Picard

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN S. PICARD, ) Case No. 1:23-CV-01416-JJH

)

Petitioner, ) JUDGE JEFFREY J. HELMICK

)

v. ) MAGISTRATE JUDGE

JENNIFER DOWDELL

)

SHELBIE SMITH, WARDEN, ) ARMSTRONG

)

Respondent.

) REPORT & RECOMMENDATION

I. INTRODUCTION

Petitioner, John S. Picard (“Mr. Picard”), seeks a writ of habeas corpus under 28

U.S.C. § 2254. (ECF No. 1). Mr. Picard was sentenced to a term of 40 years in prison after

being convicted in two separate cases of multiple counts of sexual battery. Mr. Picard asserts

five grounds for relief. Respondent, Warden Shelbie Smith (“Warden”), filed an

answer/return of writ on July 11, 2025. (ECF No. 20). Mr. Picard filed a traverse on

September 8, 2025. (ECF No. 23).

This matter was referred to me under Local Rule 72.2 to prepare a report and

recommendation on Mr. Picard’s petition. (See ECF non-document entry dated July 24,

2023). For the reasons set forth below, I recommend that Mr. Picard’s petition be

DISMISSED. I further recommend that the Court not grant Mr. Picard a certificate of

appealability.

II. RELEVANT FACTUAL BACKGROUND

For purposes of habeas corpus review of state court decisions, a state court's findings

of fact are presumed correct and can be contravened only if the habeas petitioner shows, by

clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.

§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d

524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by

a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio

Court of Appeals for the Fifth Appellate District summarized the relevant facts as follows:

{¶ 2} In 1990, appellant was hired as the youth pastor at the Marion Avenue Grace

Brethren Church in Mansfield, Ohio. In his position at the church, appellant and his

wife Sherry had regular contact with teenage girls and young adult females in the

church.

{¶ 3} Appellant formed close relationships with several of the girls in the youth group,

distancing these girls from their family and friends. He referred to this smaller group

as “the family,” which was made up of appellant and his wife, several of the girls in

the youth group, and eventually the girls' husbands as they grew older and married.

As the leader, appellant controlled nearly every aspect of their lives. Appellant

influenced where the girls lived, who they dated or married, and what cars they

purchased. Appellant spoke of having a large piece of land where the “family” could

live in a large house with separate wings, sharing a common kitchen and dining area.

{¶ 4} H.G. began attending the Marion Avenue Church when she was twelve years

old, and moved in with her great aunt and uncle after her parents died. She began

babysitting appellant's children when she was sixteen. When she was sixteen, she and

appellant began kissing and fondling. One night, after eating dinner with appellant's

family, H.G. went to the basement with appellant to spot him while he was working

out. Appellant had H.G. perform oral sex on him. Appellant explained to H.G. that it

wasn't sinful because it wasn't sex. On another occasion, appellant and H.G. were in

the bedroom of appellant's home naked. Appellant digitally penetrated H .G.'s vagina,

but appellant's son walked in before the encounter could go any further. H.G. left the

area when she turned eighteen, but saw appellant one last time thereafter. Appellant

drove her out into the country where they kissed and fondled each other, and H.G.

performed oral sex on appellant.

. . .

{¶ 8} G.R. attended the youth group at the Marion Avenue Church. She had been

sexually abused by her father. G.R. also babysat for appellant and Sherry. When G.R.

was 13 and appellant was driving her home after babysitting, he pulled into a wooded

area and asked her to perform oral sex on him. Appellant told her that he believed God

put her in his life for this special relationship because there were things Sherry could

not do for him. Appellant and G.R. began engaging in oral sex and sexual intercourse

on a weekly basis when she babysat for his children. Sometimes in his office in the

church he would place her on his lap, rub her breasts and her genital area, and have

her rub his genitals. During a game of hide and seek at a youth group overnighter at

the church, appellant found G.R. hiding in the baptismal. He had G.R. perform oral

sex on him in the baptismal. He told G.R. that he had consulted the Holy Spirit and

had received peace that his relationship with G.R. was right. He told her that giving

him oral sex was her God-given role as his comforter.

. . .

{¶ 11} In 2005, H.G. disclosed her involvement with appellant to a pastor at her new

church. This pastor in turn relayed the allegations to the Marion Avenue church, and

H.G. was called before a council of pastors. H.G.'s claims were discounted by the

church, but the church held a series of meetings about whether to retain appellant as

youth pastor. His other victims attended these meetings, either standing in full support

of appellant or remaining silent. Many members of the church had become concerned

about appellant's close relationships with young women in the congregation, with one

member referring to the group as appellant's “harem.” Tr. 229.

{¶ 12} Although the congregation voted to retain appellant, he resigned from the

church and made plans to form his own church with members of his “family.” These

plans fell apart in January of 2005 when S.S. confessed her relationship with appellant

to her husband.1

{¶ 13} Initially, police were not concerned with relationships between appellant and

the girls after they turned 18, believing them to be consensual relationships between

adults. Appellant was initially indicted in Case No. 08–CR–545 for sexual battery

against H.G. and G.R. when they were juveniles. After the nature of the control and

mental and spiritual coercion appellant exerted over the girls became apparent to

police, the State moved to amend the indictment to include offenses against H.G. and

G.R. after they turned 18, and to amend the statutory subsection in counts nine through

sixteen, which related to H.G., to allege a violation of R.C. 2907.03(A)(1) rather than

a violation of R.C. 2907.03(A)(9) because subsection (A)(9) was not in effect during

the time period alleged in these counts.

(ECF No. 20-1, Exhibit 9); State v. Picard, No. 2009 CA 0108, 2010 WL 5480653,

2010-Ohio-6358 (5th Dist. Dec. 20, 2010).

1 S.S. was an alleged victim in another case against Mr. Picard, case number 09-CR-111, which was consolidated

for trial with case number 08-CR-545, the case at issue in this proceeding. The cases remained consolidated for

purposes of Mr. Picard’s direct appeal, and the Fifth Appellate District discussed facts from both cases in its

opinion. As discussed below, the Sixth Circuit denied Mr. Picard leave to file a second or successive petition

with respect to case number 09-CR-111. I have therefore omitted factual findings relating solely to that case.

III. PROCEDURAL HISTORY

A. State Court Conviction

On August 8, 2008, Mr. Picard was indicted in the Richland County Court of Common

Pleas in case number 08-CR-545 on (1) eight third-degree felony counts of sexual battery in

violation of O.R.C. § 2907.03(A)(12); (2) four third-degree felony counts of sexual battery in

violation of O.R.C. § 2907.03(A)(1); and (3) four third-degree felony counts of sexual battery

in violation of O.R.C. § 2907.03(A)(9). (ECF No. 20-1, Exhibit 1). Mr. Picard was also

indicted on similar charges involving other alleged victims in a separate case, case number

09-CR-111. (ECF No. 20-1, Exhibit 9, ¶ 14). On March 31, 2009, the trial court consolidated

the two cases for trial. (ECF No. 20-1, Exhibit 3).

On August 18, 2009, shortly before trial, the trial court amended the indictment at the

State’s motion to “conform with the evidence and the law.” (ECF No. 20-1, Exhibit 4). The

amendments expanded the time frame of some of the charges and also changed the statutory

provision under which Mr. Picard was being charged for a number of the counts.

The case proceeded to trial, and the jury convicted Mr. Picard on all charges. (ECF

No. 20-1, Exhibit 5). On September 3, 2009, the trial court sentenced Mr. Picard to an

aggregate term of 20 years in prison, to be served consecutively to Mr. Picard’s sentence in

case number 09-CR-111, for a total aggregate sentence of 40 years. Id.

B. Direct Appeal

Mr. Picard, through the same counsel, timely filed a notice of appeal to the Fifth

Appellate District. On March 15, 2010, Mr. Picard filed his appellate brief, raising the

following assignments of error:

1. Defendant-Appellant’s constitutional and statutory speedy trial rights were

violated by the State’s failure to bring him to trial within 270 days of his arrest.

2. The trial court erred in refusing to dismiss counts of the indictment which were

filed after the expiration of the applicable statute of limitations.

3. Defendant-Appellant’s constitutional and due process rights were violated by the

general form of the indictments and bills of particulars and by repeated

amendments to the indictments and refusal to permit grand jury transcript

inspection, such that his convictions must be reversed.

4. The trial court erred in refusing to declare a mistrial, dismiss counts involving

[G.R.], strike her testimony or instruct the jury as to the assertion of her Fifth

Amendment rights.

5. The Defendant was denied due process by the State’s failure to provide timely

discovery, failure to provide evidence favorable to the accused and the State’s

misuse of pretrial supervision authority, such that the charges against him should

have been dismissed.

6. The verdict forms do not support Defendant’s convictions for 42 counts of sexual

battery.

7. The trial court erred in convicting and sentencing the Defendant on duplicative

counts.

(ECF No. 20-1, Exhibit 6).

On December 20, 2010, the Fifth Appellate District affirmed Mr. Picard’s convictions

and sentence. (ECF No. 20-1, Exhibit 9). On February 3, 2011, Mr. Picard, through new

appellate counsel, filed a notice of appeal to the Ohio Supreme Court. (ECF No. 20-1, Exhibit

10). On May 4, 2011, the Ohio Supreme Court declined to exercise jurisdiction over the

appeal and dismissed the appeal as not involving any substantial constitutional question. (ECF

No. 20-1, Exhibit 13).

C. Rule 26(B) Application

On March 21, 2011, Mr. Picard, through new appellate counsel, filed an application

to reopen his direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B), arguing that

he received the ineffective assistance of appellate counsel during his initial appeal. (ECF No.

