Blanton

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

DENNY BLANTON, JR., : Case No. 1:23-cv-538

:

Petitioner, :

: District Judge Susan J. Dlott

vs. :

Magistrate Judge Chelsey M. Vascura

:

WARDEN, MANSFIELD :

CORRECTIONAL INSTITUTION, :

:

Respondent. :

REPORT AND RECOMMENDATION

Petitioner, Denny Blanton, a state prisoner proceeding with counsel, seeks habeas corpus

relief pursuant to 28 U.S.C. § 2254. This matter is before the Court to consider the Petition

(Doc. 1), the Return of Writ (Doc. 11), Petitioner’s Reply (Doc. 18), and the state court record

(Doc. 10). For the reasons that follow, the undersigned RECOMMENDS that the Petition be

DENIED and this action DISMISSED WITH PREJUDICE.

I. FACTS AND PROCEDURAL HISTORY

In 2016, when Petitioner was eighteen years old and a senior in high school, he faced

charges of raping a freshman girl. That case proceeded to trial, and a jury convicted him of two

counts of rape, two counts of kidnapping, and sexually violent predator specifications. See State

v. Blanton, No. 16CA1031, 2018-Ohio-1275, 2018 WL 1611408 (Ohio App. 4th Dist. 2018). He

challenges those convictions and sentence in a separate habeas action in this Court. See Blanton

v. Warden, Mansfield Corr. Inst., 1:23-cv-537 (S.D. Ohio).

While Petitioner awaited trial on the rape case at the Adams County jail, he became

involved in a jail fight club. These activities led to his convictions for kidnapping and felonious

assault that are the subject of this case. The Ohio Supreme Court summarized the underlying

facts as follows:

{¶ 15} While he was being held in jail on the rape charges, Blanton and two other

inmates beat up Gary Lunsford, one of their cellmates. Lunsford told authorities

that after the attack, Blanton and the others prevented him from seeking medical

assistance for his injuries. Blanton was charged with felonious assault and

kidnapping for his role in the attack on Lunsford. The trial court conducted a second

jury trial on the charges stemming from Blanton’s conduct while in jail.

{¶ 16} Trial testimony revealed that Blanton and six other inmates in his cell block

had participated in a “fight club.” Blanton and two others, Devon Michael and Zack

McKee, organized the matches. In the two weeks leading up to the attack on

Lunsford, fights took place nearly every day. Lunsford, in his telling, was reluctant

to participate; but Blanton, Michael, and McKee told him that if he didn’t, they

would make him fight all three of them at once. Lunsford said the three would often

“congregate together” and that he “knew something was going to happen, [but not]

to who or what.”

{¶ 17} One afternoon, Lunsford and another inmate wrestled while Blanton

refereed. After they took a break, McKee walked up and “sucker punched”

Lunsford. Michael joined in, and he and McKee forced Lunsford to the floor, taking

turns kicking and punching him in his head and body. Once Michael and McKee

had finished with him, Blanton walked over and punched Lunsford some 15 times

in the head as he lay on the floor. A video of the attack shows that Lunsford was

not moving much, if at all, during Blanton’s initial attack.

{¶ 18} After some time, Lunsford tried to get up. Blanton quickly ran over and

delivered swift blows to Lunsford’s head. Then Blanton backed Lunsford up

against the wall and began pummeling him with his fists. Lunsford stumbled away

and fell to the floor, motionless. Michael and McKee joined back in and stomped

on Lunsford a few more times. The three attackers circled Lunsford as he lay on

the ground. Each time Lunsford tried to stand, they knocked him back down. This

went on until Lunsford finally collapsed onto one of the bunks.

{¶ 19} Lunsford said he did not remember much of the assault, because he had been

“knocked unconscious” and was “incapacitated.” Another cellmate recounted: “I

seen he was wrapped up in a ball with his hands over his face and then he was

kicked in the back of his head and then his arms went limp. He was out for a few

seconds and then he come back to.”

{¶ 20} Lunsford maintained that he did not immediately tell jail personnel that he

had been hurt because he “wasn’t permitted to” by his three attackers. He stayed in

his bunk, and he covered his head with a blanket whenever a guard walked by. A

fellow inmate brought him his food when the cafeteria trays were delivered.

