. Further, while the prosecutor made one such reference, it was

in voir dire. While Detective Hillman did so four times, it does not appear

that these references, even combined, undermined the adversarial process

or produced an unjust result. In State v. Aboytes, 11th Dist. Lake No. 2020-

L-001, 2020-Ohio-6806, the Eleventh District Court of Appeals held that

trial counsel was not ineffective for failing to object to references to the

minor as a victim during trial because unlike Almedom, trial judge did not

make the references, the references were not made throughout the trial,

and the references did not undermine proper functioning of the adversarial

process so that court could be sure a just result was produced.

{¶91} Accordingly, appellant’s seventh assignment of error lacks merit

and is overruled.

State v. Palmer, 2021-Ohio-4639, 2021 WL 6276315, at **16-18.

In order to establish ineffective assistance of counsel, a petitioner must demonstrate that his

counsel’s conduct was so below acceptable standards of representation that counsel was not functioning as

“counsel” guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner also must demonstrate that

a trial counsel’s performance prejudiced the petitioner’s defense to such an extent that it rendered the

proceeding unfair. Id. To establish prejudice, 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.” Id. at 694. In other words, a counsel’s deficient performance must have “caused the defendant

to lose what he otherwise would probably have won” and it must have been “so manifestly ineffective that

defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th

Cir. 1992).

“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mere

disagreements by a defendant with tactics or strategies employed by counsel are not enough to support a

claim of ineffective assistance of counsel and there is a presumption that the challenged conduct of a

petitioner’s counsel was a matter of strategy. Id. at 689. See also United States v. Perry, 908 F.2d 56, 59

(6th Cir. 1990).

As explained by the United States Supreme Court:

Establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The standards

created by Strickland and § 2254(d) are both “highly deferential,” id., at

689, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Lindh v. Murphy, 521

U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when

the two apply in tandem, review is “doubly” so, Knowles, 556 U.S., at ––

––, 129 S.Ct. 1411, 173 L.Ed.2d 251. The Strickland standard is a general

one, so the range of reasonable applications is substantial. 556 U.S., at ––

––, 129 S.Ct. 1411, 173 L.Ed.2d 251. 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.

Harrington, 562 U.S. at 105. See also Kennedy v. Warren, 428 F. App’x 517, 520 (6th Cir. 2011); Phillips

v. Sheldon, 2014 WL 185777, at **14-15 (N.D. Ohio Jan. 16, 2014).

Here, the Court finds the state appellate court reasonably determined trial counsel was not

ineffective. As the state appellate court found, the prosecutor made one reference to the child as a victim

during voir dire, and Detective Hillman referred to the child as a victim four times during his testimony.

Palmer makes no showing that the result of the proceeding would have been different but for these isolated

references.

As the Supreme Court made clear in Harrington, “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.” 562 U.S. at 105. Under this deferential standard, for

all the reasons set forth in this Report and Recommendation, the Court finds the state appellate court

reasonably determined trial counsel was not ineffective for failing to object to the references to the child as

a victim.

It is therefore recommended that Ground Seven be DENIED.

3. Claims Raised in PCR Petition

In his Amended Petition, Palmer raised the following grounds for habeas relief that he asserts he

presented in his PCR Petition: (1) trial counsel intentionally misled Petitioner to unknowingly waive his

right to a fast and speedy trial; (2) trial counsel failed completely to conduct any investigation; (3) trial

counsel failed to present any rebuttal expert testimony; (4) trial counsel failed to timely object to the carbon

copy charges; (5) trial counsel failed to impeach adverse witnesses with available impeachment evidence;

(6) trial counsel failed to object to the State’s racially motivated jury strike; (7) trial counsel completely

failed to convey the prosecution’s plea to client; and (8) Petitioner was denied a fair trial and due process

due to cumulative errors. (Doc. No. 27 at 4.)

Because the Amended Petition was filed after the Return of Writ and Palmer failed to timely file a

Traverse as ordered, Respondent did not have the opportunity to address these claims.

Palmer raised these claims to both the state appellate court and the Supreme Court of Ohio. (Doc.

No. 7-1, Ex. 30, 35.) The state appellate court considered these claims on the merits and rejected them as

follows:

{¶16} Appellant’s postconviction petition was filed with the trial court

while his direct appeal was pending in this Court. Appellant raises many

of the same errors in his petition that were addressed in his direct appeal.

For example, Appellant’s fourth assignment of error regarding trial

counsel’s alleged failure to object to the multiple rape counts in the

indictment was addressed on direct appeal where we concluded that the

indictment was sufficient to support multiple charges. Palmer, ¶ 31.

{¶17} It is apparent Appellant’s claims regarding ineffective assistance set

forth in his fourth assignment of error are barred by res judicata and are

overruled.

{¶18} Regarding the remaining assignments of error, Appellant presents

no evidence outside of the record in support of these claims. Instead,

Appellant refers to multiple parts of the trial transcript and other evidence

already in the record to support his arguments. As Appellant relies on no

evidence outside of the record and all of the remaining claims in his

petition could and should have been raised and addressed in his direct

appeal, these claims were properly dismissed on the basis of res judicata.

