# Howard

> District Court, N.D. Ohio · July 7, 2026

URL: https://www.frixlaw.com/law-library/cases/11385596

## Case

- **Full name:** Vincent Howard v. Warden Jay Forshey
- **Court:** District Court, N.D. Ohio
- **Decided:** July 7, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISON

VINCENT HOWARD, ) CASE NO. 1:25-cv-00971-JPC
)

) DISTRICT JUDGE J. PHILIP CALABRESE
Petitioner,
)

) MAGISTRATE JUDGE
v.
) REUBEN J. SHEPERD

)
WARDEN JAY FORSHEY,
) REPORT AND RECOMMENDATION
)
Respondent. )

I. Introduction
On May 9, 20251, Petitioner Vincent Howard (“Howard”), a prisoner in state custody,
filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF Doc. 1). Respondent
filed his Return of Writ, along with the state court record and trial transcripts, on October 10,
2025. (ECF Doc. 11 and attachments). On December 22, 2025, Howard filed his Traverse. The
matter is therefore fully ripe for review.
II. Factual Background
Ohio’s Eighth District Court of Appeals summarized the facts of Howard’s case as
follows:
{¶ 3} On August 17, 2020, Howard was charged with eight counts related to the
alleged sexual assault of C.S. This case was tried to a jury, and on August 19, 2022,
Howard was found guilty of three counts of forcible rape and one count of GSI. On

1 Federal district courts apply the prison mailbox rule, accepting filings as of the date placed in the prison
mail system. See Houston v. Lack, 487 U.S. 266, 270 (1988).
September 15, 2022, the court sentenced Howard to an aggregate prison term of
15-17.5 years.
. . .

II. Trial Testimony and Evidence

{¶ 5} The state presented three witnesses: nurse Denise Robinson, C.S., and police
officer Berri Cramer. Howard testified in his own defense.

A. Denise Robinson
{¶ 6} Denise Robinson (“Robinson”) testified that she is the forensic program
coordinator for University Hospitals and “primarily works with patients who have
been victims of sexual assault, domestic violence, or victims of crimes.” Robinson
is also a SANE nurse, which means she is a certified sexual-assault nurse examiner
who performs rape kits on sexual-assault victims. Robinson was working on
February 3, 2020, and she treated C.S. as well as filled out C.S.’s sexual-assault
forensic report (the “rape-kit report”). The state introduced this rape-kit report into
evidence.

{¶ 7} According to Robinson, C.S. was 19 years old at the time Robinson treated
her. C.S. named Howard as the person who sexually assaulted her. C.S. described
Howard as her “Godfather.” Robinson collected swabs from “dried stains” on C.S.’s
head, breast, thighs, back, and hands because, according to C.S.’s “story[,] those
are the areas that she mentioned that may have been touched. So those are the areas
that I would swab.” Robinson further testified about direct questions that she asked
C.S., such as, “Did the finger touch or penetrate your vaginal, anal, or oral areas?”
Robinson testified that C.S. answered “yes to vaginal.”

{¶ 8} Robinson testified that, although C.S.’s narrative in the rape-kit report does
not “really mention” digital penetration, Robinson “documented what [C.S.] told
me in the narrative” by writing the word “yes” on the report in answer to the
question, “Did finger touch or penetrate” C.S.’s vagina. To clarify, the prosecutor
asked Robinson the following question: “But earlier [C.S.] did say that [Howard’s]
finger did go in there, but when she told you the whole story the finger wasn’t
mentioned, correct?” Robinson answered, “Yes, yes.”

{¶ 9} Robinson testified that C.S. stated to her as follows during the examination:
“He gave me oral. He tried to make me get on top of him when he was giving me
oral. My legs were shaking. My heart was beating real fast. He asked why I was
shaking.” According to Robinson, C.S. was “[s]oft-spoken [and] tearful
throughout” the examination, and C.S. told Robinson that she felt sick.
B. C.S.
{¶ 10} C.S. testified that she has known Howard since she was four years old when
he was dating C.S.’s mother. C.S.’s mother passed away when C.S. was seven years
old, but Howard remained in C.S.’s life. C.S. referred to Howard as her godfather,
testifying that “he stepped up and fulfilled the role of father in my life.” C.S. resided
primarily with her grandmother, although she spent most weekends while she was
growing up with Howard and his children.

{¶ 11} On February 2, 2020, at approximately 6:00 p.m., C.S. arrived to work at an
Amazon fulfillment center. C.S. had a taser in her work bag, and when she entered
the facility, her taser set off the metal detector. C.S. was sent home from work that
evening. C.S. was upset, and she called her grandmother, then called Howard.
C.S.’s grandmother and Howard agreed that C.S. needed to be patient, and she
would be back at work in a few days. C.S. testified that Howard said to her, “[I]t’s
the Super Bowl, the game is on, you want to order a pizza and watch the game.”
C.S. then went to Howard’s house in Garfield Heights.

{¶ 12} When C.S. arrived at Howard’s house, he was home alone, and he had the
television on in his bedroom. C.S. and Howard went into his bedroom to watch the
Super Bowl. C.S. sat “[o]n the bed. In the corner toward the wall on the edge of the
bed.” C.S. testified as follows about what happened next:

After that he comes into the room and he sits at the head of the bed.
And I was talking to him, looking at the game, not really paying
attention to what was taking place, just trying to distract myself
somewhat. And he said I still looked sad and to come up to the head
of the bed so he could hold me. And he haven’t held me like that
since I was a kid. * * * And he told me with his arms out, as a hug,
to come in like a father.

