Clarke

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

JOHN A. CLARKE, JR. ,

Petitioner, : Case No. 2:25-cv-00750

- vs - Chief Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

FRANKLIN COUNTY

PROBATION DEPARTMENT,

:

Respondent.

SUBSTITUTED REPORT AND RECOMMENDATIONS;

ORDER DENYING MOTION TO STRIKE

This is a habeas corpus action brought by Petitioner John A. Clarke, Jr., with the assistance

of counsel. The undersigned previously filed a Report and Recommendations (“Initial Report,”

ECF No. 17). Counsel’s timely-filed Objections warrant this Substituted Report to address the

objections raised. Rather than require the District Judge to consider two Reports, the prior Report

has been withdrawn (ECF No. 19) and this Substituted Report replaces it. This Substituted Report

renders Respondent’s Motion to Strike (ECF No. 20) moot and it is hereby denied.

Litigation History

On December 16, 2020, a Franklin County Grand Jury returned a four-count indictment

charging Petitioner with two counts of election falsification in violation of Ohio Revised Code §

3599.36 and two counts of tampering with records in violation of Ohio Revised Code § 2913.42.

The offenses related to financial reports submitted on July 31, 2019, and August 15, 2019, on

behalf of the Columbus Clean Energy Initiative (“CCEI”). A jury convicted Petitioner on one

count of election falsification and he was sentenced to 120 days imprisonment and five years of

community control1.

Clarke appealed to the Ohio Tenth District Court of Appeals, raising four assignments of

error, all of which the appellate court overruled. State v. Clark2, 231 N.E. 3d 459, 2023-Ohio-

4434 (Ohio App. 10th Dist. Dec. 7, 2023). The Ohio Supreme Court declined jurisdiction over a

subsequent appeal. State v. Clark, 173 Ohio St. 3d 1445 (Apr. 2, 2024).

Clarke then filed his Petition in this Court, through counsel, on July 7, 2025, pleading the

following grounds for relief:

Ground One: The Ohio Courts ruled contrary to, or unreasonably

applied, clearly-established Supreme Court precedent and/or

entered a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state court

proceedings, as the evidence failed to prove beyond a reasonable

doubt that Clarke was guily [sic] of all elements of election

falsification.

Supporting Facts: The state was required to prove beyond a

reasonable doubt that Clarke knowingly made a false statement in

an election filing while either under oath or aware that the statement

was made under the risk of being charged with a crime. The state

presented evidence that attestation language appeared on a screen.

But the state did not prove that Clarke saw and was aware he was

under penalty of a crime when filing the documents.

Ground Two: The Ohio Courts ruled contrary to, or unreasonably

applied, clearly-established Supreme Court precedent and/or

entered a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state court

proceedings, as the trial court appointed City of Columbus counsel

as special counsel for prosecution of Clarke when the City of

Columbus was an interested party, the victim.

1 Petitioner has completed service of the jail time but remains sufficiently in custody by virtue of his probationary

sentence for the Court to exercise habeas corpus jurisdiction.

2 The Tenth District spelled Petitioner’s last name “Clark.”

Supporting Facts: The City of Columbus was an interested party

and claimed victim of the election falsification. And yet the trial

court appointed City of Columbus counsel as special counsel for the

criminal prosecution in this case.

Ground Three: The Ohio Courts ruled contrary to, or unreasonably

applied, clearly-established Supreme Court precedent and/or

entered a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the state court

proceedings, as the record demonstates [sic] that Clarke's trial

counsel was prejudicially ineffective.

Supporting Facts: Trial counsel failed to object to Detective

Schiff's testimony describing discussions with four people listed as

contributors, Schiff's testimony about the contents of documents not

introduced as evidence, and Ramsini's testimony about how the

database worked in 2019.

Ground Four: The Ohio courts entered decisions that were

unreasonable in light of the trial record by failing [to follow]

Supreme Court precedent and/or entered a decision that was based

on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings, as the admission of

evidence deprived Clarke of due process and a fair trial.

Supporting Facts: Evidence that was wrongly admitted, and to

which counsel should have objected but failed to do so, so severely

and unfairly prejudiced Clarke that he was deprived of the rights to

due process and a fair trial.

