Boyd

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

ROBERT BOYD,

Petitioner, : Case No. 1:25-cv-00455

- vs - District Judge Jeffery P. Hopkins

Magistrate Judge Michael R. Merz

WARDEN, Madison Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case, brought pro se by Petitioner Robert Boyd to obtain relief from

his conviction in the Court of Common Pleas of Mahoning County. The case is before the Court

for consideration of the merits on the Petition (ECF No. 2), the State Court Record (ECF No. 20),

the Respondent’s Return of Writ (ECF No. 21) and Petitioner’s Reply (ECF No. 28).

Litigation History

Petitioner was indicted on two counts of rape in violation of Ohio Revised Code §

2907.02(A)(2),(B); one count of gross sexual imposition in violation of Ohio Revised Code §

2907.05(A)(1),(C); three counts of disseminating material harmful to juveniles in violation of Ohio

Revised Code § 2907.31(A)(1),(F); and nine counts of illegal use of a minor in nudity-oriented

material in violation of Ohio Revised Code § 2907.323(A)(3),(B)(Superseding Indictment, State

Court Record, ECF No. 20, Ex. 8, PageID 211). A jury convicted Petitioner on all counts except

Count 4 and he was sentenced to be imprisoned for 24.5 years. He timely appealed to the Ohio

Seventh District Court of Appeals which affirmed. State v. Boyd, 198 N.E.3d 514 (Sept. 30, 2022).

The Ohio Supreme Court granted Petitioner leave to file a delayed notice of appeal, but then

declined to exercise jurisdiction. State v. Boyd, 170 Ohio St. 3d 1480 (2023). Petitioner’s petitions

for post-conviction relief under Ohio Revised Code § 2953.21, for reconsideration in the Court of

Appeals, to re-open the appeal, and for habeas corpus relief in the Ohio courts were all

unsuccessful.

Boyd’s Petition was docketed in this Court on July 2, 2025. He pleads the following

grounds for relief:

Ground One: The decision of the Ohio judiciary denying the

Petitioner relief upon his clam of violation of his right to due process

of law as guaranteed by the Fifth and Fourteenth Amendments to the

United States Constitution were in error, as the evidence did not rise

to the level beyond a reasonable doubt.

Ground Two: The search on the Petitioners Instagram, Facebook,

Snapchat, and KIK accounts exceeded probable cause and lacked

any nexus to messages received and accounts searched, violated the

Fourth, Fifth, and Fourteenth Amendments to the US Constitution.

Ground Three: The search on Petitioners homes and electronics

lacked probable cause and violated the Fourth, Fifth, and Fourteenth

Amendments to the US Constitution.

Ground Four: Does the prejudicial joiner of offenses, testimony

which may inflame the jury, violate the XIV amendment to the US

Constitution?

Ground Five: Appellant was denied a Speedy Trial in Violation of

U.S. Const. amend. X, XI and XIV.

Ground Six: Defendant was denied a fair trial due to Prosecutorial

misconduct, which violated defendant’s 5th Amendment Due

process rights.

Ground Seven: The failure of Petitioners trial counsel denied him

his right to the effective assistance of counsel guaranteed by the

Sixth Amendment to the United States Constitution.

Ground Eight: The state violated the 5th Amendment by putting

Petitioner on trial using facts different than was presented to the

grand jury and testimony should be provided to the defense.

Ground Nine: A Mahoning County Judge violated Petitioners Fifth

and Fourteenth Amendment by executing a search warrant in

California, outside of their jurisdiction.

(Petition, ECF No. 2).

Analysis

Fourth Amendment Claims

In Grounds for Relief Two and Three, Petitioner asserts he was convicted on the basis of

evidence obtained in violation of his rights under the Fourth Amendment1. Federal habeas corpus

relief is not available to state prisoners who allege they were convicted on illegally seized evidence

if they were given a full and fair opportunity to litigate that question in the state courts. Stone v.

Powell, 428 U.S. 465 (1976). Stone requires the district court to determine whether state procedure

in the abstract provides full and fair opportunity to litigate, and Ohio procedure does. The district

court must also decide if a Petitioner's presentation of claim was frustrated because of a failure of

the state mechanism. Habeas relief is allowed if an unanticipated and unforeseeable application of

a procedural rule prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir.

1982). The Riley court, in discussing the concept of a “full and fair opportunity,” held:

1 Petitioner mentions the Fifth Amendment in his Petition but does not rely on any argument that he was coerced to

incriminate himself. The Court treats reference to the Fifth Amendment as surplusage.