20-1, Exhibit 14). In particular, Mr. Picard argued that his original appellate counsel was

ineffective because counsel failed to argue that Mr. Picard’s convictions on six counts of

sexual battery in case number 08-CR-545 were not supported by sufficient evidence.

On April 14, 2011, the Fifth Appellate District granted Mr. Picard’s application to

reopen his appeal. (ECF No. 20-1, Exhibit 16). On December 23, 2011, the Fifth Appellate

District affirmed Mr. Picard’s convictions in part and reversed in part. (ECF No. 20-1, Exhibit

20). The court held that the evidence supported Mr. Picard’s convictions with respect to three

of the eight counts of sexual battery relating to one of the alleged victims, but that there was

insufficient evidence to support his convictions with respect to the remaining five counts.

Accordingly, the court vacated Mr. Picard’s judgment of conviction and sentence with respect

to those five counts. The court remanded the case to the trial court for resentencing.

D. Resentencing in Case Number 08-CR-545

On September 24, 2013, the trial court resentenced Mr. Picard in case number 08-CR-

545, again imposing an aggregate sentence of 20 years to run consecutively with Mr. Picard’s

sentence in case number 09-CR-111, for a total sentence of 40 years. (ECF No. 20-1, Exhibit

34).

On October 15, 2023, Mr. Picard, through counsel, filed a notice of appeal to the Fifth

Appellate District. (ECF No. 20-1, Exhibit 35). In his appellate brief, Mr. Picard raised the

following assignments of error:

1. Whether the trial court violated the Defendant’s due process rights by re-

sentencing and vacating the charges on remand that the trial court ran concurrent

where it was unclear which counts that the appeals court vacated.

2. Whether the trial court erred by re-sentencing the Defendant to the same term

where the appellate court vacated five counts of sexual battery.

(ECF No. 20-1, Exhibit 36).

On June 27, 2014, the Fifth Appellate District affirmed. (ECF No. 20-1, Exhibit 38).

On September 14, 2014, Mr. Picard filed a notice of appeal to the Ohio Supreme Court, along

with a motion for leave to file a delayed appeal. (ECF No. 20-1, Exhibits 39-40). On October

22, 2014, the Ohio Supreme Court denied Mr. Picard’s motion for leave to file a delayed

appeal and dismissed the appeal. (ECF No. 20-1, Exhibit 41).

E. First Federal Habeas Petition

On August 1, 2011, Mr. Picard, acting pro se, filed a § 2254 habeas petition in the

Southern District of Ohio, in a case captioned Picard v. Miller, case number 2:11-cv-712.

(ECF No. 20-1, Exhibit 42). In his petition, Mr. Picard asserted seven grounds for relief:

1. Defendant/Petitioner’s Constitutional and Statutory speedy trial rights were

violated by the State’s failure to bring him to trial within 270 days of his arrest.

2. The Trial Court erred in refusing to dismiss counts of the indictment which were

filed after the expiration of the applicable statute of limitations.

3. Defendant/Petitioner’s Constitutional Due Process rights were violated by the

generic form of the indictments and bills of particulars and by repeated

amendments to the indictments and refusal to permit grand jury transcript

inspection.

4. The Trial Court erred to the prejudice of the Defendant-Petitioner when it refused

to declare a mistrial, dismiss counts involving [G.R.], strike her testimony o[r]

instruct the jury as to the assertion of her fifth amendment rights.

5. The Defendant-Petitioner was denied Due Process by the State’s failure to provide

timely discovery, failure to provide evidence favorable to the accused and the

State’s misuse of pretrial supervision authority, such that the charges against him

should have been dismissed.

6. The verdict forms used do not support the Defendant-Petitioner’s convictions for

42 counts of sexual battery.

7. The trial court erred to the prejudice of the Defendant-Petitioner by convicting and

sentencing the Defendant-Petitioner on duplicative counts.

Id.

On April 2, 2012, the magistrate judge assigned to the case recommended that the

court dismiss Mr. Picard’s petition because his claims were waived, noncognizable, or

without merit. (ECF No. 20-1, Exhibit 43). On September 11, 2012, the court adopted the

report and recommendation, dismissed Mr. Picard’s petition, and denied him a certificate of

appealability. (ECF No. 20-1, Exhibit 44).

F. Motion to Proceed to Judgment

On June 4, 2014, Mr. Picard, acting pro se, filed a motion in the trial court in both

cases to proceed to judgment, arguing that the trial court never properly ruled on his motion

to dismiss for violation of his speedy trial rights. (ECF No. 20-1, Exhibit 47). The trial court

construed the motion as a petition for postconviction relief and held that it was untimely and

barred by the doctrine of res judicata. (ECF No. 20-1, Exhibit 50). Mr. Picard timely filed a

notice of appeal to the Fifth Appellate District. (ECF No. 20-1, Exhibit 51). In his appellate

brief, Mr. Picard raised the following assignments of error:

1. Whether the Trial Court violated the Defendant’s due process and equal protection

of the law rights by abusing its discretion or committing plain error when it

attached res judicata to an action without a final appealable order.

2. Whether the Trial Court violated the Defendant’s due process and equal protection

of the law rights by abusing its discretion or committing plain error when it treated

the MOTION TO PROCEED TO JUDGMENT as a no name motion and changed

it to a petition for post conviction relief.

3. Whether the Trial Court violated the Defendant’s due process and equal protection

of the law rights by abusing its discretion or committing plain error when it

decided the Defendant was raising claims that could have been raised on direct

appeal when it retained jurisdiction by not providing a final appealable order.

4. Whether the Trial Court violated the Defendant’s due process and equal protection

of the law rights by abusing its discretion or committing plain error when it ruled

the petition was untimely as the Trial Court made the decision to turn the motion

into a post conviction and made it subject to its time frame.

5. Whether the Trial Court violated the Defendant’s due process and equal protection

of the law rights by abusing its discretion or committing plain error when it

ignored Superintendent Rule 40 in not ruling on a motion before the Court for (5)

years.

(ECF No. 20-1, Exhibit 52).

On February 5, 2015, the Fifth Appellate District affirmed. (ECF No. 20-1, Exhibit

55). Mr. Picard filed a timely appeal to the Ohio Supreme Court, raising the same propositions

of law. (ECF No. 20-1, Exhibits 58-59). On June 24, 2015, the Ohio Supreme Court declined

to accept jurisdiction over the appeal. (ECF No. 20-1, Exhibit 60).

G. Petition for Writ of Procedendo

On August 5, 2014, Mr. Picard, acting pro se, filed a petition in the Ohio Supreme

Court for a writ of procedendo, again arguing that the trial court had failed to rule on his

speedy trial motion. (ECF No. 20-1, Exhibit 61). On September 24, 2014, the Ohio Supreme

Court granted the State’s motion to dismiss Mr. Picard’s petition. (ECF No. 20-1, Exhibit 64).

Mr. Picard filed a motion for reconsideration, which the court denied. (ECF No. 20-1,

Exhibits 65-66).

H. Motion to Vacate Void Judgment

On September 18, 2014, Mr. Picard filed a motion in the trial court to vacate void

judgment, which he again based on alleged violations of his speedy trial rights. (ECF No. 20-

1, Exhibit 67). On May 11, 2015, the trial court denied Mr. Picard’s motion. (ECF No. 20-1,

Exhibit 70). Mr. Picard did not appeal the trial court’s ruling.

I. Motion for Resentencing

On February 5, 2015, Mr. Picard filed a motion in the trial court for resentencing,

arguing that the trial court’s sentencing entry was invalid because the entry failed to include

the amount of restitution and instead improperly memorialized the restitution amount in a

separate order. (ECF No. 20-1, Exhibit 71). On March 11, 2015, the trial court denied Mr.

Picard’s motion. (ECF No. 20-1, Exhibit 73).

On April 29, 2015, Mr. Picard filed a complaint for a writ of mandamus and/or

procedendo in the Fifth Appellate District, raising the same argument. (ECF No. 20-1, Exhibit

74). On March 14, 2016, the Fifth Appellate District granted Mr. Picard a writ of mandamus,

holding that the trial court failed to issue a final, appealable order in case number 09-CR-111

because it did not issue a single judgment entry containing the entire sentence, including the

amount of restitution. (ECF No. 20-1, Exhibit 76). The Fifth Appellate District remanded the

case to the trial court to enter a corrected sentencing judgment. Id.

On February 28, 2017, the trial court entered a revised sentencing entry in case number

09-CR-111, which included the restitution amount but did not otherwise change Mr. Picard’s

sentence. (ECF No. 20-1, Exhibit 78). Mr. Picard filed a motion for reconsideration, arguing

that the trial court violated his constitutional rights by entering the revised sentencing

judgment outside of his presence. (ECF No. 20-1, Exhibit 77). It is not clear from the record

submitted in this case whether the trial court ever ruled on that motion.

On March 27, 2017, Mr. Picard filed a notice of appeal to the Fifth Appellate District

from the trial court’s resentencing entry. (ECF No. 20-1, Exhibit 79). In his appellate brief,

Mr. Picard raised the following assignments of error:

1. The trial court erred in sentencing defendant-appellant outside of his presence

violating Crim.R.43(A) and his 14th amendment of the U.S. Constitution as well

as article I section 10 of Ohio’s Constitution rights.

2. The trial court erred when defendant-appellant was not brought to trial within the

speedy trial time frame causing prejudice and violating R.C. 2945.71 and his 6th

and 14th amendments of the U.S. Constitution as well as article I, sections 10 and

16 of Ohio’s Constitution rights.