{¶ 13} C.S. went to Howard and laid her head on his chest. Howard called C.S. his
“little baby.” Howard continued to watch the Super Bowl, and C.S. fell asleep still
“laying” on Howard. At some point later, C.S. woke up to Howard “caressing” her
arm and leg. C.S.’s testimony continued: “When I woke up, my sports bra and my
shirt being lifted and all — the game was off and the lights were off and the door
was closed. * * * My shirt was being lifted and my sports bra and I was on my
back.” According to C.S., Howard’s hands were on her breasts. C.S. testified that
she “[f]elt like a dead body. Like I felt like I couldn’t move. I felt like I got stuck
— just felt stuck. I just felt real heavy and stuck. Just like my body was just
paralyzed.”

{¶ 14} According to C.S., Howard was on top of her. “His hands were on my breasts
and he was making his way down towards my pants to pull them down. * * * He
was like on his like knees. He was laying down. As I was laying on my back, he
was maybe like laying over me. So as he was pulling my shirt up * * * he was
making his way down to pull my pants like down my body is what I am trying to
tell y’all.”
{¶ 15} C.S. testified that when she first woke up, Howard’s head “was like on my
breast. He was playing with my breasts, licking my breasts.” Howard took C.S.’s
pants and underwear off. C.S. did not tell Howard no, and she did not “try to fight
him off.” Asked why, C.S. testified as follows:

I was just preparing myself for what was about to happen because I
was feeling around for my phone and my keys, where they was at
before I fell asleep. And I couldn’t feel them nowhere. So I was just
preparing myself for what I knew — I knew what was about to
happen, thought was about to happened because the door was closed
and my phone and my keys was moved from the side of me and the
bedroom door was closed and all the lights was off. And he was on
top of me. So I was telling myself like no fighting this because of
the size. And I knew I can’t make a run for it because the door is
closed and I can’t call nobody because my phone and stuff was
moved from the side of me. So I just was bracing myself for the fact
that he going to rape me and then kill me right afterwards. That’s all
I kept trying to prepare myself for. I just kept telling myself over and
over.

{¶ 16} Asked if she cried, C.S. answered, “Yeah. I cried the whole time. I opened
my eyes to realize it wasn’t a dream.”

{¶ 17} C.S. testified that Howard did not say anything until he pulled her pants
down. “When he pulled my pants down, he performed oral on me and was
pleasuring hisself and that’s when he started talking and saying he was so sorry.”

Asked if Howard put his mouth on her vagina, C.S. answered, “Yes.” C.S.’s
testimony continued:

Q: While he’s down there using his mouth on your vagina, where
are his hands? What are his hands doing?
A: Pleasuring hisself. He was masturbating.
Q: Are either of his hands touching your vagina that you know of?
Was anything going inside of your vagina outside of his tongue at
that point?
A: I don’t remember. He just performed oral and was pleasuring
himself. I don’t remember.

{¶ 18} According to C.S, Howard “came back up to the head of the bed and
wrapped his arms around” her. Howard again told C.S. that he was sorry, and she
was “too pretty for [her] own good.” C.S. testified that she was crying “[t]he whole
time.” C.S. testified about what happened next:

He kept trying to force his tongue into my mouth, was like kissing
me. I just kept my mouth shut, kept my lips shut, was crying. And
then he asked me like do you want me to continue. And I still was
just crying. I gave him no answer. And he said I’m going to just keep
going. He turned me on my — he turned me on my stomach and *
* * [s]aid I’m going to just continue.
* * *
So when he turned me on my stomach that’s when he — put his
thing inside of me. * * * I was on my stomach and he put his penis
inside of my vagina.

{¶ 19} Asked how long this lasted, C.S. answered, “It seemed like forever. I don’t
know how long it lasted.” Asked if Howard ejaculated, C.S. testified that she did
not know. Asked how she knew that it was Howard’s penis that penetrated her
vagina, C.S. answered, “Because he was moving his hands to be able to put it in.”
Howard asked C.S. if she “liked it,” and C.S. said “no” while she was crying into
the pillow. At that time, Howard “got off of” C.S., who “ran to the corner of the
room” looking for her pants, phone, and keys. Howard told her to “close [her] eyes
so he could turn the light on.” Howard then handed C.S. her keys and phone.

{¶ 20} C.S. got dressed and started to walk out of the door. Howard told C.S. that
she forgot her shoes. C.S. grabbed her shoes and left the house. C.S. recalled that
Howard “was just standing there” dressed in a “wife beater” and boxer shorts. C.S.
testified that her “body just felt heavy” and she “walked like a zombie to the car.”
C.S. also recalled that, although her truck was still parked in Howard’s driveway, it
was “turned around” and was facing the opposite direction “from where [she] had
parked it at.” According to C.S., “somebody” moved her truck. C.S. got in her truck
and went to her grandmother’s house. Along the way, C.S. stopped at a light on
Miles Road to throw up. C.S. told her grandmother what happened, and her
grandmother took her to the hospital.

{¶ 21} According to C.S., the police came to the hospital to talk to her that day, and
she met with a detective about a week later at her grandmother’s house. At the
detective’s directive, C.S. called Howard on February 10, 2020, and this call was
recorded. C.S. testified that she and the detective did not discuss what C.S. “would
say on that call” before C.S. made the call. According to C.S., her conversation with
Howard was “authentic.”

{¶ 22} A recording of this phone call was introduced into evidence and played for
the jury. The following is relevant to the instant appeal.

{¶ 23} Howard asked C.S. where she was. C.S., who was audibly sobbing during
this phone conversation, responded. Howard then said to C.S., “I am so sorry.”
Howard asked C.S. to come over and talk about what happened. C.S. said, “I’m not
coming over.” C.S. told Howard that she “need[ed] to understand” what occurred
that night. Howard said, “I, I, I, I, got confused and thought you were somebody
different. I thought you were this girl with a ‘black and mild’ smell * * * that I was
dating, Shonniece.” Howard further stated, “I, I, I that’s no excuse. I don’t know
why that was in my head or anything. * * * I would never, I should never. I don’t
even know what to say or do. I should never have done that to you.”

