The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHAKILL FENDERSON, ) CASE NO. 3:25-CV-00408-BYP
)
Plaintiff, )
) JUDGE BENITA Y. PEARSON
vs. ) UNITED STATES DISTRICT JUDGE
)
WARDEN RYAN WALTERS, ) MAGISTRATE JUDGE
) JONATHAN D. GREENBERG
Defendant. )
) REPORT & RECOMMENDATION
)
This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the
Petition of Shakill Fenderson (“Fenderson” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to
28 U.S.C. § 2254. Fenderson is in the custody of the Ohio Department of Rehabilitation and Correction
pursuant to journal entry of sentence in the case State v. Fenderson, Erie County Court of Common Pleas,
Case No. 2021 CR 0317. For the following reasons, the undersigned recommends that the Petition be
DENIED.
Also pending before the Court is Petitioner’s Motion to Expand the Record (Doc. No. 11.) For the
following reasons, Petitioner’s Motion to Expand the Record (Doc. No. 11) is DENIED.
I. Summary of Facts
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state
court, factual determinations made by state courts are presumed correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir.
2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the
facts underlying Fenderson’s conviction as follows:
{¶ 2} On July 10, 2021, E.C. died after sustaining multiple gunshot wounds
to his head and neck. Shakill Fenderson was charged with his murder. On
August 6, 2021, he was indicted on charges of aggravated murder, a
violation of R.C. 2903.01(A) and 2929.02(A), an unclassified felony, with
a firearm specification under R.C. 2941.145(A) and a repeat violent
offender specification, under R.C. 2941.149(A) (Count 1); tampering with
evidence, a violation of R.C. 2921.12(A)(1) and (B), a third-degree felony
(Count 2); and complicity in the commission of an offense, R.C.
2923.03(A)(2) and (F), a third-degree felony (Count 3).
{¶ 3} Fenderson entered a plea of guilty to amended Count 1, involuntary
manslaughter, a violation of R.C. 2903.04(A) and (C), a first-degree felony,
along with the repeat violent offender (“RVO”) specification, in exchange
for the dismissal of the remaining counts and specification. The court found
him guilty, ordered a presentence investigation report, and continued the
matter for sentencing.
{¶ 4} At the sentencing hearing, on the conviction for involuntary
manslaughter, the trial court ordered Fenderson to serve a minimum prison
term of 11 years and a maximum prison term of 16 and one-half years. It
also found that the criteria were met for imposition of a sentence for a repeat
violent offender. It imposed an additional, consecutive ten-year prison term.
Fenderson's aggregate prison term totaled 21 years to 26 and one-half years.
State v. Fenderson, 2023-Ohio-2903, ¶¶ 2-4, (Ohio Ct. App. Aug. 18, 2023).
II. Procedural History
A. Trial Court Proceedings
On August 6, 2021, the Erie County Grand Jury issued an indictment charging Fenderson with one
count of aggravated murder with firearm and repeat violent offender specifications, in violation of R.C.
2903.01(A), 2929.02(A) (Count 1); tampering with evidence in violation of R.C. 2921.12(A)(1), 2921.12(B)
(Count 2); and complicity in the commission of an offense in violation of R.C. 2923.03(A)(2), 2923.03(F)
(Count 3). (Doc. No. 8, Ex. 1.)
On April 19, 2022, Fenderson filed a Motion to Suppress Illegally Seized Evidence and Statements
Made by Defendant While in Custody. (Id., Ex. 3.) The State filed its Response to Defendant’s Motion to
Suppress on April 21, 2022. (Id., Ex. 4.) On April 22, 2022, Fenderson filed Motion for Leave to File Motion
to Suppress Outside of Rule 12(D) Time Limitations in the Interest of Justice; Reply to the State’s Response
to Defendant’s Motion to Suppress. (Id., Ex. 5.) On April 25, 2022, the State filed Response to Defendant’s
Motion for Leave to File Motion to Suppress Outside of Rule 12(D) Time Limitations. (Id., Ex. 6.) The next
day, Fenderson filed Defendant’s Reply to State’s Response to Defendant’s Motion for Leave to File Motion
to Suppress. (Id., Ex. 7.) On April 27, 2022,1 following a hearing in which all parties were in attendance and
stated their arguments on the record, the court denied Fenderson’s Motion to Suppress. (Id., Ex. 8.)
On April 29, 2022, Fenderson filed Motion to Reconsider the Court’s Denial of Defendant’s Motion
to Suppress. (Id., Ex. 9.) A few days later, Fenderson filed a Motion for Leave to Supplement Defendant’s
Motion for Reconsideration of the Court’s Denying Defendant’s Motion to Suppress with the Attached
Unreported Case. (Id., Ex. 10.) On May 5, 2022, the court denied Fenderson’s Motion for Reconsideration.
(Id., Ex. 11.)
On May 9, 2022, Fenderson filed Motion for the Court to Issue Findings of Fact and Conclusion of
Law in Denying Defendant’s Motion to Suppress and Motion for Reconsideration Denying Defendant’s
Motion to Suppress. (Id., Ex. 12.)
On May 11, 2022, Fenderson entered a plea of guilty to a lesser charge of involuntary manslaughter
in violation of R.C. 2903.04(A) and (C), with dismissal of both Counts 2 and 3. (Id., Ex. 13.) On July 5,
2022, the trial court sentenced Fenderson to a minimum of eleven years up to sixteen- and one-half years on
Count 1, and found that he met the criteria for the repeat violent offender specification. (Id., Ex. 19.) Due to
the repeat violent offender specification, the trial court sentenced Fenderson to an additional term of ten
years to be served consecutively, for a total of twenty-one years to twenty-six years. (Id.)
B. Direct Appeal
1 The Judgment Entry denying Fenderson’s Motion to Suppress was filed on April 29, 2022, however, it
appears the decision occurred on April 27, 2022. See Doc. No. 8-1, Exs. 8-9.)
On January 17, 2023, Fenderson, through counsel, timely appealed to the Sixth District Court of
Appeals. (Id., Exs., 21, 24.) In his merits brief, Fenderson raised the following assignments of error:
Assignment of Error One: The trial court erred to the prejudice of Mr.
Fenderson and in violation of the 14th Amendment to the United States
Constitution and Art. I, Sec. 16 of the Ohio Constitution when it used a Pre-
Sentence Investigation Report which contained unsubstantiated and false
information in arriving at its sentence.
Assignment of Error Two: The trial court erred in violation of the 14th
Amendment to the United States Constitution and Art. I, Sec. 16 of the Ohio
Constitution in sentencing Mr. Fenderson above the minimum sentence on
the involuntary manslaughter count where no predicate offense exists to
support it.
Assignment of Error Three: The trial court violated Mr. Fenderson’s rights
under the Sixth Amendment by engaging in judicial fact-finding to increase
his maximum sentence by 10 years on a RVO specification where the facts
were not admitted to by him nor found by a jury.
Assignment of Error Four: Mr. Fenderson’s right to due process under the
14th Amendment to the United States Constitution and Art. I, Sec. 16 of the
Ohio Constitution was violated as a result of the trial court's consideration,
at sentencing, of an undisclosed victim's correspondence to the court which
was not provided to defense counsel.
Assignment of Error Five: Mr. Fenderson’s sentence must be reversed
because the S.B. 201 indeterminate sentencing scheme under which he was
sentenced violates the Sixth Amendment of the United States Constitution
and Art. I, Sec. 5 of the Ohio Constitution because a defendant's
imprisonment is dependent upon a factual finding not made by the jury
beyond a reasonable doubt or admitted by the defendant.
Assignment of Error Six: The S.B. 201 indeterminate scheme under which
Mr. Fenderson was sentenced violates separation of powers by delegating
to the executive branch discretion to keep the defendant in prison beyond
the judicially imposed presumptive minimum sentence.
Assignment of Error Seven: The S.B. 201 indeterminate sentencing scheme
violates substantive due process because it (1) fails to provide a defendant
with adequate notice of what conduct can enable the ODRC to keep the
defendant in prison beyond the presumptive minimum term; and (2) allows
the ODRC to keep a defendant in prison beyond the presumptive minimum
sentence on the basis of prison housing and classification decisions that
need not be the result of any misconduct by the defendant.
Assignment of Error Eight: The S.B. 201 indeterminate sentencing scheme
violates procedural due process by allowing for the extension of a prison
sentence based on findings made at a hearing where the prisoner has no
guaranteed right to be present, have counsel, confront witnesses, subpoena
witnesses or to off er testimony on his own.
Assignment of Error Nine: Appellant’s sentence is contrary to law and must
be reversed because the court failed to provide notice of the R.C.
2929.19(B)(2)(c) notifications at his sentencing.
(Id., Ex. 28.) The State filed a brief in response. (Id., Ex. 25.) Fenderson filed a Reply Brief. (Id., Ex. 26.)
On May 2, 2023, Sixth District Court of Appeals overruled each assignment of error, except for the ninth
assignment of error. (Id., Ex. 29; State v. Fenderson, 2023-Ohio-2903.) The matter was remanded for the
limited purpose of permitting the sentencing court to provide the notifications required by R.C.
2929.19(B)(2)(c), and to enter a nunc pro tunc entry correcting two citation errors in the July 5, 2022
Judgment Entry. (Id.)
On October 2, 2023, Fenderson, through counsel, timely appealed to the Ohio Supreme Court. (Id.,
Ex. 32, 33.) Fenderson raised the following propositions of law:
Proposition of Law No. I: The Fourteenth Amendment to the United States
Constitution and Article I, Section 16 of the Ohio Constitution do not permit
a sentencing court to sentence a defendant above the minimum sentence on
an involuntary manslaughter count where no predicate offense exists to
support it.
Proposition of Law No. II: A court violates a defendant’s rights under the
Sixth Amendment to the United States Constitution and Art. I, Sections 5
& 10 of the Ohio Constitution if it engages in judicial fact-finding to
increase his maximum sentence by 10 years on an RVO specification where
the facts were not admitted to by the defendant nor found by a jury.
