The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES E. RAINES,
Petitioner,
Case No. 2:25-cv-116
v.
JUDGE DOUGLAS R. COLE
WARDEN, NOBLE Magistrate Judge Merz
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
In a September 24, 2025, Report and Recommendation (R&R, Doc. 16), the
Magistrate Judge recommends that the Court dismiss Petitioner James E. Raines’
Petition for Habeas Corpus (Doc. 3), with prejudice and certify that any appeal from
an order of dismissal would be objectively frivolous. After obtaining an extension,
Raines timely objected. (Mot. for Extension of Time to File Obj., Doc. 17; 10/1/25 Not.
Order; Obj., Doc. 19). Following a preliminary review of those objections, the Court
determined that they would be more appropriately resolved after further analysis by
the Magistrate Judge. So the Court issued a Recommittal Order (Doc. 20), returning
the matter to the Magistrate Judge for a Supplemental R&R. The Magistrate Judge
has now issued that Supplemental R&R (Doc. 21), and Raines has filed a fresh set of
objections, (Doc. 24).
For the reasons stated below, the Court OVERRULES Raines’ objections (Doc.
19; Doc. 24), and ADOPTS the R&R and Supplemental R&R (Doc. 16; Doc. 21), as
modified below. Consistent with that, the Court DISMISSES Raines’ habeas
petition, (Doc. 3), WITH PREJUDICE.
BACKGROUND
In early 2023, a Gallia County grand jury issued two indictments against
Raines. (Doc. 16, #436–37). On February 15, 2023, the grand jury first indicted Raines
on three counts of violating a protection order under Ohio Revised Code
§ 2919.27(A)(2). (Id. at #436). About two months later, on April 13, 2023, the grand
jury separately indicted Raines on one count of arson under Ohio Revised Code
§ 2909.03(A)(1) and (D)(2)(b). (Id. at #436–37). Raines pleaded not guilty to all
charges. (Id. at #437). After plea negotiations, however, Raines entered guilty pleas
on the charges in both cases in exchange for the prosecutor dismissing pending
charges in two other state criminal proceedings. (Id.). Raines received a twelve-month
term of imprisonment for each count of violating a protection order, for a total of
thirty-six months. (Id.). And he received a consecutive eighteen-month term of
imprisonment for the arson conviction. (Id.).
Acting through new counsel, (see State Ct. R., Doc. 10, #133 (appeal brief); Doc.
10-3, #311 (plea hearing transcript)), Raines appealed shortly thereafter. In that
appeal, he argued (1) ineffective assistance of trial counsel, (2) that his plea was
involuntary, and (3) that the trial court imposed an unlawful sentence. (Doc. 10,
#136). The Ohio Fourth District Court of Appeals affirmed. State v. Raines, 252
N.E.3d 162, 168 (Ohio Ct. App. 2024). After that, Raines sought discretionary review
in the Ohio Supreme Court without success. State v. Raines, 246 N.E.3d 530 (Ohio
2024) (Table).
Raines then sought habeas relief in this Court, proceeding pro se. To that end,
Raines filed a Motion for Leave to Proceed in forma pauperis (Doc. 1), attaching his
habeas petition, (Doc. 1-1). That same day, the Magistrate Judge granted the IFP
motion, (2/7/25 Not. Order), and ordered Raines’ habeas petition filed as a separate
docket entry, (Doc. 3). After a Return of Writ (Doc. 11), and a Traverse (Doc. 15), the
Magistrate Judge issued his R&R (Doc. 16).
Raines’ habeas petition asserts three grounds for relief. First, he renews the
ineffective assistance of trial counsel challenge that the state appeals court rejected.
(Doc. 3, #34). Second, Raines asserts a due process violation based on allegations that
his plea was involuntary and unknowing. (Id. at #36). And third, to get around the
procedural default problem that bedevils his first ground (described in more detail
below), he contends that his appellate counsel was ineffective in presenting his first
ground to the Ohio Supreme Court. (Id. at #37).
While these claims are standard fare in a habeas action, appreciating Raines’
position requires a good deal of additional context. As it turns out, all—including the
state—agree that the protection order indictment charged Raines with violating the
wrong subsection of Ohio Revised Code § 2919.27, which is Ohio’s statutory provision
on “[v]iolating a protection order.” (See Doc. 11, #396; Doc. 15, #425); Raines, 252
N.E.3d at 173 (“The State concedes that Raines was ‘indicted under the wrong
charging theory.’”). The February 15, 2023, indictment charged Raines with three
counts under § 2919.27(A)(2). (Doc. 10, #60–61, 63). That provision covers any
defendant who “recklessly violate[s] the terms of” “[a] protection order issued
pursuant to section 2151.34, 2903.213, or 2903.214 of the Revised Code.” Ohio Rev.
Code § 2919.27(A)(2). But the protection order that the state charged Raines with
violating had issued under § 2919.26, rather than any of the three above-mentioned
sections. Raines, 252 N.E.3d at 173. So the grand jury should have charged Raines
under § 2919.27(A)(1), which proscribes any reckless violation of “[a] protection order
issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the
Revised Code.” Id.