(Petition, ECF No. 1, PageID 5, 7, 8, 10). In his request for relief, Clarke requests dismissal of the

case for “lack of sufficient evidence or, in the alternative, dismissing the indictment for violation

of the right to a speedy trial,” Id. at PageID 15. No separate ground for relief is pleaded claiming

a Sixth Amendment speedy trial violation.

Petitioner admits that Grounds Three and Four were not presented to the Supreme Court

of Ohio on appeal, but blames that on error of counsel before that Court and “seeks an order [from

this Court] excusing the default.” Id. at PageID 12.

Analysis

Statute of Limitations

In the Petition, Clarke claimed his filing was timely under 28 U.S.C. § 2244(d)(1)(A). This

section codifies that portion of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.

L. No. 104-132, 110 Stat. 1214)(the "AEDPA") which established a one-year statute of limitations

for habeas corpus cases to run from the date on which the conviction became final on direct appeal.

In the Return of Writ, Respondent pointed out that the Petition was filed late if the statute

is calculated under 28 U.S.C. § 2244(d)(1)(A)(Return, ECF No. 9, PageID 1590). Clarke

responded in his Traverse by seeking equitable tolling instead of claiming compliance with the

statute (Traverse, ECF No. 11, PageID 1610). To support the equitable tolling claim and show his

due diligence, Clarke filed an Affidavit with the Traverse in which he avers:

2. I was represented in the Supreme Court of Ohio by counsel with

the Huey Defense Firm in Columbus.

3. [omitted]

4. When the Supreme Court of Ohio denied relief, the law firm

contacted me with that news.

5. The law firm did not report the exact date of the decision, and I

did not know that date.

6. The law firm gave me zero advice on the availability of filing a §

2254 petition within a year of that date. I had no idea I had further

recourse through the federal courts.

7. I did not hear from that firm at any time after they told me of the

decision.

8. Without an attorney and using ChatGPT, I learned that I had the

right to proceed to federal court. I was not able to determine the due

date for the petition.

9. I turned to a paralegal organization because I did not want to rely

on ChatGPT. That organization informed me that the Supreme Court

of Ohio decision was dated April 15, 2024 and that, as a result, my

convictions became final July 14, 2024, and the filing deadline for

this action was July 14, 2025.

(Clarke Affidavit, ECF No. 11-1, PageID 1632-33).

In the Initial Report, the undersigned asserted Clarke had not provided corroboration of

the details in this affidavit (hereinafter the “First Affidavit”) raising the following questions:

Additional detail which would be readily available to Clarke but

which is not provided would include

(1) When was he advised he had lost in the Ohio Supreme Court and

was the advice written?

(2) What effort did Clarke make and when to learn the date of the

Supreme Court decision? (The Ohio Supreme Court’s docket is

available to the public online and would show the date of the

decision.)

(3) At some point in time before he retained current counsel, Clarke

used ChatGPT to learn of the availability of federal habeas

corpus. When? Why didn’t he ask ChatGPT about a filing

deadline? (A Google query by the undersigned for the deadline

for filing a federal habeas petition provides the answer that it is

“generally one year from when your state conviction becomes

final starting after all direct appeals are exhausted.”)

(4) Not trusting ChatGPT, Clarke turned to a paralegal organization

which gave him the wrong date of April 15, 2024, for the Ohio

Supreme Court’s decision. What paralegal organization? Was

the advice written? If so, why is the Court not provided with a

corroborating copy?

(5) When did Clarke retain current counsel?

(Report, ECF No. 17, PageID 1713-14). These questions reflect the rule that a party claiming

equitable tolling has the burden of proving entitlement.

On January 9, 2026, Clarke filed his Third Affidavit in which he avers

After the Ohio Supreme Court declined jurisdiction, I eventually

began researching postconviction options. Per my browser search

history, I began searching for habeas assistance in mid-May 2025.

A dated entry on 5/14/2025 reflects a search for "habeas corpus

attorneys Ohio."