The mechanism provided by the State of Ohio for resolution of

Fourth Amendment claims is, in the abstract, clearly adequate. Ohio

R. Crim. P. 12 provides an adequate opportunity to raise Fourth

Amendment claims in the context of a pretrial motion to suppress,

as is evident in the petitioner’s use of that procedure. Further, a

criminal defendant, who has unsuccessfully sought to suppress

evidence, may take a direct appeal of that order, as of right, by filing

a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.

5(A). These rules provide an adequate procedural mechanism for the

litigation of Fourth Amendment claims because the state affords a

litigant an opportunity to raise his claims in a fact-finding hearing

and on direct appeal of an unfavorable decision.

Id. at 526.

In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary

hearing was not required by due process and followed its prior conclusion that “opportunity means

opportunity . . . the state court need do no more than ‘take cognizance of the constitutional claim

and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d 1298, 1302

(6th Cir. 1977).

Consistent with Moore and with two of the three votes in Bradley,

we make clear that the Powell "opportunity for full and fair

consideration" means an available avenue for the prisoner to present

his claim to the state courts, not an inquiry into the adequacy of the

procedure actually used to resolve that particular claim.

Id. at 639-40.

The State Court Record shows Petitioner used Ohio’s motion to suppress mechanism to

raise his Fourth Amendment claims and then appealed from denial of that motion. The Seventh

District considered that appeal on the merits and found no Fourth Amendment violation.

Consideration of Petitioner’s Fourth Amendment claims in habeas corpus is therefore barred by

Stone. Because Stone precludes merits consideration of Grounds Two and Three, the Court need

not adjudicate Respondent’s procedural default defense to Grounds Two and Three.

Grounds for Relief Two and Three should be dismissed because merits review s barred by

Stone.

Procedural Default

Respondent pleads a defense of procedural default as follows:

The Warden argues that Boyd’s grounds for relief are defaulted as

follows: Ground 1- partially defaulted as to counts 2 and 3, Ground

2 -partially defaulted as to a challenge to social media search

warrants other than Instagram, Ground 4- entirely defaulted, Ground

5- entirely defaulted, Ground 6- entirely defaulted, Ground 7 –

partially defaulted, Ground 8-entirely defaulted, Ground 9-entirely

defaulted.

(Return, ECF No. 21, PageID 2535).

Petitioner first responds to the assertion of procedural default as if it were a failure to

exhaust defense (Reply, ECF No. 28, PageID 2640-41). But procedural default is not the same

thing as failure to exhaust. When the State asserts failure to exhaust, it is essentially saying that

there remains one or more possible state remedies that must be exhausted – tried by a petitioner –

before he or she can invoke habeas corpus. A procedural default defense asserts that there was a

remedy which a petition could have tried but didn’t and no longer can because of some state

procedural bar. An example would be an issue which could have been raised on direct appeal but

was not and the time for appeal has now run. Respondent here does not assert Petitioner has any

remaining state court remedies which he could now exhaust.

Petitioner then turns to asserting his actual innocence (Reply, ECF No. 21, PageID 2641-

43). In doing so, he recites what he believes the existing evidence in state court shows2. Although

2 In these three pages of argument, Petitioner repeatedly references facts which supposedly are supported by the record,

yet never once includes a citation to that place in the record where the evidence supposedly appears. This violates

that portion of the Order for Answer which provides “When the record is filed electronically, the Court’s CM/ECF

filing system will affix a unique PageID number to each page of the record, displayed in the upper right-hand corner

he cites Schlup v. Delo, 513 U.S. 298 (1995), which is the foundational precedent for the actual

innocence exception to procedural default, he has not actually produced any new evidence of the

sort required by Schlup. The controlling precedent on this point is now the Supreme Court’s

decision in McQuiggin v. Perkins, 569 U.S. 383 (2013).

[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as

it was in Schlup and House, or, as in this case, expiration of the

statute of limitations. We caution, however, that tenable actual-

innocence gateway pleas are rare: “[A] petitioner does not meet the

threshold requirement unless he persuades 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.” Schlup, 513 U.

S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S.,

at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the

Schlup standard is “demanding” and seldom met). And in making

an assessment of the kind Schlup envisioned, “the timing of the

[petition]” is a factor bearing on the “reliability of th[e] evidence”

purporting to show actual innocence. Schlup, 513 U. S., at 332, 115

S. Ct. 851, 130 L. Ed. 2d. 808.

* * *

[A] federal habeas court, faced with an actual-innocence gateway

claim, should count unjustifiable delay on a habeas petitioner’s part,

not as an absolute barrier to relief, but as a factor in determining

whether actual innocence has been reliably shown.

McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013).

Petitioner has submitted no new reliable evidence of the sort required by Schlup to

established actual innocence.

Insufficiency of the Evidence

of the page. All papers filed in the case thereafter by either party shall include record references to the PageID

number.” (Order, ECF No. 5, PageID 144, emphasis supplied.)