Carosiello, ¶ 28.

{¶19} Appellant’s petition appears to be merely a restatement and

embellishment of the clams he argued on direct appeal. Not only does

Appellant fail to provide any evidence in support of these claims dehors

the record, the petition contains allegations that have no evidentiary or

factual support at all. Appellant’s claims amount to his speculation that a

constitutional violation may have occurred and a desire for additional

discovery, and are in no way based on any real evidence not contained in

his record of trial. Lawson, 315.

{¶20} All of the errors alleged, whether in the multiple claims of

ineffective assistance of counsel or in the cumulative error allegations, are

based on information already in the existing record in this case. These

issues could and should have been raised by Appellant’s new counsel in

his direct appeal of this matter. Therefore, all of Appellant’s assignments

of error are barred by res judicata and are overruled. Carosiello, ¶ 28. The

trial court’s denial of Appellant’s postconviction relief petition without a

hearing is hereby affirmed.

State v. Palmer, 2022-Ohio-2339, 2022 WL 2443273, at **4-5.

As the state appellate court found, Palmer’s ineffective assistance of trial counsel based on a speedy

trial claim was part of Palmer’s ineffective assistance of trial counsel claim raised on direct appeal. (Doc.

No. 7-1, Ex. 12.) Likewise, Palmer raised a claim on direct appeal regarding the “carbon copy” charges.

(Id.) While Palmer argued that the “carbon copy” charges claim he raised in his post-conviction petition

was based on trial counsel’s ineffectiveness for failing to object and therefore the state appellate court

wrongly found he had presented this claim on direct appeal (Doc. No. 7-1, Ex. 35), the state appellate court

found on direct appeal that the indictment, bill of particulars, and verdict forms were sufficient; therefore,

trial counsel could not have been ineffective for failing to object.

As to Palmer’s claim that trial counsel failed to object to the State’s racially motivated jury strike,

the only evidence de hors the record Palmer presented was a purported Facebook page for the juror at issue.

(Doc. No. 7-1, Ex. 22, PageID# 462.) While the state appellate court incorrectly stated Palmer failed to

present any evidence outside of the record to support his claims, the state appellate court also found that

Palmer’s claims “are in no way based on any real evidence not contained in his record of trial.” State v.

Palmer, 2022-Ohio-2339, 2022 WL 2443273, at *5 (emphasis added). “There is nothing unreasonable in

the state courts’ determination that [Palmer] on direct appeal could have raised” this claim. Church v. Gray,

Case No. 5:18-cv-02389, 2020 WL 13064808, at *7 (N.D. Ohio Nov. 17, 2020), report and recommendation

adopted by 2022 WL 664606 (N.D. Ohio Mar. 4, 2022). As this Court recently explained:

Generally, under Ohio law, “the introduction in a[ ] [post-conviction]

petition of evidence dehors the record ... is sufficient, if not to mandate a

hearing, at least to avoid dismissal on the basis of res judicata.” State v.

Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 171 (Ohio 1982). But to fall

within this exception to the res judicata doctrine, “it is not sufficient for

the petitioner to simply present evidence outside the record, he must also

demonstrate that the evidence was not available at the time of his trial, or

at the time of his direct appeal.” State v. Jones, No. 2001-A-0072, 2002

WL 31812945, at *3 (Ohio Ct. App. Dec. 13, 2002). Moreover, “[t]he

outside evidence must meet a threshold level of cogency.” State v. Lynch,

No. C-010209, 2001 WL 1635760, at *3 (Ohio Ct. App. Dec. 21, 2001).

It “must be ‘competent, relevant and material’ to the claim, be more than

marginally significant, and advance the claim ‘beyond mere hypothesis

and a desire for further discovery.’ ... [I]t must not be cumulative of or

alternative to evidence presented at trial.” State v. Fears, No. C-990050,

1999 WL 1032592, at *3 (Ohio Ct. App. Nov. 12, 1999) (citations

omitted).

Maxwell v. Shoop, 2025 WL 886198, at *17 (N.D. Ohio Mar. 21, 2025). “Under the facts and circumstances

of this case, this court cannot second-guess the state appellate court’s finding that Petitioner’s claim was

barred by res judicata, without overruling a state court’s interpretation of Ohio’s appellate procedures.”

Church, 2020 WL 13064808, at *7.

Moreover, even if the state appellate court improperly imposed the procedural bar to this claim, the

trial transcripts reveal that the juror at issue stated in voir dire that he had until recently worked as a

corrections officer in a “supermax” Ohio State Penitentiary facility and that he had no children of his own.

(Doc. No. 7-3 at PageID# 963-67.) In addition, the State exercised three other peremptory strikes in addition

to the juror at issue, and the three additional jurors excused were women. (Id. at PageID# 961, 968, 982.)

Therefore, the Court cannot say that trial counsel was ineffective for failing to object to the State’s use of a

peremptory strike to excuse the juror at issue.