3. The trial court erred in prosecuting, convicting and sentencing without subject-

matter jurisdiction, indictment counts 17 and 18 (09 CR 111); violating defendant-

appellant’s 6th and 14th amendments of the U.S. Constitution as well as article I,

sections 10 and 16 of Ohio’s Constitution rights.

4. The trial court erred in prosecuting, convicting and sentencing for 5 counts (08

CR 545) with insufficient evidence; violating defendant-appellant’s 5th and 14th

amendments of the U.S. Constitution as well as article I, sections 10 and 16 of

Ohio’s Constitution rights.

5. The trial court erred by prosecuting, convicting, and sentencing for 17 counts (09

CR 111) with insufficient evidence; violating defendant-appellant’s 5th and 14th

amendments of the U.S. Constitution as well as article I, sections 10 and 16 of

Ohio’s Constitution rights.

6. The trial court erred in sentencing for crimes arising out of the same conduct and

are allied offenses (09 CR 111), violating R.C. 2941.25(A) and defendant-

appellant’s double jeopardy, 5th and 14th amendments of the U.S. Constitution,

as well as article I, section 10 of Ohio’s Constitution rights.

7. The trial court erred in prosecuting, convicting and sentencing for crimes in which

wrongfully amended indictments included dates outside of the dates filed in the

original true bill indictments returned by the grand jury, counts 1-5 and 9-16 (08

CR 545) as well as co[u]nts 17 and 18 (09 CR 111), violating Crim.R. 7(D), and

defendant-appellant’s 14th amendment of the U.S. Constitution as well as article

I, section 10 of Ohio’s Constitution rights.

8. The defendant-appellant was denied a fundamentally fair trial, when defense

counsel’s representation fell below an objective standard of reasonableness

violating his 6th and 14th amendments of the U.S. Constitution as well as article

I, section 10 of Ohio’s Constitution rights.

9. The trial court erred by denying defendant-appellant a fair trial, when enough

prejudice, in cumulative effect, denied him fundamental fairness; violating his

14th amendment of the U.S. Constitution as well as article I, section 10 of Ohio’s

Constitution rights.

10. The trial court erred by the imposition of court costs without the opportunity to

challenge the billing. The duplicative and erroneous charges violate defendant-

appellant’s 14th amendment of the U.S. Constitution as well as article I, section

10 of Ohio’s Constitution rights.

(ECF No. 20-1, Exhibit 80).

On September 11, 2017, the Fifth Appellate District affirmed, holding that Mr.

Picard’s first assignment of error was without merit and that res judicata barred his remaining

assignments of error. (ECF No. 20-1, Exhibit 83). Mr. Picard filed a motion for

reconsideration, which the Fifth Appellate District denied. (ECF No. 20-1, Exhibits 84-85).

Mr. Picard appealed to the Ohio Supreme Court. (ECF No. 20-1, Exhibit 86). In his

memorandum in support of jurisdiction, he raised the following propositions of law:

1. The trial court erred in sentencing defendant-appellant outside of his presence

violating Crim.R.43(A) and his 14th amendment of the U.S. Constitution as well

as article I, section 10 of Ohio’s Constitution rights.

2. The trial court erred in prosecuting, convicting and sentencing without subject-

matter jurisdiction, indictment counts 17 and 18 (09 CR 000111); violating

defendant-appellant’s 6th and 14th amendments of the U.S. Constitution as well

as article I, sections 10 and 16 of Ohio’s Constitution rights.

(ECF No. 20-1, Exhibit 87). On January 31, 2018, the Ohio Supreme Court declined

to accept jurisdiction over the appeal. (ECF No. 20-1, Exhibit 88).

J. Second Federal Habeas Petition

On July 13, 2018, Mr. Picard filed a second federal habeas petition in the United States

District Court for the Southern District of Ohio, in a case captioned Picard v. Gray, case

number 2:18-cv-00701. (ECF No. 20-1, Exhibit 89). In his petition, Mr. Picard raised the

following grounds for relief:

1. Petitioner was sentenced outside of his presence violating his rights under

Amendments 5, 6, and 14 of the United States Constitution.

2. Petitioner was prosecuted, convicted and sentenced without subject-matter

jurisdiction, indictment counts 17 and 18 (09 CR 000111); violating his rights

under Article 2, Section 3 as well as Amendments 5, 6, and 14 of the United States

Constitution.

Id.

On July 19, 2018, the Southern District of Ohio transferred the case to this Court.

(ECF No. 20-1, Exhibit 90). On September 28, 2018, the prior magistrate judge recommended

that the Court dismiss Mr. Picard’s petition without prejudice and transfer it to the Sixth

Circuit as a second or successive petition under 28 U.S.C. § 2244(b). (ECF No. 20-1, Exhibit

92). On March 28, 2019, the Court adopted the magistrate judge’s recommendation and

transferred the case to the Sixth Circuit. (ECF No. 20-1, Exhibit 93). On September 30, 2019,

the Sixth Circuit denied Mr. Picard’s motion for leave to file a second or successive habeas

petition. (ECF No. 20-1, Exhibit 96).

K. Motion for Leave to File Delayed Appeal

On October 18, 2022, Mr. Picard, through counsel, filed a motion in the Fifth

Appellate District for leave to file a delayed appeal to perfect his direct appeal, arguing that

his trial counsel and initial appellate counsel were ineffective in numerous respects. (ECF No.

20-1, Exhibit 97). On November 8, 2022, the Fifth Appellate District summarily denied Mr.

Picard’s motion for leave. (ECF No. 20-1, Exhibit 100).

Mr. Picard timely appealed to the Ohio Supreme Court. (ECF No. 20-1, Exhibit 101).

In his memorandum in support of jurisdiction, Mr. Picard raised the following propositions

of law:

1. The Fourteenth Amendment to the U.S. Constitution guarantees the rights of Due

Process, Equal Protection, and Fundamental Fairness.

2. Abuse of Discretion by the Fifth District Court of Appeals ignores binding,

established law.

3. The First Amendment to the U.S. Constitution guarantees the right to Access to

the Courts in order to Petition the Government for redress of a grievance.

(ECF No. 20-1, Exhibit 102). On February 28, 2023, the Ohio Supreme Court declined

to accept jurisdiction over the appeal. (ECF No. 20-1, Exhibit 104).

L. State Court Habeas Petitions

On November 9, 2023, Mr. Picard filed a petition for a writ of habeas corpus in the

Richland County Court of Common Pleas. (ECF No. 20-1, Exhibit 105). On November 17,

2023, the court dismissed Mr. Picard’s petition for want of jurisdiction. Id.

On January 8, 2024, Mr. Picard filed a second state habeas petition in the Belmont

County Court of Common Pleas. (ECF No. 20-1, Exhibit 106). In his petition, Mr. Picard

argued that the indictments against him were improper because the clerk of courts failed to

endorse them. Id. On March 13, 2024, the court dismissed Mr. Picard’s petition. (ECF No.

20-1, Exhibit 107).

On June 2, 2025, Mr. Picard filed a third state court habeas petition in the Belmont

County Court of Common Pleas. (ECF No. 20-1, Exhibit 108). That petition, which does not

raise any claims relevant here, remained pending at the time the Warden filed her traverse.

M. Third Federal Habeas Action

On July 24, 2023, Mr. Picard, through counsel, filed his 28 U.S.C. § 2254 habeas

petition. (ECF No. 1). Mr. Picard’s habeas petition raises the following grounds for relief:

1. Petitioner is being held in violation of the Constitution, laws, and treaties of the

United States because no meaningful opportunity to raise his Ineffective

Assistance of Counsel claims has been afforded, being improperly and wrongfully

barred by procedural default, so that his 14th Amendment Constitutional Rights

have been violated.

2. Petitioner is being held in violation of the Constitution, laws, and treaties of the

United States since the Right to Conflict Free Appellate Counsel was Denied to

him when the Trial Court assigned Trial Counsel as Appellate Counsel without

Waiver, such that his 14th Constitutional Amendment right was violated.

3. Petitioner is being held in violation of the Constitution, laws, and treaties of the

United States since the right to Effective Assistance of Counsel was denied at Trial

and Appeal, such that his 6th and 14th Amendments Constitutional rights have

been violated.

4. Petitioner is being held in violation of the Constitution, laws, and treaties of the

United States since the same Trial Counsel, who failed to: prepare for Trial; failed

to object to the Prosecutor’s misconduct; failed to have any sort of defense theory;

failed to have Defendant testify; and, failed to raise viable Sentencing arguments;

represented in the foregoing Grounds, failed to raise Ineffective Assistance of

Counsel as an Assignment of Error on Direct Appeal, such that his 6th and 4th

[sic] Constitutional Amendment rights were violated and made the entire Direct

Appeal process unreliable.

5. Petitioner is being held in violation of the Constitution, laws, and treaties of the

United States because of the Cumulative Effect of the Trial errors, so that his 14th

Constitutional Amendment rights to Due Process and Fundamental Fairness were

violated.

Id.

On October 6, 2023, the Warden filed a motion to transfer Mr. Picard’s petition to the

Sixth Circuit as a second or successive petition pursuant to 28 U.S.C. § 2244(b). (ECF No.

6). On January 23, 2024, the Court granted the Warden’s motion and transferred the petition

to the Sixth Circuit. (ECF No. 8).