To be clear, this charging defect is old news. Indeed, it formed the basis for his
ineffective assistance argument on appeal to the Fourth District. There, Raines
argued that his trial counsel was defective in two respects. First, Raines said that his
counsel failed to notice that Raines was indicted under the wrong statutory
subsection. Id. at 172. And second, Raines argued that the oversight deprived him of
a “complete defense” to liability. Id. To be clear, Raines did not “dispute that he
violated [the protection] order on three occasions.” Id. But he did dispute the validity
of that underlying order. Id. Specifically, he argued that he did not receive a
statutorily required hearing under § 2919.26, the provision under which the
protective order issued. Id. And without that hearing, he argued, a protection order
will not stand under State v. Finley, 767 N.E.2d 302, 304 (Ohio Ct. App. 2001) (holding
that a hearing is necessary for conviction under the protection order statute). So to
sum up: Raines’ position in the Fourth District was that he was charged under the
wrong statutory provision, and that the correct charge would have allowed him to
press the “complete defense” of an invalid protection order.
Moreover, this shortcoming had alleged implications for another of Raines’
assignments of error in the Fourth District. As already noted, Raines contended that
his counsel was ineffective for failing to spot the charging error. Raines, 252 N.E.3d
at 172. But in a separate assignment of error, he argued that the same oversight
rendered his plea involuntary under due process standards. Jd. at 176—77.!
On the ineffective assistance front, the Fourth District declined to probe the
legal merits of Finley. Id. at 175. Rather, the court rejected Raines’ factual premise
because the protection order itself stated that a hearing had occurred on December
21, 2022. Id. at 175-76; (Doc. 10, #210—11 (protection order)). So, without addressing
whether Raines was right on the law, the Fourth District concluded that his claim for
ineffective assistance of trial counsel failed because Raines could not show prejudice.
Raines, 252 N.E.3d at 176. That is, he had received the hearing to which he argued
he was entitled, so he could not rely on the lack of such a hearing to show the
protective order was invalid.
The Fourth District’s treatment of Raines’ second assignment was a bit more
involved. Raines argued that he admitted guilt based on a flawed understanding of
the law. Jd. at 177. And that, he said, undermined the voluntariness of his plea. Id.
It appears, though, that Raines’ principal legal basis for this argument in the Fourth
District—the Supreme Court’s decision in Bousley v. United States, 523 U.S. 614
1 Raines’ third and final assignment of error is not relevant to this habeas action, so the Court
does not describe it.
(1998)—appeared for the first time in a reply brief. Jd. Because the case is central to
understanding Raines’ petition in this Court, the Court recounts it in some detail.
In Bousley, the petitioner had pleaded guilty to “using” a firearm under 18
U.S.C. § 924(c)(1). 523 U.S. at 616. Four years later, Bousley sought a writ of habeas
corpus, challenging the factual basis of his plea on the ground that there was no
“connection between the firearms in the bedroom of [his] house, and the garage,
where ... drug trafficking occurred.” Jd. at 617. A magistrate judge recommended
dismissal, finding that there was a factual basis for the plea “because the guns in
petitioner’s bedroom were in close proximity to drugs and were readily accessible.”
Id. The district court agreed, and Bousley appealed. Jd. While that appeal was
pending, the Supreme Court handed down Bailey v. United States, which held that
“§ 924(c)(1)’s ‘use’ prong requires the Government to show ‘active employment of the
firearm.” Id. at 616 (quoting Bailey v. United States, 516 U.S. 137, 144 (1995)).? That
is, to show “use” under Bailey, the state needed to show “brandishing, displaying,
bartering, striking with, and, most obviously, firing or attempting to fire a firearm.”
Bailey, 516 U.S. at 148. Simply possessing a firearm doesn’t cut it. Bousley, 523 U.S.
at 617 (citing Bailey, 516 U.S. at 143). Relying on Bailey, Bousley’s court-appointed
appellate counsel argued that Bousley’s plea was not knowing and voluntary because
the district court conflated “use” with mere “possession,” and therefore misinformed
Bousley as to a critical element of the charge. Jd. at 617-18. The Eighth Circuit
2 In response to Bailey, Congress amended the statute to add possession to subsection (c)’s
list of proscribed acts. Barrett v. United States, 607 U.S. 128, 135 n.6 (2026).
rejected that argument and affirmed the district court. Id. at 618 (citing Bousley v.
Brooks, 97 F.3d 284 (8th Cir. 1996)).
The Supreme Court then granted certiorari and reversed. Id. at 618, 624. But
that reversal did not result in an automatic vacatur of Bousley’s conviction. Although
Bousley challenged his sentence on direct appeal from his conviction, he did not
contest the validity of his plea in that context. Id. at 621. And that failure meant that
Bousley procedurally defaulted the claim. Id. So the Court remanded, giving Bousley
an opportunity to attempt to overcome the procedural default by demonstrating
actual innocence. Id. at 623–24.
How did Raines contend that Bousley applied here? Well, in the Fourth
District, Raines relied on Bousley to argue that the state’s charging error rendered
his plea invalid. Raines, 252 N.E.3d at 177. Specifically, he argued that “under
Bousley, [the error] shows a Due Process violation because his plea was not entered
knowingly and voluntarily.” Id. (cleaned up).