(Reply, ECF No. 16, PageID 1707 (emphasis added)). He continues that he contacted many

attorneys by telephone, some of whom declined outright and some of whom wanted fees too high

for him to afford. Id. at ¶4. He then contacted a “paralegal company [unidentified],” as an

affordable alternative and they wrote him a letter [unattached] which said the deadline was July

14, 2025. Id. at ¶ 5-6. He then contacted current counsel on June 18, 2025, and executed paperwork

to retain Attorney Brandt on June 25, 2025 Id. at ¶8, PageID 1708.

Current counsel repeatedly accuses the Huey Firm of “abandoning” Clarke after the Ohio

Supreme Court declined to exercise jurisdiction, but the Court is not supplied with any details

about Clarke’s retaining of the Huey Firm except that it was for the Ohio Supreme Court part of

the case. “Abandonment” suggests that firm had some duty beyond telling Mr. Clarke that he had

lost in the Ohio Supreme Court and Petitioner cites no authority for that proposition.

“Abandonment” connotes having accepted responsibility and then failing to fulfill it, but the Court

is offered no evidence that the Huey firm’s responsibility went beyond what it did.

By his own admission, Clarke did nothing after learning he had lost in the Ohio Supreme

Court until May 14, 2025, more than a year after that loss. That does not evidence due diligence.

Finally, Clarke contacted current counsel on June 18, 2025, and executed paperwork to

retain him in this case on June 25, 2025, almost two weeks before the Petition was filed. Counsel

continues to refer to the delay as a “mere” six days, but the Sixth Circuit has held that “Absent

compelling equitable considerations, a court should not extend limitations by even a single day.”

Graham Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000).

In sum, Mr. Clarke has not shown he acted with diligence from April 2, 2024, until May

14, 2025, when he admits he “eventually” began to look for further post-conviction remedies. That

does not show due diligence on his part. As of June 25, 2025, filing became the responsibility of

current counsel. Why did he wait until July 7, 2025, to file? He certainly knew he could check

the Supreme Court’s decision date by consulting that Court’s on-line data base. Attorney Brandt

gives no reason why he did not file on time and as Clarke’s agent, that decision is attributable to

Clarke.

Merits

Ground One: Conviction Entered on Insufficient Evidence

In his First Ground for Relief, Mr. Clarke asserts his conviction is not supported by

sufficient evidence. Petitioner presented this claim to the Tenth District Court of Appeals which

decided it as follows:

Whether the state presented sufficient evidence that Mr. Clark's

statements were made under penalty of election falsification

{¶ 27} Pursuant to the first paragraph of R.C. 3599.36, no person

shall knowingly make a false statement as to a material matter when

that statement is subject to penalty of election falsification. Separate

and apart from these elements of the offense, R.C. 3599.36 states in

its third paragraph that an election falsification attestation must

accompany every “paper, card, or other document” relating to a

“matter that calls for a statement to be made under penalty of

election falsification.” We cannot see how the knowledge

requirement in the statute's first paragraph relates to the attestation

requirement in the third paragraph. Instead, the statute instructs that,

to convict a person of election falsification, the state needs to prove

only that a false statement was knowingly made and the statement

is one that must be made under penalty of election falsification per

some other section of the Revised Code.

{¶ 28} The state presented sufficient evidence to establish that Mr.

Clark knowingly submitted false information regarding

contributions and expenditures when he clicked to formally submit

that information as part of CCEI's amended campaign finance

report. Mr. Clark reported in CCEI's amended campaign finance

report that Ms. Heard and Ms. Martinez contributed $10,000 to the

campaign. (State's Ex. B at 2.) However, when both women were

called to testify, they denied making monetary contributions to the

campaign. (Tr. Vol. III at 556-57, 573-75.) And, Mr. Clark, too,

conceded that neither Ms. Heard nor Ms. Martinez contributed

money to the campaign, and he was aware of that fact in 2019. (Tr.

Vol. III at 633. But see Tr. Vol. III at 656-57 (despite these

concessions, he denied the information he provided was false)).