On September 6, 2024, the Sixth Circuit denied Mr. Picard’s motion for leave to file

a second or successive petition to the extent he challenged his convictions and sentences in

case number 09-CR-111. (ECF No. 10). However, the court also held that Mr. Picard’s motion

was unnecessary to the extent he challenged his convictions and sentences in case number

08-CR-545 because his 2013 resentencing amounted to a “full resentencing” that constituted

a “new judgment” postdating his prior habeas petition. Id. (quoting King v. Morgan, 807 F.3d

154, 156 (6th Cir. 2015)). The court remanded the matter to this court for further proceedings.

Id.

Following remand, the Warden filed an answer/return of writ on July 11, 2025. (ECF

No. 20). On August 4, 2025, Mr. Picard filed a pro se motion to strike the Warden’s return of

writ. (ECF No. 20). On August 5, 2025, I struck Mr. Picard’s motion because he was still

represented by counsel. (See ECF non-document entry dated August 5, 2025). On August 11,

2025, Mr. Picard’s counsel filed a motion to withdraw (ECF No. 22), which I granted on the

same day (ECF non-document entry dated August 11, 2025). I also informed Mr. Picard that,

with his counsel’s withdrawal, he could now refile his pro se motion to strike the Warden’s

return of writ.

Mr. Picard filed a traverse on September 8, 2025. (ECF No. 23). On September 15,

2025, Mr. Picard filed a notice to the Court stating that he could not refile his motion to strike

due to prison constraints and expressing his hope that the Court retained a copy of the motion.

(ECF No. 24).

IV. STANDARDS OF REVIEW AND GOVERNING LAW

A. Jurisdiction

28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of

habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court

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

the United States.” A state prisoner may file a § 2254 petition in the “district court for the

district wherein such person is in custody or in the district court for the district within which

the State court was held which convicted and sentenced him[.]” 28 U.S.C. § 2241(d). The

Richland County Court of Common Pleas sentenced Mr. Picard, and the Court takes judicial

notice that Richland County is within this Court’s geographic jurisdiction. Accordingly, this

Court has jurisdiction over Mr. Picard’s § 2254 petition.

B. Exhaustion and Procedural Default

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), state prisoners must exhaust

all possible state remedies, or have no remaining state remedies, before a federal court can

review a petition for a writ of habeas corpus on the merits. 28 U.S.C. § 2254(b) and (c); see

also Rose v. Lundy, 455 U.S. 509 (1982). This entails giving the state courts “one full

opportunity to resolve any constitutional issues by invoking one complete round of the State's

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In

other words, “the highest court in the state in which the petitioner was convicted [must have]

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). The exhaustion requirement, however, “refers

only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S.

107, 125 n.28 (1982). It “does not require pursuit of a state remedy where such a pursuit is

clearly futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).

Procedural default is a related but “distinct” concept from exhaustion. Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain

consideration of a federal constitutional claim by state courts because he failed to: (1) comply

with a state procedural rule that prevented the state courts from reaching the merits of the

petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies

were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle,

456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining whether there has been a

procedural default, the federal court looks to the last explained state-court judgment. Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).

A claim is fairly presented when it has been asserted as a federal constitutional issue at every

stage of the state court review process. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d

281, 285 (6th Cir. 2010); Williams, 460 F.3d at 806.

The Sixth Circuit has developed a four-part test to determine whether a procedural

default precludes a federal court from reaching a petitioner’s claim: (1) whether there is a

state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed

to comply with; (2) whether the state court “actually enforced” the state procedural rule; (3)

whether the rule is an “adequate and independent” state ground on which the state can rely to

foreclose review of a federal claim; and (4) whether the petitioner can demonstrate cause for

his failure to follow the procedural rule and actual prejudice from the alleged constitutional

error. Barton v. Warden, Southern Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015)

(quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). These factors are commonly

known as the “Maupin” factors.

As the fourth Maupin factor indicates, if a procedural default has occurred, the default

can be excused and will not preclude consideration of a claim on federal habeas review if the

petitioner can demonstrate: (1) “cause for the default and actual prejudice as a result of the

alleged violation of federal law;” or (2) “failure to consider the claim will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). A

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

supported by new reliable evidence not presented at trial – would establish that the petitioner

was “actually innocent” of the offense. Schlup v. Delo, 513 U.S. 298, 324 (1995); Lundgren

v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).

C. Cognizable Federal Claim

Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody “only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” A petitioner's claim is not cognizable on habeas review if it “presents no federal issue

at all.” Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18,

2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in

application of state law . . . are usually not cognizable in federal habeas corpus.” Bey v.

Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th

Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province

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

A federal habeas court does not function as an additional state appellate court; it does

not review state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610,

614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead,

“federal courts must defer to a state court's interpretation of its own rules of evidence and

procedure” in considering a habeas petition. Id. (quotation omitted). Moreover, “the doctrine

of exhaustion requires that a claim be presented to the state courts under the same theory in

which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir.

1998).

D. AEDPA Standard of Review

AEDPA provides in relevant part as follows:

(d) 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.

(Id.)

To determine whether relief should be granted, the Court must use the “look-through”

methodology and look to the “last explained state-court judgment” on the petitioner's federal

claim. Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We

think that a presumption which gives them no effect—which simply ‘looks through’ them to

the last reasoned decision—most nearly reflects the role they are ordinarily intended to

play.”); Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018) (“We conclude that federal habeas

law employs a ‘look through’ presumption.”).

“A decision is ‘contrary to’ clearly established federal law when ‘the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or

decides a case differently than the Supreme Court has on a set of materially indistinguishable

facts.’” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.

362, 412-13 (2000)). “Clearly established Federal law for purposes of § 2254(d)(1) includes

only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v.

Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). “[U]nder the

unreasonable application clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003). “The unreasonable application clause requires the state court decision to be more than

incorrect or erroneous”—it must be “objectively unreasonable.” Id.

Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for

a prior state court decision rejecting a claim, the federal court may overturn the state court's

decision only if it was ‘based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Burt v. Titlow, 571 U.S. 12, 18 (2013)

(quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination

of the facts” under § 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins

v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing

the record might disagree” about the finding in question, “on habeas review that does not

suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-

42 (2006). The prisoner bears the burden of rebutting the state court's factual findings “by

clear and convincing evidence.” Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).

For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant

to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by

AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court

relitigation of claims already rejected in state proceedings.” Id. at 103. “It preserves authority

to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree

that the state court’s decision conflicts with this Court's precedents” and “goes no further.”

Id. Thus, in order to obtain federal habeas corpus relief, “a state prisoner must show that the

state court's ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id.

V. ANALYSIS

Mr. Picard asserts five grounds for relief. The Warden argues that the Court should

dismiss Mr. Picard’s petition in its entirety as time-barred. Alternatively, the Warden argues

that Mr. Picard procedurally defaulted on his first four grounds for relief and that his fifth

ground is not cognizable. The Warden’s arguments are well-taken.

A. Mr. Picard’s Motion to Strike

Mr. Picard has moved to strike the Warden’s traverse, arguing that the Warden

improperly included facts regarding case number 09-CR-111 even though the Sixth Circuit

denied him leave to file a second or successive petition with respect to that case. I agree with

Mr. Picard that facts relating solely to case number 09-CR-111 are not relevant in light of the

Sixth Circuit’s ruling. However, rather than striking portions of the Warden’s traverse, I will

instead refuse to consider those facts when analyzing Mr. Picard’s petition.

In his traverse, Mr. Picard also disputes the Warden’s summary of facts regarding case

number 08-CR-545, which the Warden quoted directly from the Fifth Appellate District’s

opinion on direct appeal. However, Mr. Picard has not shown by clear and convincing

evidence that the Fifth Appellate District made a clear factual error based on the evidence

presented at trial, and thus has not shown that the Fifth Appellate District’s factual findings

were unreasonable. Burt, 571 U.S. at 18.

B. Statute of Limitations

The Warden first argues that the Court should dismiss Mr. Picard’s petition in its

entirety because Mr. Picard filed it well after the applicable statute of limitations expired and

because Mr. Picard is not entitled to any form of tolling. I agree.

AEDPA imposes a one-year statute of limitations upon all applications seeking a writ

of habeas corpus. See 28 U.S.C. § 2244(d)(1). Although the statute of limitations is “not

jurisdictional,” it “effectively bars relief absent a showing that the petitioner’s untimeliness

should be excused based on equitable tolling and actual innocence.” Akrawi v. Booker, 572

F.3d 252, 260 (6th Cir. 2009). The one-year limitations period begins to run from the latest

of four dates:

(A) the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the applicant

was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court, if the right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

Cases become final for purposes of § 2244(d)(1)(A) when the time to file a direct

appeal has expired, including the time to file a petition for a writ of certiorari to the United

States Supreme Court. See Lawrence v. Florida, 549 U.S. 327, 333 (2007). Here, the trial

court resentenced Mr. Picard in case number 08-CR-545 on September 25, 2013. (ECF No.

20-1, Exhibit 34). The Sixth Circuit held that the resentencing order constituted a new

judgment and is the relevant order for purposes of Mr. Picard’s petition. (ECF No. 10).

Mr. Picard timely appealed the trial court’s resentencing order to the Fifth Appellate

District, which affirmed on June 27, 2014. (ECF No. 20-1, Exhibits 34, 38). Mr. Picard failed

to timely appeal the Fifth Appellate District’s ruling to the Ohio Supreme Court, and instead

filed an untimely notice of appeal and motion for leave to file a delayed appeal on September

2, 2014, which the Ohio Supreme Court denied on October 22, 2014. (ECF No. 20-1, Exhibits

39-41). It is not clear that Mr. Picard’s unsuccessful motion for a delayed appeal served to

delay the start of the limitations period. Out of an abundance of caution, however, I will

assume that the statute of limitations did not start until after the Ohio Supreme Court denied

Mr. Picard’s motion for leave to take a delayed appeal.