{¶ 24} C.S. stated to Howard, “You really raped me. * * * I can’t sleep.” Howard
said nothing. C.S. explained in excruciating detail the effect that Howard’s actions
had on her, including wetting the bed and throwing up in her sleep. Howard said,
“You know I would never * * * want to hurt you. I don’t have anything I can do to
explain or excuse myself.”

{¶ 25} After the audio recording was played, the prosecutor asked C.S. if she
consented “to any of this.” C.S. answered, “No.” The prosecutor then asked C.S.
the following question: “Had another man done this to you, who would you have
called?” C.S. answered, “Vince. I would have called Vincent Howard if another
man would have done this to me.”

C. Berri Cramer
{¶ 26} Berri Cramer (“Off. Cramer”) testified that she is a patrol officer with the
Garfield Heights Police Department. On February 3, 2020, Off. Cramer met with
C.S. at Ahuja Medical Center “for a possible rape report.” After speaking with C.S.,
Off. Cramer learned that Howard was the suspect of C.S.’s allegations.
D. Howard
{¶ 27} Howard testified that he met C.S. in 2005 when he began dating C.S.’s
mother. At the time, C.S. was four years old. Asked what his relationship with C.S.
was, Howard testified that it “[w]as sort of a friendship, kinship to a fatherly role.”
C.S.’s mother passed away in 2007 when C.S. was six years old. C.S. was raised
by her maternal grandparents, but Howard and his children maintained their
relationship with C.S.

{¶ 28} On February 2, 2020, Howard was “home in bed, sick * * *. Fever,
headache.” According to Howard, he had plans to watch the Super Bowl that night
with his son, but Howard was “too sick to go into the living room and hang out with
him,” so Howard’s son went out. Howard drank “a cup and a half” of a Jack Daniel’s
“hot toddy.” In the early evening, C.S. called Howard with “a problem at work
where they wouldn’t let her go in because of [a] stun gun, so she was upset that she
couldn’t work.” Howard told C.S. that he “could just order her some pizza” and
they “could talk about it, like [they] always have.”

{¶ 29} C.S. arrived at Howard’s house approximately 30 minutes later. Shortly after
C.S. arrived, the pizza was delivered. Howard “grabbed a couple slices and headed
towards the bedroom.” C.S. also got pizza and took it into Howard’s bedroom.
According to Howard, he got into bed after he finished eating his pizza. The
television and the light were on, and the bedroom door was open. Howard testified
that he fell asleep watching the Super Bowl. Howard testified as follows about what
happened next:

Yeah, so I was in bed asleep and I find somebody crawl in bed and
lay three quarters across my chest and legs. * * * Felt the tugging
and caressing of my beard and kissing. * * * And then I began to
start to kiss back. * * * Then * * * my hand was on the back from
the left side, start caressing, start rubbing, working my way down.

{¶ 30} According to Howard, C.S. “initiated” the kissing. Howard testified that C.S.
has “never laid in the bed with me.” Howard also testified that when he woke up to
C.S. kissing him, the television and light were off. Howard explained that the
television will go into “dark mode” after a period of nonuse, but he did not turn the
bedroom light off. Howard did not recall whether the bedroom door was open or
closed.

{¶ 31} Howard testified that C.S. “had her thighs, leg sliding right against my
private areas.” Asked if “at that time could you tell that it was” C.S., Howard
answered as follows: “Yeah, shortly after that, I knew it wasn’t Shonniece.” After
realizing the woman in bed with him was C.S., Howard “started to get aroused [and]
just started returning the affection.”

Asked if C.S. ever told Howard to stop “or any of those words to that effect,”
Howard answered, “No.” Howard testified that he did not restrain or threaten C.S.
According to Howard, he touched and kissed C.S.’s breasts and “went down to give
oral” to C.S. Howard testified that C.S. was not crying when this encounter
occurred. Rather, Howard stated that C.S. was “moaning.”

{¶ 32} Howard testified that no other sexual activity between him and C.S.
occurred. Specifically, Howard denied penetrating C.S.’s vagina with his penis,
stating that he suffers from erectile dysfunction. Howard did not testify about
whether or not he digitally penetrated C.S.’s vagina.

{¶ 33} Howard testified that C.S. left his house that night, and he denied moving
C.S.’s car. Howard stated as follows regarding the phone call between him and C.S.
that was played for the jury:

We had sex, but it should have never happened between us. I had
always looked at her as a daughter, treated her as a daughter. We had
sex and I just could not wrap my head around it. I could not stop
beating myself up mentally over it. I mean, to the point where I’m
sleeping an hour, two hours at a time in the middle of the night then
shaking to wake up just looking around. * * * And then to hear her
cry destroys me. It always has.
{¶ 34} On cross-examination, the state asked Howard the following question after
Howard testified that his penis did not penetrate C.S.’s vagina: “Why do we find
your DNA inside [C.S.’s] vagina * * *? [E]xplain why your semen is in her vagina.”
Howard responded that “if I had any kind of leakage, anything on my shorts, or she
got on top where the opening is in my boxer brief, yeah, there’s my penis right
there.” According to Howard, “[t]here was no crying when [he and C.S.] had sex,”
and C.S. was “lying about that.”

