The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
DEANGELO SANDERS,
Petitioner, : Case No. 1:25-cv-550
-vs - District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
WARDEN, Madison
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus action brought pro se by Petitioner Deangelo Sanders to
obtain relief from his conviction in the Hamilton County Court of Common Pleas (Petition, ECF
No. 1). On the Court’s Order, Respondent has filed the State Court Record (ECF No. 14) and a
Return of Writ (ECF No. 15). Petitioner has filed a timely Reply (ECF No. 19), making the
case ripe for decision.
Litigation History
The Hamilton County Grand Jury returned two separate indictments against Petitioner. In
the case numbered B-1300037, he was charged with one count of aggravated felony murder, in
violation of Ohio Revised Code § 2903.01(B), and one count of murder for killing Luttrell; one
count alleging the aggravated robbery of Jeffrey Luttrell and Payne, in violation of Ohio Revised
Code § 2911.01(A)(1), each with accompanying firearm specifications; and one count of having a
weapon under a disability. Two felonious-assault charges were later dismissed. In the case
numbered B-1305979, Sanders was charged with the murder and the aggravated felony murder,
also under Ohio Revised Code § 2903.01(B), of Joseph Payne (Indictment, State Court Record,
ECF No. 14, Ex. 1). A trial jury foiund Sanders guilty on all charged counts and the trial judge
sentenced him to be imprisoned for seventy-seven years to life. Id. at Exs. 4, 6.
Sanders appealed to the Ohio First District Court of Appeals which affirmed his conviction
and sentence. State v. Sanders, Case Nos. C-140579 and C-140580 (Ohio App. 1st Dist. Dec. 16,
2015)(unreported; copy at State Court Record, ECF No. 14, Ex. 11). Sanders filed an untimely
notice of appeal and the Ohio Supreme Court dismissed the case. Id. at Exs. 12, 14.
On November 15, 2016, Sanders filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21, but did not appeal from it dismissal. He filed a second post-conviction
petition on March 25, 2019, but again did not appeal from its dismissal. On April 18, 2019, and
June 17, 2019, Sanders filed Applications to Reopen his Direct Appeal under Ohio R. App. P.
26(B) which the First District dismissed as untimely without excusing cause. The Supreme Court
of Ohio declined to exercise jurisdiction over an appeal.
As detailed in the Return of Writ, Sanders has filed a number of other post-trial actions and
motions in the Ohio courts, all of which have been unsuccessful (Return, ECF No. 15, PageID
2319-23). He then filed the instant habeas corpus Petition, pleading the following grounds for
relief:
GROUND ONE: The State Of Ohio Erred When It Refused To
Grant Petitioner A New Trial Due To New Evidence That
Established Actual Innocence, Without Conducting Discovery
or Further Investigation Through A Hearing.
Supporting Facts: Petitioner submitted new evidence to the State
in the form of an affidavit of statement by Gracie Gallagher to
demonstrate his innocence, after his counsel declined to present a
case to the jury during his 2014 trial. When reduced her affidavit
spoke to part of petitioner’s alibi, how the weapon that was
recovered from her home came to be there, a conversation she had
with another party, who eventually accepted guilt, furnishing a
detailed confession and the length to which she went to provide all
this information to his attorney prior to trial. Petitioner notified the
state that there was, in fact, other supporting evidence he wished to
present at the evidentiary hearing on the matter, after the court
settled discovery. The State granted petitioner leave to file the new
trial. However, sometime later it denied the Motion for New Trial,
without opinion. See Appendix No. 1. Petitioner timely appealed to
the Local Appellate District. It found, in its partial attempt to address
the merits, that although the clerk had lost the record, e.g. the
affidavits, "Sanders's new trial motion” lacked merit. Sanders argues
Gallagher's affidavit testimony demonstrates that he did not
participate in the charged offenses because her testimony about their
telephone call, which allegedly took place while the crimes were
occurring, reflects a "normal" conversation. He contends that if he
had participated in the crimes Gallagher would have overheard
Sanders talking to the victims and the gunshots. Nevertheless, as
noted above, Gallagher's affidavit is not in the record. Even if it was
and Gallagher had attested as Sanders claims, her testimony does
not demonstrate a strong probability of a different result if a new
trial is granted and merely contradicts the evidence presented at trial
considering Sanders's admission at trial that he was with his
codefendant at the time of the crimes." Additionally, its dismissal of
the request to depose the other witnesses and gather the other
documents, through discovery, which would have supported the
witness affidavit caused The State Court to reach a factual
conclusion based upon facts that were incomplete due to its
carelessness with the record, lack of discovery and /or a deposition.