{¶ 29} But even if R.C. 3599.36 required proof that an election

falsification attestation accompanied the documents, the state

presented sufficient evidence that one did. R.C. 3599.36 states that

“[e]very paper, card, or other document relating to any election

matter that calls for a statement to be made under penalty of election

falsification shall be accompanied by the following statement in

bold face capital letters: ‘Whoever commits election falsification is

guilty of a felony of the fifth degree.’ ”

{¶ 30} The statute merely requires that an

attestation accompany each paper or document that calls for a

statement to be made under penalty of election falsification. Forms

30-A, 31-A, and 31-B all make up a single document—a campaign

finance report. Although the record does not establish that Mr. Clark

would have seen the election falsification attestation at the time he

typed the data into the database, there is sufficient evidence to

establish that, prior to submitting the information to the government

as one campaign finance report document, Mr. Clark would have

seen the attestation displayed on the screen. Ms. Ramsini testified

that in August 2019, a person using the campaign finance database

would have seen the attestation before clicking to submit a report.

(See Tr. Vol. II at 304-05, 339.) Although Ms. Ramsini also testified

that the database has changed, and now includes a checkbox with

the attestation language (Tr. Vol. II at 337-38), that does not

undermine her testimony that, in 2019, an attestation would have

appeared onscreen before Mr. Clark clicked to submit the first

amended campaign finance report. And that is all that would be

required under this reading of R.C. 3599.36.

State v. Clark, supra.

Positions of the Parties

In his Brief in Support of his Petition, Clarke argues this conclusion by the Tenth District

is either contrary to or an objectively unreasonable application of relevant United States Supreme

Court precedent so as to justify habeas relief under 28 U.S.C. § 2254(d)(1) or a decision based on

an objectively unreasonable determination of the facts in light of the evidence so as to warrant

relief under 28 U.S.C. § 2254(d)(2)(Brief, ECF No. 7, PageID 27).

Responding in the Return of Writ, Franklin County Probation argues that this Court is

bound by the Tenth District’s interpretation of the relevant criminal statute and its conclusion that

the State satisfied that statute with the evidence it presented at trial (Return, ECF No. 9, PageID

1596-1600).

In his Traverse Petitioner argues that he can overcome the doubly-deferential standard that

applies to sufficiency claims under Jackson v. Virginia, 443 U.S. 307 (1979). He relies in part on

his own Affidavit (ECF No. 7-1) which appears at least in part to assert an advice-of-counsel

defense to the offense of which he was convicted. He also reads the Return as arguing Ground

One is not cognizable in habeas “by recasting Clarke’s insufficiency argument as a state court

determination of state law.” (Traverse, ECF No. 11, PageID 1620). He concedes that the

Tenth Appellate District may have been correct that the “made under

penalty of election falsification” element is “separate and apart”

from the paragraph requiring attestation. Regardless, the evidence

failed to present evidence on which the jury could have believed that

Clarke made the statement “under” penalty of election falsification

because, unlike the alternative when a person is sworn and “under”

oath, the state did not show that Clarke was “under” penalty without

knowledge of the penalty and repercussions of making a false

statement. This is material to the case because, as the record shows,

Clarke made repeated attempts to ensure that the attorney he had

hired to make sure he was in compliance failed him. The attorney

turned around and directed Clarke to file as is.

In sum, Clarke’s argument is not that the Tenth Appellate District

wrongly “defined” the elements of the statute. Cf. ECF 9, Answer,

PageID#1598. His argument is that the element of “made under

penalty of election falsification” was not proved.

(Traverse, ECF No. 11, PageID 1620-21).

Analysis

A claim that a verdict is not supported by sufficient evidence states a claim for relief under

the Fourteenth Amendment. 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, as Petitioner concedes, 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).

In attempting to rebut the Tenth District’s conclusion of sufficiency, Petitioner relies in

part on his own Affidavit, offered initially in these proceedings. Consideration of that Affidavit is

precluded by Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster bars a federal court “from

admitting new evidence upon which to assess the reasonableness of a state court's constitutional

analysis.” Upshaw v. Stephenson, 97 F. 4th 365, 372 (6th Cir. 2024), quoting Mitchell v. Genovese,

974 F.3d 638, 647 (6th Cir. 2020).

Petitioner also relies in part on alleged advice from his attorney. E.g., Traverse, ECF No.