The Fourth District disagreed. Despite the error, the Fourth District concluded
that Raines “understood the nature” of the protection order charges. Id. at 179. In
support of that conclusion, the Fourth District pointed out that Raines (1) received a
copy of the indictment prior to pleading guilty, (2) had defense counsel who informed
him of the elements of the offenses, (3) represented to the trial court that he
understood both the elements of the offenses and the nature of the charges, and
(4) declined to ask any further questions at the hearing. Id. at 179–80.
To the extent that Raines was arguing that the charging error deprived him of
a defense, the Fourth District responded that “it is well-settled that there is no
requirement under Crim. R. 11(C)(2) that trial courts apprise defendants of available
defenses when accepting a change of plea.” Jd. at 180 (quoting State v. Phillips, 2012-
Ohio-5950, 4 31 (38d Dist.)). “And to the extent Raines implie[d] his plea was not
knowing, voluntary, or intelligent due to defense counsel’s ineffectiveness ... Raines
has not demonstrated a reasonable probability that but for counsel’s alleged errors,
he would not have pleaded guilty and would have insisted on going to trial.” Jd.
Raines then tried to persuade the Ohio Supreme Court to review his case. In
his memorandum in support of jurisdiction, he presented three grounds for appeal,
one of which is relevant here:?
Proposition of Law No. I: When it is undisputed the defendant is legally
innocent of an offense, but the defendant, trial counsel, prosecutor, and
trial court fail to understand the legal flaw in the charging theory, the
defendant’s guilty plea is neither knowing nor intelligent and must be
vacated without a showing of prejudice.
(Doc. 10, #274). As noted, the Ohio Supreme Court declined jurisdiction. Raines, 246
N.E.3d at 530.
With that context, turn back to the present habeas petition. Again, Raines
asserts three grounds for relief: (1) ineffective assistance of trial counsel, (2) a
constitutionally infirm plea, and (8) ineffective assistance of appellate counsel. (Doc.
3, #34, 36-37). The Magistrate Judge determined that the first ground for relief is
3 Like Raines’ third assignment of error in the Fourth District, see supra note 1, the other
two grounds concerned Raines’ sentence, which is not at issue in this habeas matter, (see Doc.
10, #274).
procedurally defaulted. (Doc. 16, #441). All agree that he had presented that claim to
the Fourth District, but the Magistrate Judge noted that to avoid default a defendant
must also present the claim to the Ohio Supreme Court. (Doc. 16, #439–40). And,
while Raines claims that he did so, (see Doc. 15, #416 (asserting that the claim was
“necessarily implied” in the “record presented to the Supreme Court”)), the
Magistrate Judge disagreed, (Doc. 16, #439). True, in his memorandum in support of
jurisdiction to the Ohio high court, Raines generally asserted that “the defendant,
trial counsel, prosecutor, and trial court fail[ed] to understand the legal flaw in the
charging theory.” (Doc. 10, #279). But the Magistrate Judge concluded that this broad
assertion did not “fairly present[]” the Ohio Supreme Court with the opportunity to
remedy any alleged violation of the right to effective trial counsel because a mere
reference to Raines’ “trial counsel” in an enumerated list is not enough to properly
raise the issue. (Doc. 16, #439–40). Further, Raines’ memorandum in support of
jurisdiction “never mentions ineffective assistance of trial counsel as the cause of
[Raines’] allegedly invalid plea, nor does he cite any precedent on that issue.” (Id. at
#438–49; see Doc. 10, #279–80).
In an attempt to get around that procedural default problem, Raines relies on
his third ground for relief—ineffective assistance of appellate counsel. (Doc. 3, #37).
But, in the Magistrate Judge’s view, that argument is unavailing because that theory
will excuse a procedural default only if the ineffective assistance occurs in a
proceeding in which the appellant is entitled to counsel under the Sixth Amendment.
(Doc. 16, #440). And the right to counsel extends only to a first appeal of right, not to
discretionary appeals to the Ohio Supreme Court. (Id. at #440, 447–48). So the
Magistrate Judge rejected both grounds one and three. (Id.).
That left Raines’ second ground—the validity of Raines’ plea. The Magistrate
Judge reproduced the Fourth District’s analysis of this issue in a lengthy block quote.
(Id. at #441–46). Because the Fourth District decided this issue on the merits, the
Magistrate Judge applied the deferential standard of review required under 28 U.S.C.
§ 2254(d). (Id. at #446 (“When a state court decides on the merits a federal
constitutional claim later presented to a federal habeas corpus 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.” (citations omitted))). The Magistrate Judge rejected the
notion that the Fourth District’s reasoning cleared that high bar, asserting that,
under Bousley, “actual innocence means factual innocence, not mere legal
insufficiency.” (Id. at #447 (citation omitted)).