If this court were to find, however, that these failures did not
contribute to an incomplete factual conclusion then the state's
Decision clearly resulted in a mixed question of law and fact,
triggering an "unreasonable application" of Clearly established
United States Supreme Court Law, pursuant to 28 USCS 2254
(d)(1).
GROUND TWO: Petitioner Was Denied His Sixth Amendment To
The United States Constitution, Right To Effective
Assistance Of Counsel When His Attorney Failed To Investigate
And Interview A Key Witness, Gracie Galagher, Who
Approached Him Prior To Trial With Exculpatory Information.
Supporting Facts: Ms. Gracie Gallagher came forward with
information regarding petitioner's case, of which he filed with the
trial court as new evidence demonstrating his innocence. She
happened to be the leaseholder of the home officers who had
executed a search warrant leading to the recovery of a weapon and
other evidentiary items used by the state, at trial. petitioner
complained of an egregious defilement of Strickland when Gracie
Gallagher approached his counsel prior to trial with exculpatory
information concerning the weapon used in the incident, to
information she received directly from her boyfriend, who was
acting as a state's witness, and his brother who eventually accepted
responsibility for this crime, and his counsel turned her away,
deciding not to present a case at all. He made several requests for
discovery and to depose witnesses who could support her affidavit.
The State appellate Court found that Petitioner was procedurally
barred from presenting the claim "Because Sanders has not
demonstrated that he had been unavoidably prevented from
discovering the facts upon which his postconviction claims depend
and does not argue that his claims are based on a new right
recognized by the United States Supreme Court, Sanders has not met
the jurisdictional requirements of R.C. 2953.23." "With respect to
his third claim of ineffective assistance of counsel based on trial
counsel's failure to investigate and interview Gracie Gallagher,
Sanders argues that he was unaware of the facts set forth in
Gallagher's affidavit until she reached out to his family in August of
2022 and signed her affidavit in September of 2022. But according
to Sanders's summary of the testimony contained in Gallagher's
affidavit, he was a participant in the telephone conversation with
Gallagher at the time the crimes were being committed, and he
allegedly was with her when his codefendant approached them in
the hallway of Gallagher's apartment building and confessed to
committing the crimes on his own. Thus, Sanders was aware prior
to trial of the facts underlying his third postconviction claim." See
Appendix No. 2. This decision was made, however, incongruently
to the trial court finding that this same evidence was in fact timely
and was able to overcome the same exact unavoidable prevention
standard set forth in R.C. 2953.23 (A)(1)(a). Due to the State Courts
refusal to address the merits of his complaint because of an
procedural bar AEDPA Deference does not apply and De-novo
Review is necessitated.
GROUND THREE: The State Of Ohio Mercilessly Encroached
Upon Petitioners Sixth Amendment To The United States
Constitution, Right To A Trial By A Jury When It Entrusted A Judge
To Make The Finding Of A Fact Raising The Defendant's Maximum
Penalty During The Sentencing Of A Capital Offense When He Was
Entitled To A Full Mitigation Hearing With A Jury.
Supporting Facts: Petitioner submitted to the trial court through a
motion for new trial that the court denied him of his right to a jury
when it sentenced him, with a single judge, when he was entitled to
a full mitigation hearing, with a jury. See Appendix No. 2. The Trial
Court granted him leave to present the evidence because he was
unaware of it due to his counsel's refusal to represent him in the Ohio
Supreme Court on his direct appeal as she was paid to do by the
state. See Appendix No. 1 A. then refusing to convey any of the
record to him. Nevertheless, after reviewing the motion for new trial
the court denied the claim without opinion. See Appendix
1C:(Docket I.D.#138527834), Petitioner timely appealed to the
States Local Appeals Court, who refused to acknowledge the issue
after briefing by the adversarial parties and finding the record to be
missing. See Appendix No. 3; Appendix No. 7; Appendix No. 8.
Petitioner has given the State a Full and fair opportunity to rule on
his this claim. He submits that these particular circumstances
rendered such reviewing process ineffective to exhaust state court
remedies. Furthermore, due to the states refusal to address or even
acknowledge the merits, AEDPA Deference is not required and De-
Novo review is necessitated or even the court is not willing to
progress without allowing the state another opportunity to give its
two cents, then petitioner would request this court resolve it, as has
been decided in the past, and vacate and remand the case back to the
state court requiring them to address this significant legal question.