11, PageID 1620: “The attorney turned around and directed Clarke to file as is.” Petitioner gives

no record reference to evidence of this supposed direction from counsel3. If the intended

evidentiary support is found in Petitioner’s Affidavit, its consideration is precluded by Pinholster,

3 The Order for Answer in this case provides “[w]hen 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 righthand corner of the

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

(ECF No. 4, PageID 21).

supra.

The Tenth District’s interpretation of the relevant statute is binding on this Court,

particularly in that no competing interpretation of the statute by other Ohio courts is offered4.

Petitioner’s § 2254(d)(2) attack is apparently based somehow on the rule against stacking

inferences, but Petitioner cites no Supreme Court precedent forbidding that practice.

“Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the

evidence to exclude every reasonable hypothesis except that of guilt.” United States v. Ramirez,

635 F.3d 249, 256 (6th Cir. 2011), quoting United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1993);

United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010); United States v. McAuliffe, 490 F.3d

526, 537 (6th Cir. 2007); United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006); United States

v. Reed, 167 F.3d 984, 992 (6th Cir. 1999); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir.

1992); United States v. Hendricks, 950 F.3d 348, 352 (6th Cir. 2020). Justice Brennan wrote for the

United States Supreme Court: “[D]irect evidence of a fact is not required. Circumstantial evidence

is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960)(Brennan), citing Rogers v. Missouri

Pacific R. Co., 352 U.S. 500, 508, n. 17(1957).

Particularly in a case such as this, where the contested element is the mens rea of acting

knowingly, the most persuasive evidence would be an admission by a defendant. However, under

the Fifth Amendment a criminal defendant cannot be compelled to testify to what he knew. The

Tenth District’s summary of the evidence is sufficient to prove Petitioner acted with the required

mens rea in this case.

4 In its apparent caution against a competing interpretation by the Ohio Supreme Court in an appeal in this case, the

Tenth District offered an alternative analysis of the evidence. However, the Ohio Supreme Court declined to exercise

jurisdiction.

Petitioner relies on Newman v. Metrish, 543 F.3d 793 (6th Cir. 2008), where the Sixth

Circuit granted habeas relief despite the double deference rule. In that case the two-judge majority

held there was no evidence to place the accused murderer at the scene of the crime. The

undersigned acknowledges that doubly deferential review does not mean no review, but here the

Tenth District adequately explained why the critical inference of sufficient mens rea was

supported.

Ground One should therefore be dismissed on the merits, as well as on the statute of

limitations ground.

Ground Two: Improper Appointment of Special Prosecutor

In his Second Ground for Relief, Petitioner asserts the Common Pleas Court acted

unconstitutionally when it appointed an attorney for the City of Columbus as special prosecutor in

this case. Petitioner raised a claim relating to the special prosecutor appointment as his first

assignment of error on direct appeal and the Tenth District decided it as follows:

{¶ 17} In his first assignment of error, Mr. Clark takes issue with

the “dual role” he believes the City of Columbus played in his case.

Specifically, he claims the appointment of a special prosecutor from

the Columbus City Attorney's Office “ ‘warped the framework

within which the trial proceeded.’ ” (Appellant's Brief at 11-12,

quoting State v. Montgomery, 169 Ohio St.3d 84, 2022-Ohio-2211,

202 N.E.3d 616, ¶ 23.) He asserts the trial court committed structural

error by permitting a prosecutor with the Columbus City Attorney's

Office to serve as special prosecutor in his case. For the following

reasons, we disagree.