Raines responded with thirteen pages of objections, (Doc. 19), which prompted
the Court to issue a recommittal order, (Doc. 20). The Magistrate Judge then issued
the Supplemental R&R, which rejected Raines’ arguments and largely adhered to the
reasoning the Magistrate Judge offered in the first instance. (Doc. 21). Raines then
filed a second set of objections. (Doc. 24). And with that, the matter is ripe for review.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 72(b)(3), “district courts review a[]
[report and recommendation] de novo after a party files a timely objection.” Bates v.
Ohio Dep’t of Rehab. & Corr., No. 1:22-cv-337, 2023 WL 4348835, at *1 (S.D. Ohio
July 5, 2023). But that de novo review requirement extends only to “any portion to
which a proper objection was made.” Id. (citation omitted). In response to such an
objection, “the district court may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id. (quoting Richards v. Colvin, No. 2:12-cv-748, 2013 WL
5487045, at *1 (S.D. Ohio Sep. 30, 2013)) (cleaned up).
By contrast, if a party makes only a general objection, that “has the same
effect[] as would a failure to object.” Howard v. Sec’y of Health & Hum. Servs., 932
F.2d 505, 509 (6th Cir. 1991). A litigant must identify each issue in the report and
recommendation to which he objects with sufficient clarity for the Court to identify
it, or else the litigant forfeits the Court’s de novo review of the issue. Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995) (citation omitted) (“The objections must be clear
enough to enable the district court to discern those issues that are dispositive and
contentious.”).
That said, Raines is proceeding pro se. A pro se litigant’s pleadings should be
construed liberally and are subject to less stringent standards than formal pleadings
filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Franklin v. Rose,
765 F.2d 82, 84–85 (6th Cir. 1985). But pro se litigants still must comply with the
procedural rules that govern civil cases. McNeil v. United States, 508 U.S. 106, 113
(1993). And “[t]he liberal treatment of pro se pleadings does not require lenient
treatment of substantive law, and the liberal standards that apply at the pleading
stage do not apply after a case has progressed to the summary judgment stage.”
Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th Cir. May 5, 2010)
(citations omitted).
For any unobjected portions of an R&R, “the advisory committee notes to
Federal Rule of Civil Procedure 72(b) suggest that the Court still must ‘satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Redmon v. Noel, No. 1:21-cev-445, 2021 WL 4771259, at *1 (S.D.
Ohio Oct. 13, 2021) (collecting cases).
LAW AND ANALYSIS
Because Raines lodges specific objections to the Magistrate Judge’s analysis,
the Court reviews Raines’ objections de novo. Bates, 2023 WL 4348835, at *1. But
even considering the issues anew, the Court concludes that Raines is not entitled to
relief.
A. Raines’ Claim for Ineffective Assistance of Trial Counsel is
Procedurally Defaulted Because He Did Not Fairly Present It to the
Ohio Supreme Court and He Cannot Do So Now; nor Does His
Ineffective Assistance of Appellate Counsel Claim Excuse the Default.
The Magistrate Judge correctly determined that Raines procedurally defaulted
his claim for ineffective assistance of trial counsel. (Doc. 16, #438—41).
As a condition precedent to federal habeas review, a petitioner must first
exhaust available state court remedies. 28 U.S.C. § 2254(b). A petitioner has not
exhausted his state remedies if he “has the right under the law of the State to raise,
by any available procedure, the question presented.” Id. § 2254(c). Generally,
exhaustion requires that “state prisoners ... give the state courts one full opportunity
12
to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). That includes a state high court with the power of discretionary review.
Woolbright v. Crews, 791 F.3d 628, 631 (6th Cir. 2015) (quoting Baldwin v. Reese, 541
U.S. 27, 29 (2004)). To fairly present a federal constitutional issue to a state court, a
petitioner must state both the legal and factual basis for the claim. Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000)).
Beyond that, if a petitioner once had an avenue for relief in state court, but he
declined to pursue it and that avenue is no longer open due to a procedural issue, for
example, a failure to appeal within the required time, then the claim is procedurally
defaulted. Hall v. Mays, 7 F.4th 433, 443 (6th Cir. 2021) (quoting Woodford v. Ngo,
548 U.S. 81, 92–93 (2006)). The basic idea is that the procedural bar serves as an
adequate and independent state ground, precluding habeas relief. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986). A petitioner can rely on a procedurally
defaulted claim in habeas, but only if he can clear a substantial hurdle: “To overcome
a procedural default … a petitioner must ‘demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.”
Hall, 7 F.4th at 443 (cleaned up) (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)).
Here, Raines failed to exhaust his ineffective assistance of trial counsel claim,
so that claim is now procedurally defaulted, and he cannot overcome the procedural
default. Let’s take them in order.
1. Raines Did Not Fairly Present His Ineffective Assistance of Trial
Counsel Claim to the Ohio Supreme Court.
First, Raines did not fairly present his ineffective assistance of trial counsel
claim in his memorandum in support of jurisdiction to the Ohio Supreme Court. The
words “ineffective assistance of counsel” did not even appear in the pertinent portion
of the memorandum. (See Doc. 10, #279—80). Nor did the memorandum cite a single
case that addresses ineffective assistance. (See id.). Rather, the cases Raines cited go
to the voluntariness of his plea. See Boykin v. Alabama, 395 U.S. 238 (1969); State v.