(ECF Doc. 11-2, pp. 143-54; see also State v. Howard (“Howard I”), 2023 WL 7041674, at *1-5
(Ohio Ct. App., Oct. 26, 2023).
III. Procedural History
A. State Conviction
On August 17, 2020, a Cuyahoga County grand jury returned an eight-count indictment
charging Howard with three counts of rape under O.R.C. § 2907.02(A)(2), first-degree felonies;
(Counts One, Three, and Five). (ECF Doc. 11-2, pp. 6-8). Count One was for engaging in
cunnilingus; Count Three, for digital penetration; and Count Five, for vaginal penetration. (Id.).
The grand jury also indicted him on three counts of rape under O.R.C. 2907.02(A)(1)(c), also
first-degree felonies (Counts Two, Four, and Six). (Id. at pp. 7-9). Count Two was for engaging
in cunnilingus where the victim’s ability to resist or consent was substantially impaired; Count
Four, for digital penetration; and Count Six, for vaginal penetration. (Id.). The grand jury also
indicted him on two counts of gross sexual imposition (GSI) under O.R.C. 2907.05(A)(1) and
(A)(5) (Counts Seven and Eight) for touching and kissing the victim’s breasts by force and while
the victim was asleep on or about February 3, 2020. (Id. at p. 9).
On May 6, 2022, Howard’s counsel moved for a continuance of the June 3, 2022 trial
date, in part due to permit additional factfinding by a private investigator. (Id. at pp. 14-15).
Counsel renewed the motion for a continuance on June 3, 2022. (Id. at pp. 24-29). The state trial
court judge continued the pretrial conference from June 2 to June 8, 2022 to permit ongoing
discovery, but kept the trial date set for June 13, 2022. (Id. at p. 17). On June 8, 2022, the trial
was continued to August 15, 2022 at defendant’s request. (Id. at p. 314). Howard’s counsel again
moved on August 12, 2022 for a continuance of the August 15, 2022 trial date in order to obtain
and review information discovered by a private investigator. (Id. at pp. 19-22). This request was
denied and a jury trial was held August 15-18, 2022. (Id. at p. 314).

During a jury trial held on August 18, 2022, the State dismissed Counts Two, Four, and
Six; the court denied a Rule 29 motion of acquittal; and the jury was instructed and deliberated.
(Id. at p. 31). The jury found Howard guilty of rape under O.R.C. 2907.02(A)(2) on Counts One,
Three, and Five; guilty of GSI under O.R.C. 2907.05(A)(1) on Count Seven; and not guilty of
GSI under R.C. 2907.05(A)(5) on Count Eight; Counts Two, Four, and Six were nolled. (Id. at p.
33).
On September 15, 2022, the court imposed five years each on Counts One, Three, and
Five, to run consecutively for a total of 15 years; and 18 months on Count Seven, concurrent, for
an aggregate term of 15 to 17.5 years. (Id. at p. 33). In addition, the court advised Howard that

each of Counts One, Three, and Five were subject to Reagan Tokes Law, meaning that each
count had an indefinite sentence, with minimum sentences of 3 to 4.5 years and maximum
sentences of 11 to 16.5 years. (Id.). Howard was also subject to a mandatory five years of post-
release control. (Id. at p. 34). The court informed Howard of his obligations as a Tier III sex
offender, with Tier I registration also noted in the entry. (Id. at pp. 33-35).
A nunc pro tunc entry of September 27, 2022 corrected the sentencing entry to reflect a
total prison term of 15 to 17.5 years under S.B. 201 (Reagan Tokes Law). (Id. at pp. 37-39). A
September 27, 2022 nunc pro tunc entry corrected the sentencing entry to reflect Count Three
instead of Count Two; a December 7, 2022 nunc pro tunc entry corrected the total prison term as
in the September 27 entry, and typographical errors; and a December 22, 2022, nunc pro tunc
entry again corrected the count references to reflect Count Three instead of Count Two. (Id. at
pp. 41-43; 215-17; 219-21).
B. Direct Appeal
On October 7, 2022, Howard filed his notice of appeal. (Id. at pp. 45-57). He filed his

appellant’s brief on February 8, 2023. (Id. at pp. 59-103). In it, Howard presented three
assignments of error:
Assignment Of Error No. 1 - Appellant’s Trial Court Abused its Discretion by
Denying Defense Motions for a Continuance of the Trial, Thereby Denying
Appellant a Meaningful Opportunity to Present a Complete Defense Which Denied
Him Effective Assistance of Counsel in Violation of His Rights Under the Due
Process Clauses of the Fifth, Sixth and Fourteenth Amendments to The United
States Constitution and Sections 10 and 16, Article I, of The Ohio Constitution

Assignment Of Error No. 2 - Appellant’s was Deprived of His Constitutional Rights
to Due Process in Violation of the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and Section 10, Article I of the Ohio Constitution, as a
Consequence of the State’s Prosecutorial Misconduct

Assignment Of Error No. 3 – Appellant Convictions Were Not Supported by
Sufficient Evidence and Were Against the Manifest Weight of the Evidence in
Violation of His Rights Under the Due Process Clauses of the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 10 and 16 of
the Ohio Constitution.

(Id. at p. 61). The State filed its appellee’s brief on March 20, 2023. (Id. at pp. 105-125). Howard
filed a reply brief on March 24, 2023. (Id. at pp. 127-42). On October 26, 2023, the Eighth
District Court of Appeals affirmed Howard’s conviction and sentence. (Id. at pp. 143-73; see also
Howard I, 2023 WL 7041674, (Ohio Ct. App., Oct. 26, 2023)).
Howard then filed a notice of appeal to the Ohio Supreme Court on December 11, 2023.
(ECF Doc. 11-2, pp. 175-97). In his memorandum in support of jurisdiction, Howard presented
the following three propositions of law:
First Proposition of Law – Prosecutorial Misconduct Which Damages the
Credibility of a Defendant, Denies the Defendant a Fair and Impartial Trial and
Violates His Constitutional Rights to Due Process and Equal Protection, in Cases
Where the Only Evidence of an Offense is the Testimony of the Accuser, and a
Court of Review May Not Conclude, in View of the Prosecu[t]orial Misconduct,
That the Accuser’s testimony is Sufficient to Satisfy Element of the Offense.