GROUND FOUR: Petitioner's Trial Counsel Failed To Object To
The Trial Court Holding A Sentencing Hearing, Without A Jury, To
Weigh The Mitigating Circumstances Contrary To Ring v. Arizona
Violating His Sixth And Fourteenth Amendment To The United
States Constitution Right To Effective Assistance Of Counsel.
Supporting Facts: Petitioner complained that due to his counsel's
fit of incompetence in this case, the judge was permitted to proceed
with making the "critical findings" about both "the existence and
weight of aggravating circumstances" necessary to impose a
sentence for capital offenses, without a jury. petitioner postured that
had his counsel objected, there is a reasonable probability that given
the weakness of the state's case and the inferences gathered from the
jury's request to the court for a reduction of the charges, he would
have received a sentence toward the lower range of sentencing.
counsel's actions in effect violated sixth amendment right to a trial
by jury and to effective assistance of counsel. he relied on the record
so that he could point to the parts that were applicable to the hearing.
although it took him some time to acquire the record, it was because
the Ohio disciplinary counsel finally demanded my attorney to
provide me my transcripts. then the court found her (appeals
counsel) to be ineffective because she was appointed by the state to
represent me not just at the local appellate level but also in the
Higher state Courts. See Appendix No. 10.11.
The state found, however, that with respect to his first two claims
that his trial counsel was ineffective for failing to object to the nature
of the sentencing hearing and the admission of hearsay testimony at
trial, he argues that he did not discover the facts underlying those
two claims until he recently received a copy of his trial transcripts.
(He states that his appellate counsel failed to forward the complete
transcripts to him in a timely fashion.) But Sanders did not need the
trial transcripts to discover the fact that his trial counsel had failed
to object because Sanders was present at his trial and the sentencing
hearing and was able to see and hear his trial counsel's actions...
Because Sanders has not demonstrated that he had been unavoidably
prevented from discovering the facts upon which his postconviction
claims depend and does not argue that his claims are based on a new
right recognized by the United States Supreme Court, Sanders has
not met the jurisdictional requirements of R.C. 2953.23." See
Appendix No. 3. The States decision brought to the surface a mixed
question of law and fact causing an “unreasonable application" of
clearly established United States Supreme Court Law. But
considering the state refused to reach the merits of the claim due to
a haphazardly positioned state procedural bar, AEDPA deference is
no longer applicable and De-novo review is necessitated.
GROUND FIVE: The State Of Ohio Violated Petitioners Sixth
Amendment To The United States Constitution Right To Effective
Assistance Of Counsel When He Failed To Object To Hearsay
Testimony Made By A Detective Regarding Testimonial Out-Of-
Court Statements Made By The Principle Offender, That Triggered
His Right To Confrontation.
Supporting Facts: Petitioner complained yet again of counsel's
lack of competence, concerning his failure to object to parts of a
Detectives Testimony because they contained several out of court
statements made by the principle offender during a police
interrogations, that consequently inculpated him which triggered
Mr. Sanders right to confrontation due to his co-defendants refusal
to testify. The Co-defendant was the lynchpin of the State's case,
which the jury was unconvinced at as evidenced by their questions,
and had counsel objected there is a strong possibility that the result
of the trial would have been different. He relied in most part on the
record. Although it took him some time to acquire the record, it was
because the Ohio Disciplinary Counsel finally demanded my
attorney to provide me my transcripts. Then the court found her
(Appeals Counsel) to be ineffective because she was appointed by
the state to represent me not just at the local appellate level but also
in the Higher state Courts. See Appendix No. 10,11. The state held
"With respect to his first two claims that his trial counsel was
ineffective for failing to object to the nature of the sentencing
hearing and the admission of hearsay testimony at trial, he argues
that he did not discover the facts underlying those two claims until
he recently received a copy of his trial transcripts. (He states that his
appellate counsel failed to forward the complete transcripts to him
in a timely fashion.) But Sanders did not need the trial transcripts to
discover the fact that his trial counsel had failed to object because
Sanders was present at his trial and the sentencing hearing and was
able to see and hear his trial counsel's actions. Sanders has not met
the jurisdictional requirements of R.C. 2953.23. Accordingly, we
hold that the common pleas court did not have subject matter
jurisdiction to entertain the merits of Sanders's postconviction
petition and properly dismissed it." See Appendix No. 3. The state's
refusal to address the merits of the complaint ensure that AEDPA
deference no longer binds this courts ability to oppose the principles
of which comity and finality apply. Thus, De-novo review must be
harnessed by this court.