Lunsford’s trio of attackers threatened that he would “get the same treatment again

if [he] tried to hit the call box.”

{¶ 21} After a couple days of this, a corrections officer told Lunsford to get out of

his bunk and pick up his tray at the cell’s door. She saw that he had been beaten up

and took him out of the cell. Lunsford had significant visible injuries: two black

eyes; a busted lip; bruising on his face, neck, stomach, and back; and a gash on his

head. He was taken to the hospital, where an emergency-room doctor concluded

that he had sustained a concussion.

{¶ 22} Blanton did not testify in his defense. A jury found him guilty of felonious

assault and kidnapping for his attack on Lunsford. Blanton appealed those

convictions, and the Fourth District affirmed. See State v. Blanton, 2018-Ohio-

1278, 110 N.E.3d 1 (4th Dist.).

(Doc. 10, Ex. 53 at PageID 1169-71); State v. Blanton, 171 Ohio St.3d 19, 21-22, 215 N.E.3d

467 (2022). The trial court sentenced Petitioner to consecutive six-year prison terms on the

kidnapping and felonious assault counts, to be served consecutively to the previously imposed

sentences in the rape case. (Doc. 10, Ex. 12 at PageID 157-59).

A. Direct Appeal

On November 21, 2016, Petitioner, represented by new counsel, filed a direct appeal to

Ohio’s Fourth District Court of Appeals, raising eight assignments of error. (Doc. 10, at PageID

162, 190). On March 27, 2018, the Court of Appeals affirmed his convictions and sentence. (Id.

at PageID 281); State v. Blanton, 110 N.E.3d 1 (Ohio Ct. App. 2018). Petitioner filed a notice of

appeal and a memorandum in support of jurisdiction, but the Ohio Supreme Court declined to

accept jurisdiction. (Doc. 10, at PageID 363, 367-84, 486); State v. Blanton, 153 Ohio St.3d

1452 (2018).

B. Post-conviction Proceedings

On January 24, 2018, Petitioner, through counsel, filed a petition to vacate or set aside his

judgment of conviction and sentence. (Doc. 10, at PageID 508). The trial court consolidated the

jail and rape cases and dismissed both petitions without a hearing, finding all of Petitioner’s

claims barred by res judicata. (Id. at PageID 586-94).

Petitioner filed a timely consolidated appeal raising two assignments of error. (Id. at

PageID 633, 665). On December 23, 2020, the Fourth District Court of Appeals affirmed the

decision of the trial court, finding Petitioner’s claims both barred by res judicata and lacking

merit. (Id. at PageID 748, 768-81); State v. Blanton, Nos. 19CA1096, 19CA1097, 2020 Ohio

7018, 2020 WL 8093524 (Ohio App. 4th Dist. Dec. 23, 2020).

On February 8, 2021, Petitioner appealed to the Ohio Supreme Court, raising four

propositions of law. (Doc. 10, at PageID 783-802). On April 28, 2021, the Ohio Supreme Court

accepted his consolidated appeal and ordered the parties to brief the issues. (Id. at PageID 817).

The Ohio Public Defender’s Office, the Ohio Association of Criminal Defense Lawyers, and the

Office of the Cuyahoga County Public Defender submitted an amici curiae brief in support of

Petitioner. (Id. at PageID 1071). On November 9, 2022, the Ohio Supreme Court affirmed the

decision of the Fourth District Court of Appeals. State v. Blanton, 171 Ohio St.3d 19 (2022).

II. FEDERAL HABEAS PROCEEDINGS

On August 25, 2023, Petitioner, through counsel, filed the instant federal habeas petition.

He asserts eight grounds for relief with the following supporting facts:

GROUND 1: Petitioner’s conviction for felonious assault is not supported by

evidence sufficient to satisfy the Due Process Clause of the Fourteenth

Amendment.

Supporting Facts: A jail inmate sucker punched the victim and caused him to lose

consciousness. Petitioner was present when this occurred. The trial judge did not

instruct the jury regarding the limited circumstances under the Ohio complicity

statute for imputing criminal liability to a defendant for the conduct of a third party.

In the absence of such an instruction, the evidence of Petitioner’s mere presence

while the other inmate committed a felonious assault upon the victim was

insufficient to support Petitioner’s conviction for felonious assault either as a

principal offender or as an accomplice.