Proposition of Law No. III: A trial court’s consideration, at sentencing, of
an undisclosed victim’s correspondence, which was not provided to defense
counsel, violates a criminal defendant’s right to due process under the 14th
Amendment to the United States Constitution and Art. I, Sec. 16 of the Ohio
Constitution.
Proposition of Law No. IV: The “Reagan Tokes” S.B. 201 indeterminate
sentencing scheme violates the Sixth Amendment and Article I, Section 5
of the Ohio Constitution because a defendant’s imprisonment is dependent
upon a factual finding not made by the jury beyond a reasonable doubt or
admitted by the defendant.
Proposition of Law No. V: The S.B. 201 indeterminate sentencing scheme
violates substantive due process because it (1) fails to provide a defendant
with adequate notice of what conduct can enable the ODRC to keep the
defendant in prison beyond the presumptive minimum term; and (2) it
allows the ODRC to keep a defendant in prison beyond the presumptive
minimum sentence on the basis of prison housing and classification
decisions that need not be the result of any misconduct by the defendant.
Proposition of Law No. VI: The S.B. 201 indeterminate sentencing scheme
violates procedural due process by allowing for the extension of a prison
sentence based on findings made at a hearing where the prisoner has no
guaranteed right to be present, have counsel, confront witnesses, subpoena
witnesses or to offer testimony of his own.
(Id., Ex. 33.) The State filed a Memorandum in Opposition to Jurisdiction. (Id., Ex. 34.) On December 26,
2023, the Ohio Supreme Court declined to accept jurisdiction pursuant to S. Ct. Prac. R. 7.08(B)(4). (Id.,
Ex. 35; Case No. 2023-1251.)
C. Federal Habeas Petition
On March 2, 2025, Fenderson filed a Petition for Writ of Habeas Corpus. (Doc. No. 1.) Fenderson
asserted the following grounds for relief:
GROUND ONE: Petitioner’s rights under the 14th Amendment were
violated as a result of the sentencing court sentencing him above the
minimum sentence for involuntary manslaughter where no predicate
offense exists to support it.
Supporting Facts: The State did not identify or produce evidence of a
predicate offense for Mr. Fenderson’s involuntary manslaughter charge.
The involuntary manslaughter statute to which Mr. Fenderson entered a
guilty plea prohibits a person from causing the death of of [sic] another as
a proximate result of committing or attempting to commit a felony. No
predicate felony was included in the indictment, nor was one provided in
any pre-plea factual statement or during the plea colloquy, at sentencing or
ever placed in record. It does not exist. It remains unknown what felony Mr.
Fenderson allegedly committed or attempted to commit which proximately
caused the death of E.C. Nonetheless the court sentenced him to the
maximum,11-16.5 years, as opposed to 3-4.5 years on this count using
specific factors enumerated in R.C. §§ 2929.11, 2929.12 or 2929.14, which
it was required to consider, involving recidivism and seriousness of the
offense. These factors are offense/offender-specific and depend on the
nature of the unknown felony predicate. The maximum sentence for
involuntary manslaughter was a prerequisite for an RVO enhancement, on
which the court also imposed the maximum sentence after making
unsupportable findings.
GROUND TWO: The state trial court violated Petitioner’s rights under the
6th Amendment by engaging in judicial fact-finding to increase his
maximum sentence by 10 years on an RVO specification where the facts
were not admitted to by him nor found by a jury.
Supporting Facts: The court engaged in judicial-fact finding in exercising
its discretion to impose a nonmandatory additional consecutive prison term
on the RVO specification, and in selecting the maximum sentence of 10
years. In doing so, it was required to make mandatory factual findings under
R.C. 2929.14(B)(2)(a)(iv) and (v). These facts were not admitted by Mr.
Fenderson nor did they involve a prior conviction. The court was required
to consider R.C. 2929.12 factors, and find, inter alia, that the prison term
would otherwise be inadequate to punish Mr. Fenderson, and the RVO
sentence was necessary to protect the public from future crime because of
his likelihood of recidivism and the seriousness of the offense. A jury did
not make any such findings. Mr. Fenderson’s additional 10-year sentence
was, rather, based on judicial findings which increased the maximum
sentence he could receive based upon his guilty plea and conviction alone.
The sentencing court explicitly applied the RVO provisions at issue and
made those findings in imposing an additional 10-year sentence which are
reflected in its sentencing entry. The appellate court could not determine
whether, in the absence of the findings Petitioner would have received 10
years on the RVO.
GROUND THREE: The state trial court violated Petitioner’s 14th
Amendment due process rights by considering, at sentencing, an
undisclosed victim-impact letter which was not provided to defense
counsel.
Supporting Facts: During sentencing, the Victim Advocate mentioned that
the victim’s mother had previously provided a statement for the trial court’s
consideration which she did not want to be read aloud. It is unclear who
exactly this “mother” is given the victim's background. The correspondence
was considered by the court but was never provided to defense counsel, and
-- as requested, it was not read into the record. The trial court based its
sentence on this victim impact statement, but its contents were not disclosed
to the defendant, making it impossible for him to challenge any false
statements which were asserted in it. The appellate court reviewed the
statement and found that the victim did not just explain how the death of
E.C. impacted her emotionally, but alleged that Mr. Fenderson, who entered
a plea only to involuntary manslaughter, actually planned the victim’s
murder. Because Petitioner was not provided a copy of the alleged victim’s
statement he was unable to refute the incriminating allegations or challenge
any false information.
GROUND FOUR: Ohio’s “Reagan Tokes” legislation, S.B. 201’s
indeterminate sentencing scheme, which was a applied to Petitioner,
violates the 6th Amendment because an offender's imprisonment is
dependent upon a factual finding not made by the jury beyond a reasonable
doubt or admitted by the defendant.
Supporting Facts: On July 5, 2022, Mr. Fenderson received a sentence of
11 years with a maximum potential sentence of 16.5 years on the
involuntary manslaughter count. The 5.5-year tail of this sentence was
imposed pursuant to Reagan-Tokes. Under S.B. 201, it is presumed that the
offender will be released at the expiration of the minimum term. However,
the ODRC may rebut the presumption and hold the offender up to the
maximum [sic] term. R.C. 2929.14(A); R.C. 2929.144; R.C. 2967.271. To
rebut the “presumptive” earned early release date,” [sic] it holds an
administrative hearing and makes specific findings to justify keeping the
offender beyond that date. One One [sic] or more of the following 3
conditions must be present at the time of a hearing to determine if the tail
will be imposed. (1) while imprisoned, the offender committed a rule
infraction that compromised security of the institution or safety of the prison
staff, or threatened or caused harm to an inmate; and DRC evaluates the
defendant’s behavior while incarcerated as demonstrating a threat to society
should the offender be released; (2) the offender has been in extended
restrictive housing during the previous year; (3) the offender is classified at
a security level of 3 or higher. R.C.2967.271(C). If the DRC finds that at
least one of the conditions outlined above applies, it may deny the
offender’s release and may impose a term of additional imprisonment. Any
increase in punishment beyond the presumptive sentence is dependent upon
and triggered by one or more findings that are being made by a lone
employee of the DRC, an executive agency, see R.C. 2967.271(D) – not by
a jury for what the DRC decides is a “reasonable period,” up to the
maximum term of imprisonment. R.C. 2967.271(D).
GROUND FIVE: Ohio’s “Reagan Tokes” legislation, S.B. 201’s
indeterminate sentencing scheme, which was applied to Petitioner, violates
substantive due process because it (1) fails to provide a defendant with
adequate notice of what conduct can enable the DRC to keep the defendant
in prison beyond the presumptive minimum term; and (2) it allows the DRC
to keep a defendant in prison beyond the presumptive minimum sentence
on the basis of prison housing and classification decisions that need not be
the result of any misconduct by the defendant.
Supporting Facts: Under Reagan Tokes, an offender is not given adequate
notice as to what conduct on his part will rebut the presumption and trigger
an increase his sentence under subsections (A)(1)(a) and (b) of R.C.
2967.271 which applies when he commits “rule infractions” that
compromise “the security” of the prison or the staff or its inmates…which
demonstrate that he “has not been rehabilitated,” or if his behavior during
his incarceration “demonstrate[s]” that he “continues to pose a threat to
society.” On its face the statute fails to give adequate notice of what triggers
the additional prison time. The standards of “not been rehabilitated” and
“pose a threat to society” are nebulous and subject to differing
interpretations. The standards are so vague that an inmate can unknowingly
commit acts listed in R.C. 2967.271(C)(1)-(3), which will extend his
presumed minimum term of incarceration at the sole discretion of the DRC.
The inmate has no way of knowing if what he has done indicates a lack of
rehabilitation, the second prong of subsection (A)(1), and creates a threat to
society, as required by (A)(2). The offender is uncertain about what conduct
could trigger the tail. Moreover, subsections (A)(2) and (A)(3) make it a
triggering event that the offender was placed in restrictive housing or was
designated at a security level of 3 or above. These are decisions outside of
the defendant's prerogative and are effectively unreviewable. The
executive’s ability to make whatever judgment calls it deems appropriate
on these vague standards results in a criminal penalty.
GROUND SIX: Ohio’s “Reagan Tokes” legislation, S.B. 201’s
indeterminate sentencing scheme, which was applied to Petitioner, violates
procedural due process and the Sixth Amendment by allowing for the
extension of a prison sentence based on findings made at a hearing where
the prisoner has no guaranteed right to be present, have counsel, confront
witnesses, subpoena witnesses or to offer testimony of his own.
Supporting Facts: Mr. Fenderson’s sentence was imposed under S.B. 201
aka “Reagan Tokes.” While R.C. 2967.271 provides for a hearing before
the additional prison time is imposed, the statute provides no structure as to
how the hearing will be conducted or what rights the defendant will have at
a hearing. He is not provided the right to: (1) have a jury determine beyond
a reasonable doubt if a triggering circumstance occurred; (2) the right to
counsel and to the appointment of counsel if indigent; (3) The right to
confront witnesses; (4) The right to call witnesses and require their presence
via subpoena, and; (5) the right to offer testimony. Nowhere in the statute
are these rights provided.