In his First Ground for Relief Petitioner asserts he was convicted on insufficient evidence.

An allegation that a verdict was entered upon insufficient evidence states a claim under the Due

Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a

reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson). This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). When reviewing a claim for sufficient

evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,

567 U.S. 37, 43 (2012) (per curiam). In a sufficiency of the evidence habeas corpus case, deference

should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate

court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652

(6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.

Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing

more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

Petitioner raised lack of sufficient evidence as his second assignment of error on direct

appeal and the Seventh District decided it as follows:

{¶49} Appellant's second assignment of error contends:

“APPELLANT'S CONVICTIONS WERE UNSUPPORTED BY

SUFFICIENT EVIDENCE.”

{¶50} Whether the evidence is legally sufficient to sustain a

conviction is a question of law dealing with adequacy. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). An

evaluation of witness credibility is not involved in a sufficiency

review, as the question is whether the evidence is sufficient if taken

as true. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,

767 N.E.2d 216, ¶ 79, 82; State v. Murphy, 91 Ohio St.3d 516, 543,

747 N.E.2d 765 (2001). In other words, sufficiency involves the

state's burden of production rather than its burden of

persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d

541 (Cook, J., concurring).

{¶51} In reviewing the sufficiency of the evidence, the court views

the evidence in the light most favorable to the prosecution to

ascertain whether a rational juror could have found the elements of

the offense proven beyond a reasonable doubt. State v. Goff, 82 Ohio

St.3d 123, 138, 694 N.E.2d 916 (1998). See also State v. Filiaggi,

86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999) (reasonable

inferences are also viewed in favor of the state); Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (all of the

evidence is to be considered in the light most favorable to the

prosecution, including reasonable inferences). The question is

merely whether “any” rational trier of fact could have found the

contested elements were adequately established. State v. Getsy, 84

Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson, 443

U.S. at 319, 99 S.Ct. 2781.

{¶52} First, Appellant challenges the sufficiency of the evidence to

support count one, the rape of victim A. The elements of this offense

are purposefully compelling another to submit to sexual conduct by

force or threat of force. R.C. 2907.02(A)(2) (who is not the spouse).

Appellant points out the age of sexual consent is 16 in Ohio, and

victim A was 17 years old. Appellant contends there was not

sufficient evidence of force or threat of force by emphasizing the

following: the victim's acknowledgement he initially consented to

anal sex; the lack of testimony on fear or threat; and the victim's

testimony he did not try very hard to throw Appellant off him. The

state points out rape can occur after consent is withdrawn and urges

the victim testified to force.

{¶53} Victim A testified he communicated with Appellant after

seeing his online photograph with a Lamborghini, which the victim

believed belonged to Appellant. (Tr. 3131, 318). The victim testified

he had a girlfriend but was curious. (Tr. 317). They talked about sex.

On March 31, 2017, they decided to meet for a sexual encounter.

(Tr. 318, 341). Appellant retrieved the victim from Lisbon and

brought him to Taco Bell and then to his house which was still under

construction from the fire. Before arriving at the house, the victim

expressed he was starting to feel on edge and did not feel right about

going. (Tr. 323). However, the victim “went along with it” and was

thereafter initially accepting of trying the sexual encounter. (Tr.

360). The victim noticed security cameras around Appellant's house,

which appeared to be recording. (Tr. 324).

{¶54} They went into the bedroom where Appellant laid him down

and removed his pants. (Tr. 325). The victim was then bent over

with his knees on the floor and his chest and stomach on the bed.

(Tr. 345). Appellant began performing anal sex on the victim.

Within five to ten seconds, the victim withdrew his consent. (Tr.

328, 344, 360). The victim testified, “I didn't like it at all; so I asked

him to stop.” (Tr. 326). He further testified: “it hurt * * * I just kept

telling him don't. * * * I told him no, but he kept going anyway.”

(Tr. 327-328).

{¶55} When asked if Appellant physically restrained him, the victim

said Appellant's arms were on his hands and arms, which were

spread out. The victim noted, “I didn't try my hardest to get him off.”

(Tr. 328). When asked what he meant, the victim said, “I mean if I

tried my hardest to -- to get away, I just would have fully got up,

threw him off me and left.” He further explained, “I must have been

in a state of shock.” (Tr. 357-358).

{¶56} After five to ten minutes, Appellant ejaculated inside of the

victim. (Tr. 328-329). When Appellant removed himself from the

victim, the victim asked to go home. (Tr. 328). He noted he wished

to exit the car as soon as he recognized where he was. (Tr. 329). He

said Appellant told him not to tell anyone. (Tr. 330). He did not

communicate with Appellant again. (Tr. 330). The victim said he

tried to push the event out of his head and did not tell anyone about

what happened until the police arrived at his door six weeks later to

investigate Appellant (after the Instagram warrant). (Tr. 331-332).