{¶ 18} Because Mr. Clark did not object to the special prosecutor's

appointment below, he has forfeited all but plain error review of his

argument. See, e.g., State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002). Pursuant to Crim.R. 52(B), a plain error is one

that affects substantial rights and may be noticed by an appellate

court although not brought to the attention of the trial court. “To

warrant reversal under plain error review, this court must find: (1)

‘an error, i.e., a deviation from a legal rule;’ (2) the error is plain or

obvious; and (3) the error affected the outcome of the trial court

proceedings.” Columbus v. Carmichael, 10th Dist. No. 22AP-306,

2023-Ohio-1386, 2023 WL 3118181, ¶ 11, quoting Barnes at 27,

759 N.E.2d 1240.

{¶ 19} In Montgomery, the Supreme Court of Ohio held that a

criminal defendant's right to a fair trial as guaranteed by the Sixth

and Fourteenth Amendments to the United States Constitution is

violated when the trial court permits an alleged victim to sit at the

prosecutor's table throughout trial and be formally introduced to the

jury as the state's representative. The court was concerned that this

designation and location in the courtroom “risked misleading the

jury into thinking that just as defense counsel represents the

defendant, the prosecuting attorney represents the alleged victim, or

even more harmful, that the alleged victim as the complaining

witness and the prosecution are one and the same.” Id. at ¶ 23. The

court concluded that such a “dual role” for a victim “warp[s] the

framework within which the trial proceed[s]” and undermines a

criminal defendant's right to a fair trial. Id. And, because this error

is so pervasive and its effect on the fundamental fairness of a trial is

too difficult to gauge, the court held that it constitutes structural

error requiring reversal. Id. at ¶ 31 -33.

{¶ 20} We cannot agree that the special prosecutor's role during Mr.

Clark's trial was akin to the facts presented in Montgomery. Critical

to Montgomery’s holding was the potential harm that comes from a

jury hearing and seeing a victim in this “dual role.” But here,

regardless of whether the special prosecutor was actually playing a

dual role—a point the state contests in its brief and we need not

resolve in this appeal—the jury never heard anything about it. Mr.

Gibson introduced himself to the jury as one of two attorneys

representing the state, and his employment with the City of

Columbus never came up at trial. (See Tr. Vol. I at 11-12.)

{¶ 21} Mr. Clark reads Montgomery to hold that “a

prosecutor cannot represent the interest of the complaining witness,

nor vice versa.” (Emphasis sic.) (Appellant's Brief at 13.) But as Mr.

Clark acknowledges in his brief, the Montgomery court was

concerned with the impact such a dual role could have on a jury.

(Appellant's Brief at 13, quoting Montgomery at ¶ 23.) Because Mr.

Gibson's role as prosecutor with the City Attorney's Office was

never revealed to the jury and therefore none of the concerns

associated with Montgomery are present here, we must reject Mr.

Clark's first assignment of error.

State v. Clark, supra.

Petitioner asserts the Tenth District’s decision on this claim is contrary to Young v. U.S. ex.

rel Vuitton et Fils, S.A.,, 481 U.S. 787 (1987). In that case parties to a settlement agreement in a

civil case were alleged to have violated the injunction which had been agreed on as part of the

settlement. The District Court had appointed counsel from the injured party to serve as a special

prosecutor for the criminal contempt proceeding. The Supreme Court reversed, but the case did

not produce a majority opinion. Justices Marshall, Blackmun, and Stevens concurred with Justice

Brennan that harmless error analysis was inappropriate. Justice Scalia, however, concurred in the

judgment, expressing his long-held but minority opinion that the federal courts have no authority

to initiate or prosecute criminal contempts at all.

This, of course, is not a contempt case, but a straight criminal prosecution to protect the

public interest in enforcement of a state criminal statute. There has been no showing that somehow

the public interest in enforcement of the election statutes would differ from or conflict with that of

the City of Columbus, although that appears to have been the principal concern of the Supreme

Court in Young.

Respondent argues that “There is no rule that prohibits an attorney from prosecuting a case

simply because the governmental entity that employs the attorney was directly or indirectly

affected by the alleged criminal conduct” and then cites the Department of Justice’s representation

of the United States in criminal cases. Compelling examples are closer at hand. At least since the

1950’s Ohio municipalities have enacted ordinances prohibiting the same traffic misconduct as is

prohibited by the Ohio Revised Code. Why? Because the fines generated by ordinance violation

go to the city, but fines generated by the same conduct but prosecuted under the Ohio Revised

Code go to State entities. These cases are routinely prosecuted by city attorneys whose employers

stand to benefit. Having presided over literally hundreds of thousands of traffic cases from 1977

through 1984, the undersigned never heard this argument Clarke makes made by any defendant

despite continually vigorous defense of those cases (where jail was a possible consequence) by the

Montgomery County Public Defender’s Office. The Tenth District’s decision is not an objectively

unreasonable application of Supreme Court precedent.