Second Proposition of Law – A Trial Court Abuses its Discretion and Denies a
Defendant a Meaningful Opportunity to Present a Complete Defense in Violation
of His Sixth Amendment Rights, When it Rejects a Defendant’s Reasonable
Request for a Trial Continuance Necessary to Permit the Defendant to Obtain
Evidence Essential to His Defense

Third Proposition of Law – Mere Disparities Between the Accused’s and the
Accuser’s Physical Sizes, and Conduct Normally and Naturally Taking Place
During Sexual Encounters, is Insufficient to Satisfy the Element of “Force,” as
Required Under Ohio’s Rape and Gross Sexual Imposition Statutes.

(Id. at p. 179). The State opposed. (Id. at pp. 199-211). On February 20, 2024, the Ohio
Supreme Court declined jurisdiction. (Id. at p. 213; see also State v. Howard (“Howard
II”), 227 N.E.3d 1267 (Ohio 2024) (Table).
C. Post Conviction Proceedings
On December 8, 2023, Howard filed with the state trial court a petition to vacate or set
aside judgment under O.R.C. 2953.21. (ECF Doc. 11-2, pp. 242-71). In it, he asserted two
grounds:
Claim Number One: Ineffective assistance of trial counsel in failing to obtain and
present medical records establishing that petitioner suffered erectile dysfunction
disorder; and

Claim Number Two: Petitioner was denied due process of law when the trial court
refused to grant a continuance of trial to allow the defense to obtain necessary
medical records establishing petitioner suffered from erectile dysfunction disorder.

(Id. at p. 243). On December 12, 2023, the State filed a combined response and motion for
summary judgment, arguing the petition was barred by res judicata and law-of-the-case because
the state appellate court had considered and rejected Howard’s claims regarding continuance and
ineffective assistance tied to the erectile dysfunction issue . Thus, no substantive grounds
warranted a hearing. (Id. at pp. 274-83, 285-94). The same day, Howard filed a reply brief to
clarify and distinguish that his first assignment of error concluded that the trial court’s denial of a
continuance request caused him to receive ineffective assistance of trial counsel. (Id. at p. 299).
As of this writing, the state trial court has not ruled on the motion. (See id. at p. 301; see

also Cuyahoga County Clerk of Courts, Case Search CR-20-652446-A,
https://cpdocket.cp.cuyahogacounty.gov/CR_CaseInformation_Docket.aspx?q=YRjVWoLON9
WojV9o-3tQ_MxvZMNlYu89lyO5yQtVDxM1 (last visited July 7, 2026)).
IV. Federal Habeas Corpus Petition
Howard brings two grounds for relief for this Court’s review:
GROUND ONE: Howard was denied a fair and impartial trial, in violation of his
due process rights, as a consequence of prosecutorial misconduct, and the state
court's rejection of his prosecutorial misconduct claim was contrary to or an
objectively unreasonable application of clearly established federal precedent.

GROUND TWO: Howard was denied a meaningful opportunity to present a
complete defense and denied effective assistance counsel, in violation of his due
process rights, when the trial court unreasonably refused to grant a trial continuance
to provide Howard with additional time to obtain medical records essential to his
defense, and the state court's rejection of this claim was contrary to or an objectively
unreasonable application of clearly established federal precedent.

(ECF Doc. 1, pp. 18, 23).
V. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104-
132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), apply to Howard’s petition for
writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “As amended by AEDPA, 28
U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ
of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
This is so because “[s]tate courts are adequate forums for the vindication of federal rights” and
AEDPA thus acts as a “formidable barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). As such, AEDPA
“dictates a highly deferential standard for evaluating state-court rulings which demands that
state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005)
(internal citation and quotation omitted).

Under 28 U.S.C. § 2254, federal courts may “entertain only those applications alleging
that a person is in state custody ‘in violation of the Constitution or laws or treaties of the United
States’” and in most instances, federal courts may not grant habeas relief “unless . . . the
applicant has exhausted state remedies.” Cullen, 563 U.S. at 181, quoting 28 U.S.C. §§ 2254(a),
(b), (c). Further, if an application for writ of habeas corpus involves a claim that was
“adjudicated on the merits in State court proceedings,” the application
shall not be granted . . . unless the adjudication of the claim —
(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
facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100
(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the
petitioner. Cullen, 563 U.S. at 181.
First, clearly established federal law for purposes of AEDPA review includes “the
holdings, as opposed to dicta, of [U.S. Supreme Court] decisions.” Williams v. Taylor, 529 U.S.
362, 412 (2000). A state court decision is contrary to U.S. Supreme Court precedent if the state
court arrives at a conclusion opposite that reached by the Court on a question of law or if the
state court decides a case differently than the Court despite both cases having materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000); White v. Mitchell, 431
F.3d 517, 523 (6th Cir. 2005), cert. denied, 549 U.S. 1047 (2006). However, a state court does
not act contrary to clearly established federal law where U.S. Supreme Court precedent is
ambiguous or otherwise unavailable. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per
curiam).