The victim said his drinking accelerated after the incident and he

became an alcoholic. (Tr. 357).

{¶57} Force is defined as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or

thing.” R.C. 2901.01(A)(1). When evaluating force in the context of

rape, relevant considerations may involve the age, size, strength, and

relationship of the parties. State v. Eskridge, 38 Ohio St.3d 56, 58,

526 N.E.2d 304 (1988). When defense counsel asked about a

shirtless photograph sent to Appellant, the victim said he worked

out. (Tr. 337). The nurse practitioner who saw the victim six weeks

after the incident testified he was 5’7” and 141 pounds. (Tr. 370).

The victim was 17 years old while Appellant was 46 years old. The

incident occurred in Appellant's house, and the victim was driven

there by Appellant.

{¶58} The past and immediate history of consent may be

relevant. Eskridge, 38 Ohio St.3d at 59, 526 N.E.2d 304. However,

forcible rape is not foreclosed by the fact an encounter began as

consensual. In a case cited by the state, the Second District observed:

Evidence of consent * * * is not a static concept, though.

Rape can be established when the two participants start the

encounter on a consensual basis, “but the consent is

revoked by words, actions or conduct that clearly

communicates non-consent, the defendant fails to respect

the change in consent, and purposely proceeds to engage in

sexual conduct through force or threat of force evidenced

by violence, physical restraint, or some type of coercive or

threatening conduct that creates a belief or fear that

physical force will be used if the victim does not consent.”

State v. Freeman, 2d Dist. Greene No. 2020-CA-33, 2021-Ohio-

734, 2021 WL 943694, ¶ 42.

{¶59} The victim may have initially consented to the sexual

encounter but within seconds, he felt pain and asked Appellant to

stop. Despite his repeated requests for Appellant to stop, Appellant

continued imposing anal sex upon the juvenile victim while pressing

the victim's hands and arms into the bed as the victim was face down

with his legs over the edge of the bed.

{¶60} Notably, the rape statute specifically states: “A victim need

not prove physical resistance to the offender in prosecutions under

this section.” R.C. 2907.02(C). A rational juror could find Appellant

engaged in purposeful conduct which satisfied the definition of

force, which merely requires “any” compulsion or constraint

physically exerted by “any” means. R.C. 2901.01(A)(1).

{¶61} Next, Appellant contends there was insufficient evidence to

support counts five and six, the misdemeanor counts of

disseminating matter harmful to juveniles. (Appellant was acquitted

of the count four disseminating charge.) The pertinent statutory

division states: “No person with knowledge of its character or

content, shall recklessly do any of the following: (1) Directly sell,

deliver, furnish, disseminate, provide, exhibit, rent, or present to a

juvenile * * * any material or performance that is obscene or harmful

to juveniles * * *.” R.C. 2907.31(A)(1),(F) (first-degree

misdemeanor if the material is harmful; felony if the material is

obscene). The state agrees the mental state of recklessness also

applies to the recipient's status as a juvenile.

{¶62} “A person acts recklessly when, with heedless indifference to

the consequences, he perversely disregards a known risk that his

conduct is likely to cause a certain result or is likely to be of a certain

nature.” R.C. 2901.22(C). “A person is reckless with respect to

circumstances when, with heedless indifference to the

consequences, he perversely disregards a known risk that such

circumstances are likely to exist.” Id. This “likely” mental state for

recklessness merely involves “good reason for expectation or belief”

(and is easier to show than the higher “probably” mental state). State

v. Young, 8th Dist. Cuyahoga No. 85224, 2005-Ohio-3584, 2005

WL 1653586, ¶ 17, citing Staff Note to R.C. 2901.22(C).

{¶63} The indictment alleged these counts occurred on or about

March 14, 2017. The investigating officer testified that after seizing

Appellant's cell phone while executing the search warrant at the

residence in May 2017, he discovered Appellant texted photographs

of his penis to a juvenile. (Tr. 590). The officer testified these

photographs were sent in March of 2017 (and said he could look at

the printout of the text history to check the day of the month). (Tr.

556-557). When the police confronted Appellant about the texted

photographs, Appellant voiced his mistaken belief it was legal

because the minor was 16 (apparently assuming the law on sexual

conduct applied to disseminating). (Tr. 573).

{¶64} Victim C testified he was 16 years old when he responded to

Appellant's Craigslist advertisement, which was captioned to

suggest Appellant was looking for a homosexual encounter. They

originally used both email and texts, exchanging photographs of

their genitals and making plans to meet. (Tr. 389-393, 399-402,

408). While testifying, the juvenile recipient reviewed the recovered

March 2017 texts sent to him by Appellant and identified two

photographs of Appellant's penis and two photographs of

Appellant's shirtless torso. (Tr. 394, 400-402); (St.Ex. 15-18).