Mr. Picard had 90 days from the Ohio Supreme Court’s decision, or until January 20,

2015, to file a petition for a writ of certiorari in the United States Supreme Court. See Sup.

Ct. R. 13. Mr. Picard did not do so, so the one-year statute of limitations began running the

next day and expired on January 20, 2016. Mr. Picard did not file his habeas petition until

July 24, 2023, more than seven years later. (ECF No. 1). His petition is therefore untimely

unless either statutory or equitable tolling applies.2

2 Mr. Picard argues that the Sixth Circuit already determined that his claims are timely because the court held

that his petition could proceed with respect to case number 08-CR-545. Mr. Picard misconstrues the Sixth

Circuit’s ruling. The only issues before the court were whether Mr. Picard’s petition was a second or successive

petition and, if so, whether he was entitled to an order authorizing the district court to consider it. (ECF No. 10).

The Sixth Circuit held that Mr. Picard’s petition was not second or successive because the 2013 resentencing

constituted a full resentencing resulting in a new judgment such that Mr. Picard had not “trigger[ed] the

gatekeeping requirements applicable to second or successive § 2254 petitions.” Id. at PageID # 1932. Nothing

in the court’s opinion purported to address whether Mr. Picard’s petition was timely or whether he procedurally

defaulted on his claims.

1. Statutory Tolling

§ 2244(d)(2) provides that “[t]he time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent judgment or claim

is pending shall not be counted toward any period of limitation under this subsection.” 28

U.S.C. § 2244(d)(2). Accordingly, “[t]he one-year period of limitations is tolled” while a

properly filed application state post-conviction or other collateral review is pending. Keeling

v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 459 (6th Cir. 2012) (quoting 28 U.S.C. §

2244(d)(2)).

The Warden concedes that Mr. Picard’s petition for a writ of procedendo (ECF No.

20-1, Exhibit 61) and his motion to vacate void judgment (ECF No. 20-1, Exhibit 67) were

properly filed state court petitions that tolled the statute of limitations. The trial court decided

the later of those motions, Mr. Picard’s motion to vacate void judgment, on May 11, 2015.

(ECF No. 20-1, Exhibit 70). Under Ohio Appellate Rule 4(A)(1), Mr. Picard had 30 days, or

until June 10, 2015, to file a notice of appeal to the Fifth Appellate District. See Ohio App.

R. 4(A)(1). Mr. Picard did not appeal the trial court’s ruling, so the statute of limitations began

running on June 11, 2015. Absent additional tolling, it expired a year later, on June 12, 2016.

Mr. Picard also filed a motion to proceed to judgment in June 2014 (ECF No. 20-1,

Exhibit 47), which the trial court construed as a petition for postconviction relief and denied

on both timeliness and res judicata grounds. (ECF No. 20-1, Exhibit 50). The Fifth Appellate

District affirmed, agreeing that Mr. Picard’s petition was both untimely and barred by res

judicata. (ECF No. 20-1, Exhibit 55). It is well-settled that an untimely postconviction petition

is not “properly filed” for purposes of § 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408,

414 (“When a postconviction petition is untimely under state law, ‘that [is] the end of the

matter’ for purposes of § 2244(d)(2).”) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)).3

Mr. Picard’s second federal habeas petition, which he filed in July 2018, likewise did

not toll the statute of limitations, as a federal habeas petition cannot toll the limitations period

under § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 181 (2001).

Finally, Mr. Picard filed a motion in the Fifth Appellate District for leave to file a

delayed appeal or perfect his direct appeal on October 18, 2022. (ECF No. 20-1, Exhibit 97).

However, it is well-settled that statutory tolling under § 2244(d)(2) “does not . . . ‘revive’ the

limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has

not yet fully run.” Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quotation omitted);

see also Keeling, 673 F.3d at 462 (“Because the one year statute of limitations period had

already expired when Keeling filed the motion, statutory tolling does not apply.”). Here, the

one-year statute of limitations expired long before Mr. Picard filed his motion for leave to file

a delayed appeal. Accordingly, that motion did not toll the limitations period, and statutory

tolling cannot save Mr. Picard’s claims.

2. Equitable Tolling

AEDPA’s one-year statute of limitations is not jurisdictional, and a court may still

entertain an untimely petition if the petitioner is entitled to equitable tolling. See Holland v.

Florida, 560 U.S. 631, 645 (2010). If a petitioner seeks equitable tolling, he must show that:

(1) he pursued his rights diligently, and (2) some extraordinary circumstance stood in his way

and prevented timely filing. See Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010)

3 Mr. Picard also filed two challenges to his sentence in 2015, arguing that the trial court’s 2009 sentencing entry

was invalid because the trial court failed to include the restitution amount in the sentencing entry. (ECF No. 20-

1, Exhibits 71, 75). However, Mr. Picard’s challenge related only to his sentence in case number 09-CR-111,

and thus did not impact his sentence in case number 08-CR-545. See ECF No. 20-1, Exhibit 76, ¶ 2 (noting that

the separate restitution orders Mr. Picard challenged “represent restitution owed to separate victims in Case

Number 09-CR-111”); ECF No. 20-1, Exhibit 78 (resentencing Mr. Picard in case number 09-CR-111 only).

(citing Holland, 560 U.S. at 649); Keeling, 673 F.3d at 462. “Equitable tolling is granted

sparingly and is evaluated on a case-by-case basis, with the petitioner retaining the ‘ultimate

burden of persuading the court that he or she is entitled to equitable tolling.’” Keeling, 673

F.3d at 462 (quoting Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011)).

Mr. Picard argues that he received the ineffective assistance of appellate counsel

because the same counsel represented him at trial and on appeal. He also asserts that the

alleged ineffectiveness of his appellate counsel “pertains to the statute of limitations.” (ECF

No. 23, PageID # 4314). Construing his pro se arguments broadly, I will assume that Mr.

Picard is arguing that he is entitled to equitable tolling on the basis of ineffective assistance

of counsel. Ineffective assistance of counsel can constitute an extraordinary circumstance that

would entitle a petitioner to equitable tolling. See Keeling, 673 F.3d at 462. But “[d]espite the

presence of such circumstances, the statute of limitations will only be tolled if the

circumstances were both beyond the control of the litigant and unavoidable with reasonable

diligence.” Id.

Mr. Picard has not explained how his appellate counsel’s alleged ineffectiveness

prevented him from complying with the one-year statute of limitations. This is not a case

where Mr. Picard claims that his appellate counsel failed to timely inform him of an appellate

decision. See id. (noting that a “substantial, involuntary delay in learning about the status of

[a petitioner’s] appeals” may constitute an extraordinary circumstance) (quoting Robinson v.

Easterling, 424 F. App’x 439, 442 (6th Cir. 2011)). Instead, Mr. Picard argues that his

appellate counsel was ineffective because counsel also represented Mr. Picard at trial and

could not raise his own ineffectiveness as trial counsel as an issue on appeal.

Even assuming counsel’s ineffectiveness could constitute an extraordinary

circumstance, Mr. Picard has not shown that he pursued his rights diligently. The Fifth

Appellate District decided Mr. Picard’s direct appeal on December 20, 2010. (ECF No. 20-1,

9). Mr. Picard was resentenced on September 25, 2013 (ECF No. 20-1, Exhibit 34), and did

not file his habeas petition until July 24, 2023 (ECF No. 1). While he did file several state

court petitions and federal habeas petitions during that time, there are also lengthy gaps in the

state record, including a three-year period between September 2019 and October 2022 where

Mr. Picard did not pursue any claims. Mr. Picard has not explained the lengthy delay, and I

therefore cannot conclude that he acted diligently. See Shank v. Marquis, No. 1:18-cv-01262,

2020 WL 13836622, at *9 (N.D. Ohio Sept. 15, 2020) (report and recommendation) (“Even

assuming arguendo that Shank's counsel's handling of his direct appeal and/or handling of his

post-conviction proceedings amounted to ineffective assistance of counsel, he has failed to

explain how their actions excuse him from waiting until 2018 to pursue his federal habeas

claim.”); McCloud v. Luneke, No. 5:24-cv-01523, 2025 WL 1798301, at *12 (N.D. Ohio June

30, 2025), report and recommendation adopted, 2025 WL 2717261 (N.D. Ohio Sept. 24,

2025) (holding that petitioner did not pursue rights diligently where he delayed in filing state

court motions, including a four-year delay before filing motion to reopen direct appeal).

A petitioner may also be entitled to equitable tolling if he shows that he is actually

innocent of the offenses for which he was convicted. See McQuiggin v. Perkins, 569 U.S.

383, 386 (2013). To qualify for the actual innocence exception, a petitioner must “persuade[]

the district court that, in light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329).

Mr. Picard has not presented new, reliable evidence demonstrating that no reasonable juror

would have voted to convict him, and is therefore not entitled to equitable tolling on actual

innocence grounds. Accordingly, his petition is untimely, and I recommend that the Court

dismiss the petition in its entirety as time-barred. Out of an abundance of caution, however, I

will also consider the Warden’s procedural default and cognizability arguments.

C. Procedural Default

The Warden next argues that Mr. Picard procedurally defaulted on grounds one

through four because he did not fairly present them to the state courts at the first available

opportunity. Because the procedural default analysis varies somewhat for each of Mr. Picard’s

claims, I will consider them in turn.

