Cherry

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ASHANTI AKINTUNDA CHERRY,

Petitioner, : Case No. 3:26-cv-00006

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

NORMAN ROBINSON, WARDEN,

Southeastern Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case was brought pro se by Petitioner Ashanti Akintunda Cherry

pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction in the Clark County Court of

Common Pleas on charges of kidnapping, felonious assault, and having weapons under disability.

Relevant pleadings are the Petition (ECF No. 1), the State Court Record (ECF No. 4), the

Respondent’s Return of Writ (ECF No. 5), and Petitioner’s Traverse (ECF No. 9). With the filing

of the Traverse, the case is ripe for decision.

Litigation History

On October 10, 2023, the Clark County Grand Jury handed down an indictment charging

Cherry with one count of kidnapping in violation of Ohio Revised Code § 2905.01(A)(3), one

count of felonious assault in violation of Ohio Revised Code § 2903.11(A)(2), one count of

abduction in violation of Ohio Revised Code § 2909.05(A)(2), one count of strangulation in

violation of Ohio Revised Code § 2903.18(B)(2), one count of having weapons while under

disability in violation of Ohio Revised Code § 2923.13(A)(1), and one count of Tampering With

Evidence in violation of Ohio Revised Code § 2921.12(A)(1) (Indictment, State Court Record

ECF No. 4, Ex. 1). On November 28, 2023, the case was tried to a jury which convicted Cherry

of kidnapping, felonious assault, abduction, and having a weapon while under a disability, but

acquitted him on the strangulation and tampering with evidence charges. The trial judge imposed

a sentence of twenty-four years and six months to twenty-nine years and six months.

Cherry appealed to the Ohio Second District Court of Appeals which affirmed the

conviction. State v. Cherry, 2024-Ohio-5344 (Ohio App. 2nd Dist. Nov. 8, 2024). The Ohio

Supreme Court declined to exercise jurisdiction over a further appeal. State v. Cherry, 177 Ohio

St. 3d 1455 (2025). Petitioner then timely filed his Petition in this Court, pleading the following

five grounds for relief:

Ground One: The decisions of the Ohio judicary [sic] denying the

Petitioner relief from having effective assistance of Trial Counsel as

guaranteed is violation of the Sixth Amendments [sic] to the United

States Constitution.

Supporting Facts: Counsels performance was deficient when he

fail to file a motion to suppress law enforcement interview and

interrogation including failing to object to prosector’s introduction

of new evidence during the disposition, deprived Petitioner of a fair

trial. No fair minded jurist could agree with the State Court.

Petitioner is in custody in violation of the Sixth Amendments

Constitution of the United States to have effective assistance of Trial

Counsel. Cherry was prejudice [by] Trial Counsel when he fail to

file a motion to suppress law enforcement interview and

interrogation including failing to object to prosector’s introduction

of new evidence during disposition, deprived petitioner of a fair trial

and undermines one’s confidence in the outcome of the direct

appeal. Ohio’s adjudication of this issue resulted in a decision that

was contrary to or an unreasonable application of Evitts v. Lucey,

469 U.S. 387 (1985).

GROUND TWO: The Court admitted inappropriate hearsay

evidence over objection constituted an abuse of judicial discretion.

Supporting Facts: 1) The 911 call made by Christy Jo Stiltner was

inappropriately admitted. 2). The interview between law

enforcement and Christy Jo Stiltner was inappropriately admitted.

3). The playing of an interview between Jamie Senter, and Detective

Sandy Fent was inappropriately admitted. 4). Hearsay testimony of

Officer Devore, who testified to what Jamie Senter told him about

the incident was inappropriately admitted. 5). Sgt. Pergram’s

testimony regarding why he took specific actions during his search

constitutes inadmissible hearsay. 6). The interview between

Detective Massie and Petitioner regarding Jamie Senter arrival time,

was inappropriately admitted. 7). The jail calls made by petitioner

was inappropriately admitted. Petitioner is in custody in violation of

the laws of the United States. The U.S. supreme Court warned that

“while [the prosecutor] may strike hard blows, he is not at liberty to

strike foul ones. It is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction as it is to use

every legitimate means to bring about a just one. Berger v. United

States, 295 U.S. 78. 88 (1935). The Court admitted inappropriate

hearsay evidence over objection constituted an abuse of judicial

discretion and its acts and omissions denied Mr. Cherry his right to

a fair trial and sentencing proceeding. Ohio’s adjudication of this

resulted in a decision that was contrary to or an unreasonable

application of Berger v. United States, 295 U.S. 78, 88 (1935).