(Petition, ECF No. 1).
Analysis
Ground One: Failure to Grant a New Trial
In his First Ground for Relief, Petitioner claims he was denied some unspecified
constitutional right when the Ohio courts denied him a new trial when he had submitted evidence
that proved his actual innocence.
The first occasion when Sanders submitted his new evidence claim to the state courts was
in his Delayed Motion for New Trial, filed February 21, 2023 (State Court Record, ECF No. 14,
Ex. 46). Beginning on page 13 of that Motion, Sanders states:
The Defendant now presents the newly discovered exculpatory
Statements of Gracie Gallagher, that is in the form of an Affidavit,
where she explains that she has information regarding an alibi on
behalf of the Defendant, additional information regarding the
weapon recovered from her_ home and a confession made by Ryan
collier to her just hours after the incident.
(PageID 398). Sanders then represents that Ms. Gallagher’s Affidavit contains the following
which he “incorporates by reference”:
Around the time of the shooting incident that occurred in Westwood
on November 1st 2012. I was in a relationship with Josh, "Joshua
Collier," and he was staying with me at 2216 Harrison Ave.,
Apartment #3, in Cincinnati, Ohio. I also knew both Josh's brother
Ryan, "Ryan Collier," and Deangelo, "Deangelo Sanders," from
around the Westwood neighborhood.
Earlier in the afternoon, on the day of the incident. I had actually
called Deangelo on his phone. I cannot remember exactly how long
but we talked for some time. But shortly thereafter our conversation
ended. I began to hear that someone had been shot up the street from
my apartment, from other people in the neighborhood.
A day or so later my boyfriend, Josh, came home bolting through
the apartment. So, I asked him what was wrong? He explained to me
that he had taken a gun from his brother Ryan, who had stayed
across the hall from us, because he may have got into some trouble
and had to put it (the Gun) up.
Almost a week later, I actually seen Ryan as I was walking to the
mailbox in our hallway. Practically seconds later Deangelo showed
up m the hallway as well. Ryan began talking about the incident to
both of us. He admitted that he had killed two people down the
street. When I pressed him for details he said "you know I go live."
I asked Ryan if anyone was with him when the incident took place
and he said he was alone.
On the day of Deangelo's trial, I came down to. the courthouse and
attempted to provide his attorney with information regarding his
innocence. But his attorney did not allow me to even explain what I
knew. Instead, he told me he knew I was Josh's girlfriend and that
Josh was already testifying, so he did not need me.
Around early August of 2022. I ran across Deangelo's Sister on
Facebook. I texted her and explained that I had some information
about his case. I figured his attorney never told him I showed up at
his trial because he never contacted me.
Id. at PageID 401.
Ms. Gallagher’s purported affidavit is not attached to the Motion. Sanders’ Motion for
New trial was summarily denied without a hearing or an opinion. Id. at Ex. 49. He appealed,
raising as his first assignment of error:
The Current Application of Ohio Crim. R. 33 Thru Ohio Civ. R. 59
(A), Which Does Not Require the Trial Courts to Provide Findings
Of Facts And Conclusions, Is Unconstitutional and Denied The
Appellant Of His Right To Due Process.
(Appellate Brief, State Court Record ECF No. 14, PageID 448). The First District decided this
first assignment of error on the merits, holding
{6} Sanders argues under his first assignment of error that he was
denied due process when the common pleas court denied his new-
trial motion without issuing findings of fact and conclusions of law.
We overrule this assignment of error. A trial court has "no duty to
issue findings of fact and conclusions of law when [it] denies a
Crim.R. 33 motion for a new trial." State ex rel. Collins v. Pokorny,
86 Ohio St.3d 70, 711 N.E.2d 683 (1999), citing State v. Girts, 121
Ohio App.3d 539, 565, 700 N.E.2d 395 (8th Dist.1997).
(Opinion, State Court Record, ECF No. 14, Ex. 58, PageID 521). It also noted that the purported
Gallagher Affidavit was not in the record or attached to the Delayed Motion for New Trial. Id. at
PageID 520.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the "AEDPA"), 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).