(Id., pp. 7-16.)
On July 27, 2025, Warden Ryan Walters (“Respondent”) filed the Return of Writ. (Doc. No. 8.)
Fenderson filed a Traverse and a Motion to Compel Respondent to Supplement or Expand the Record on
September 23, 2025. (Doc. Nos. 10, 11.) On September 30, 2025, Respondent filed Opposition to Motion
to Compel Respondent to Supplement or Expand the Record. (Doc. No. 12.) On October 2, 2025,
Respondent filed Sur-Reply to Petitioner’s Traverse and Motion to Permit Petitioner to Amend Petition.
(Doc. No. 13.) On October 7, 2025, Fenderson filed Reply to Opposition/Response to Motion to Compel
Respondent to Supplement or Expand the Record. (Doc. No. 14.) On October 16, 2025, Fenderson filed
Motion for Leave to Permit Respondent to File Proper Sur-Reply; Opposition to Motion to Permit Petitioner
to Amend Petition. (Doc. No. 15.) The Court denied Motion to Permit Petitioner to Amend its Petition (Doc.
No. 13) and Motion for Leave to Permit Respondent to File Proper Sur-Reply (Doc. No. 15). (Doc. No. 16.)
III. Non-Cognizable Claims
It is well established that, in conducting habeas review, “a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). As such, the Supreme Court has explained “it is
not the province of a federal habeas court to reexamine state-court decisions on state-law questions.” Id. at
67-68. See also Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Coleman v. Mitchell, 244 F.3d 533, 542
(6th Cir. 2001). Thus, a state court’s interpretation of state law is binding upon a federal habeas court. See
Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); Bibbs v. Bunting, 1:16-cv-
02069, 2017 WL 4083558, at *15 (N.D. Ohio May 17, 2017). See also Thompson v. Williams, 685 F. Supp.
2d 712, 721 (N.D. Ohio 2010) (stating “a federal court may not second-guess a state court’s interpretation
of its own procedural rules.”) (citing Allen v. Morris, 845 F.2d 610, 614 (6th Cir.1988)).
“A challenge to a state court’s interpretation and application of Ohio’s sentencing laws is not
cognizable in a federal habeas corpus action.” Allsup v. Sheldon, No. 3:11CV2210, 2013 WL 3200641, at
*18 (N.D. Ohio June 24, 2013); Howard v. White, No. 03–1042, 2003 WL 22146139, at *2 (6th Cir. Sept.16,
2003); Kipen v. Renico, No. 02–1742, 2003 WL 21130033 (6th Cir. May 14, 2003). Furthermore, “[w]ide
discretion is accorded a state trial court's sentencing decision. Claims arising out of that decision are not
generally cognizable upon federal habeas review, unless the petitioner can show that the sentence imposed
exceeded the statutory limits or is wholly unauthorized by law.” Kerr v. Smith, No. 3:07 CV 2990, 2009
WL 88054, at *6 (N.D. Ohio Jan. 12, 2009), citing Lucey v. Lavigne, 185 F.Supp.2d 741, 745
(E.D.Mich.2001).
Accordingly, this Court can consider an alleged state court sentencing error only if it violates a
petitioner’s federal constitutional right to due process or equal protection. Pulley v. Harris, 465 U.S. 37, 42
(1984). This court has found the use of the term “due process” in a petition does not change the Court’s
cognizability analysis because “naked assertions of the denial of rights to ‘due process’ or ‘equal protection’
do not fairly present claims that federal constitutional rights were violated.” Porterfield v. McConahay, No.
4:21-CV-02401-SL, 2023 WL 5434714, at *8 (N.D. Ohio Aug. 4, 2023), report and recommendation
adopted, No. 4:21-CV-2401, 2023 WL 5433060 (N.D. Ohio Aug. 23, 2023), citing Rarden v. Warren Corr.
Inst., No. 1:12-CV-660, 2015 WL 5561380, at *4 (S.D. Ohio Sept. 22, 2015)(rejecting petitioner’s argument
that the failure to grant a de novo hearing was a “due process” violation where petitioner did not support his
naked assertions with “supporting federal caselaw or develop any cogent arguments in constitutional
terms.”); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (“General allegations of the denial of
rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims that specific constitutional rights were
violated.”)
Respondent argues that because Fenderson’s petition challenges his sentence and his sentence of
confinement is within state statutory limits, his petition is not cognizable. (Doc. No. 8 at 18-20.) Respondent
notes the State and Fenderson provided sentencing memorandums to the trial court, the trial court sentenced
Fenderson to a total of 21 years to 26.5 years, and the Court of Appeals found a “ministerial” error regarding
notifications but otherwise found the sentence in accord with Ohio law. (Id. at 19, citing Exs. 15-19, 29.)
Respondent contends “a state court’s interpretation of state law, including one announced on direct appeal
of the challenged conviction, binds a federal court sitting in habeas corpus.” (Id., citing Bradshaw v. Richey,
546 U.S. 74, 76 (2005)). Respondent asserts that a sentence within state statutory limits is not cognizable,
and that a petitioner does not have the right to appeal the length of a non-capital sentence. (Id. at 20.)
Respondent notes the Ohio Court of Appeals addressed Fenderson’s challenge to the Reagan Tokes Act,
finding that there were no circumstances in which the ODRC could increase punishment beyond the
maximum term permitted by statute or imposed by the sentencing court; and because he is challenging the
length of his non-capital sentence, his petition is not cognizable. (Id. at 21.)
In addition to the overarching argument that the entire petition is not cognizable due to challenging
the length of his sentence, Respondent argues Grounds One, Two and Four are not cognizable for additional
separate reasons, addressed below.
In response, Fenderson acknowledges that while “errors in the application of state sentencing
guidelines cannot independently support habeas corpus relief” (citing Kissner v. Palmer, 826 F.3d 898, 904
(6th Cir. 2016)), and argues that habeas relief is available when a sentence exceeds statutory limits, is wholly
unauthorized by law, or where violations of state law or procedure infringe federal constitutional
protections. (Doc. No. 10 at 8-9.) Fenderson claims his challenges to his sentence invokes federal
constitutional protections, including violations of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013). (Id. at 9.) Fenderson
contends his claims implicate both the Sixth and Fourteenth Amendments. (Id. at 10.)
A. Ground One
As set forth above, in Ground One, Fenderson argues his 14th amendment rights were violated when
“the sentencing court sentencing him above the minimum sentence for involuntary manslaughter where no
predicate offense exists to support it.” (Doc. No. 1.) In addition to the overarching sentencing argument
above, Respondent argues Ground One is not cognizable because it is purely a matter of state law and a
state court’s interpretation of state law binds a federal court sitting in habeas corpus. (Doc. No. 8 at 31-32.)
Respondent asserts the Ohio Court of Appeals interpretation of Crim. R. 11(B)(1) does not provide occasion
for a federal court to intervene in habeas corpus. (Id. at 32.)
Fenderson argues Ground One is cognizable because the trial court relied on “nonexistent or
speculative facts to impose the maximum sentence for a hypothetical offense,” which violates due process.
(Doc. No. 10 at 11.) Fenderson argues that because the predicate felony is unknown, he should have received
the minimum sentence. (Id. at 15.)
Fenderson raised this claim to the state appellate court and the Ohio Supreme Court. (Doc. No. 8-1,
Ex. 28, 33.) The state appellate court, the last state court to review the claim, rejected his arguments:
{¶ 20} Fenderson entered a plea of guilty to involuntary manslaughter under
R.C. 2903.04(A). R.C. 2903.04(A) provides that “[n]o person shall cause
the death of another * * * as a proximate result of the offender's committing
or attempting to commit a felony.” In his second assignment of error,
Fenderson argues that the state failed to produce evidence of a predicate
felony offense to support his conviction under the statute. He claims that a
predicate felony offense is an element of the offense that had to be found by
a jury or admitted to by the defendant. He denies that his guilty plea was an
admission to the predicate felony offense since one was not identified. He
also contends that because no predicate felony offense was identified, the
trial court was required to impose the minimum sentence—i.e., three years.
Fenderson questions whether the trial court considered the necessary factors
set forth in R.C. 2929.11 and 2929.12, and he again complains that the trial
court should have allowed him to present all the facts through witnesses’
testimony, which, he maintains, would have negated the misinformation
contained in the PSI and the state's sentencing memorandum.
{¶ 21} The state responds that by the express terms of his plea, Fenderson
admitted that he “cause[d] the death of another * * * as a proximate result
of * * * committing or attempting to commit a felony.” It points out that
R.C. 2903.04(A) is a first-degree felony that carries an indefinite minimum
sentence of three years to 11 years under R.C 2929.14(A)(1)(a), and it was
within the trial court's discretion to impose a prison sentence within that
statutory range. It emphasizes that the court was not required to make any
finding of fact in order to sentence Fenderson to a term falling within the
statutory range.
{¶ 22} Under Crim.R. 11(B)(1), a plea of guilty is a complete admission of
the defendant's guilt. When a person enters a guilty plea, he waives the right
to require the state to prove his guilt beyond a reasonable doubt at a trial.
Crim.R. 11(C)(2)(c). “The guilty plea itself provides all the necessary proof
of the elements of the offense and is sufficient evidence to support the
conviction.” State v. Stroub, 3d Dist. Wyandot No. 16-10-02, 2011-Ohio-
169, ¶ 6, citing State v. Fuller, 12th Dist. Butler No. CA2008-09-240, 2009-
Ohio-5068, ¶ 105.
{¶ 23} Here, when Fenderson entered a plea of guilty to involuntary
manslaughter—and specifically, involuntary manslaughter under R.C.
2903.04(A)—he admitted the elements of that offense—i.e., he admitted
that he committed an underlying felony that proximately caused the victim's
death. Because he admitted the elements of the offense, the state was not
required to “prove” at the sentencing hearing that Fenderson committed a
felony that proximately caused E.C.’s death, nor was the court required to
make any such finding. Fenderson suggests that without a predicate offense
having been specifically identified, it is possible that the “unknown
predicate offense is actually a misdemeanor” or “an offense that doesn't
constitute a predicate” or that no underlying felony occurred at all.