Aside from the merits, the Respondent argues two bases for procedural default of this

second ground. First of all, Petitioner never objected to the special prosecutor appointment.

Secondly, the claim was not fairly presented to the Tenth District as a federal constitutional claim.

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786

F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);

Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th

Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261

F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner

failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually

enforced the state procedural sanction, citing County Court of Ulster

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777

(1979).

Third, the court must decide whether the state procedural forfeiture

is an "adequate and independent" state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not

complied with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate under Sykes that

there was "cause" for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).

As to the first asserted procedural default, Ohio has a requirement that a party make a

contemporaneous objection to trial court error so that the error can be corrected without a new

trial. States have a very strong interest in the contemporaneous objection rule. Scott v. Mitchell,

209 F.3d 854 (6th Cir. 2000), quoting extensively from Wainwright v. Sykes, 433 U.S. 72, 88-90

(1977). Ohio’s contemporaneous objection rule is an adequate and independent state ground.

Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000),

citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982).

Here the Tenth District enforced the contemporaneous objection rule by reviewing this

claim only for plain error. An Ohio state appellate court’s review for plain error is enforcement, not

waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v.

Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006);

White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005);

Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001).

Secondly, to preserve a federal constitutional claim for habeas review, a petitioner must fairly

present that claim as a federal claim in the state courts. Petitioner here presented this claim purely an

asserted violation of the Ohio Supreme Court’s decision in State v. Montgomery, 169 Ohio St.3d 84

(2022). Although the Ohio Supreme Court decided that case on federal constitutional grounds, it is

only decisions of the United States Supreme Court which “count” under 28 U.S.C. § 2254(d)(1). On

the merits the Tenth District adequately distinguished Montgomery.

In sum, Ground Two should be dismissed as procedurally defaulted and also without merit.

Ground Three: Ineffective Assistance Of Trial Counsel

Ground Four: Improper Admission of Evidence

In his Third Ground for Relief Petitioner claims he received ineffective assistance of trial

counsel based on several objections trial counsel failed to make. In his Fourth Ground for Relief

he asserts the trial court improperly admitted some of the evidence on which the State relied.

Failure to raise a constitutional issue at all on direct appeal is subject to the cause and

prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,

485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th

Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). To

properly exhaust a claim in state court, a prisoner must have argued the claim’s factual and legal

basis at each level of the state court system. Whitman v. Gray, 103 F.4th 1235, 1238 (6th Cir.

2024). Failure to present an issue to the state supreme court on discretionary review constitutes

procedural default. “Even if the state court failed to reject a claim on a procedural ground, the

petitioner is also in procedural default ‘by failing to raise a claim in state court, and pursue that

claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d 423, 437

(6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)(quoting O'Sullivan

v. Boerckel, 526 U.S. 838, 846-7(1999)); see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir.

2004) ("A federal court is also barred from hearing issues that could have been raised in the state

courts, but were not[.]"). Petitioner’s Grounds Three and Four were not presented to the Ohio

Supreme Court on direct appeal from the Tenth District and are therefore procedurally defaulted.

To the extent Petitioner claims this default is excused by the ineffective assistance of his

Supreme Court counsel, the Sixth Amendment effective assistance of counsel right applies only to

those proceedings where an indigent petitioner is entitled to appointed counsel. The right to

appointed counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481

U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). Ineffective assistance of counsel can

excuse procedural default only when it occurs in a proceeding where a defendant is constitutionally

entitled to counsel under the Sixth Amendment. Wainwright v. Torna, 455 U.S. 586 (1982)(where

there is no constitutional right to counsel there can be no deprivation of effective counsel); Riggins

v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d

708, 714 (N.D. Ohio 2002).

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

be permitted to proceed in forma pauperis.

February 4, 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. 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.