Sanders claims AEDPA deference is not warranted here because the state courts did not
decide his claim on the merits (Reply, ECF No. 19, PageID 2380). He relies on Williams v. Coyle,
260 F.3d 684 (6th Cir. 2000). In that case the Sixth Circuit reviewed de novo a claim under Brady
v. Maryland, 373 U.S. 83 (1963), having found no state court had reviewed that claim on the
merits. Williams is inapposite because the First District did plainly decide Sanders was not
constitutionally entitled to findings of fact and conclusions of law on a motion for new trial.
Having concluded AEDPA does not apply, Sanders makes no effort to show the First
District’s decision was contrary to or an objectively unreasonable application of clearly established
Supreme Court precedent. But the Magistrate Judge knows of no such precedent. So far as this
Court is aware, the Supreme Court has never held a state court defendant is constitutionally entitled
to findings of fact and conclusions of law on a motion for new trial.
Because Petitioner’s First Ground for Relief is without merit, it should be dismissed on
that basis. There is no need to delve into the complex factual questions presented by Respondent’s
statute of limitations defense of Ground One.
Ground Two: Denial of Effective Assistance of Trial Counsel
Sanders claims he was denied his Sixth Amendment right to the effective assistance of
counsel when his trial attorney failed to investigate the facts Ms. Gallagher includes in her
purported affidavit which she allegedly tried to communicate to trial counsel “on the day of
Deangelo’s trial.”
Because the facts of Ms. Gallagher’s communication with trial counsel were not of record
at the time of the direct appeal (i.e., they were dehors the record, as Ohio law has it), they had to
be presented by a petition for post-conviction relief under Ohio Revised Code § 2953.21. Sanders
filed such a Petition on the same day he filed for a new trial (State Court Record, ECF No. 14, Ex.
62). Because Sanders had filed a prior petition for post-conviction relief, he had to meet the criteria
for a successive petition enacted in Ohio Revised Code § 2953.23. He asserted he was unavoidably
prevented from bringing this claim earlier because
This claim is based on an Affidavit obtained by the petitioner, from
Gracie Gallagher, after being contacted by her, around the beginning
of August 2022, because she had attempted to contact the petitioners
counsel but was never contacted again regarding the information she
had attempted to provide.
Id. at PageID 535. Sanders repeats the summary of Ms. Gallagher’s purported affidavit that he
made in the motion for new trial, but again does not attach the affidavit. The Common Pleas Court
summarily denied the Successive Petition on June 21, 2023. Id. at Ex. 64. The State Court Record
does not show Sanders ever appealed from this decision. Instead he filed in the First District a
Motion to Correct Omissions to add the Gallagher Affidavit to the record (State Court Record,
ECF No. 14, Ex. 66). The First District denied that Motion, again noting the absence of the
purported affidavit.
The best evidence of the content of an affidavit is the affidavit itself, not the hearsay
representation of an interested party of what the affidavit contains. Although the Common Pleas
Court’s decision on the post-conviction petition is summary, it is supported by the First District’s
decision on the motion to correct the record. Essentially, Sanders failed to prove that his trial
attorney was aware of the information he claims Ms. Gallagher was prepared to testify to.
To establish a claim of ineffective assistance of trial counsel, a petitioner must show both
deficient performance by his trial attorney and resulting prejudice. Strickland v. Washington, 466
U.S. 668 (1984). Sanders has failed to show the Common Pleas Court’s decision on this claim is
contrary to or an objectively unreasonable application of Strickland.
Alternatively, this claim is procedurally defaulted by Sanders’ failure to appeal the denial
of his Successive Petition in which he raised this claim to the First District. Ground Two should
be dismissed. Because the claim fails on the merits and is procedurally defaulted, the Court need
not analyze the statute of limitations defense.
Ground Three: Failure to Submit Sentencing Factors to the Jury
In his Third Ground for Relief, Petitioner asserts he was denied his Sixth Amendment right
to a jury participation in the determination of sentence. Although Respondent raises procedural
default and statute of limitations defenses to Ground Three, it is not necessary to engage in that
extended analysis because Ground Three fails to state a claim upon which habeas corpus relief can
be granted. Although Sanders was indicted for a capital offense, the prosecutor never sought a
capital sentence in this case. Habeas relief is available only in case where the state conviction
violates the Constitution as interpreted in the holdings of the Supreme Court. The Supreme Court
has never held a state defendant is entitled to a jury on sentencing questions in cases where the
death sentence is not a possible outcome. Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v.