Similarly, as to Palmer’s claim that trial counsel completely failed to convey the prosecution’s plea

to Palmer, even if the state appellate court improperly imposed the procedural bar to this claim, the evidence

de hors the record fails to show trial counsel did not convey the State’s offer. Rather, the evidence in the

file shows a letter informing Palmer of when counsel expected to receive the State’s offer and that once

counsel received it, he would convey it to Palmer. (Doc. No. 7-1, Ex. 20, PageID# 362-63.) Furthermore,

the State presented this offer in open court before trial and Palmer raised no objection to having never been

presented with the State’s offer before. (Doc. No. 7-3 at PageID# 893-97.) In addition, Palmer rejected the

plea offer in open court. (Id. at PageID# 897.)

For the reasons set forth above, Palmer’s “cumulative errors” argument is non-cognizable on habeas

review.

That leaves Palmer’s claims that he received ineffective assistance of counsel because trial counsel

failed completely to conduct any investigation, trial counsel failed to present any rebuttal expert testimony,

and trial counsel failed to impeach adverse witnesses with available impeachment evidence. To the extent

that Palmer relies on trial counsel’s file as evidence in support of these claims, the Court finds that the state

appellate court’s application of the res judicata bar to these claims was misplaced, as this evidence could

not have been considered on direct appeal.

In order to establish ineffective assistance of counsel, a petitioner must demonstrate that his

counsel’s conduct was so below acceptable standards of representation that counsel was not functioning as

“counsel” guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner also must demonstrate that

a trial counsel’s performance prejudiced the petitioner’s defense to such an extent that it rendered the

proceeding unfair. Id. To establish prejudice, 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.” Id. at 694. In other words, a counsel’s deficient performance must have “caused the defendant

to lose what he otherwise would probably have won” and it must have been “so manifestly ineffective that

defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th

Cir. 1992).

“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mere

disagreements by a defendant with tactics or strategies employed by counsel are not enough to support a

claim of ineffective assistance of counsel and there is a presumption that the challenged conduct of a

petitioner’s counsel was a matter of strategy. Id. at 689. See also United States v. Perry, 908 F.2d 56, 59

(6th Cir. 1990).

“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options

are virtually unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052. Trial counsel’s decision as to which theory

or theories to advance at trial is a strategic choice that is given a high level of deference. Davis v. Lafler,

658 F.3d 525, 538 (6th Cir. 2011) (en banc). As the Strickland Court observed, “There are countless ways

to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend

a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Palmer presents no evidence that defense counsel failed to adequately investigate or consider the

option of presenting an expert or obtaining certain impeachment evidence, such as Palmer’s mental health

treatment records or the child’s school records to undermine the State’s case. In fact, the evidence Palmer

submitted shows trial counsel did consider hiring an expert and considered the information Palmer presented

to him regarding his mental health. (Doc. No. 7-1, Ex. 20, PageID# 368-69, 378.) Moreover, defense

counsel expended considerable time and effort toward excluding certain evidence that Palmer argues could

have been used for impeachment but that trial counsel must have had concerns about:

MR. ZENA: Your Honor, there was actually another motion filed, and it

pertained to a couple of other things. On the witness list that I received

from the state of Ohio, there are a couple issues. There is a probation –

I’m sorry, parole officer for Mr. Palmer that has been listed as a potential

witness. My concern was that that parole officer would get on the stand

and talk about what Mr. Palmer was on parole for prior to Mr. Palmer

having chosen or not chosen to testify. If that is the purpose of the parole

officer, then I would ask that that be excluded.

And, also, if the parole officer is being called for any other reason, such

as Mr. Palmer’s residency, where he was living at, that she not be

identified as a parole officer. We would have to figure out some way to

just call her, that she knew where he lived. The other thing, Your Honor,

that I filed on was related to some other witnesses that had appeared. On

the witness list there are three either supervisors or teachers from the

educational system of Boardman that I will assume were exactly -- and I

know were exactly involved with this young lady who is the alleged victim

in this case. If these people are going to give testimony, I would like to

know prior to that testimony what the content of it was so the jury is not

tainted. Also, if these people are relying on any particular school records

or anything they said in the school supervision or anything like that, I

would ask the court to order that I have those records ahead of time. I can’t

think of any other purpose other than conduct in school.

THE COURT: Ms. McLaughlin?

MS. McLAUGHLIN: With regard to Angela Bragg, she is the defendant’s

parole officer. State does not intend to call her in our case in chief.

However, should during the defense’s case they open the door for

something potentially that would become relevant to call her, the state

would notify the court of its intention to do that. With regard to teachers

at the school, in the detective notes that were provided in discovery to

Attorney Zena, we concede that Sergeant Hillman did talk to some of the

staff at the school. That’s why they’re on the witness list. Again, state does

not intend to call those witnesses in its case in chief.

MR. ZENA: Takes care of that, Judge.

(Doc. No. 7-3 at PageID# 899-902.)

Without proof defense counsel failed to adequately investigate or consider the option of presenting

an expert or obtaining certain impeachment evidence, the Court must assume that counsel duly considered

the possibility of a different strategy—including hiring a rebuttal expert and the use of certain impeachment

evidence—but ultimately decided such evidence was not as strong and/or risked opening the door to

This text is long and has been trimmed here. Open the source document for the complete record.