GROUND 2: Petitioner’s conviction for kidnapping is not supported by evidence

sufficient to satisfy the Due Process Clause of the Fourteenth Amendment.

Supporting Facts: The Ohio kidnapping statute requires proof that the accused

restrained another of his liberty. The alleged victim of the kidnapping count was a

fellow inmate in the county jail where Petitioner was confined. The alleged victim

admitted the restraint on his liberty was due to the inherent nature of his jail

sentence. The prosecution tried Petitioner for kidnapping on a theory that he

deprived the alleged victim of his “freedom of choice” to seek protection or medical

assistance from corrections officers. However, this theory would only support a

conviction for the misdemeanor offense of coercion. The evidence was insufficient

to support Petitioner’s conviction for the felony offense of kidnapping.

GROUND 3: The denial of Petitioner’s request for a jury instruction on the lesser

included offense of misdemeanor assault violated his rights under the Due Process

Clause of the Fourteenth Amendment.

Supporting Facts: Petitioner conceded he committed a misdemeanor offense of

assault by striking the victim several times with his fists. He denied aiding and

abetting another inmate who committed the felony crime of felonious assault by

sucker punching the victim and causing him to lose consciousness. The trial court’s

refusal to instruct the jury on misdemeanor assault as a lesser included offense

exposed Petitioner to a substantial risk of being convicted of the more serious crime

of felonious assault due to the jury’s natural inclination to convict him of some

offense rather than to acquit him of any wrongdoing.

GROUND 4: A defective complicity instruction violated Petitioner’s rights under

the Due Process Clause of the Fourteenth Amendment.

Supporting Facts: The trial court failed to instruct the jurors that before Petitioner

could be convicted under a theory of complicity for a felony committed by a

principal offender, the prosecution needed to prove beyond a reasonable doubt that

he solicited, procured, aided and abetted, or conspired with the principal offender,

and shared the principal offender’s culpable mental state. The incomplete

instruction prejudiced Petitioner because it invited the jurors to find him guilty

based on their own concept of vicarious criminal liability, rather than what the Ohio

complicity statute actually requires.

GROUND 5: The State’s failure to arrange for Petitioner’s presence for a pretrial

hearing on a motion to dismiss the indictment violated his rights under the Due

Process Clause of the Fourteenth Amendment.

Supporting Facts: The trial court held a pretrial hearing on Petitioner’s motion to

dismiss the indictment as a remedy for the state’s failure to preserve materially

exculpatory evidence, to wit, a video recording of the assault on the victim. The

state failed to make arrangements for Petitioner to be present for the hearing on the

motion. The court ultimately denied the motion without receiving testimony from

Petitioner regarding the circumstances underlying the absence or destruction of the

missing video footage. Due to lack of overwhelming evidence of his guilt,

Petitioner’s involuntary absence from the pretrial hearing was not harmless beyond

a reasonable doubt.

GROUND 6: The trial court’s refusal to permit defense counsel to cross-examine

the jail administrator about his failure to preserve potentially exculpatory video

evidence violated Petitioner’s right of confrontation and right to present a complete

defense under the Sixth and Fourteenth Amendments.

Supporting Facts: The trial judge sustained the prosecutor’s objection to defense

counsel’s attempt to cross-examine the jail administrator about the missing video

footage. This unreasonable restriction on cross-examination deprived Petitioner of

the opportunity to develop testimony undermining the completeness of the video

footage that was offered into evidence, its value as corroborative evidence, and the

integrity and thoroughness of the investigation. As a consequence, Petitioner’s jury

was left with the false perception that the video footage had been screened by the

parties for relevancy, that the segments played for them contained the only relevant

images, and that none of the deleted segments favored the defense position. Due

to lack of overwhelming evidence of Petitioner’[s] guilt, the restriction on cross-

examination was not harmless beyond a reasonable doubt.

GROUND 7: The State’s failure to preserve video footage of the assault on the

victim violated Petitioner’s rights under the Due Process Clause of the Fourteenth

Amendment.

Supporting Facts: The jail administrator failed to preserve video footage from a

second camera that contained images of the assault on the victim from a different

angle than the first camera. These images would have supported Petitioner’s

defense that he did not participate or have any involvement in the sucker punch

inflicted by another inmate that caused serious physical harm to the victim. Due to

the prosecutor’s emphasis on the importance of the video evidence from the first

camera, and the lack of overwhelming evidence of Petitioner’s guilt, the failure to

preserve the second camera footage was not harmless beyond a reasonable doubt.