A state court decision is an unreasonable application of Supreme Court precedent where
the state court’s adjudication was “objectively unreasonable” and not merely erroneous or
incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th
Cir. 2000), cert. denied, 531 U.S. 1089 (2001). Under § 2254(d)(2), a state court’s factual
determination will stand unless it is objectively unreasonable in light of the evidence presented in
state court. Harrington v. Richter, 562 U.S. 86, 100 (2011). “[A] federal habeas court may not
grant relief simply because it concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams, 529 U.S. at 365.

Next, “a determination of a factual issue made by a State court shall be presumed to be
correct. [Petitioner] shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2554(e)(1). And, as the U.S. Supreme Court has repeated,
“a state court factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion . . . .” Burt, 571 U.S. at 18. Federal courts must also
defer to a state court’s judgment on issues of state substantive and procedural law. Murray v.
Carrier, 477 U.S. 478, 491 (1986); Engle v. Isaac, 456 U.S. 107, 128-29 (1982).
In all, federal habeas corpus relief is a “guard against extreme malfunctions in the state
criminal justice systems,” and is different in kind from the relief available in direct appeal.
Harrington, 562 U.S. at 102-03; see also Brown v. Davenport, 596 U.S. 118, 133 (2022)
(internal quotation omitted). Thus, to obtain “habeas corpus from a federal court, a state prisoner
must show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fair-minded disagreement.” Harrington, 562 U.S. at 103.

When a properly presented federal constitutional claim was not adjudicated on the merits
in the state courts, the reviewing federal court must apply the pre-AEDPA standard, reviewing de
novo questions of law and mixed questions of law and fact. Durr v. Mitchell, 487 F.3d 423, 432
(6th Cir. 2007) (“When the state court has not assessed the merits of a claim properly raised in a
habeas petition, the deference due under AEDPA does not apply.”).
VI. Procedural Barriers to Federal Habeas Corpus Review
Before coming to federal court, a state habeas petitioner must overcome certain
procedural barriers, including exhaustion of state remedies and procedural default. See Daniels v.
United States, 532 U.S. 374, 381 (2001). A federal court sitting in habeas review may review

claims that were evaluated on the merits by the state court. But claims that were not evaluated by
a state court, either because they were never fully presented to the state court (i.e., state court
remedies were unexhausted) or because they were not properly presented to the state court (i.e.,
they are procedurally defaulted) are not available for federal habeas corpus review. Bonnell v.
Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004), aff’d sub nom. Bonnell v. Mitchell, 212 F.
App’x 517 (6th Cir. 2007).
A. Exhaustion
A petitioner must first give the state courts a “fair” opportunity to act on his claims.
O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (emphasis in original). For a claim to have
been fairly presented, the factual and legal basis of the claim asserted by the petitioner must have
been raised at each and every stage of state review. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir.
2009); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). It is not enough for the claim
raised in state court to be “somewhat similar” to the one raised in the habeas petition or implicate
the same facts; the state court must have been called upon to apply the legal principles of the

claim now presented to the federal courts. Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir.
2011).
The petitioner also must have presented their “claim to the state courts as a federal
constitutional issue – not merely as an issue arising under state law.” Williams, 460 F.3d at 807
(quotation marks omitted). In this Circuit, this can be done in one of four ways:
(1) reliance upon federal cases employing constitutional analysis;

(2) reliance upon state cases employing federal constitutional analysis;

(3) phrasing the claim in terms of constitutional law or in terms sufficiently
particular to allege a denial of a specific constitutional right; or

(4) alleging facts well within the mainstream of constitutional law.

McMeans, 228 F.3d at 681 (paragraph breaks added).

Failure to exhaust occurs where state court remedies are still “available at the time of the
federal petition.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). This failure to
exhaust can also lead to a petitioner procedurally defaulting his claims. If the petitioner has not
fully used his state remedies and has no legal mechanism to do so now, the claim he failed to
present is procedurally defaulted, and this Court cannot act on the claim either. See Gray v.
Netherland, 518 U.S. 152, 161-62 (1996); Williams v. Anderson, 460 F.3d 789, 809 (6th Cir.
2006).
B. Procedural Default
The procedural default doctrine limits federal review if the petitioner has failed to follow
the state’s procedural requirements for presenting his or her claim in state court. See Coleman v.
Thompson, 501 U.S. 722, 732 (1991). This doctrine flows from the insight that courts must have
the authority to insist that “defendants present their arguments on time and according to

established procedures.” Benton v. Brewer, 942 F.3d 305, 307 (6th Cir. 2019). Thus, a federal
habeas court will not consider a habeas petition if “the last state-court judgment denying relief on
the claim rests on a procedural state-law ground that is ‘independent of the federal question and
is adequate to support the judgement.’” Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013)
(quotation marks omitted).
This Circuit consults a four-part test to determine whether a petitioner has procedurally
defaulted a claim. A petitioner procedurally defaults a claim if: (1) the petitioner fails to comply
with a state procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule is
an adequate and independent state ground for denying review of a federal constitutional claim;

and (4) the petitioner cannot show cause and prejudice excusing the default. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Because the procedural-default bar to federal habeas review is harsh, courts have created
safety-valves to permit review in limited circumstances. A petitioner can obtain review of
procedurally defaulted claims if he or she shows: (1) “cause,” i.e., that some external factor kept
him from complying with the state rule or fairly presenting his claim; and (2) “prejudice,” i.e.,
that, assuming the petitioner’s constitutional claim has merit, there is a reasonable probability
that a different verdict would have resulted if the alleged constitutional violation hadn’t occurred.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wogenstahl v. Mitchell, 668 F.3d 307, 337
(6th Cir. 2012). A petitioner can also obtain review of a procedurally defaulted claim if the
procedurally defaulted claim is based on new evidence that the petitioner was factually innocent
of the crime of conviction. See Coleman, 501 U.S. at 750 (“fundamental miscarriage of justice”
exception to procedural default); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (A
“fundamental miscarriage of justice” can occur only when the procedurally defaulted claim

would establish that the petitioner was “actually innocent.”). But “[A]ctual[] innocen[ce]” means
“factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). To overcome procedural default, an actual innocence claim must be supported by “new
reliable evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
VII. Discussion
Howard brings two grounds for relief for this Court’s review:
GROUND ONE: Howard was denied a fair and impartial trial, in violation of his
due process rights, as a consequence of prosecutorial misconduct, and the state
court's rejection of his prosecutorial misconduct claim was contrary to or an
objectively unreasonable application of clearly established federal precedent.