1. Denial of Opportunity to Raise Ineffective Assistance Claims

In his first ground for relief, Mr. Picard asserts that his due process rights were

violated because the state courts did not give him a meaningful opportunity to raise his

ineffective assistance of counsel claims. Mr. Picard raised the substance of this claim for the

first time in his October 2022 motion for leave to file a delayed appeal, which the Fifth

Appellate District denied without explaining its reasoning. Despite the Fifth Appellate

District’s unexplained order, however, I agree with the Warden that Mr. Picard procedurally

defaulted on this claim.

With respect to the first Maupin factor, Ohio has several state procedural rules that

are applicable to Mr. Picard’s claim and that he failed to comply with. First, Ohio Rule of

Appellate Procedure 4(A)(1) provides that a defendant must appeal a final order within 30

days of the entry of the order. See Ohio App. R. 4(A)(1). Second, Ohio Rule of Appellate

Procedure 5(A)(1) provides that a criminal defendant may pursue a delayed appeal only with

leave of court. See Ohio App. R. 5(A)(1). Finally, Ohio’s res judicata doctrine prohibits a

defendant from raising a claim in a postconviction proceeding that the defendant could have

raised on direct appeal or in an earlier postconviction petition. See Hanna v. Ishee, 694 F.3d

596, 613-14 (6th Cir. 2012); Williams v. Coyle, 260 F.3d 684, 695 (6th Cir. 2001).

The second Maupin factor is whether the state courts actually enforced the state

procedural bar. Maupin, 785 F.2d at 138. Normally, a habeas court answers that question by

looking to the last explained state court judgment. Ylst, 501 U.S. at 805. Here, however, there

is no last explained state court judgment, as both the Fifth Appellate District and the Ohio

Supreme Court issued summary denials. (ECF No. 20-1, Exhibits 100, 104). The second

Maupin factor thus presents a “closer question.” Smith v. Warden, Toledo Corr. Inst., 780 F.

App’x 208, 223 (6th Cir. 2019). However, Supreme Court precedent “dictates . . . that when

a state court issues such a summary denial and the grounds given by the prosecution for doing

so are solely questions of state procedure, the decision fairly appears to rest on state law.” Id.

(citing Coleman, 501 U.S. at 740); see also Whitson v. Clipper, No. 1:14cv2718, 2015 WL

3905104, at *2-3 (N.D. Ohio June 25, 2015) (holding that petitioner procedurally defaulted

on claims where state courts denied Rule 5(A) motion even though both appellate court and

Ohio Supreme Court denied motion “without comment”).

Here, the State opposed Mr. Picard’s motion for leave on state law grounds, arguing

that Mr. Picard “has availed himself of this Court many times and has given this Court no

acceptable reason for it to accept his untimely appeal.” (ECF No. 20-1, Exhibit 98, PageID #

3122). And, although the State admittedly argued the merits Mr. Picard’s due process claims

in its brief to the Ohio Supreme Court, it primarily argued that Mr. Picard’s motion was

untimely and that res judicata barred his claims. (ECF No. 20-1, Exhibit 103). I therefore

conclude that the state courts enforced a state procedural bar notwithstanding their summary

orders.

The third Maupin factor asks whether the state procedural bar constitutes an adequate

and independent state ground. Maupin, 785 F.2d at 138, It is well-settled that both Ohio’s res

judicata rule and its deadlines for filing appeals are adequate and independent state grounds.

See Hand v. Houk, 871 F.3d 390, 410 (6th Cir. 2017) (“it is established law in this circuit that

an Ohio court's application of the doctrine of res judicata is an independent and adequate

state ground sufficient to bar habeas relief”); Stone v. Moore, 644 F.3d 342, 348 (6th Cir.

2011) (holding that denial of Rule 5(A) motion on timeliness grounds constitutes adequate

and independent state ground).

That leaves the question of whether Mr. Picard can demonstrate both cause for his

failure to follow the state procedural rules and prejudice to excuse his default. Maupin, 785

F.2d at 138. Mr. Picard again argues that the Court should excuse any procedural default

because the Sixth Circuit held that his claims could proceed. As noted above, Mr. Picard

misconstrues the Sixth Circuit’s opinion, which decided only whether that his petition was

not second or successive for purposes of 28 U.S.C. 2244.

Mr. Picard also argues that his procedural default should be excused because he

received the ineffective assistance of appellate counsel. Ineffective assistance of counsel can

constitute cause to excuse a procedural default. See Hodges v. Colson, 727 F.3d 517, 530 (6th

Cir. 2013). “However, ‘an ineffective-assistance-of-counsel claim asserted as cause for the

procedural default of another claim can itself be procedurally defaulted.’” Id. (quoting

Edwards v. Carpenter, 529 U.S. 446, 453 (2000)). As discussed below, Mr. Picard

procedurally defaulted on his ineffective assistance of appellate counsel claims, and any

alleged ineffectiveness thus cannot serve to excuse his procedural default. Nor has Mr. Picard

presented new, reliable evidence establishing that he is actually innocent of the crimes for

which he was convicted, as required to invoke the fundamental miscarriage of justice

exception. See Schlup, 513 U.S. at 324. I there for recommend that the Court dismiss Mr.

Picard’s first ground for relief as procedurally defaulted.

2. Ineffective Assistance of Trial Counsel

In his third ground for relief, Mr. Picard argues that his trial counsel was ineffective

in at least sixteen different ways. Mr. Picard did not present any of those claims in his direct

appeal to the Fifth Appellate District. As the Warden concedes, however, Ohio courts do not

apply res judicata to ineffective assistance of trial counsel claims where trial counsel also

serves as appellate counsel. See State v. Lentz, 639 N.E.2d 784, 786, 70 Ohio St. 3d 527, 530

(1994) (“res judicata does not apply when trial and appellate counsel are the same, due to the

lawyer’s inherent conflict of interest”); Hicks v. Collins, 384 F.3d 204, 211 (6th Cir. 2004)

(noting that, under Ohio law, “if the defendant was represented by the same counsel at trial

and on direct appeal, claims of ineffective assistance of trial counsel are not defaulted because

appellate counsel will rarely assert his own ineffectiveness at trial”) (emphasis omitted).

Instead, “where the state appellate court would decline to review claims [of] ineffective

assistance of trial counsel on direct appeal, the appropriate mechanism for asserting such

claims is a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21.”

Kelly v. Lazaroff, No. 5:14CV1217, 2015 WL 4546996, at *8 n.2 (N.D. Ohio July 28, 2015)

(report and recommendation) (citing Lentz, 639 N.E. 2d at 786, 70 Ohio St. 3d at 530).

The trial court construed Mr. Picard’s June 2014 motion to proceed to judgment as a

petition for postconviction relief. (ECF No. 20-1, Exhibit 50). However, Mr. Picard did not

assert any ineffective assistance of counsel claims in that petition, instead arguing only that

the trial court violated his speedy trial rights. Id.

Mr. Picard first raised some of his ineffective assistance of trial counsel subclaims in

his appeal from the trial court’s February 2017 resentencing order in case number 09-CR-

111. (ECF No. 20-1, Exhibit 80). However, the Fifth Appellate District held that res judicata

barred Mr. Picard’s claims. (ECF No. 20-1, Exhibit 83). The Ohio Supreme Court then

declined to accept jurisdiction without comment, leaving the Fifth Appellate District’s

decision as the last explained state court judgment. (ECF No. 20-1, Exhibit 88).

Mr. Picard subsequently raised all of his ineffective assistance of trial counsel

subclaims in his October 2022 motion for leave to file a delayed appeal. (ECF No. 20-1,

Exhibit 97). As discussed above, the state courts applied a procedural bar to deny his motion.

(ECF No. 20-1, Exhibits 100, 104). Mr. Picard has therefore procedurally defaulted on his

ineffective assistance of trial claims.

Mr. Picard argues that his procedural default should be excused under two Supreme

Court cases, Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013),

because Ohio law channeled his ineffective assistance of trial counsel claims into a

postconviction petition and because he did not have counsel during the postconviction

proceedings.

In Martinez, the Supreme Court recognized a “narrow exception” to Coleman’s

general rule that ineffective assistance of counsel in connection with a postconviction petition

cannot excuse a procedural default because a defendant has no constitutional right to counsel

in postconviction proceedings. 566 U.S. at 9. Under that exception “[w]here, under state law,

claims of ineffective assistance of trial counsel must be raised in an initial-review collateral

proceeding, a procedural default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was ineffective.” Id. at 17. In Trevino, the Court

expanded Martinez’s scope, holding that Martinez also applies where a “state procedural

framework, by reason of its design and operation, makes it highly unlikely in a typical case

that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance

of trial counsel on direct appeal . . . .” 569 U.S. at 429.

The Sixth Circuit does not appear to have decided whether Martinez and Trevino

apply in Ohio where a defendant is represented by the same attorney at trial and on appeal.

See Mammone v. Jenkins, 49 F.4th 1026, 1048 (6th Cir. 2022) (noting that the Sixth Circuit

“ha[s] not yet decided whether Martinez and Trevino apply to Ohio cases generally”). Given

Ohio’s efforts to channel ineffective assistance of trial counsel claims under those

circumstances toward petitions for postconviction relief, it seems plausible that Martinez and

Trevino could apply. I need not definitely answer that question in this case, however, as the

Martinez/Trevino exception requires that the petitioner have a “substantial” claim of

ineffective assistance of trial counsel. Here, while Mr. Picard asserts numerous ineffective

assistance of trial counsel subclaims, none of those claims is “substantial.”