{¶65} While viewing the printout of recovered texts, victim C also

testified he told Appellant he was only 16 in a March 29, 2017 text.

(Tr. 412). Appellant responded to the age disclosure by texting:

“High school, then”; “16 is legal in Ohio”; and “I don't mind the

age.” (Tr. 404). They met for their second sexual encounter after the

text about being 16. (Tr. 409). The juvenile recipient believed they

exchanged photographs again after this disclosure, but he also

seemed to indicate the state's packet *535 of evidence contained all

the photographs he received from Appellant (and the recovered

photographs were sent before the disclosure). (Tr. 411, 413).

{¶66} Appellant's sufficiency argument revolves around his

contention there was no evidence he was reckless as to the

recipient's age of 16 because the recipient testified he initially told

Appellant he was 19 years old. (Tr. 391). As the state points out, the

victim told Appellant he did not have a driver's license, he was in

school, and he lived with his family. (Tr. 396). Notably, Appellant

previously spent time with the victim in person when they met for a

sexual encounter in late 2016. (Tr. 392). The jury saw a photograph

the juvenile sent to Appellant depicting what the juvenile looked like

in March 2017, when Appellant sent the juvenile photographs of his

penis. (St.Ex. 14); (Tr. 396-399).

{¶67} Circumstantial evidence and direct evidence inherently

possess the same probative value, and intent is typically established

by circumstantial evidence and inferences as a person's intent rests

in their mind. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d

749 (2001). Even if Appellant only sent photographs of his penis

before the victim specifically disclosed his true age, a rational juror

could find Appellant was reckless in believing the victim was 18 or

older when he sent the photographs representing the two counts at

issue.

{¶68} Appellant's final sufficiency argument contests the

convictions for counts seven through fifteen, which arose from the

nude photographs of children found on a hard drive during the

execution of search warrants at Appellant's residence. The pertinent

statutory elements of illegal use of a minor in nudity-oriented

material are to possess or view any material that shows a minor who

is not the person's child or ward in a state of nudity. R.C.

2907.323(A)(3) (unless an exception applies such as artistic,

medical, or other proper purpose involving a person with a proper

interest in the material or there is written consent of the parent). The

mental state is recklessness. State v. Young, 37 Ohio St.3d 249, 252,

525 N.E.2d 1363 (1988), paragraph three of syllabus.

{¶69} In Young, the Ohio Supreme Court construed the statute as

prohibiting the aforementioned nudity only “where such nudity

constitutes a lewd exhibition or involves a graphic focus on the

genitals * * *.” Id. at 252, 525 N.E.2d 1363, rev'd on other

grounds, Osborne v. Ohio, 495 U.S. 103, 113-114, 110 S.Ct. 1691,

109 L.Ed.2d 98 (1990) (due process issue where jury was not

instructed on scienter and qualifying nudity definition under new

construction). “By limiting the statute's operation in this manner, the

Ohio Supreme Court avoided penalizing persons for viewing or

possessing innocuous photographs of naked children.” Osborne,

495 U.S. at 113-114, 110 S.Ct. 1691 (the state court was permitted

to construe the statute in a constitutional manner to avoid a

constitutional overbreadth challenge while allowing the statute to

remain in full force as construed). The parties agree the trial court's

jury instruction properly limited the statute's operation in the manner

described by Young and Osborne.

{¶70} Appellant contends no rational person would find the nine

photographs involved a lewd exhibition or a graphic focus on the

genitals. Lewd has been generally defined as “sexually unchaste or

licentious * * * lascivious * * * inciting to sensual desire or

imagination * * *.” State ex rel. Rear Door Bookstore v. Tenth Dist.

Ct. of Appeals, 63 Ohio St.3d 354, 358, 588 N.E.2d 116 (1992),

quoting Webster's Third New International Dictionary 1301 (1986).

According to dictionary.com, the definition of licentious includes: a

throwing off of sexual restraint; lewd character or behavior; or

wanton disregard or transgression of laws, rules, or moral norms. As

for the graphic focus option, it has been concluded (in a case cited

by the defense) there can exist a graphic focus on the child's genitals

even where the rest of the child's body is in the picture. State v.

Jewell, 2d Dist. Montgomery No. 16254, 1997 WL 476667 (Aug.

22, 1997).