However, that is not possible here because by entering a guilty plea,
Fenderson admitted that he committed a felony and that that felony
proximately caused the victim's death.
{¶ 24} As to Fenderson's claim that the trial court was obligated to impose
the minimum possible sentence here or find certain facts to support a greater
sentence, this is simply wrong. Under R.C. 2929.14(A)(1), the trial court
was authorized to impose a sentence of three, four, five, six, seven, eight,
nine, ten, or 11 years. It was not obligated to impose the minimum possible
sentence here, nor was it required to make any particular findings in order
to impose a sentence greater than the minimum sentence. State v. Elmore,
122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 41, quoting State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100
(explaining that “ ‘trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make
findings or give their reasons for maximum, consecutive, or more than the
minimum sentences’ ”). No judicial-factfinding was required here, and none
took place.
{¶ 25} In support of his position that the court engaged in judicial fact-
finding in imposing a sentence other than the minimum sentence, Fenderson
relies on the U.S. Supreme Court's decision in Alleyne v. United States, 570
U.S. 99, 100, 186 L.Ed.2d 314, 133 S.Ct. 2151 (2013), and our decision in
State v. Mejia, 2020-Ohio-6870, 164 N.E.3d 1177, ¶ 25 (6th Dist.). Neither
of these cases is applicable here.
{¶ 26} In Alleyne, a jury convicted the defendant of using or carrying a
firearm in relation to a crime of violence. The term of imprisonment for
using or carrying a firearm in relation to a crime of violence was a minimum
of five years. The term of imprisonment increased to a minimum of seven
years if the firearm was brandished. And the term of imprisonment
increased to a minimum of ten years if the firearm was discharged. The jury
found that the defendant used or carried a firearm during and in relation to
a crime of violence, but it made no finding that the firearm was brandished.
Nevertheless, the presentence report recommended a seven-year sentence.
The defendant argued that because the jury did not find beyond a reasonable
doubt that he brandished the firearm, he was subject only to the five-year
minimum. The district court concluded that “brandishing” was a sentencing
factor that it could find by a preponderance of evidence. After determining
that the evidence supported a finding of brandishing, it sentenced the
defendant to seven years’ imprisonment. The Court of Appeals affirmed.
{¶ 27} The U.S. Supreme Court acknowledged that the Sixth Amendment
provides an accused the right to a trial by an impartial jury. “This right, in
conjunction with the Due Process Clause, requires that each element of a
crime be proved to the jury beyond a reasonable doubt.” Id. at 105. The
Court, therefore, addressed whether “brandishing” was an element of the
crime that must be found by a jury or whether it could fairly be characterized
as a sentencing factor for the court's consideration.
{¶ 28} The Court explained that a fact that increases the prescribed range
of penalties to which a criminal defendant is exposed is an element of the
crime, which a jury must find beyond a reasonable doubt. By extension, a
fact that increases the range—i.e., either the floor or the ceiling—of a
potential sentence produces a new penalty and is an element of the offense.
As such, “the core crime and the fact triggering the mandatory minimum
sentence together constitute a new, aggravated crime, each element of
which must be submitted to the jury.” Id. at 114. The Court concluded that
“because the fact of brandishing aggravates the legally prescribed range of
allowable sentences, it constitutes an element of a separate, aggravated
offense that must be found by the jury” beyond a reasonable doubt. Id. at
115.
{¶ 29} The Court took care to clarify that its holding—i.e., that a fact that
increases a mandatory minimum sentence must be submitted to the jury—
does not mean that a jury must find any fact that influences judicial
discretion. Rather, it explained, “broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment.” Id. at 116.
{¶ 30} Alleyne is wholly irrelevant to the facts presented here. Fenderson
entered a plea of guilty to involuntary manslaughter under R.C. 2903.04(A).
By doing so, he admitted each element of the offense, including that he
committed a felony that proximately caused the victim's death. Under R.C.
2903.04(C), a violation of R.C. 2903.04(A) is a first-degree felony,
regardless of the identity of the underlying felony. R.C. 2929.14(A)(1)(a)
prescribes the allowable sentencing range. That range—the floor and
ceiling—is not aggravated based on the identity of the underlying felony.
{¶ 31} We now turn to Mejia, 2020-Ohio-6870, 164 N.E.3d 1177. In Mejia,
the defendant was charged with engaging in sexual conduct with a 12-year-
old girl. He was indicted on three counts: (1) rape in violation of R.C.
2907.02(A)(1)(b) and (B) (Count 1), (2) rape in violation of R.C.
2907.02(A)(1)(b) and (B) with a specification that he “purposely compelled
the victim to submit by force or threat of force” (Count 2), and (3) sexual
battery in violation of R.C. 2907.03(A)(5) and (B) (Count 3). He entered a
plea of guilty to Count 1 only. The trial court imposed a prison term of 25
years. It explained: “As far as the prison sentence, the Court has no option
in this case. The prison sentence is mandatory, and on Count 1, the offense
of rape being a felony of the first degree, the Court would impose a 25 year
to life prison sentence that is mandatory.” Mejia at ¶ 7.
{¶ 32} R.C. 2907.02(B) specifies that an offender convicted under (A)(1)(b)
“shall be sentenced to a prison term or term of life imprisonment” under
R.C. 2971.03. It also states that the court may impose upon the offender a
term of life without parole under R.C. 2971.03(A) if an offender has a
previous conviction under (A)(1)(b), if the offender caused serious physical
harm to the victim, or if the victim is less than ten years of age. Assuming
the offense was committed after January 2, 2007, life without parole is not
imposed, and R.C. 2971.03(A) is inapplicable, R.C. 2971.03(B) provides
three possible indefinite sentences that may be imposed instead: 10 years to
life, 15 years to life, or 25 years to life:
(a) Except as otherwise required in division (B)(1)(b) or (c) of this section,
a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years of age, a minimum of fifteen years
and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or
threat of force, or if the offender previously has been convicted of or
pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the
Revised Code or to violating an existing or former law of this state,
another state, or the United States that is substantially similar to division
(A)(1)(b) of that section, or if the offender during or immediately after the
commission of the offense caused serious physical harm to the victim, a
minimum term of twenty-five years and a maximum of life imprisonment.
(Emphasis added.)
{¶ 33} We recognized that because the victim was 12 years old, R.C.
2971.03(B)(1)(b) was inapplicable. Thus, the trial court's imposition of a
prison sentence of 25 years to life would be proper only if R.C.
2971.03(B)(1)(c) applied. Under that section, there are three ways that a 25-
years to life sentence could be imposed: (1) use of force or threat of force
in the commission of the offense; (2) a prior conviction for rape of a child
under 13; or (3) serious physical harm caused to the victim of the offense.
Mejia at ¶ 22, quoting State v. Morris, 5th Dist. Delaware No. 19 CAA 12
0069, 2020-Ohio-5361, ¶ 26. The state argued that “the use or threat of
force” element was applicable.
{¶ 34} On appeal, we were left to resolve “whether a defendant who pleads
guilty to rape under R.C. 2907.02(A)(1)(b) and View more Negative
Treatments(B) [may] be sentenced to 25 years to life under R.C.
2971.03(B)(1)(c) when the indictment fails to include a specification that
force was used in the commission of the rape, the record is silent as to the
issue of force, and the trial court does not make a determination that force
was used in the commission of the rape at the time of accepting the plea or
sentencing the defendant[.]” Mejia at ¶ 29. We looked to the Ohio Supreme
Court's decision in State v. Bowers, 163 Ohio St.3d 28, 2020-Ohio-5167,
167 N.E.3d 947, for guidance.
{¶ 35} In Bowers, as in Mejia, the defendant pled guilty to rape under View
more Negative TreatmentsR.C. 2907.02(A)(1)(b) and View more Negative
Treatments(B). He was sentenced to 25 years to life in prison under R.C.
2971.03(B)(1)(c) even though force or threat of force was not specified in
the indictment and the sentencing court made no factual finding that force
or threat of force had been used. The First District reversed. It found that
the sentence was not authorized because none of the prerequisites under
R.C. 2971.03(B)(1)(c) was present—i.e., the use or threat of force in the
commission of the offense, a prior conviction for rape of a child under 13,
or serious physical harm caused to the victim. The Ohio Supreme Court
affirmed the First District. It concluded that “a sentence of 25 years to life
under R.C. 2971.03(B)(1)(c) may not be imposed without a finding that the
victim was compelled to submit by force or one of the other factors in R.C.
2971.03(B)(1)(c) applied. The court rejected the state's argument that no
express findings must be made under R.C. 2971.03(B)(1)(c) so long as there
is evidence of force in the record. Bowers at ¶ 24.
{¶ 36} Consistent with Bowers, we concluded that Mejia's sentence was
contrary to law because neither the court nor the parties mentioned force at
either the plea hearing or the sentencing hearing and the indictment was
silent as to the issue of force under the count to which the defendant pled.
Mejia at ¶ 34. Importantly, Count 2 contained a “force or threat of force”
specification; Count 1 did not. The defendant entered a plea only to Count
1, therefore, he did not admit that he used force or threat of force. We
reversed and remanded the case for resentencing.
{¶ 37} Here, Fenderson entered a guilty plea to involuntary manslaughter
under R.C. 2903.04(A). By entering a plea of guilty, he admitted the
elements of that offense. As such, he admitted that he committed an
underlying felony that proximately caused the victim's death. The potential
sentence for a violation of R.C. 2903.04(A) does not vary based on which
underlying felony was committed.
{¶ 38} Certainly, if Fenderson had not entered a plea of guilty and the matter
had been tried to a jury, the state would have been required to prove that an
underlying felony occurred (and that it caused the victim's death), which
would necessarily have required it to identify the alleged felony. But the
state was relieved of this duty when Fenderson voluntarily entered a guilty
plea to the charge and admitted that he committed a felony that proximately
caused E.C.’s death.