Engle, 660 N.E.2d 450 (Ohio 1996); State v. Bryant, 2012-Ohio-3189 (4th Dist.);
United States v. Brown, 117 F.3d 471 (11th Cir. 1997);4 Bousley, 523 U.S. 614. So,
because Raines failed to fairly present the issue to the Ohio Supreme Court, he has
failed to exhaust it.
2. Raines Can No Longer Press that Unexhausted Claim in State
Court.
Not only did Raines fail to exhaust, but his claim is now procedurally defaulted.
That is because he clearly could have raised it in the Ohio Supreme Court (just as he
had raised it in the Fourth District), but he failed to do so. He cannot now re-file for
4 Brown comes the closest in this regard, but Raines’ reliance on the case still does not amount
to a fair presentation of the issue. In a single footnote, the Brown court noted that Brown’s
petition might “be read to state additional grounds, such as ineffective assistance of counsel,”
but then declined to consider any such issues. 117 F.3d at 474 n.2. That, of course, is not
enough.
14
appeal there (and in any event, the time to do so has long passed). And res judicata
bars him from raising the claim in any other state forum. Whitman v. Gray, 103 F.4th
1235, 1239 (6th Cir. 2024) (“Ohio law requires that claims must be raised on direct
appeal if possible; otherwise, res judicata bars their litigation in subsequent state
proceedings.” (citations omitted)). Moreover, it is well-settled law that Ohio’s res
judicata doctrine constitutes an independent and adequate state bar in federal
habeas. Wilson v. Collins, No. 21-3596, 2022 WL 2388432, at *2 (6th Cir. Apr. 15,
2022) (citing Hanna v. Ishee, 694 F.3d 596, 614 (6th Cir. 2012)). So the claim is
procedurally defaulted.
3. Raines’ Cannot Overcome His Procedural Default.
In an effort to get around the procedural default, Raines places the blame on
his appellate counsel, arguing that appellate counsel’s ineffective assistance in the
Ohio Supreme Court excuses the default. (Doc. 19, #452—55, 460-63). Specifically, he
contends that appellate counsel was ineffective in failing to fairly present his
ineffective assistance of trial counsel claim to that court. Ud.). But the argument
doesn’t work.
To excuse a procedural default, a petitioner must show (1) cause for the
default, and (2) actual prejudice. Young v. Westbrooks, 702 F. App’x 255, 259 (6th Cir.
2017) (citing Maples v. Thomas, 565 U.S. 266, 280 (2012)). In fairness to Raines,
“lijneffective assistance of appellate counsel, if it rises to the level of a constitutional
violation, can serve as cause to excuse the procedural default of claims brought in a
habeas corpus proceeding.” Burton v. Renico, 391 F.3d 764, 773 (6th Cir. 2004) (citing
15
Buell v. Mitchell, 274 F.3d 337, 351–52 (6th Cir. 2001)). Importantly, though, “[t]here
can be a constitutional claim of ineffective assistance of counsel only at a stage of the
proceedings when there is a right to counsel under the Sixth Amendment.” Smith v.
State of Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 433 (6th Cir. 2006) (citation
omitted). And it is “well established” that a petitioner “has no Sixth Amendment right
to counsel in connection with [a] discretionary appeal to the Ohio Supreme Court.”
Bangera v. Wainwright, 1:19-cv-33, 2021 WL 8342881, at *6 (N.D. Ohio Aug. 5, 2021)
(collecting cases). So Raines may not rely on allegedly ineffective assistance of
appellate counsel in the Ohio Supreme Court to excuse the default of his ineffective
assistance of trial counsel claim that occurred by Raines’ failure to present his claim
there.
Before pressing on to consider Raines’ second ground, the Court briefly
addresses some of the case law that Raines cites in support of his view. Raines quotes
the Sixth Circuit’s decision in Ege v. Yukins for the proposition that “[t]he Supreme
Court has acknowledged that ‘cause’ may be established through a showing of
counsel’s ineffectiveness in failing to properly preserve a claim for review in state
court.” (Doc. 19, #453 (emphasis omitted) (quoting Ege v. Yukins, 485 F.3d 364, 378
(6th Cir. 2007)). But that selective quotation leaves out the next sentence: “’Not just
any deficiency in counsel’s performance will do, however; the assistance must have
been so ineffective as to violate the Federal Constitution’—in Ege’s case, her Sixth
Amendment right to a fair trial.” Ege, 485 F.3d at 378 (emphasis added) (quoting
Edwards v. Carpenter, 529 U.S. 446, 451 (2000)). But, as established above, Raines’
Sixth Amendment right does not attach to representation in the Ohio Supreme Court.
So Ege is no boon to Raines here.
Next, Raines quotes the Sixth Circuit’s decision in Hall v. Vasbinder for the
proposition that “[a]n argument that ineffective assistance of counsel should excuse
a procedural default is treated differently than a free-standing claim of ineffective
assistance of counsel. The latter must meet the higher AEDPA standard of review,
while the former need not.” (Doc. 19, #453 (quoting Hall v. Vasbinder, 563 F.3d 222,
236–37 (6th Cir. 2009))). But “the higher AEDPA standard of review,” Hall, 563 F.3d
at 237, refers to the deferential merits review rule articulated in the statute, see 28
U.S.C. § 2254(d). And contrary to what Raines’ argument implies, the Magistrate
Judge did not apply that standard to his ineffective assistance of appellate counsel
claim. (See Doc. 16, #440–41). So that argument misses the mark, too.