State court rulings on admissibility of evidence may be questioned

in a federal habeas corpus proceeding, if they render the trial so

fundamentally unfair as to constitute a denial of federal

constitutional rights. Bell v. Arn, 536 F.2d 123, 125 (6th Cir. 1976).

Ground Three: The Petitioner was convicted without sufficient

evidence to prove beyond a reasonable doubt.

Supporting Facts: The State’s application of Jackson was

Objectively unreasonable in light of the evidence of record. Trace

evidence found on a moveable object absent any other

circumstantial proof is not sufficient by itself to establish guilt

beyond a reasonable doubt. The State did not show that the alleged

victim did not come to the house without injury, there was no

evidence presented on the time frame of events, where injuries

occurred if there was no blood spatter anywhere, and two witnesses

who were presented admitted active drug use on the night of the

event at hand. The State provided no physical evidence that a

beating accurred [sic] and that it occurred on the premises of

Petitioner. The State did not meet their burden of proof. Petitioner

is in custody in violation of Due process clause of the Fourteenth

Amendment to the United States Constitution.

Ground Four: Petitioner prison sentence is Contrary to law.

Supporting Facts: The sentence fell outside the range for the

offense and is contrary to the United States Constitution. The Court

was not required to impose prison time for each firearm

specification. The sentence constituted a fundamental defect which

inherently results in a complete miscarriage of justice.

Ground Five: Wherther [sic] the absence of physical evidence

constitute sufficient evidence?

Supporting Facts: The State presented a pack of zip ties full of zip

ties that were not used and presented no used ties. They presented

an unused tarp and noted that there may have been a tarp in the bag

on the porch, but noted they did not gather it as evidence. The

firearm nor the 1800 bottle had no blood on it and there was no blood

spatter anywhere on the walls. (T.P. 417-thur-425 [sic]) No evidence

was provided.

(Petition, ECF No. 1, PageID 6-16).

Analysis

Ground One: Ineffective Assistance Of Trial Counsel

In his First Ground for Relief, Cherry asserts he received ineffective assistance of trial

counsel when his trial attorney failed to file a motion to suppress and failed to object to the

prosecutor’s introduction of new evidence. Respondent urges dismissal because this claim was

not presented to the Ohio Supreme Court. Cherry’s sole proposed proposition of law in the Ohio

Supreme Court was, liberally construed, that there was insufficient evidence to convict (See

Memorandum in Support of Jurisdiction, State Court Record, ECF No. 4, Ex. 12, PageID 134,

posing question “Does the absence of physical evidence constitute sufficient evidence?”). That

does not constitute a claim of ineffective assistance of trial counsel and Cherry offers no excusing

cause and prejudice for his failure to present this claim to the Ohio Supreme Court.

In order to avoid procedural default and properly exhaust claims brought in habeas, a

petitioner must present the same claims to a full cycle of state court consideration. O'Sullivan v.

Boerckel, 526 U.S. 838 (1999). Because he failed to present his ineffective assistance of trial

counsel claim to the Ohio Supreme Court and has offered no excusing cause and prejudice, his

First Ground for Relief is procedurally defaulted and must be dismissed on that basis.

Ground Two: Admission of Hearsay Evidence

In his Second Ground for Relief, Cherry claims his conviction is unconstitutional because

of the admission of hearsay evidence and claims this was an abuse of discretion by the trial judge.

Ground Two is procedurally defaulted on the same basis as Ground One: failure to present

it on direct appeal to the Ohio Supreme Court.

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.

§ 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);

Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). Ground Two is

without merit because an abuse of discretion is not unconstitutional. Sinistaj v. Burt, 66 F.3d 804

(6th Cir. 1995).

Ground Four: Petitioner prison sentence is contrary to law

In his Fourth Ground for Relief Petitioner claims his sentence is contrary to law.

Respondent seeks dismissal because this ground for relief was not presented to the Ohio Supreme

Court and Petitioner again offers no excusing cause and prejudice. Respondent’s position is well

taken.

Grounds Three and Five: Insufficient Evidence to Convict

In his Third and Fifth Grounds for Relief, Petitioner claims there was insufficient evidence

on which to convict him. In particular in Ground Five he urges that the absence of physical

evidence ensures the remaining evidence was insufficient. Respondent does not claim these

grounds are procedurally defaulted.

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 Supreme Court has held that the Due Process Clause requires that the State present

sufficient evidence to persuade a reasonable juror beyond a reasonable doubt that a defendant

committed each element of any charged crimes. 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. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

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).

Cherry’s insufficiency of the evidence claim was presented to the Second District Court of

Appeals which decided it as follows:

{¶ 90} Cherry's third assignment of error is as follows:

APPELLANT'S CONVICTION IS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.