GROUND 8: Petitioner was deprived of his Sixth and Fourteenth Amendment

right to the effective assistance of trial counsel due to multiple instances of deficient

performance.

Supporting Facts: Petitioner was prejudiced by his trial attorneys’ deficient

performance in the following respects:

1) Trial counsel failed to insist on his client’s presence for the pretrial

hearing on his motion to dismiss the indictment for failure to preserve

exculpatory evidence, and failed to subpoena the jail administrator to

testify about the missing video footage. Petitioner could have testified

that the jail administrator had showed him video footage from the

second camera that would have refuted the prosecutor’s argument that

Petitioner attacked an unconscious, defenseless man.

2) It is a legal impossibility for an inmate to kidnap another inmate

confined with him in the same jail. Trial counsel failed to adequately

pursue this line of defense during the jury trial.

3) The alleged threats made against the victim to discourage him from

requesting assistance (if proven) would violate the Ohio misdemeanor

coercion statute. Trial counsel failed to move for dismissal of the

kidnapping count on the ground that the legislature intended that the

coercion statute should prevail over the general kidnapping statute in

this factual scenario.

4) The trial court’s complicity instruction omitted the statutory

requirements for accomplice liability. Although trial counsel lodged a

general objection to a complicity instruction, he failed to specifically

object to the accuracy and completeness of the instruction as given. This

omission was prejudicial because the evidentiary basis for conviction

under a complicity theory was extremely weak to non-existent.

5) Trial counsel advised Petitioner that he should not testify in his own

behalf because the prosecutor had an absolute right to impeach him with

convictions previously entered in a rape and kidnapping trial. This

advice was premised on an incorrect statement of the law. Petitioner

relied on this erroneous advice. As a consequence Petitioner was

deprived of his right to testify and to inform the jury of the facts

supporting his innocence of the felony charges.

6) Trial counsel failed to file an affidavit to disqualify the trial judge for

bias arising from the relationships between the judge and participants in

an earlier trial on rape and kidnapping charges. The judge’s ongoing

bias and lack of impartiality influenced his rulings and deprived

Petitioner of an opportunity to develop evidence regarding the

intentional failure of the jail administrator to preserve exculpatory

evidence.

The outcome of the trial turned on the jury’s assessment of the

credibility of the jail inmates who testified against him. These inmates

had prior criminal records and motive to lie. The unprofessional errors

of trial counsel tipped the credibility scale squarely in favor of the

prosecution. There is a reasonable probability that the jury would have

returned not guilty verdicts if trial counsel had not engaged in the

multiple instances of deficient performance listed above.

(Doc. 1, at PageID 5-14). Respondent filed the state court record, (Doc. 10), and a Return of

Writ, (Doc. 11), arguing that all of Petitioner’s claims lack merit or are procedurally defaulted.

Petitioner filed a Traverse, (Doc. 18), and the matter is ripe for review.

III. STANDARDS OF REVIEW

A. AEDPA

The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). The United States Supreme Court has described AEDPA as “a

formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in

state court” and emphasized that courts must not “lightly conclude that a State’s criminal justice

system has experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.”

Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011));

see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential

standard for evaluating state-court rulings and demands that state-court decisions be given the

benefit of the doubt.”) (internal quotation marks, citations, and footnote omitted).

AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a

federal court from granting habeas relief with respect to a “claim that was adjudicated on the

merits in State court proceedings” unless the state-court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The United States Court of Appeals for the Sixth Circuit explained the meaning of the

standards found in § 2254(d)(1) as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ “if the

state court applies a rule different from the governing law set forth in our cases, or

if it decides a case differently than we have done on a set of materially

indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152

L.Ed.2d 914 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000)). Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court identifies the correct

governing legal principle from the Supreme Court’s decisions but unreasonably

applies the law or bases its decision on an unreasonable determination of the facts,

in light of the record before the state court. Harrington v. Richter, 562 U.S. 86, 100,

131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams, 529 U.S. at 412-13.

Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018).