Finally, Raines quotes the Supreme Court’s decision in Martinez v. Ryan for
the proposition that “[i]nadequate assistance of counsel at [the States Highest Court]
(sic) proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” (Doc. 19, #454 (quoting Martinez v. Ryan, 566 U.S. 1,
9 (2012))). But the flaw in that argument lies in Raines’ bracketed language, “the
States Highest Court” (sic). (Id.). What the quote actually says is that “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective assistance at trial,” and that
is true only when the state’s procedural rules bar a criminal defendant from raising
the latter claim on direct review and instead channel all such claims into collateral
review proceedings in the first instance. Martinez, 566 U.S. at 4, 9 (emphasis added).
Arizona—whose procedures were at issue in Martinez—is one such state. Id. at 4. But
Ohio is not. Indeed, as already discussed, Raines did present his ineffective
assistance of trial counsel claim to the Fourth District. Raines, 252 N.E.3d at 172—
76. In other words, the rule from Martinez applies where the state collateral
proceeding constitutes a defendant’s first opportunity to press the ineffective
assistance of trial counsel claim. But Raines had, and indeed availed himself, of the
opportunity to press the claim on direct appeal to the Fourth District. So the case
lends no support whatsoever to Raines’ position. Indeed, consistent with several
sister circuits, the Sixth Circuit has generally refused to expand Martinez beyond its
narrow holding. See Moore v. Mitchell, 708 F.3d 760, 784 (6th Cir. 2013) (collecting
cases).5
5 The Sixth Circuit has recognized one exception in cases involving Ohio prisoners. In White
v. Warden, Ross Correctional Institution, the Sixth Circuit, drawing on the Supreme Court’s
post-Martinez decision in Trevino v. Thaler, 569 U.S. 413 (2013), recognized that Martinez
can apply in Ohio where the ineffective assistance of trial counsel claim could not be
meaningfully raised on direct review because of an insufficient record. White v. Warden, Ross
Corr. Inst., 940 F.3d 270, 277-78 (6th Cir. 2019). In that case, “Ohio effectively requires
defendants to raise ineffective-assistance claims in post-conviction petitions” because “Ohio
law makes it ‘virtually impossible’ for defendants to meaningfully raise an ineffective-
assistance-of-trial-counsel claim on direct appeal if the claim relies on evidence outside the
record.” Id. at 277 (quoting Trevino, 569 U.S. at 417). But White does not affect the analysis
here at all. Raines did successfully raise his ineffective assistance of trial counsel claim on
direct appeal, and the Fourth District rejected it on the merits. See Raines, 252 N.E.3d at
172-76. And White aside, the Sixth Circuit has “not yet decided whether Trevino and
Martinez apply to Ohio cases generally,” and has noted that the application of those decisions
to standard “Ohio ineffective-assistance claims is neither obvious nor inevitable.” Mammone
v. Jenkins, 49 F.4th 1026, 1048 (6th Cir. 2022) (citations omitted). So, to the limited extent
that the Sixth Circuit has extended Martinez, that extension is of no help to Raines here.
18
In short, Raines’ ineffective assistance of trial counsel claim (Ground J) is
procedurally defaulted. And his ineffective assistance of appellate counsel claim
(Ground III), which Raines relies on to circumvent the procedural bar, fails because
Raines had no Sixth Amendment right to counsel in the Ohio Supreme Court. But
that in turn also means he cannot rely on that claim to overcome the procedural
default on Ground I.¢
B. Raines’ Due Process Voluntariness Claim Fails Because Any Assumed
Constitutional Error is Harmless.
Having rejected Raines’ first and third grounds for relief, the Court considers
his second. It, too, fails to pass muster.
As detailed above, the Fourth District decided Raines’ due process
voluntariness claim on the merits. Raines, 252 N.E.3d at 176-180. So, if the Court
were to consider the claim on the merits, it would apply the deferential standard of
review articulated in 28 U.S.C. § 2254(d). Under that standard, a court may grant
habeas relief only if the state court’s adjudication of the claim either (1) “resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or (2) “resulted in a decision that was based on an unreasonable determination of the
Throughout both sets of objections, Raines also argues that he “had no control over what
[his appellate counsel] filed to the Supreme Court, leaving out the crucial claim in question.”
(Doc. 24, #478 (emphasis omitted); see also Doc. 19, #452 (“T[he] [memorandum in support of
jurisdiction] was not shared with Mr. Raines prior to filing)). But Raines is, of course, bound
by his counsel’s choices on what to present and what not to. Raines also sprinkles in some
policy, citing, for example, former Judge Kozinski’s view that “AEDPA is a cruel, unjust and
unnecessary law ... it should be repealed.” (Doc. 24, #476 (citation omitted)). The Court will
not separately consider these (and similar) frivolous and irrelevant contentions.