Florida, 577 U.S. 92 (2016), are not to the contrary.
Ground Three should be dismissed for failure to state a claim upon whicjh hanbeas relief
can be granted.
Ground Four: Ineffective Assistance Of Trial Counsel: Failure to Raise Jury Trial Right
In his Fourth Ground for Relief, Sanders asserts he received ineffective assistance of trial
counsel when his trial counsel failed to object to exclusion of the jury from sentencing
determination. Because such an objection would not have had any merit, it was not ineffective
assistance of trial counsel for failure to raise the objection. Ground Four should be dismissed as
without merit.
Ground Five: Ineffective Assistance Of Trial Counsel: Failure To Object To Hearsay
In his Fifth Ground for Relief, Petitioner claims he received ineffective assistance of trial
counsel when his trial attorney failed to object to a police officer’s testimony about out of court
statements made by the “principle [sic] offender.”
This omission would have appeared on the face of the record on direct appeal. Under Ohio
law claims of ineffective assistance of trial counsel which appear on the appellate record must be
raised on direct appeal or be barred in later proceedings by res judicata. State v. Perry, 10 Ohio
St. 2d 175 (1967). Sanders blames the omission on ineffective assistance of appellate counsel who
he asserts abandoned him (Reply, ECF No. 19, PageID 2392). Before ineffective assistance of
appellate counsel can be used to excuse a procedural default on appeal, the claim of ineffective
assistance of appellate counsel must be submitted to the state courts in the usual course of state
court procedure. 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). Sanders Reply cites
no place in the record where he submitted his claim of abandonment to the state courts. Instead,
he merely cites to Maples v. Thomas, 565 U.S. 266 (2012). In that capital case the Supreme Court
found a procedural default was excused because out-of-state counsel
failed to take [a] timely appeal from Alabama court's denial of
postconviction relief, where petitioner's out-of-state counsel, who
were on record as representing him in postconviction proceedings,
abandoned him without leave of court, without informing him they
could no longer represent him, and without securing any recorded
substitution of counsel, such attorneys' law firm did not represent
him throughout postconviction proceedings, his local counsel, who
had agreed to serve only for purposes of enabling out-of-state
attorneys to appear pro hac vice, did not act as his agent in any
meaningful sense, and, because out-of-state counsel and local
counsel continued to be listed as his attorneys, he had no right to
receive notice, and thus had no warning that he needed to fend for
himself.
565 U.S. at 266.
As the Magistrate Judge understands Sanders’ claim of abandonment, it is that Attorney
Stagnaro abandoned him after his direct appeal was decided by not advising him of the necessary
next steps to take, i.e., appealing to the Ohio Supreme Court. The record does not support a finding
of abandonment at the Court of Appeals level. Attorney Stagnaro filed the Notice of Appeal on
October 8, 2014 (State Court Record. ECF No. 14, Ex. 7) as well as Appellant’s Brief. Id. at Ex.
9. Thus she was acting as Petitioner’s attorney and agent when she filed the brief that did not raise
this claim for relief. If omission of this particular assignment of error was indeed ineffective
assistance of appellate counsel, Sanders must obtain a state court determination to that effect before
he can use the omission to excuse his failure to present this claim on direct appeal.
If he had timely appealed to the Ohio Supreme Court, he could have raised this ineffective
assistance of appellate counsel claim there, but that court denied him leave to file a delayed appeal
(Entry, State Court Record, ECF No. 14, Ex. 14). Aside from direct appeal, the sole Ohio
procedure for litigating a claim of ineffective assistance of appellate counsel is by application for
reopening the appeal under Ohio R. App. P. 26(B) which must be filed within ninety days of the
appellate judgment. Sanders did not file a 26(B) application until April 18, 2019. Id. at Ex. 26.
The First District denied the Application because it was untimely and found his claim that the
delay was caused by ineffective assistance of appellate counsel without merit because he had no
right to counsel in completing a 26(B) application. Id. at Ex. 30.
Petitioner’s Ground Five is therefore procedurally defaulted without excusing cause and
prejudice and should be dismissed on that basis.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein be dismissed with prejudice. Because reasonable ju rists would not disagr ee
with this conclusion, it is also recommended that Petitioner be denied a certificate of
appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively
frivolous and should not be permitted to proceed in forma pauperis.
January 27, 2026.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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.