A petitioner claiming ineffective assistance of counsel must show that: (1) counsel’s

representation “fell below an objective standard of reasonableness,” such that he was not

performing as counsel guaranteed under the Sixth Amendment; and (2) counsel’s deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984).

Under the first prong of Strickland, the petitioner must overcome the “strong[]

presum[ption that counsel] rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Id. at 690. For prejudice, the petitioner

must show that there was a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. The Strickland

standard is “extremely deferential.” Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir. 2017)

(quoting Strickland, 466 U.S. at 690). “[T]he goal is not to ensure that a criminal defendant

be afforded perfect counsel, but rather ‘to ensure that the adversarial testing process works to

produce a just result under the standards governing decision.” Id. (quoting Strickland, 466

U.S. at 687).

Mr. Picard argues that his trial counsel was ineffective in sixteen separate ways: (1)

failing to review the State’s file in preparation for trial; (2) not objecting to the generic

language of the indictments; (3) not objecting to the consolidation of case numbers 08-CR-

545 and 09-CR-111 for trial; (4) not objecting when the indictments were amended two days

before trial to change the statute under which Mr. Picard was charged; (5) not objecting when

the indictments were amended two days before trial to change the time frame of the charges;

(6) not objecting to the prosecution’s allegedly misleading statements to the jury; (7) not

objecting to the prosecution’s alleged failure to turn over discovery; (8) failing to object to

the excessive number of counts against Mr. Picard; (9) not arguing that the evidence was

insufficient with respect to certain counts; (10) not objecting to the trial court’s alleged bias

in adjudicating the speedy trial issue; (11) not offering any defense; (12) not permitting Mr.

Picard to testify at trial; (13) failing to object to the trial court’s erroneous application of

Ohio’s sentencing factors; (14) failing to raise viable sentencing arguments or raise mitigating

factors; (15) not filing a motion for acquittal under Ohio Rule of Criminal Procedure 29; and

(16) not arguing that Mr. Picard’s convictions were for allied offenses of similar import.4

Because of Mr. Picard’s procedural defaults, the state courts never addressed the

merits of those subclaims. However, the Fifth Appellate District did address on the merits

4 Mr. Picard also asserts that counsel should have argued that the Ohio courts lacked jurisdiction over certain

counts that allegedly took place in Vermont. Mr. Picard’s argument relates solely to counts from case number

09-CR-111 and is not relevant to this proceeding. (ECF No. 1, PageID # 31-32).

several of the underlying arguments that Mr. Picard asserts his trial counsel was ineffective

for failing to raise. In particular, the Fifth Appellate District addressed Mr. Picard’s

underlying arguments that: (1) the indictments were impermissibly generic; (2) his due

process rights were violated when the indictments were amended shortly before trial; (3) the

prosecution failed to turn over discovery; (4) his speedy trial rights were violated; and (5) he

was sentenced to consecutive terms for allied offenses of similar import. (ECF No. 20-1,

Exhibit 6). The Fifth Appellate District held that each of those arguments was without merit

(ECF No. 20-1, Exhibit 9), and Mr. Picard has not shown that the Fifth Appellate District’s

ruling was contrary to or unreasonably applied clearly established law, and Mr. Picard’s trial

counsel was not ineffective in failing to raise meritless arguments. See Sutton v. Bell, 645

F.3d 752, 755 (6th Cir. 2011) (“Given the prejudice requirement [of Strickland], ‘counsel

cannot be ineffective for a failure to raise an issue that lacks merit.’” (quoting Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). I will now turn to the claims that the Ohio courts

did not address in any fashion.

a. Failure to Prepare for Trial

Mr. Picard first asserts that his counsel failed to adequately prepare for trial. To

support that argument, he cites to a single statement that one of his lawyers made during a

colloquy with the trial court regarding speedy trial issues. The court noted that the prosecution

had an “open file” policy and asked Mr. Picard’s counsel whether they had reviewed the

State’s materials. (ECF No. 20-2, PageID # 3281). As part of her argument, Mr. Picard’s

counsel stated that they “didn’t go through the State’s file . . . .” Id. at PageID # 3282.

While it is troubling that Mr. Picard’s counsel may not have reviewed the State’s

discovery in full, I cannot conclude from this single statement that Mr. Picard’s counsel was

unprepared for trial. The Sixth Circuit’s decision in Mason v. Mitchell, 320 F.3d 604 (6th Cir.

2003), is instructive. There, the petitioner’s trial counsel informed the court a week before

trial that he had not personally interviewed any witnesses and stated that it would be “a great

error for [him] to continue” as counsel and that he could not “do so in good conscience and

under the professional standards of the code of responsibility . . . .” Id. at 617-18. The court

nonetheless held that counsel’s performance was not “so deficient as to be objectively

unreasonable” because the “totality of the circumstances” did not suggest counsel was

unprepared. Id. at 618. In particular, the court noted that counsel filed numerous pretrial

motions and argued several pretrial hearings. Id.

Mr. Picard’s claim is weaker than the petitioner’s claim in Mason. His counsel did not

inform the court that they were unprepared to proceed. Rather, one of his attorneys made a

single statement while arguing a motion indicating that counsel had not reviewed the State’s

entire file. And, like the counsel in Mason, Mr. Picard’s attorneys filed multiple pretrial

motions, including a motion to dismiss on speedy trial grounds. In addition, my review of the

trial transcripts indicates that counsel conducted detailed cross-examination of the

prosecution’s witnesses that reflects constitutionally adequate trial preparation.

Even assuming that counsel was not adequately prepared for trial, Mr. Picard has not

demonstrated prejudice. He does not argue that there was any specific information in the

State’s file that would have bolstered the defense. Nor does he argue that information in the

State’s file would have identified additional areas for investigation that his counsel should

have pursued. See Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002) (“This Court has held

that a petitioner cannot show deficient performance or prejudice resulting from a failure to

investigate if the petitioner does not make some showing of what evidence counsel should

have pursued and how such evidence would have been material.”).

b. Failure to Object to the Prosecution’s Alleged Misconduct

Mr. Picard next asserts several subclaims alleging that his trial counsel provided

ineffective assistance by failing to object to the prosecution’s “misconduct” during trial.

Mr. Picard first argues that the prosecution engaged in misconduct when it moved to

consolidate the cases for trial, which allegedly prejudiced him because the jury presumed his

guilt based solely on the sheer number of charges that he faced. As the Sixth Circuit has held,

“[T]here is always a potential for prejudice when claims are tried together . . . “ Raver v.

Brunsman, 381 F. App’x 558, 562 (6th Cir. 2010) (citation and quotations omitted). But,

under Strickland, a petitioner must show that such prejudice actually occurred. Id. Mr. Picard

has not made that showing here. Instead, he argues only that two potential jurors expressed

concerns about their ability to be impartial because of the number of charges Mr. Picard faced.

One of those jurors was excused, while the other said she believed she could listen to the

evidence with an open mind. (ECF No. 20-2, PageID # 3310-11, 3341). Based on that limited

evidence, I cannot conclude that Mr. Picard has presented a substantial question regarding

whether the consolidation prejudiced him or whether his trial counsel was ineffective in

failing to object to it. For similar reasons, Mr. Picard’s argument that the prosecution engaged

in misconduct by “stacking” an excessive number of counts to tarnish him in the eyes of the

jury does not present a substantial question of ineffective assistance of counsel.

Mr. Picard next argues that the prosecution engaged in misconduct when it prosecuted

him on five counts in case number 08-CR-545 for which was there was insufficient evidence

of sexual conduct. However, Mr. Picard already prevailed on that claim in his Rule 26(B)

application. (ECF No. 20-1, Exhibit 20). As a result, the Fifth Appellate District vacated those

convictions and the trial court resentenced Mr. Picard. Mr. Picard has not explained what

additional relief the Court can provide.

Mr. Picard further argues that his counsel was ineffective in failing to object to the

prosecution’s allegedly-improper statements that he was a member of the clergy and abused

his position to coerce the alleged victims into sexual activities. Mr. Picard argues that the

prosecution’s references to him as “clergy” were inaccurate and that the State was forced to

amend the indictment to remove its incorrect theory. The Fifth Appellate District dealt with

the underlying substance of this argument on direct appeal, holding that the State pursued a

consistent theory that Mr. Picard used the religious beliefs of the victims and his relationship

with them to coerce them into sex. (ECF No. 20-1, Exhibit 9, ¶ 94). The Fifth Appellate

District also found that Mr. Picard met the victims through his position as a youth pastor. Id.

at ¶¶ 2-3. Given the prosecution’s theory of the case and the state courts’ factual findings, Mr.

Picard’s trial counsel was not ineffective in failing to assert meritless objections.

c. Failure to Mount a Defense

Mr. Picard next argues in several subclaims that his trial counsel was ineffective in

failing to mount a defense at trial. He first asserts that his counsel did not have “any defense

theory whatsoever” and “failed to conduct any meaningful adversarial challenge.” (ECF No.

1, PageID # 46). The trial record belies Mr. Picard’s argument, and instead reflects that

counsel extensively cross-examined the alleged victims, attempting to undermine their

credibility and the prosecution’s theory of the case.

Mr. Picard also argues that his counsel was ineffective because counsel did not make

any opening statement. However, “[a]n attorney’s decision not to make an opening statement

is ordinarily a mere matter of trial tactics and . . . will not constitute . . . a claim of ineffective

assistance of counsel.” Millender v. Adams, 376 F.3d 520, 525 (6th Cir. 2004) (quotations

omitted). Moreover, “[e]ven if this decision was not a strategic one, [Mr. Picard] has not

articulated how the absence of an opening statement prejudiced him.” Moss v. Hofbauer, 286

F.3d 851, 864 (6th Cir. 2002).