{¶ 39} Finally, Fenderson contends that “no basis exists to sentence a
defendant to 11 years as opposed to 3 years if the predicate offense is
unknown.” He insists that without knowing the underlying predicate
offense, a sentencing court “does not have sufficient facts to arrive at any
sentence within the range above the minimum.” Fenderson acknowledges
that the trial court has discretion to impose a sentence using factors set forth
in R.C. 2929.11 and 2929.12, but maintains that the factors are offense and
offender specific and “depend on the nature of the felony predicate.”
{¶ 40} In essence, Fenderson is challenging the length of his sentence—he
believes he should have been sentenced to a minimum term of three years
and a maximum term of four-and-a-half years. We review sentencing
challenges under R.C. 2953.08(G)(2). The statute allows an appellate court
to increase, reduce, or otherwise modify a sentence or vacate the sentence
and remand the matter for resentencing only if it clearly and convincingly
finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).
{¶ 41} R.C. 2929.11 and 2929.12 are not listed in the statutory provisions
under R.C. 2953.08(G)(2)(a). State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649 ¶ 28. As such, an appellate court may not rely
upon R.C. 2953.08(G)(2)(a) to “modify or vacate a sentence based on the
lack of support in the record for the trial court's finding under R.C. 2929.11
and 2929.12.” Id. at ¶ 29. Moreover, R.C. 2953.08(G)(2)(b) does not allow
an appellate court to independently weigh the evidence and substitute its
judgment for that of the trial court regarding the appropriate sentence under
R.C. 2929.11 and 2929.12, or modify or vacate a sentence based on the lack
of support in the record for the trial court's findings under those statutes.
Jones at ¶ 39, 41-42; see also State v. Toles, 166 Ohio St.3d 397, 2021-
Ohio-3531, 186 N.E.3d 784, ¶ 10 (Brunner, J., concurring) (R.C. 2953.08
“precludes second-guessing a sentence imposed by a trial court based on its
weighing of the considerations in R.C. 2929.11 and 2929.12.”).
{¶ 42} Importantly, the Ohio Supreme Court has made clear that “neither
R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual
findings on the record.” Jones at ¶ 20. In fact, the trial court's consideration
of the factors set forth in R.C. 2929.11 and 2929.12 is presumed even on a
silent record. State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108
N.E.3d 1; State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992).
{¶ 43} Here, we know that the trial court considered R.C. 2929.11 and
2929.12 because it said so on the record at the sentencing hearing, and
reiterated it in its judgment entry. To the extent that Fenderson claims that
the trial court lacked sufficient facts upon which to weigh these factors, we
note that under R.C. 2929.19(B)(1)(a), when sentencing an offender, a trial
court must consider the (1) the record; (2) any information presented at the
hearing by the offender, the prosecuting attorney, the victim or the victim's
representative, and any other person approved by the trial court; (3) the
presentence investigation report; and (4) any victim impact statement. The
trial court said that it considered this information. Consideration of this
information supplied the trial court with the facts necessary to render an
appropriate sentence under R.C. 2929.11 and 2929.12. Its sentence was
within the allowable range permitted by R.C. 2929.14(A)(1). Fenderson's
sentence was not contrary to law under R.C. 2953.08(G)(2)(b).
{¶ 44} We find Fenderson's second assignment of error not well-taken.
State v. Fenderson, 2023-Ohio-2903, ¶¶ 20-44.
Here, while Fenderson couches Ground One as a Constitutional violation, it is a matter of the Ohio
Court of Appeals interpreting Ohio law, which is not cognizable. See Bradshaw v. Richey, 546 U.S. at 76;
see also Thompson v. Williams, 685 F. Supp. 2d at 721 (stating “a federal court may not second-guess a
state court’s interpretation of its own procedural rules.”) Moreover, Ground One at its core is a challenge to
Fenderson’s length of sentence, which is not cognizable. Allsup v. Sheldon, 2013 WL 3200641, at *18.
Accordingly, and for all the reasons set forth above, it is recommended Ground One be dismissed as
non-cognizable.
B. Ground Two
As noted above, in Ground Two, Fenderson alleges his rights under the 6th Amendment were violated
by judicial fact-finding which increased his sentence by ten years on a Repeat Violent Offender
Specification where the facts were not admitted to by him or found by a jury. (Doc. No. 1.) Respondent
argues Ground Two is not cognizable because challenging the imposition of a Repeat Violent Offender
(“RVO”) specification has been held non-cognizable in this district, and it is a pure application of state law.
(Doc. No. 8 at 37.) Fenderson did not address the cognizability of Ground Two.
Courts in this district have found habeas grounds alleging erroneous application of Ohio’s Repeat
Violent Offender Specification non-cognizable on habeas corpus review because it is a matter of state law.
Krug v. Sheldon, No. 1:20-CV-02280-BMB, 2023 WL 9422383, at *31 (N.D. Ohio Sept. 19, 2023), report
and recommendation adopted, No. 1:20-CV-2280, 2024 WL 310095 (N.D. Ohio Jan. 26, 2024); Hunt v.
Eppinger, No. 1:20-CV-2666-DAR, 2024 WL 1348642, at *13 (N.D. Ohio Jan. 23, 2024), report and
recommendation adopted, No. 1:20-CV- 2666, 2024 WL 1347602 (N.D. Ohio Mar. 29, 2024) (finding
challenge to 19-year sentence with an RVO specification and imposition of consecutive sentences non-
cognizable).
Accordingly, it is recommended that Ground Two be dismissed as non-cognizable.
C. Ground Three
As set forth above, in Ground Three, Fenderson argues his due process rights were violated when
the trial court considered at sentencing a victim impact letter that was not provided to defense counsel. (Doc.
No. 1.) Fenderson argues he should have been afforded the opportunity to rebut any materially false
information provided in the letter. (Id.) Respondent argues this claim is non-cognizable as it is matter of the
state appellate court interpreting state law. (Doc. No. 8 at 45, 21-22.) Fenderson did not specifically address
the cognizability of Ground Three.
Fenderson raised this claim on direct appeal, and upon review for plain error the state appellate court
rejected it as follows:
{¶ 54} In his fourth assignment of error, Fenderson argues that he was
deprived of a fair sentencing proceeding in violation of his due process rights
because the trial court relied on a letter from the victim's mother, which was
not provided to defense counsel and was not read into the record. He claims
that due process required that he be afforded the opportunity to rebut any
materially false, derogatory information relied upon by the sentencing judge.
He maintains that the only way to protect himself from being sentenced
based upon false information was to provide him with notice and an
opportunity to respond to the information upon which the sentencing court
relied. And because Fenderson was not provided a copy of the letter, he
claims that he was unable to rebut the statement or determine if it contained
materially false information.
{¶ 55} The state responds that Fenderson failed to object or otherwise raise
this issue before the trial court, therefore, he has waived all but plain error.
It maintains that the trial court properly considered the letter from E.C.’s
mother under R.C 2930.14(A), and was not required to give copies of the
victim's mother's statement to Fenderson or his counsel. Furthermore, the
state claims, even if the letter from E.C.’s mother had been disclosed to
Fenderson, his ability to challenge its validity would have been limited
because a defendant does not have the right to respond to a victim's statement
unless it includes new material facts and the court relies on those facts. The
state insists that nothing in the record indicates that the letter from E.C.’s
mother included any new material facts, or that any such facts were relied
upon by the trial court in sentencing Fenderson, and Fenderson has failed to
demonstrate that his sentence clearly would have been different but for the
trial court's consideration of the letter from E.C.’s mother.
{¶ 56} The state correctly observes that Fenderson did not object to the
victim's mother's letter being provided to the court and not read aloud
without allowing defense counsel to read it. We, therefore, review for plain
error. Plain error is error that affects substantial rights. Crim.R. 52(B). In
determining whether plain error occurred, we must examine the alleged error
in light of all of the evidence properly admitted at trial. State v. Hill, 92 Ohio
St.3d 191, 203, 749 N.E.2d 274 (2001). Plain error should be found “only in
exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. “Reversal is warranted only if the outcome
of the trial clearly would have been different absent the error.” Id., citing
Long at paragraph two of the syllabus.
{
¶ 57} In State v. Shackleford, 2d Dist. Montgomery No. 24303, 2011-Ohio-
4722, the court at the sentencing hearing read part of a letter that the victim
had written describing the crime's impact on her physically, psychologically,
and emotionally. The court cited the crime's impact on the victim when
explaining its sentencing decision. On appeal, the defendant complained that
before the hearing, neither he nor trial counsel saw the victim's letter, and the
court did not disclose its full contents. Like Fenderson, the defendant did not
object in the trial court, thus the appellate court applied a plain-error analysis.
{¶ 58} The Second District Court of Appeals obtained the letter from the
trial court and reviewed its contents. It described that the letter was
essentially a rewording of the victim impact portion of the PSI, which alone
did not result in a different outcome. But the court went on to say that even
if the letter had been fully disclosed to him before the sentencing hearing,
the defendant's ability to challenge its validity would have been limited
because “[a] defendant does not have the right to respond to a victim's
statement unless the statement includes new material facts and the court
relies on those facts.” Id. at ¶ 25, citing R.C. 2930.14(B). It also cited to the
Sixth Circuit Court of Appeals’ decision in U.S. v. Meeker, 411 F.3d 736,
742 (6th Cir. 2005), where the court pointed out that “not having, before the
sentencing hearing, emotional-impact evidence from a victim ultimately
matters little because the defendant cannot really rebut the evidence.”
Shackleford at ¶ 25, citing Meeker at 742. Therefore, the court concluded,
“[b]ecause this evidence [is] essentially irrebuttable, even if it had been
disclosed to him in advance of his sentencing hearing, [the defendant] can
show no prejudice warranting correction under Rule 52(b) [the federal plain-
error rule].” (Internal citations and quotations omitted.) Id. The Second
District found no plain error.
{¶ 59} Likewise, the record on appeal contains a copy of the letter from
E.C.’s mother. In terms of facts, it contains no information different from
that presented by the state at sentencing—that Fenderson was responsible for
planning the murder. Similar to E.C.’s ex-fiancee's statements at sentencing,
the letter also discusses the emotional impact the victim's death has had on
his family, and especially his mother and daughters. The emotional impact
on the family is “essentially irrebuttable.” And no new facts were raised.