GROUND TWO: Howard was denied a meaningful opportunity to present a
complete defense and denied effective assistance counsel, in violation of his due
process rights, when the trial court unreasonably refused to grant a trial continuance
to provide Howard with additional time to obtain medical records essential to his
defense, and the state court's rejection of this claim was contrary to or an objectively
unreasonable application of clearly established federal precedent.

(ECF Doc. 1, pp. 18, 23).
As to Ground One, Respondent argues it is meritless under the AEDPA because the state
appellate court properly applied federal law and found that the prosecutor’s comments, while
improper, did not affect the outcome of Howard’s trial. (Id. at pp. 27-35). Respondent argues that
the Ohio appellate court is entitled to deference in its determination that the sufficiency of the
evidence and its manifest weight supported Howard’s conviction. (Id.). Respondent argues that
Ground Two is not cognizable in federal habeas corpus because it challenges the trial court’s
discretion but does not demonstrate that the state trial court’s exercise of discretion rose to the
level of a constitutional violation. (ECF Doc. 11-1, pp. 22-27). Respondent further responds that
Ground Two is also meritless under the AEDPA because Howard was allowed during trial to
testify without contradiction about his alleged erectile dysfunction; therefore, any denial of a

continuance to gather this evidence did not deprive him from the opportunity to present this
defense, did not result in a denial of due process, nor did it render his counsel’s assistance
ineffective. (Id. at pp. 35-42).
Notwithstanding the above arguments, I determine that Howard has presented a mixed
petition and comity principles direct this Court to dismiss Howard’s petition sua sponte, so that
he may first exhaust his state court remedies.
In Ground Two, Howard provides:
GROUND TWO: Howard was denied a meaningful opportunity to present a
complete defense and denied effective assistance counsel, in violation of his due
process rights, when the trial court unreasonably refused to grant a trial continuance
to provide Howard with additional time to obtain medical records essential to his
defense, and the state court's rejection of this claim was contrary to or an objectively
unreasonable application of clearly established federal precedent.

(ECF Doc. 1, p. 23). In his direct appeal, Howard asserted the following assignment of error:
The Trial Court Abused its Discretion by Denying Defense Motions for a
Continuance of the Trial, Thereby Denying Appellant a Meaningful Opportunity to
Present a Complete Defense Which Denied Him Effective Assistance of Counsel
in Violation of His Rights Under the Due Process Clauses of the Fifth, Sixth and
Fourteenth Amendments to The United States Constitution and Sections 10 and 16,
Article I, of The Ohio Constitution.

(ECF Doc. 11-2, p. 64). Howard also appealed this ground to the Ohio Supreme Court. (See id. at
p. 179). On this basis alone, Howard has properly exhausted Ground Two and it is available for
this Court’s review. However, my inquiry does not begin and end here.
In his Petition to Vacate or Set Aside Judgment of Conviction or Sentence, Howard
brought the following two claims:
CLAIM NUMBER ONE: Ineffective assistance of trial counsel in failing to obtain
and present medical records establishing that petitioner suffered from erectile
dysfunction disorder.

CLAIM NUMBER TWO: Petitioner was denied due process of law when the trial
court refused to grant a continuance of trial to allow the defense to obtain necessary
medical records establishing petitioner suffered from erectile dysfunction disorder.

(Id. at p. 243). Although Howard filed his petition on December 8, 2023 (id. at p. 245), his
petition remains pending (See Cuyahoga County Clerk of Courts, Case Search CR-20-652446-A,
https://cpdocket.cp.cuyahogacounty.gov/CR_CaseInformation_Docket.aspx?q=YRjVWoLON9
WojV9o-3tQ_MxvZMNlYu89lyO5yQtVDxM1 (last visited July 7, 2026)). Without a decision
from any state court, these claims remain unexhausted. See 28 U.S.C. § 2254(b)(1)(A).
A federal court may not grant the writ unless the petitioner has first exhausted all
available remedies in state court. Id. And, to be properly exhausted, the factual and legal basis of
each claim must have been “fairly presented” at each and every available stage of state court
review. Wagner, 581 F.3d at 418; O’Sullivan, 526 U.S. at 844; McMeans, 228 F.3d at 681. Fair
presentation means that the state court must have been called upon to apply the same legal
principles of the claim to the same facts, as are presented to the federal courts. See Jalowiec, 657
F.3d at 304.
The exhaustion and fair presentation requirements are in place so that state courts have
the first opportunity to address and correct any violations of the petitioner’s constitutional rights.
See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509 (1982)).
Therefore, while not jurisdictional, exhaustion “is a threshold question that must be resolved
before we reach the merits of any claim.” Wagner, 581 F.3d at 415. And because a federal court
may not grant the writ on a mixed petition, “each claim must be reviewed for exhaustion before
any claim may be reviewed on the merits.” Id.
Here, Ground Two, even though exhausted in Howard’s direct appeal, also appears to be
an amalgam of Claims One and Two in his pending state petition. (Compare ECF Doc. 1, p. 23
with ECF Doc. 11-2, pp. 64, 243). Therefore, the factual basis and the constitutional questions

before the state court directly implicate Howard’s petition here.2
The interests of comity and federalism counsel that the state court must first have the
opportunity to decide Howard’s claims before this Court considers his habeas corpus petition.
Rhines, 544 U.S. at 273. Comity “teaches that one court should defer action on causes properly
within its jurisdiction until the courts of another sovereignty with concurrent powers, and already
cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. at 274 (quoting
Rose, 455 U.S. at 518). It would be improper for this Court to step in at this stage and decide
Howard’s petition while substantially similar claims are yet pending in state court. See
id. Because the opportunity to decide his claims still rests with the state, Howard must return

there before seeking relief with this Court. See id.
When presented with a mixed petition such as this, federal district courts have four
options:
(1) dismiss the whole mixed petition,