{¶71} Appellant cites the testimony of the BCI agent who said she

found “graphic images appearing to depict underage nudity” on

Appellant's hard drive. (Tr. 296). While identifying the photographs

for the record, she said the subject of each photograph was a naked

juvenile and explained any identifying features in the photograph as

follows: male holding a watermelon; female holding globe on top of

her head; female; male holding a watermelon; female posing on a

beach with a star drawn on her torso; female on a beach with a

butterfly painted on her upper chest; female with a palm tree and

water painted just above her pubic area; two females, one with a

butterfly painted on her chest and one with a palm tree painted above

her pubic area; and male holding two pool sticks with a triangle

around his neck. (Tr. 298-299). Appellant concludes this was

insufficient to establish the contested element.

{¶72} However, the nine photographs were provided for the jury's

evaluation during the testimony and deliberations. (Tr. 297); (St.Ex.

9A-I). The witness was not required to supplement the jury's

viewing by detailing the positions of the children, explaining how

the focus seems to be on their genitals, opining the displays were

meant to incite sexual imagination, or asserting they disregarded

moral norms.

{¶73} The state reiterates the position espoused during trial. For

instance, when responding to motion for acquittal on these charges,

the prosecutor argued “there is a focus on the genitals” with “bare

penises and testicles exposed, and vaginal areas that the lips are

exposed” while noting the lack of pubic hair allowed one to “very

graphically see those things.” (Tr. 606). In addition, the prosecutor's

closing argument to the jury asked, “when you look at these

photographs, where do your eyes immediately go? To the exposed

vaginas, to the breasts, to the penises sticking out. That is graphic

focus on the genitals.” (Tr. 736). We find these arguments are valid.

{¶74} The children were prepubescent children but not so young as

to expect them to prance around naked on a beach or invite someone

to play pool naked. The scenes were staged. Many of the children

were posed in positions with techniques (such as the holding of

props, lifting of arms, or spreading of limbs) meant to emphasize the

genitals or constituting a lewd exhibition due to the arguable intent

to incite sexual imagination (among certain viewers) by

disregarding moral norms. The body paint applied to some of the

female children emphasized their genitals and breasts (such as: a

large star between and under the breasts with a face that was smiling

and winking with its points/legs spread above the posed pubic area;

a butterfly painted over the chest using the nipples as wing

decorations with flowers trailing to the pubic area; and a palm tree

from the hip to one breast with painted water extending all the way

to the top of the upper labial fold).

{¶75} Even if one were to agree that it was a close case for some of

the photographs, it cannot be said that no rational juror could find

the photographs constituted a lewd exhibition or involved a graphic

focus on the genitals. The matter is best addressed as a question of

weight of the evidence, which is discussed under the next

assignment of error. As a rational juror could find the contested

elements of the various crimes proven beyond a reasonable doubt,

this assignment of error is overruled.

State v. Boyd, supra.

Respondent asserts Ground One is procedurally defaulted as to Counts Two and Three

(Return, ECF No. 21, PageID 2535). However, that assertion is insufficiently explained in the

Return to allow the Court to adjudicate it.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);

Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140

(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379

(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

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

The Seventh District Court of Appeals decided Petitioner’s sufficiency of the evidence claims

on the merits It is therefore his burden to show that decision was an unreasonable application of

the Supreme Court precedent. In attempting to do so, he relies on United States v. Knox, 32 F.3d

733 (3d Cir. 1994) and United States v. Amirault, 173 F.3d 28 (1st Cir. 1999). Neither of these

case are in point. They involve circuit court interpretation of the federal child pornography statutes

in cases where the defendants were prosecuted under those statutes. This case, in contrast, involves

prosecution of Petitioner for violating the relevant Ohio statutes. The Seventh District interpreted

those statues as applying to the evidence in this case and this Court is bound by that interpretation.

Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74, 76

(2005)(“We have repeatedly held that a state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas

corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598

(6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785

F.2d 131, 133 (6th Cir. 1986). Petitioner’s citation of the recent Sixth Circuit decision in United

States v. Takits, 129 F.4th 314 (6th Cir. 2025), is also unavailing because it too involved

interpretation of federal child pornography statues, not those of Ohio.

In his appeal to the Ohio Supreme Court on this issue, Petitioner argued “A conviction was

upheld for possession of 9 images of nude juveniles that are neither lewd nor focused on the

genitalia which is counter this court's ruling in State v Young 1988.”(Memorandum in Support of

Jurisdiction, State Court Record, ECF No. 20, Ex. 68, PageID 662). Petitioner gives no citation

for Young, but the referenced decision appears to be State v. Young, 37 Ohio St. 2d 239 (1988). In

that case the Ohio Supreme Court held, in an opinion for a unanimous court written by Justice

Andy Douglas, that

child pornography statute was neither overbroad nor constitutionally

vague; (2) recklessness was culpable mental state required to

constitute violation of statute; (3) omission of element of

recklessness from either jury instructions or indictment was not

fatal; (4) Statute’s “proper purposes” exceptions were in nature of

affirmative defenses to be proven by defendants; (5) sentencing

provisions of statute did not constitute cruel and unusual

punishment; and (6) probable cause existed for issuance of warrants

to search both defendants' residences.