Accordingly, we find that the failure to provide Fenderson a copy of the letter
resulted in no prejudice to Fenderson. The outcome would not have been
different had the letter been disclosed.
{¶ 60} We find Fenderson's fourth assignment of error not well-taken.
State v. Fenderson, 2023-Ohio-2903, ¶¶ 54-60.
As this district has previously explained:
“It is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502
U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241); see also Lewis v. Jeffers, 497
U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors
of state law.”); Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (“We have
long recognized that a ‘mere error of state law’ is not a denial of due
process.”) (citation omitted)).”
Baskerville v. Sheldon, No. 5:18CV2277, 2019 WL 13163556, at *20 (N.D. Ohio Oct. 30, 2019), report
and recommendation adopted, No. 5:18CV2277, 2022 WL 969693 (N.D. Ohio Mar. 31, 2022), citing Ream
v. Bunting, No. 3:15-cv-00313, 2017 WL 7805229, at *17 (N.D. Ohio April 12, 2017), report and
recommendation adopted by 2018 WL 1083266 (N.D. Ohio Feb. 28, 2018).
Here, the state appellate court interpreted Ohio law and determined Fenderson’s claim was without
merit. The appellate court determined Fenderson did not object to the letter at the time it was provided to
the trial court, was not entitled under Ohio law to see the letter, the letter did not contain information
different from what was presented by the State at sentencing, the emotional impact evidence was “essentially
irrebuttable”, and the outcome would not have been different had Fenderson received a copy of the letter.
Any error of state law is not reviewable in habeas corpus.
For the forgoing reasons, the undersigned recommends finding Ground Three not cognizable.
D. Grounds Four, Five, and Six
As set forth above, in Grounds Four, Five, and Six, Fenderson challenges the constitutionality of the
sentencing scheme under which he was sentenced, known as the Reagan Tokes Law. (Doc. No. 1.)
In Ground Four, Fenderson argues the Reagan Tokes law violates the doctrine of separation of
powers because it provides discretion to the executive branch (Ohio Department of Rehabilitation and
Corrections (“ODRC”)) to keep the defendant incarcerated beyond the judicially imposed presumptive
minimum sentence. (Doc. No. 1.) Respondent argues Ground Four is not cognizable because it raises a
separation of powers argument concerning state branches of government which is a matter of state law and
thus non-cognizable. (Doc. No. 8 at 53.) Fenderson did not specifically address the cognizability of Ground
Four.
When considering a separation of powers claim concerning sentencing, this court found the claim
not cognizable because the separation of powers between state branches of government is a matter of state
law, and “a federal court may not grant habeas relief based on a ‘perceived error of state law.’” Herring v.
Hill, No. 1:21-CV-01496, 2023 WL 5756161, at *9 (N.D. Ohio Aug. 18, 2023), report and recommendation
adopted, No. 1:21 CV 1496, 2023 WL 5748714 (N.D. Ohio Sept. 6, 2023), citing Witherspoon v. Campbell,
No. 19-2258, 2020 U.S. App. LEXIS 11147, at *3 (6th Cir. 2020) (quoting Austin v. Jackson, 213 F.3d 298,
302 (6th Cir. 2000)).
Because Ground Four raises a separation of powers claim concerning sentencing, which involves
state branches of government, it is a matter of state law and not cognizable in habeas review.
For the foregoing reasons, the undersigned recommends finding Ground Four not cognizable.
In Ground Five, Fenderson argues Reagan Tokes violates substantive due process because it fails to
provide a defendant notice of what conduct ODRC can consider to keep a defendant in prison beyond the
presumptive minimum term. (Doc. No. 1.) In Ground Six, Fenderson argues Reagan Tokes violates
procedural due process and the Sixth Amendment because it allows for the extension of a prison sentence
based on findings made at a hearing in which the prisoner has no guaranteed rights, including to be present,
have counsel, confront witnesses, subpoena witnesses, or offer his own testimony. (Id.)
Respondent argues Grounds Five and Six are non-cognizable under the principle in Bradshaw v.
Richey, that a state court’s interpretation of state law is binding upon a federal habeas court. (Doc. No. 8 at
52.) Fenderson does not specifically address cognizability of Ground Five. Fenderson claims Ground Six is
cognizable because Reagan Tokes violates procedural due process. (Doc. No. 10 at 50.) Fenderson contends
the Constitution guarantees the right to be heard when the state seeks to infringe on a liberty or property
right, and while Reagan Tokes does provide for a hearing, the law does not provide specific details on the
rights a defendant will have at the hearing. (Id.)
The state appellate court considered Fenderson’s challenges to Reagan Tokes and rejected them as
follows:
{¶ 61} In his fifth through eighth assignments of error, Fenderson
challenges the constitutionality of the sentencing scheme under which he
was sentenced. He claims that S.B. 201—commonly referred to as the
Reagan Tokes Law—violates the Sixth Amendment and Article I, Section
5 of the Ohio Constitution because a defendant's imprisonment is dependent
upon a factual finding not made by the jury beyond a reasonable doubt or
admitted by the defendant. He claims that it violates the doctrine of
separation of powers because it delegates to the executive branch discretion
to keep the defendant in prison beyond the judicially-imposed presumptive
minimum sentence. He claims that it violates substantive due process
because it fails to provide a defendant with adequate notice of what conduct
can enable ODRC to keep the defendant in prison beyond the presumptive
minimum term and allows ODRC to keep a defendant in prison beyond the
presumptive minimum term on the basis of prison housing and classification
decisions resulting from any misconduct by the defendant. And he claims
that it violates procedural due process by allowing for the extension of a
prison sentence based on findings made at a hearing where the prisoner has
no guaranteed right to be present, have counsel, confront witnesses,
subpoena witnesses, or offer testimony of his own.
{¶ 62} This court has addressed these challenges to the constitutionality of
S.B. 201 on many occasions. In State v. Bothuel, 6th Dist. Lucas No. L-20-
1053, 2022-Ohio-2606, ¶ 21-23, we found that S.B. 201 does not violate the
constitutional right to a trial by jury because there are no circumstances
under which ODRC may increase punishment beyond the maximum term
permitted by statute or imposed by the sentencing court. See also State v.
Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-2812, ¶ 14-16. In
State v. Gifford, 6th Dist. Lucas No. L-21-1201, 2022-Ohio-1620, ¶ 23-36,
we held that S.B. 201 does not violate principals of separation of powers
because the trial court—not the executive branch—imposes both the
minimum and maximum sentences. See also State v. Stenson, 6th Dist.
Lucas No. L-20-1074, 2022-Ohio-2072, ¶ 7-20; and Bothuel at ¶ 7-20; State
v. Lamar, 6th Dist. Wood No. WD-21-055, 2022-Ohio-2979, ¶ 125; State
v. Blanton, 6th Dist. Lucas No. L-22-1225, 2023-Ohio-2242, ¶ 31. In
Williams at ¶ 24-28, we rejected arguments similar to Fenderson's
substantive due process challenge and held that S.B. 201 is not void for
vagueness because standards for conduct are specified in the statute. And in
Stenson at ¶ 22-34, we held that S.B. 201 does not, on its face, violate the
constitutional right to due process because it cannot be said at this juncture
that the Law cannot be applied constitutionally in any circumstances. See
also Bothuel at ¶ 24-44; State v. Eaton, 2022-Ohio-2432, 192 N.E.3d 1236
(6th Dist.) (Mayle, J., concurring) (where, on issue of due process, lead
decision analogized additional term hearings to parole/probation release
decisions and found that procedural safeguards afforded defendants under
Reagan Tokes Law are sufficient to pass constitutional muster, and
concurring decision analogized additional term hearings to parole/probation
revocation decisions and found that while failing to set forth adequate
process in the statute itself, Reagan Tokes Law is nevertheless capable of
being enforced in a manner consistent with process due an offender); Lamar
at ¶ 125 (adopting due process analysis set forth in Eaton's concurring
decision); Williams at ¶ 23; Blanton at ¶ 31.
{¶ 63} The Ohio Supreme Court has now considered—and rejected—most
of Fenderson's constitutional challenges to the Reagan Tokes Law. In State
v. Hacker, Slip Opinion No. 2023-Ohio-2535, the Ohio Supreme Court held
that the Reagan Tokes Law does not violate the separation of powers
doctrine, does not violate the right to a jury trial, is not void for vagueness,
and on its face, does not violate due process.
{¶ 64} First, the court rejected the position that the Reagan Tokes Law
violates the separation-of-powers doctrine based on the authority granted to
DRC—the executive branch—to maintain an offender's incarceration
beyond the minimum prison term imposed by a trial court. It characterized
the Reagan Tokes Law as “demonstrat[ing] the interplay among the three
branches of government,” but not “infring[ing] on the power of the courts.”
Id. at ¶ 13.
{¶ 65} The court explained the role of the three branches under S.B. 201:
[T]he legislative branch “define[s] crimes,” “fixes the penalty,” and
“provide[s] such discipline and regulations for prisoners, not in conflict
with the fundamental law, as the legislature deems best.” [State ex rel.
Atty. Gen. v. Peters, 43 Ohio St. 629, 647-648, 4 N.E. 81, 85 (1885).]
Thus, with the Reagan Tokes Law, the General Assembly established
indefinite sentencing for offenders convicted of eligible felonies and a
scheme for offender discipline by the DRC. The judicial branch
determines whether a person is guilty of an offense and, after a finding of
guilt, imposes a prison sentence within the bounds established by the
legislature. Id. at 647-648, 4 N.E. 81; see also State ex rel. Bray v. Russell,
89 Ohio St.3d 132, 136, 729 N.E.2d 359 (2000). And “[p]rison discipline
is an exercise of executive power.” Id.
Hacker at ¶ 15, quoting Peters at 647-648.
{¶ 66} The court emphasized that “[o]nce the trial court imposes minimum
and maximum prison terms under R.C. 2929.14(A)(1)(a) or (2)(a), the
sentence for the offender has been set”—the DRC may maintain the
offender's incarceration only if it determines that the presumption of release
has been rebutted, and only within the bounds set by the trial court. Id. at ¶
16. As such, it concluded, “[i]t does not impede the court's exercise of its
judicial powers.” Id.