Mr. Picard further argues that his counsel was ineffective because counsel did not call

any witnesses. But Mr. Picard has not identified any particular witnesses (other than himself)

that he believes his counsel should have called, and thus has not demonstrated prejudice. See

Duram v. Howard, No. 2:20-CV-13429, 2024 WL 388089, at *7 (E.D. Mich. Feb. 1, 2024)

(holding that ineffective assistance claim failed where petition failed to offer “any evidence

beyond her own assertions as to whether there were witnesses who would have testified and

what the content of their testimony would have been”); Hedelsky v. United States, No. 4:18-

cv-51, 2020 WL 377021, at *6 (E.D. Tenn. Jan. 23, 2020) (holding that counsel’s decision

not to put on affirmative evidence constituted reasonable trial strategy where petitioner did

not “identif[y] any witnesses he contends should have been called or about what those

witnesses would have testified”). Similarly, while Mr. Picard faults his trial counsel for not

presenting an alibi defense, he does not identify any alibi witnesses counsel should have

called. Nor does he actually assert that he had an alibi on any of the relevant dates. Instead,

Mr. Picard argues only that he traveled frequently and that offering alibi evidence would have

“forced specificity” from the State. (ECF No. 1, PageID # 46). Because Mr. Picard has not

provided reason to believe he had a viable alibi defense, his counsel was not ineffective in

failing to offer one.

Similarly, while Mr. Picard argues that his trial counsel was ineffective because

counsel did not move for a judgment of acquittal pursuant to Ohio Rule of Criminal Procedure

29, counsel does not provide ineffective assistance by failing to make a meritless motion

under Crim.R. 29. See Freeman v. Fender, No. 1:19-cv-1599, 2021 WL 606358, at *10 (N.D.

Ohio Jan. 5, 2021), report and recommendation adopted, 2021 WL 602957 (N.D. Ohio Feb.

16, 2021); Morris v. Hudson, No. 5:06CV2446, 2007 WL 4276665, at *13 (N.D. Ohio Nov.

30, 2007) (report and recommendation). With the exception of the five counts that the Fifth

Appellate District already granted Mr. Picard relief on, he has not shown that a Crim.R. 29

motion would have had merit.

Finally, Mr. Picard argues that his counsel was ineffective because counsel did not

call Mr. Picard to testify despite Mr. Picard’s desire to so do. To prevail on this claim, Mr.

Picard must “present record evidence that he somehow alerted the trial court to his desire to

testify.” Hodge v. Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009). Mr. Picard has not done so.

As a result, he has not “overcome the presumption that he assented to the tactical decision

that he not testify.” Id. Mr. Picard also has not demonstrated prejudice because he “gives no

details about the substance of his testimony” and has not provided any reason to believe that

his testimony would have changed the outcome. Id. at 640.

d. Errors at Sentencing

In his last category of alleged ineffective assistance, Mr. Picard challenges his

counsel’s performance at sentencing. He argues that his trial counsel was ineffective because

counsel did not object to the trial judge’s alleged misstatements, including that Mr. Picard

was a clergy member and that he “molested” his victims. Mr. Picard also argues that trial

counsel was ineffective in failing to challenge the trial court’s application of Ohio’s

sentencing factors and for failing to argue that the factors supported a more lenient sentence.

“Where ineffective assistance at sentencing is asserted, prejudice is established if the

movant demonstrates that his sentence was increased by the deficient performance of his

attorney.” Spencer v. Booker, 254 F. App’x 520, 525 (6th Cir. 2007) (citing Glover v. United

States, 531 U.S. 198, 200 (2001)). “Movants must ‘affirmatively prove prejudice.’” Id.

(quoting Strickland, 466 U.S. at 693). “If ‘one is left with pure speculation on whether the

outcome of . . . the penalty phase could have been any different,’ there has been an insufficient

showing of prejudice,’” Id. (quoting Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004)). Mr.

Picard has not shown that his counsel’s allegedly deficient performance at sentencing

prejudiced him. Instead, he has left the court with “pure speculation” that he would have

received a more lenient sentence had his counsel objected to the trial court’s statements or

made additional mitigation arguments.

In sum, while Mr. Picard asserts numerous ineffective assistance of trial counsel

subclaims, he has not shown that any of those claims are “substantial” for purposes of the

Martinez/Trevino exception. Accordingly, Mr. Picard has not established cause to excuse his

procedural default, and I recommend that the Court dismiss his third ground for relief as

procedurally defaulted.

3. Ineffective Assistance of Appellate Counsel

In Grounds Two through Four, Mr. Picard asserts that he received the ineffective

assistance of appellate counsel during his direct appeal. The Warden is again correct that Mr.

Picard procedurally defaulted on these claims.

In Ohio, a defendant may raise a claim for ineffective assistance of appellate counsel

through a Rule 26(B) application. See Ohio R. App. P. 26(B); Gerth v. Warden, Allen

Oakwood Corr. Inst., 938 F.3d 821, 828 (6th Cir. 2019). After the Fifth Appellate District

affirmed his convictions and sentence on direct appeal, Mr. Picard filed a Rule 26(B)

application through new appellate counsel. (ECF No. 20-1, Exhibit 14). In that application,

however, Mr. Picard argued only that his original appellate counsel was ineffective in failing

to challenge whether the evidence was sufficient to convict him on five counts.

Mr. Picard first raised the remaining ineffective assistance of appellate counsel claims

he asserts in this proceeding in his October 2022 motion for leave to file a delayed appeal. As

discussed above, the Fifth Appellate District enforced a state procedural bar when it denied

Mr. Picard’s motion, and the Ohio Supreme Court affirmed. (ECF No. 20-1, Exhibits 100,

104). Mr. Picard has thus procedurally defaulted on his ineffective assistance of appellate

counsel claims.

Mr. Picard again has not established cause to excuse his procedural default. The

Supreme Court held in Davila v. Davis that the Martinez/Trevino exception “treats ineffective

assistance by a prisoner's state postconviction counsel as cause to overcome the default of a

single claim—ineffective assistance of trial counsel—in a single context—where the State

effectively requires a defendant to bring that claim in state postconviction proceedings rather

than on direct appeal.” 582 U.S. 521, 524-25 (2017). Accordingly, the Supreme Court

expressly refused to extend Martinez and Trevino to claims for ineffective assistance of

appellate counsel. Id. at 529. Additionally, Mr. Picard cannot argue that his new appellate

counsel provided ineffective assistance in connection with his Rule 26(B) application.

“[C]ounsel’s failures in connection with a Rule 26(B) application cannot serve as cause to

excuse a procedural default because there is no right to counsel at that stage.” McClain v.

Kelly, 631 F. App’x 422, 437 (6th Cir. 2015). Mr. Picard has not provided any other basis to

excuse his procedural default. I therefore recommend that the Court alternatively dismiss Mr.

Picard’s ineffective assistance of appellate counsel claims as procedurally defaulted.

D. Cognizability

Finally, the Warden argues that Mr. Picard’s fifth ground for relief, in which he

asserts that the cumulative effect of the errors at trial violated his due process rights, is not

cognizable in a federal habeas proceeding. I agree. The Sixth Circuit has “held that, post-

AEDPA, 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 Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (“cumulative error claims

are not cognizable on habeas because the Supreme Court has not spoken on this issue”). I

therefore alternatively recommend that the Court dismiss Mr. Picard’s fifth ground for relief

as non-cognizable.

VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY

A. Legal Standard

As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not

appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate

of appealability. The statute further provides that “[a] certificate of appealability may issue .

. . only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Although the statute does not define what constitutes a “substantial showing” of a

denial of a constitutional right, the burden on the petitioner is obviously less than the burden

for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the

courts that have considered the issue have concluded that “[a] ‘substantial showing’ requires

the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the questions are adequate to deserve

encouragement to proceed further.’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that

certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).

Rule 11 of the Rules Governing Section 2254 Cases in the United States District

Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),

28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue

or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C.

§ 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which

specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule

11 requirement that the court either grant or deny the certificate of appealability at the time

of its final adverse order, a recommendation regarding the certificate of appealability issue is

included here.

B. Analysis

Mr. Picard has not made a substantial showing of a denial of a constitutional right for

the reasons set forth above. Because jurists of reason would not find these conclusions

debatable, I recommend that no certificate of appealability issue in this case.

VII. RECOMMENDATION

For the foregoing reasons, I RECOMMEND that the Court DISMISS Mr. Picard’s

petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend that the Court

not grant him a certificate of appealability.

Dated: November 4, 2025 /s/ Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b)

within fourteen (14) days after being served with a copy thereof, and

failure to file timely objections within the fourteen (14) day period

shall constitute a waiver of subsequent review, absent a showing of

good cause for such failure. Such party shall file with the Clerk of Court,

and serve on the Magistrate Judge and all parties, written objections which

shall specifically identify the portions of the proposed findings,

recommendations, or report to which objection is made and the basis for

such objections. Any party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. The

District Judge to whom the case was assigned shall make a de novo

determination of those portions of the report or specified proposed findings

or recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

Magistrate Judge. The District Judge need conduct a new hearing only in

such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also

receive further evidence, recall witnesses or recommit the matter to the

Magistrate Judge with instructions.

Id. (emphasis added).

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

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

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

to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).

Objections must be specific and not merely indicate a general objection to the entirety of the

report and recommendation; a general objection has the same effect as would a failure to

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, objections should focus on specific concerns and not merely restate

the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same

argument that was presented to the Magistrate Judge without specific objections ‘wastes

judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).