The Court fails to see how Young supports Petitioner’s position.

The Seventh District’s rejection of Petitioner’s insufficiency of the evidence claims is

neither contrary to nor an objectively unreasonable application of relevant Supreme Court

precedent. Petitioner’s First Ground for Relief should be dismissed with prejudice.

Ground Four: Prejudicial Joinder

In his Fourth Ground for Relief, Petitioner asserts that joinder of charges involving

different victims deprived him of his Due Process rights under the Fourteenth Amendment.

Respondent asserts this claim is procedurally defaulted because it was not raised on direct

appeal. Petitioner responds that he can show excusing cause and prejudice in that he was

represented by counsel on direct appeal and omission of this claim constituted ineffective

assistance of appellate counsel.

Petitioner denies he failed to present this claim on direct appeal, asserting

Herein, in the Petitioner's appeal to the Ohio Court of Appeals, he

raised the failure to sever, as raised herein. The Court of Appeals

denied the claim claiming the case was simple and direct, without

ever analyzing the prejudicial effect upon trial as required by law,

after but a paragraph of discussion as to each sub-argument. Such

short shrift on a potentially meritorious issue cannot claimed to be

meaningful appellate review.

(Reply, ECF No. 28, PageID 2662). Petitioner gives no record reference to where he allegedly

raised the failure to sever; his Assignments of Error on direct appeal were:

Assignment of Error I: The Trial Court Erred by Overruling

Appellant's Motion to Suppress

Assignment of Error II: Appellant's Convictions Were Unsupported

by Sufficient Evidence

Assignment of Error III: Appellant's Convictions Were Against the

Manifest Weight of the Evidence

Assignment of Error IV: Appellant's Sentence is Contrary to Law

Assignment of Error V: Appellant's Counsel Was Ineffective

(Appellant’s Brief, State Court Record, ECF No. 20, Ex. 61, PageID 447). Improper joinder of

offenses for trial does not appear among these Assignments of Error.

Petitioner eventually raised this claim as an assignment of error omitted by appellate

counsel as the result of that attorney’s ineffective assistance. Ineffective assistance of appellate

counsel can act as excusing cause for failure to raise an issue on direct appeal, but only if the

ineffective assistance of appellate counsel claim is properly presented to the state courts. Edwards

v. Carpenter, 529 U.S. 446 (2000); Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir. 2020); Scuba

v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007). Boyd filed an Application to Reopen his Direct

Appeal under Ohio R. App. P. 26(B) in which he raised the failure to sever claim as an improperly

omitted assignment of error (State Court Record, ECF No. 20-1, Ex. 111, PageID 1219).

The Seventh District denied Petitioner’s 26(B) Application on the merits, finding it was

not deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), to fail to raise

this assignment of error because the evidence was “simple and direct.” (Opinion, State Court

Record, ECF No. 20-1, Ex. 15, PageID 1350-51). This merits decision on Ground Four is entitled

to deference unless Petitioner can show it was an objectively unreasonable application of

Strickland. Harrington v. Richter, 562 U.S. 86 (2011). Petitioner has failed to show that denial of

this claim was objectively unreasonable. Appellate counsel must choose among possible

assignments of error and the joinder issue was not a “dead bang winner.”

Petitioner’s Fourth Ground for Relief should be dismissed as procedurally defaulted

because Petitioner has not shown excusing cause and prejudice.

Ground Five: Denial of Speedy Trial

In his Fifth Ground for Relief, Petitioner asserts he was denied his constitutional right to a

speedy trial. Respondent asserts this claim is procedurally defaulted because it was not raised on

direct appeal.

In his Reply Petitioner asserts his speedy trial rights were violated because he was not tried

within 115 days on the misdemeanor counts under Ohio Revised Code § 2945.71 which sets a

limit of 115 days for misdemeanor trials. He further asserts that statute essentially sets a

constitutional limit for felony trials which was exceeded (Reply, ECF No. 28, PageID 2662-63).

This claim was never raised on direct appeal. Petitioner asserted in his 26(B) Application

that it was ineffective assistance of appellate counsel for his appellate attorney to fail to do so and

in his Petition for Post-Conviction Relief that it was ineffective assistance of trial counsel for his

trial attorney to fail to do so.

The Seventh District’s opinion, quoted at length in the Return of Writ, explains in detail

why there is no merit to this claim (Return, ECF No. 21, PageID 2563-66, quoting Boyd, 2023-

Ohio-4725, ¶¶100-111). Petitioner has failed to show that this decision is an objectively

unreasonable application of Strickland. Therefore Ground Five is procedurally defaulted without

excusing cause and should be dismissed.