{¶ 67} In reaching this conclusion, the Ohio Supreme Court relied on
Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000), superseded by
statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958, where the court held that the postrelease-
control statute did not violate the separation-of-powers doctrine or the right
to Due Process even though it vested the parole board with authority to
determine whether and how long an offender would be subject to
postrelease control and authorized it to sanction offenders for violating the
conditions of their postrelease control. In Woods, the court reasoned that the
conditions of postrelease control were part of the sentence imposed by the
trial court, “the power to determine the duration of postrelease control and
the sanctions for an offender's violation of postrelease-control conditions
was consistent with the authority that had been delegated to the APA in the
past under a prior system of parole,” and “the authority of the judiciary was
not impeded by the APA's performance of its disciplinary function.” Hacker
at ¶ 22.
{¶ 68} In sum, the Ohio Supreme Court determined that the Reagan Tokes
Law was analogous to that of the post-release control statute that it found
constitutional in Woods. It stressed that under the Reagan Tokes Law,
“[s]hould the DRC determine that the presumption of release is rebutted as
the result of an offender's behavior during his incarceration, the additional
time that the offender may have to serve is limited by the sentence that has
already been imposed by the trial court.”
{¶ 69} Second, the court disagreed that R.C. 2967.271 violates the right to
a jury trial because it authorizes the DRC to maintain an offender's
incarceration beyond the minimum prison term imposed by the trial court
without any jury findings to support the extended incarceration. It
acknowledged that under Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435, “‘[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’ ”
Hacker at ¶ 27, quoting Apprendi at 490. But it emphasized that under S.B.
201, the trial court has the discretion to sentence him to any minimum
sentence within the appropriate range, and the maximum sentence is
calculated based on the minimum sentence. It concluded that “[b]ecause no
determination by the DRC regarding [the offender's] behavior while in
prison will change the range of penalties prescribed by the legislature and
imposed by the trial court, the right to a jury trial is not implicated.” Id. at ¶
28.
{¶ 70} Third, the court concluded that S.B. 201 is not void for vagueness.
It found that the Law gives adequate notice of what is prohibited conduct—
“‘infractions or violations [that] demonstrate that the offender has not been
rehabilitated.’” Hacker at ¶ 31, quoting R.C. 2967.271(C)(1)(a). It
explained that “[t]he infractions or violations that may ‘demonstrate that the
offender has not been rehabilitated’ are those ‘that involve[ ] compromising
the security of a state correctional institution, compromising the safety of
the staff of a state correctional institution or its inmates, or physical harm or
the threat of physical harm to the staff of a state correctional institution or
its inmates, or * * * a violation of law that was not prosecuted.’ ” Id. at ¶
32, quoting R.C. 2967.271(C)(1)(a). The Ohio Supreme Court disagreed
that the DRC is given “unfettered discretion” to determine whether certain
infractions warrant maintaining an offender's incarceration. It observed that
the DRC is authorized to make similar determinations in a variety of other
contexts, thus, it reasoned, “[a]llowing the DRC some discretion does not,
on its own, make the Reagan Tokes Law unconstitutionally vague.” Id. at ¶
34.
{¶ 71} Finally, the Ohio Supreme Court concluded that the Reagan Tokes
Law does not, on its face, violate the right to due process. As an initial
matter, it recognized that offenders have a liberty interest in not being held
beyond the minimum prison term imposed by a trial court. It explained that
because “DRC's discretion to maintain an offender's incarceration beyond
the minimum prison term imposed by the trial court is curtailed by R.C.
2967.271(B),” there is a “presumption that an offender will be released at
the completion of his minimum sentence,” which “can be rebutted based on
the offender's behavior while incarcerated,” thereby giving rise to an
“interest that entitles offenders to due-process protection.” Id. at ¶ 36, citing
R.C. 2967.271(C). The court acknowledged that “[b]ecause a liberty
interest is at stake,” “due process requires a hearing before offenders are
deprived of that interest.” Id. at ¶ 37.
{¶ 72} The court observed that R.C. 2967.271(C) provides for a hearing.
But while the offenders argued that these hearings are inadequate, the court
stressed that their challenge was a facial challenge to the law itself—“‘the
most difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act would be
valid.’” Id. at ¶ 38, quoting United States v. Salerno, 481 U.S. 739, 745, 95
L.Ed.2d 697, 107 S.Ct. 2095 (1987). It explained that “[t]he fact that the
law ‘might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.’” Id., quoting id.
The Ohio Supreme Court refused to speculate about hypothetical or
imaginary scenarios where the law may be applied in a manner that might
violate an offender's due process rights. It did, however, leave open the
possibility that “the application of the DRC's policies made under R.C.
2967.271(C) would be subject to review as as-applied challenges, should
the facts of a specific case so warrant.” Id. at ¶ 39.
{¶ 73} For the reasons explained in our various decisions, and as recently
pronounced by the Ohio Supreme Court in Hacker, we find Fenderson's
fifth, sixth, seventh, and eighth assignments of error not well-taken.
State v. Fenderson, 2023-Ohio-2903, ¶¶ 61-73.
Here, the state appellate court relied on Ohio Supreme Court precedent in State v. Hacker, 173 Ohio
St.3d 219, 2023-Ohio-2535, 229 N.E.3d 38, which held that the “Reagan Tokes Law does not violate the
separation of powers doctrine, does not violate the right to a jury trial, is not void for vagueness, and on its
face, does not violate due process.” Fenderson, 2023-Ohio-2903, ¶63. A state court’s interpretation of state
law is binding upon a federal habeas court. See Bradshaw, 546 U.S. at 76; Bibbs v. Bunting, 1:16-cv-02069,
2017 WL 4083558, at *15 (N.D. Ohio May 17, 2017). As stated previously, “[a] challenge to a state court’s
interpretation and application of Ohio’s sentencing laws is not cognizable in a federal habeas corpus action.”
Allsup, 2013 WL 3200641, at *18; Howard v. White, No. 03–1042, 2003 WL 22146139, at *2 (6th Cir.
Sept.16, 2003).
For all of the foregoing reasons, the undersigned recommends Grounds Five and Six be dismissed
as non-cognizable.
IV. Exhaustion and Procedural Default
A. Legal Standard
Petitioners must exhaust their state remedies prior to raising claims in federal habeas corpus
proceedings. See 28 U.S.C. § 2254(b),( c). This requirement is satisfied “when the highest court in the state
in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's
claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990).
Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner
demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim
would result in a fundamental miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.
2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A claim may
become procedurally defaulted in two ways. Id. First, a petitioner may procedurally default a claim by
failing to comply with state procedural rules in presenting his claim to the appropriate state court. Id.; see
also Maupin v. Smith, 785F.2d 135, 138 (6th Cir. 1986). If, due to petitioner's failure to comply with the
procedural rule, the state court declines to reach the merits of the issue, and the state procedural rule is an
independent and adequate grounds for precluding relief, the claim is procedurally defaulted.2 Id.
2 In Maupin, the Sixth Circuit established a four-step analysis to determine whether a claim is procedurally
defaulted. 785 F.2d at 135. Under this test, the Court decides (1) whether the petitioner failed to comply
with an applicable state procedural rule, (2) whether the state courts actually enforced the state procedural
sanction, (3) whether the state procedural bar is an “independent and adequate” state ground on which the
state can foreclose federal review, and (4) whether the petitioner has demonstrated “cause” and “prejudice.”
Id. at 138–39; Barkley v. Konteh, 240 F. Supp.2d 708 (N.D. Ohio 2002). “In determining whether a state
court actually enforced a procedural rule, we apply the ‘plain statement’ rule of Michigan v. Long, 463 U.S.
1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).” Lovins v. Parker, 712 F.3d 283, 296 (6th Cir. 2013) (“a
procedural default does not bar consideration of a federal claim on either direct or habeas review unless the
last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on the
procedural bar.”) (citations omitted).
Second, a petitioner may also procedurally default a claim by failing to raise and pursue that claim
through the state's “ordinary appellate review procedures.” O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). If, at the time of the federal habeas petition, state law no longer allows
the petitioner to raise the claim, it is procedurally defaulted. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102
S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731–32, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991); Lovins, 712 F.3d 283, 295 (6th Cir. 2013) (“a claim is procedurally defaulted where
the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the
federal petition is filed because of a state procedural rule.”) This second type of procedural default is often
confused with exhaustion. Exhaustion and procedural default, however, are distinct concepts. AEDPA's
exhaustion requirement only “refers to remedies still available at the time of the federal petition.” Engle,
456 U.S. at 125 n. 28. Where state court remedies are no longer available to a petitioner because he failed
to use them within the required time period, procedural default and not exhaustion bars federal court review.
Id. In Ohio, a petitioner is not entitled to raise claims in post-conviction proceedings where those claims
could have been raised on direct appeal. Id. Thus, if an Ohio petitioner failed to raise a claim on direct
appeal, which could have been raised, the claim is procedurally defaulted. Id.
A claim is adequately raised on direct appeal if it was “fairly presented” to the state court. To fairly
present a claim to a state court a petitioner must assert both the legal and factual basis for his claim. See
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a “petitioner must present his claim
to the state courts as a federal constitutional issue-not merely as an issue arising under state law.” Koontz
v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A petitioner can take four actions in his brief which are
significant to the determination as to whether a claim has been fairly presented as a federal constitutional
claim: (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. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
A petitioner's procedural default, however, may be excused upon a showing of “cause” for the
procedural default and “actual prejudice” from the alleged error. See Maupin, 785 F.2d at 138–39.
“Demonstrating cause requires showing that an ‘objective factor external to the defense impeded counsel's
efforts to comply’ with the state procedural rule.” Franklin v. Anderson, 434 F.3d 412, 417 (6th Cir. 2006)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Meanwhile, “[d]emonstrating prejudice requires
showing that the trial was infected with constitutional error.” Id. Where there is strong evidence of a
petitioner's guilt and the evidence supporting petitioner's claim is weak, the actual prejudice requirement is
not satisfied. See United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Perkins
v.LeCureux, 58 F.3d 214, 219–20 (6th Cir. 1995); Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994).