{¶ 91} Cherry asserts that the State did not meet its burden to prove

that J.S. did not come to Cherry's home already injured. Cherry

argues that evidence around the circumstances of the beating was

lacking and that, if J.S. were badly beaten in the trailer, “where was

the blood splatter?” He argues that there was little evidence, other

than hearsay, that Cherry was the one who harmed the victim. “No

evidence was presented that she did not come to his home already

in that state, other than the statements from two witnesses that bring

their own histories with the justice system to court.”

{¶ 92} “‘A sufficiency-of-the-evidence argument challenges

whether the state has presented adequate evidence on each element

of the offense to allow the case to go to the jury or to sustain the

verdict as a matter of law.’ ” (Citations omitted.) State v. Williams,

2022-Ohio-2517, ¶ 44 (2d Dist.)

“An appellate court's function when reviewing the

sufficiency of the evidence to support a criminal conviction

is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable

doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable

doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

State v. Stutz, 2020-Ohio-6959, ¶ 11 (2d Dist.).

{¶ 93} R.C. 2905.01(A)(3) proscribes kidnapping and states: “No

person, by force, threat, or deception, ... shall remove another from

the place where the other person is found or restrain the liberty of

the other person, for any of the following purposes: ... (3) To

terrorize, or to inflict serious physical harm on the victim or

another.” R.C. 2903.11(A)(2) proscribes felonious assault: “(A) No

person shall knowingly do either of the following: ... (2) Cause or

attempt to cause physical harm to another ... by means of a deadly

weapon or dangerous ordnance.” R.C. 2909.05(A)(2) governs

abduction: “(A) No person, without privilege to do so, shall

knowingly do any of the following: ... (2) By force or threat, restrain

the liberty of another person under circumstances that create a risk

of physical harm to the victim or place the other person in fear.”

Finally, R.C. 2923.13 defines having a weapon while under

disability: “(A) Unless relieved from disability under operation of

law or legal process, no person shall knowingly acquire, have, carry,

or use any firearm or dangerous ordnance, if any of the following

apply: (1) The person is a fugitive from justice.”

{¶ 94} As discussed above, Christy and J.S. testified consistently

that, from September 29-30, 2023, Cherry had held J.S. captive and

beat her repeatedly with a tequila bottle and a pistol because he

believed she had worn a wire to record him. J.S.’s injuries were

consistent with the version of events told by Christy and J.S., and

specific items described by J.S. were found in Cherry's trailer. J.S.’s

blood was also found there. J.S. told Officer Devore and Detective

Fent that Cherry had caused her injuries. Moreover, in his recorded

jail calls, Cherry schemed to avoid being held accountable, and

evidence of a prior conviction that precluded Cherry from

possessing a gun was presented. Having reviewed the entire record

in a light most favorable to the State, we conclude that Cherry's

convictions for kidnapping, felonious assault, and having weapons

while under disability were supported by sufficient evidence. The

State was not required to affirmatively disprove Cherry's version of

the events. Cherry's third assignment of error is overruled.

State v. Cherry, supra.

Cherry begins his argument on the merits of his insufficient evidence claim by writing:

“There was no evidence presented linking Petitioner Cherry to the charge of kidnapping, felonious

assault, abduction, strangulation, weapons under disability, or tampering with evidence.” The jury

acquitted Cherry of the strangulation and tampering charges, so they are no longer at issue. The

Court of Appeals found there was evidence presented showing Cherry’s prior conviction such that

he was not permitted to possess a firearm.

Most importantly, the Second District found there was direct eyewitness testimony from

two people to the kidnapping and felonious assault. Cherry asks the Court to disregard that

testimony because those witnesses had been doing drugs. It was certainly good strategy to argue

to the jury that those witnesses should not be believed – that their testimony was not credible –

because they had been doing drugs. If the jury had accepted that argument, they presumably would

have acquitted Cherry on the kidnapping and felonious assault charges. But the fact that they had

been doing drugs1 did not disqualify them from testifying. Indeed the credibility of witnesses is

an issue reserved for the jury. 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).

Conclusion

Because all of Cherry’s claims are either procedurally defaulted or without merit, 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.

May 5, 2026.

s/ Michael R. Merz

United States Magistrate Judge

1 Cherry’s claim that they had been doing drugs is not backed up by any citation to evidence to that effect in the record.

See Reply, ECF No. 9, PageID 892. This failure to cite the record fails to comply with the Order for Answer which

requires the parties to cite to the record. (ECF No. 2, PageID 26: “All papers filed in the case thereafter by either

party shall include record references to the PageID number”).

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 recetved. 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. #

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