Ground Six: Prosecutorial Misconduct

In his Sixth Ground for Relief, Petitioner asserts his trial was rendered constitutionally

unfair by prosecutorial misconduct. In part he alleges the prosecutor misstated the law, but the

law relies on is the federal statutory law discussed in the federal appellate cases cited, not Ohio

law. See pp.16-17 supra. When Petitioner raised this claim in his petition for post-conviction

relief, the court in a lengthy discussion found it barred by res judicata because it was not raised on

direct appeal although it could have been. Boyd, 2023-Ohio-4725, ¶¶27-53. His attempt to raise

it as an omitted assignment of error on direct appeal was also rejected by the Seventh District and

Petitioner has failed to show this was an objectively unreasonable application of Strickland.

Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175

(1967), is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423,

432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d

417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d

155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913

(S.D. Ohio 2001).

Petitioner’s prosecutorial misconduct claim should be dismissed as procedurally defaulted.

Ground Seven: Ineffective Assistance of Trial Counsel

Petitioner asserts his trial attorney failed to provide effective assistance of counsel as

required by the Sixth Amendment. Counsel’s alleged deficient performance consists in (1) failing

to call an expert on bi-polar disorder, (2) failing to call as witnesses Josh Hensley or Royce Craft.

As to the bi-polar expert, the Seventh District found that it was not error for the trial judge

to fail to hold an evidentiary hearing on Petitioner’s petition for post-conviction relief because

there was in the record a letter from the proposed expert, submitted in support of a request for

funds, which enabled a proper determination of whether an evidentiary hearing was needed. The

Seventh District cited in-point Ohio Supreme Court authority on that point. It noted that the

expert’s letter was in the appellate record and the issue therefore could have been raised on direct

appeal. Boyd, 2023-Ohio-4725, ¶¶10-111. It also explained at length why it was not ineffective

assistance of trial counsel to fail to call the two call the two eyewitnesses. Id. Petitioner has not

shown how this very thorough opinion is an unreasonable application of Strickland. Ground Seven

should be dismissed as barred by res judicata.

Ground Eight: Trial on Facts Different from Those Presented to the Grand Jury

In his Eighth Ground for Relief, Petitioner asserts the State violated his Fifth Amendment

rights by putting him on trial with facts different from those presented to the grand jury. In his

Reply, Petitioner seems to be asserting that he is entitled to the grand jury testimony of two

witnesses and Sergeant Hillman under the Jencks Act.

The Court of Appeals found that Petitioner had not demonstrated an abuse of discretion in

the trial court’s refusal to disclose grand jury testimony. Abuse of discretion is the correct standard

for review of such a refusal. This Court cannot reexamine a state court decision for abuse of

discretion. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). Moreover, there is no federal constitutional

right to indictment by a grand jury. Hurtado v. California, 110 U.S. 516 (1884); Branzburg v.

Hayes,408 U.S. 665, 687-88 n. 25 (1972); Gerstein v. Pugh, 420 U.S. 103 (1975); Williams v.

Haviland, 467 F.3d 527 (6th Cir. 2006)(Apprendi does not change this result).

Ground Eight should therefore be dismissed for failure to state a claim upon which habeas

corpus relief can be granted.

Ground Nine: A Mahoning County Judge violated Petitioners Fifth and Fourteenth

Amendment by executing a search warrant in California, outside of their jurisdiction.

In his Ninth Ground for Relief, Petitioner asserts the Mahoning County judge who issued

the relevant search warrants in this case did so without jurisdiction.

In affirming denial of Petitioner’s petition for post-conviction relief, the Seventh District

noted that the issue could have been raised on direct appeal because the relevant documents were

of record. State v. Boyd, 2023-Ohio-4725, ¶¶61-69. Because it was not raised, it was procedurally

defaulted by reason of res judicata. Id. Petitioner makes no response to that argument.

Moreover, Respondent points out that under both the Federal Stored Communications Act

and California law, the search warrant was properly signed and then executed3. The Court takes

judicial notice, sua sponte, that the Mahoning County Court of Common Pleas is a court of general

criminal jurisdiction, supporting the decision of the Seventh District.

Ground Nine should be dismissed as procedurally defaulted and without merit.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

3 Petitioner uses the word “executed” to mean “signed.” Normal legal usage would be to refer to the signing of a

warrant as “issuing” it and execution would mean carrying out the command of the warrant. The Seventh District

points out this distinction in its opinion.

be permitted to proceed in forma pauperis.

December 8, 2025.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. A party may respond

to another party’s objections within fourteen days after being served with a copy thereof. Failure

to make objections in accordance with this procedure may forfeit rights on appeal.