Prejudice does not occur unless petitioner demonstrates “a reasonable probability” that the outcome of the
trial would have been different. See Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003) (citing Strickler
v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
Finally, a petitioner's procedural default may also be excused where a petitioner is actually innocent
in order to prevent a “manifest injustice.” See Coleman v. Thompson, 501 U.S.722, 749–50, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991). Conclusory statements are not enough—a petitioner must “support his allegations
of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S.
298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). See also Jones v. Bradshaw, 489 F. Supp.2d 786, 807
(N.D. Ohio 2007); Allen v. Harry, 2012 WL 3711552 at * 7 (6th Cir. Aug. 29, 2012).
B. Application to Petitioner
Here, Fenderson fairly presented his First, Second, Fourth, Fifth, and Sixth habeas grounds to the
Ohio courts. Fenderson procedurally defaulted on his Third Ground for relief due to his failure to object to
the victim impact letter at the trial court sentencing. The Sixth Circuit has held that failure to object
contemporaneously at trial means petitioner waives “all but plain error review” under Ohio law, and Ohio’s
enforcement of the contemporaneous-objection rule is “‘an independent and adequate state ground’ of
decision” sufficient to bar habeas relief. Hand v. Houk, 871 F.3d 390, 417 (6th Cir. 2017), citing Wogenstahl
v. Mitchell, 668 F.3d 307, 336 (6th Cir. 2012). “The mere fact that the Ohio Supreme Court conducted ‘plain
error review does not constitute a waiver of the state's procedural default rules and resurrect the issue.’” Id.,
citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006). In Hand, the petitioner failed to object to a trial
court jury instruction during trial, and even though the claim was raised on direct appeal for plain error, the
claim was procedurally defaulted. (Id.) The Hand Court found Hand was barred from raising this claim for
relief in a habeas petition unless he could demonstrate cause and prejudice to excuse the default. (Id.)
Fenderson argues he did not procedurally default because under Ohio law, a defendant is not
guaranteed the right to obtain and respond to a victim’s statement. (Doc. No. 10 at 32, citing R.C.
2930.14(A) (the court “may give copies of any written statement made by the victim.”)) Fenderson claims
victim statements are typically a recitation of the suffering the victim endured and do not usually contain
new information, and thus, Fenderson did not know he had reason to object until the court of appeals issued
its opinion and provided more detail of the contents of the letter. (Id. at 33-34.)
Here, as in Hand, Fenderson did not object to the victim impact letter at the trial court level. Review
of the sentencing transcript reveals Fenderson’s trial counsel did object at other times during the sentencing
and was generally advocating on behalf of his client. (Doc. No. 8-7 at 18-19, 56.) When the victim advocate
stated the victim’s mother provided a statement for the judge to read that the victim’s mother did not want
read aloud, Fenderson’s counsel failed to object, and only made a statement about allowing Fenderson’s
family to make a statement. (Id. at 65.)
Accordingly, the undersigned recommends finding Fenderson’s Third Ground procedurally
defaulted.
Despite this failure, Fenderson can overcome procedural default if he can show both cause and
prejudice. See Maupin, 785 F.2d at 138–39. To show cause, an external factor must be shown to impede
efforts to comply with the procedural rule. See Franklin, 434 F.3d at 417. Prejudice is not shown unless
Fenderson demonstrates that there is a “reasonable probability” that the outcome would have been different.
See Mason, 320 F.3d at 629. Even assuming arguendo that Fenderson can show cause, he cannot show
prejudice. As the state appellate court explained, the victim impact letter contained no new information
different from that presented by the state at sentencing and discussed the emotional impact the victim’s
death had on his family which the court explained was “essentially irrebuttable.” Fenderson, 2023-Ohio-
2903, ¶ 59. The outcome would not have been different had the letter been disclosed. Therefore, Fenderson
cannot show prejudice.
For all of the foregoing reasons, the undersigned recommends finding Fenderson’s Third Ground
procedurally defaulted as well as non-cognizable.
V. Motion to Expand the Record
Currently pending is Petitioner’s Motion to Compel Respondent to Supplement or Expand the
Record (Doc. No. 11). Respondent filed a brief in opposition to the motion. (Doc. No. 15.) For the following
reasons, Petitioner’s Motion to Expand the Record (Doc. No. 11) is DENIED.
In his Motion to Expand the Record, Fenderson requests the Court compel Respondent to
supplement the record pursuant to Rule 5(c), or to expand the record under Rule 7 of the Rules Governing
Section 2254 Cases, to include the following:
• Manually filed exhibits, “including hard drives containing video and
photographic evidence . . . includ[ing] videos and still images from
the victim’s social media accounts in which he publicly taunted and
threatened Petitioner and others while brandishing an automatic
firearm, as well as other visual evidence which is relevant to
sentencing and the factual basis of the habeas claims.”
• A “sealed victim impact statement” the trial court relied on for
sentencing purposes.
• A sealed Presentence Investigation report that trial counsel was
permitted to review but not retain.
(Doc. No. 11, pp. 1-2.) Fenderson argues the evidence should be included because “[t]heir absence impairs
the Court’s ability to evaluate the constitutional claims.” (Id. at 2.) Fenderson further argues the sealed
victim impact statement is relevant to Ground Three, which challenges the trial court’s reliance on the victim
impact statement where the contents of the statement were not disclosed. (Id.) Finally, Fenderson argues the
sealed Presentence Investigation Report should be included because it demonstrates the mother of the victim
was not a witness and had no firsthand knowledge of the crime. (Id.) Fenderson states trial counsel was
permitted to review the Presentence Investigation Report (“PSI”) but could not retain a copy. (Id.)
Respondent argues Fenderson’s motion should be denied because a “sentence within state statutory
limits is not cognizable” and, in general, Fenderson’s “habeas grounds are not cognizable or not reviewable
for other reasons, or meritless”, as detailed in Return of Writ. (Doc. No. 12, p. 1.) Regarding the PSI,
Respondent claims Fenderson “had the opportunity to correct inaccuracies but refused to participate in the
presentence investigation process.” (Id. at 3.) Respondent asserts Ohio law does not require that defendants
receive a copy of a PSI but instead have an opportunity to review it. (Id. at 4.) Regarding Ground Three,
Respondent claims the trial court properly imposed the RVO sentence pursuant to Ohio law. (Id. at pp. 5-
6.) Respondent argues the trial court was not required, under Ohio law, to provide Fenderson a copy of the
victim impact statement. (Id. at 6.)
Fenderson replies that “the challenges [he] asserts in every ground are cognizable. (Doc. No. 14, p.
1.) Fenderson reiterates the PSI is relevant to determining the merits of Ground Three. (Id. at 2.) Fenderson
argues the sealed victim impact statement contained new, prejudicial information that Fenderson did not
know about until the court of appeals issued its decision, is necessary to evaluate the merits of Ground
Three. (Id. at 3-4.) Fenderson claims the manually filed exhibits “may refute the undisclosed victim’s
statement” and “provide context for the other habeas grounds.” (Id. at 4.)
Rule 5(c) of the Rules Governing Section 2254 Cases provides, in part, “[t]he respondent must attach
to the answer parts of the transcript that the respondent considers relevant. The judge may order that the
respondent furnish other parts of existing transcripts or that parts of untranscribed recordings be transcribed
and furnished.” Rules Governing § 2254 Cases, 28 U.S.C. § 2254 (2010), R.5(c). Rule 7(a) of the Rules
Governing Section 2254 Cases in the United States District Courts provides that a court may direct the
parties to expand the record by submitting additional materials relating to the petition. See Rules Governing
§ 2254 Cases, R. 7(a).
“[T]he Sixth Circuit has recognized that expansion of the record in habeas cases ‘is not mandatory .
. . and is left to the discretion of the trial judge.’” Myers v. Haviland, No. 3:16-CV-00659, 2017 WL
9476855, at *17 (N.D. Ohio May 8, 2017) (quoting Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988)).
However, “[a] district court's discretion to expand the record is limited by their inability to consider evidence
not presented before the state courts when determining the merits of a claim that the state courts addressed
on the merits.” Sands v. May, No. 1:23-CV-02222-JJH, 2024 WL 5186763, at *12 (N.D. Ohio Dec. 20,
2024), quoting Newton v. Turner, No. 1:20-cv-2799, 2024 WL 1853042, at *2 (N.D. Ohio Apr. 29, 2024)
(citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011)).
The undersigned finds Fenderson’s requests to expand the record unwarranted. As explained above,
Fenderson’s grounds for relief are non-cognizable and/or procedurally defaulted. Even if the Court were to
consider the requested additional evidence, it would not alter the fact that Fenderson’s claims are non-
cognizable or procedurally defaulted. Expansion of the record is thus unnecessary and unwarranted. See
Newton, 2024 WL 1853042 at *2 (holding that expansion of record was unwarranted where petitioner's
claims were either non-cognizable or procedurally defaulted); Hartman v. May, No. 3:23-CV-00005, 2023
WL 11016263, at *10 (N.D. Ohio July 20, 2023) (denying in part petitioner's motion to expand record where
documents were unnecessary to resolution of petition); Brown v. Miller, No. 5:13CV2842, 2015 WL
4879100, at *22 (N.D. Ohio Aug. 14, 2015) (denying motion to expand record where existing record was
sufficient to resolve petitioner's claims).
Fenderson’s Motion to Expand the Record (Doc. No. 11) is DENIED.
VI. Conclusion
For all the reasons set forth above, it is recommended that the Petition be DENIED. Fenderson’s
Motion to Expand the Record (Doc. No. 11) is DENIED.
Date: July 28, 2026 s/ Jonathan Greenberg
Jonathan D. Greenberg
United States Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts
within fourteen (14) days after being served with a copy of this document. Failure to file objections
within the specified time may forfeit the right to appeal the District Court’s order. Berkshire v.
Beauvais, 928 F.3d 520, 530-31 (6th Cir. 2019).