(2) stay the case while the petitioner exhausts the unexhausted claims in state court,
(3) permit the petitioner to dismiss the unexhausted claims and then address with the
exhausted claims, or

2 Howard also states that Ground Two, “[a]lthough based on a different constitutional violation, [his] second Ground
for habeas relief is intertwined with his first.” (ECF Doc. 1, p. 23, ¶40). Because I found this report and
recommended decision in principles of comity and federalism and recommend dismissing the petition in its entirety,
I make no finding as to whether Ground One is “intertwined” with Ground Two. Regardless of the interrelation of
the two Grounds, it remains that the state court has been presented with an opportunity to decide Howard’s claims,
and that petition must be seen to completion before this Court steps in.
(4) ignore the exhaustion requirement altogether and deny the petition on the merits if
all the claims lack merit.
Harris, 553 F.3d at 1031-32 (internal citations omitted). Here, Howard acknowledges that
Ground Two may be unexhausted, but neither directly states that he wishes to dismiss the
unexhausted claim, nor does he request that this case be stayed while he exhausts his claims in
state court. (See ECF Doc. 1, pp. 17-18). Instead, Howard states that he has fully exhausted his
two Grounds, and that the postconviction petition does not address Ground One and “is only
tangentially related to Ground Two.” (Id. at p. 18, ¶¶ 9, 10). On this basis, Howard filed the
present petition, mistakenly believing that his statute of limitations under AEDPA was running
and would soon expire. (Id.).
But I disagree that the clock on Howard’s one-year statute of limitations is running. The

AEDPA statute of limitations is tolled for “the time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2). Here, Howard filed his postconviction petition on December
8, 2023, (ECF Doc. 11-2 at p. 245), before the Ohio Supreme Court declined jurisdiction on his
direct appeal on February 20, 2024 (Id. at p. 213). As a result, Howard’s pending postconviction
petition has tolled the AEDPA statute of limitations from its start, and his one-year clock has not
yet begun to run.
Because his statute of limitations clock has not yet begun to run, Howard would not be
barred from bringing his federal habeas corpus petition once the state court decides his

postconviction petition. This likewise counsels against staying the present petition, as Howard
must still present any remaining claims to each and every level of state court review, even after
the state trial court decides the currently-pending motion.
Howard has not asked this Court to stay his petition, nor has he requested to proceed on
only his exhausted claims; and, because the state court must have the first opportunity to correct
any constitutional violations and because Howard will not be prejudiced, dismissal appears to be
the most appropriate course. For these reasons, I find that Howard has presented a mixed
petition, and recommend the District Court dismiss Howard’s petition without prejudice so that

he may return to state court and exhaust all claims.
VIII. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(1)(A), this Court will grant a certificate of appealability
(“COA”) for an issue raised in a § 2254 habeas petition only if the petitioner has made a
substantial showing of the denial of a federal constitutional right. Cunningham v. Shoop, 817 F.
App’x 223, 224 (6th Cir. 2020). A petitioner satisfies this standard by demonstrating that
reasonable jurists “could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation marks omitted);

see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a claim is denied on procedural
grounds, the petitioner must show “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S.
at 484.
However, I make no recommendation as to a certificate of appealability. In this Report
and Recommended Decision, I declined to reach the merits of Howard’s petition and
recommended dismissal without prejudice for him to exhaust his still-available postconviction
remedies in state court. Once those remedies are exhausted, Howard may refile his federal
habeas corpus petition so this Court may consider any constitutional claims not corrected by the
state’s review process. Therefore, should the District Court agree with this recommendation, it
would not resolve Howard’s constitutional claims, making a recommendation of a certificate of
appealability inapplicable in these circumstances.
IX. Recommendation
For the foregoing reasons, I find that Howard has not exhausted his state court remedies
and has presented this Court with a mixed petition. I therefore recommend that principles of
comity direct this Court dismiss his petition without prejudice so that the state first has the
opportunity to pass upon the matter before this Court decides his petition.

Dated: July 7, 2026 SU
REUBEN. SHEPERD
UNITED STATES MAGISTRATE JUDGE

OBJECTIONS
Objections, Review, and Appeal
Within 14 days after being served with a copy of this report and recommendation, a party
may serve and file specific written objections to the proposed findings and recommendations of
the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28
U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo
by the assigned district judge.
te OOK OK
Failure to file objections within the specified time may result in the forfeiture or waiver
of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the
United States Court of Appeals, depending on how or whether the party responds to the report
and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be
specific and not merely indicate a general objection to the entirety of the report and
recommendation; “a general objection has the same effect as would a failure to object.” Howard
v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus

24

on specific concerns and not merely restate the arguments in briefs submitted to the magistrate
judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge
without specific objections ‘wastes judicial resources rather than saving them, and runs contrary
to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL
3018175, *2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections
may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924
F.3d 868, 878-79 (6th Cir. 2019).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11385596. Public record. Not legal advice.