19
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2).
Absent the charging error in the indictment, there would be no doubt about the
voluntariness of Raines’ plea. First, Raines received a copy of the indictment charging
him with violating a protection order. (See Doc. 10-1, #296). That alone gives rise to
a presumption that he was informed of the nature of the protection order charge.
Bousley, 523 U.S. at 618 (citations omitted). Second, Raines repeatedly and
unequivocally affirmed that he understood those charges at his plea hearing. Raines
admitted that he knew “what the plea agreement sa[id] [he was] pleading to.” (Doc.
10-3, #324). He agreed that the information in the plea agreement was “the same
information [he had] discussed with [his trial counsel].” (Id.). He confirmed, on the
record, that he “read through” the pertinent documents. (Id.). He acknowledged that
he “underst[oo]d the allegations in the[] four charges.” (Id.). And he specifically
admitted that he did not have “any questions about the elements of the offense of
violating a protection order.” (Id.).
Those statements give rise to a strong presumption that the plea was
voluntary. See Ramos v. Rogers, 170 F.3d 560, 563 (6th Cir. 1999) (quoting Baker v.
United States, 781 F.2d 85, 90 (6th Cir. 1986)). So too does trial counsel’s
representation that he explained the elements of the charge to Raines. (Doc. 10-3,
#321); Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“Where a defendant is
represented by competent counsel, the court usually may rely on that counsel’s
assurance that the defendant has been properly informed of the nature and elements
of the charge to which he is pleading guilty.”).
All of that notwithstanding, Raines says that Bousley requires a different
result. Specifically, he quotes the following language: “[P]etitioner contends that the
record reveals that neither he, nor his counsel, nor the court correctly understood the
essential elements of the crime with which he was charged. Were this contention
proven, petitioner’s plea would be, contrary to the view expressed by the Court of
Appeals, constitutionally invalid.” (Doc. 19, #457–58 (emphasis omitted) (quoting
Bousley, 523 U.S. at 618)).
The Magistrate Judge rejected the argument by citing a different portion of
Bousley—specifically, the Supreme Court’s remark that “‘actual innocence’ means
factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623; (Doc. 16,
#447). In the Court’s view, however, that analysis misses the mark. In context, the
Bousley Court’s point was that Bousley could argue actual innocence to overcome a
procedural default. See Bousley, 523 U.S. at 622–24. But Raines has not procedurally
defaulted this ground for relief, so the passage has no bearing on this issue.
Nonetheless, rather than considering Raines’ due process argument on the
merits, the Court elects a different approach. Under the Supreme Court’s decision in
Brecht v. Abrahamson and Sixth Circuit precedent, a “harmless-error standard
applies,” 507 U.S. 619, 638 (1993), when a federal court considers habeas relief based
on “non-structural” constitutional error, O’Neal v. Balcarcel, 933 F.3d 618, 625 (6th
Cir. 2019).7 “And [the Sixth Circuit] has already held that an involuntary guilty plea
does not amount to a structural constitutional defect.” United States v. Hall, No. 19-
5531, 2019 U.S. App. LEXIS 37968, at *6 (6th Cir. Dec. 19, 2019) (citing Ruelas v.
Wolfenbarger, 580 F.3d 403, 410-11 (6th Cir. 2009)). So the Court proceeds straight
to the harmless-error analysis. See Brown v. Davenport, 596 U.S. 118, 138-39 (2022)
(“If a federal court determines that a habeas petition fails because of Brecht, there is
no need to prolong the matter by formally applying AEDPA.” (cleaned up)).
Against that backdrop, a court may grant habeas relief only if there is “grave
doubt” as to whether the (here assumed) error had a “substantial and injurious effect
or influence” on the outcome. O’Neal, 933 F.3d at 624 (quoting O’Neal v. McAninch,
513 U.S. 432, 436 (1995)). “Grave doubt about whether the error was harmless means
that the matter is so evenly balanced that the court feels itself in virtual equipoise as
to the harmlessness of the error.” Jd. (cleaned up) (quotation omitted).
Here, Raines suggests that if he were charged under the correct subsection, he
would have proceeded to trial on the theory that the order itself was invalid because
it was issued without a statutorily required hearing. (See Doc. 15, #425—26). But for
two reasons, this argument does not bring the Court anywhere near the “virtual
equipoise” that is necessary for the Court to order Raines’ requested relief. O’Neal,
933 F.3d at 624.
7 Harmless error is a waivable defense in federal habeas. Simpson v. Warden, Warren Corr.
Inst., 651 F. App’x 344, 359 (6th Cir. 2016) (citations omitted). But though the Magistrate
Judge did not address the issue in the R&R, the state had raised it, so it is not waived. (Doc.
11, #404—06).
22
The first is factual: there is simply nothing in the record (other than Raines’
post-conviction say so) to suggest that he did not receive a hearing on the protection
order. Indeed, if anything, the record strongly suggests the contrary. As already
noted, the protection order itself states that a hearing occurred. (Doc. 10, #154
(“DVTPO hearing on Alleged Victim’s Motion for a Domestic Violence Temporary
Protection Order.”)). It also states that Raines “was provided with reasonable notice
and opportunity to be heard.” (Id. at #153). Further, on the signature line where
Raines should have signed his name to acknowledge service of the protection order,
there is a scribbled notation indicating that Raines “refused to sign.” (Id. at #157).
The Fourth District’s opinion also provides crucial context here:
Raines suggests the municipal court docket proves the trial court did not
conduct a hearing. It is true that the docket does not indicate that the
trial court scheduled a protection order hearing for December 21, 2022.
However, the docket indicates that the arraignment hearing was
scheduled for that date, and on that date, Raines entered a not guilty
plea and was served with the protection order. The protection order
indicates that the victim moved for a protection order and that the court
conducted a hearing on the motion on December 21, 2022. These facts
suggest the protected person requested a protection order at the
arraignment hearing, and the court conducted a hearing on the request
at that time.
Raines, 252 N.E.3d at 175. So, based on state court record alone, it is far from clear
that Raines had anything even approaching a “complete defense” under the proper
subsection. (Doc. 15, #425).
The second reason for the Court’s skepticism is legal. Although he does not
seem to cite it here, Raines relied on State v. Finley, 767 N.E.2d 302 (Ohio Ct. App.
2001), a First District decision, to support his argument in the Fourth District, see
Raines, 252 N.E.3d at 172. And as that is the only colorable legal basis for Raines’ no-
hearing argument here, the Court briefly addresses it.
Admittedly, Finley did say, consistent with an earlier First District decision,
that “a protection order is invalid [if] it is not issued in compliance with [Ohio Revised
Code § 2919.26’s hearing requirement].” 767 N.E.2d at 549 (citing State v. Franklin,
No. C-544, 2001 WL 698107, at *2 (Ohio Ct. App. June 22, 2001)). But that proposition
is far from settled law in the Ohio appellate courts. Other decisions treat protection
orders issued without a hearing as voidable, not void. That is, they treat the failure
to provide a hearing as a basis for seeking rescission, not as providing a legal defense
if the party chooses simply to ignore the order. See State v. Sutts, 2004-Ohio-3541,
¶¶ 9, 11 (12th Dist.) (“[E]ven if a protection order is subsequently determined to be
invalid, the defendant cannot avoid prosecution for deliberately disobeying the order
before it is judicially rescinded …. Appellant had knowledge of the existence and
scope of the protection order prior to his multiple, willful contacts with [the victim].
His convictions are consequently not against the manifest weight of the evidence.”);
City of Reynoldsburg v. Eichenberger, No. CA-3492, 1990 WL 52467, at *4 (Ohio Ct.
App. Apr. 18, 1990) (“An order of the court must be obeyed unless and until a court
finds it is invalid or rescinds it.” (citation omitted)). And when Raines himself
presented the Fourth District with this very argument, it expressly declined to take
a position on Finley’s merits. Raines, 252 N.E.3d at 175 (“Even if we found [Finley]
persuasive, Raines still has not shown that he has a complete defense.”).
Against all that uncertainty, one must also balance what Raines gained from
pleading guilty. The Fourth District aptly explained the powerful incentive that
Raines had to enter the guilty plea:
[C]ontrary to what Raines suggests, he benefitted from pleading guilty
to the [Ohio Revised Code] § 2919.27(A)(2) charges. In exchange for his
guilty pleas …two of Raines’ other cases were dismissed at sentencing,
and the State considered resolved “all charges, even unindicted ones
pertaining to the two victims.” The State also did not oppose a bond
reduction to allow Raines to go to the Phoenix Center prior to
sentencing, and the State did not make a specific sentencing
recommendation to the trial court.
Id. at 176 (bracket omitted). That incentive would remain in place even if Raines were
charged under and apprised of the proper statutory subsection.
Summing up, even assuming that Raines is right on the substance of the due
process issue, rejecting the state’s harmless-error argument would require the Court
to (1) credit an interpretation of the underlying facts that is all but refuted by the
record, (2) ignore that the pertinent point of state law is, at best, an open question in
the Ohio courts, and (3) overlook the strong incentive that Raines had to accept the
plea, even if he were charged under the correct subsection. That’s a tall order, to put
it mildly. And the Court refuses to put the state to the “arduous task” of retrying
Raines based on his unsupported speculation that he would have chosen differently
in light of the glaring flaws with his hypothetical defense theory. Calderon v.
Coleman, 525 U.S. 141, 146 (1998).
Raines is not entitled to relief. The Court DENIES his Petition for Writ of
Habeas Corpus (Doc. 3) WITH PREJUDICE.
CONCLUSION
For the reasons above, the Court ADOPTS the R&R (Doc. 16), and
Supplemental R&R (Doc. 21), as modified above. The Court OVERRULES Raines’
Objections (Doc. 19; Doc. 24), and DISMISSES this matter WITH PREJUDICE.
Consistent with that, the Court DIRECTS the Clerk to enter judgment and
TERMINATE this matter on the Court’s docket. The Court further CERTIFIES
that any appeal from this Opinion and Order would not be taken in good faith.
SO ORDERED.
June 15, 2026
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
26