Under § 2254(d)(2), a state court’s factual determination is not “unreasonable” merely

because the federal habeas court would have reached a different conclusion. Wood v. Allen, 558

U.S. 290, 301 (2010). Instead, a state court’s factual findings are “only unreasonable where they

are ‘rebutted by clear and convincing evidence’ and do not have support in the record.” Moritz

v. Woods, 692 F. App’x 249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158

(6th Cir. 2017)). Moreover, “[f]actual determinations by state courts are presumed correct absent

clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the

merits in a state court and based on a factual determination will not be overturned on factual

grounds unless objectively unreasonable in light of the evidence presented in the state-court

proceeding[.]” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003)).

The burden of satisfying AEDPA’s standards rests with the petitioner. See Cullen v.

Pinholster, 563 U.S. 170, 181 (2011).

B. Procedural Default

In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and to prevent needless friction between the state and federal courts, a

state criminal defendant with federal constitutional claims is required to first present those claims

to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but

still has an avenue open to present the claims, then the petition is subject to dismissal for failure

to exhaust state remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard

v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust claims but

would find those claims barred if later presented to the state courts, “there is a procedural default

for purposes of federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

Over time, the term “procedural default” has come to describe a situation where a person

convicted of a crime in a state court fails (for whatever reason) to properly present a particular

claim to the highest court of the state so that the state has a fair chance to correct any errors made

in the course of the trial or the appeal, before a federal court intervenes in the state criminal

process. This “requires the petitioner to present ‘the same claim under the same theory’ to the

state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552-53

(6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects

of “fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way

that gives the state courts a fair opportunity to rule on the federal law claims being asserted.

That means that if the claims are not presented to the state courts in the way in which state law

requires, and the state courts therefore do not decide the claims on their merits, neither may a

federal court. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977),

“contentions of federal law which were not resolved on the merits in the state proceeding due to

[the] failure to raise them there as required by state procedure” also cannot be resolved on their

merits in a federal habeas case – that is, they are “procedurally defaulted.” It is well settled that

“[a] common example of a procedural default is a failure to raise a claim in state court in a

timely manner.” Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021).

To determine whether procedural default bars a habeas petitioner’s claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin

standard). First, the court must determine whether there is a state procedural rule that is

applicable to the petitioner’s claim and whether the petitioner failed to comply with the rule.

Second, the court must determine whether the state courts actually enforced the state procedural

sanction. Third, the court must determine whether the forfeiture is an adequate and independent

state ground on which the state can rely to foreclose review of a federal constitutional claim.

Finally, if the court determines that a state procedural rule was not complied with and the rule

has an adequate and independent state ground, then the petitioner may still obtain review of his

or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the default

and (2) that he or she was actually prejudiced by the alleged constitutional error. Maupin, 785

F.2d at 138. In order to establish cause, a petitioner must show that “some objective factor

external to the defense” impeded the petitioner’s efforts to comply with the state’s procedural

rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). The petitioner bears the burden of showing

cause and prejudice. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001).

IV. DISCUSSION

For the reasons that follow, the undersigned concludes that Petitioner’s claims are either

procedurally defaulted or lack merit.

A. Grounds One and Two – Sufficiency of the Evidence

In his first and second grounds for relief, Petitioner argues the evidence presented at trial

was insufficient to convict him of felonious assault and kidnapping. He argues the evidence was

too light with respect to the felonious assault conviction because he did not throw the punch that

rendered Lunsford unconscious and caused him serious physical harm. (Doc. 1, at PageID 5).

As to the kidnapping count, Petitioner claims it was legally impossible to kidnap Lunsford

because Lunsford was already locked up in the county jail and any restraint on his liberty was

due to the inherent nature of his jail sentence. (Id. at PageID 7).

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court established the standard

federal habeas courts must use for evaluating constitutional claims challenging the sufficiency of

the evidence. Because the Due Process Clause requires the state to prove beyond a reasonable

doubt every fact necessary to constitute the charged offense, “the relevant question” in assessing

the evidence “is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). Under Jackson,

the state is not required to rule out every hypothesis except that of guilt beyond a reasonable

doubt. Id. at 326. Rather, “a federal habeas corpus court faced with a record of historical facts

that supports conflicting inferences must presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must

defer to that resolution.” Id.; see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983).

The trier of fact resolves conflicts in testimony, weighs the evidence, and draws reasonable

inferences. Jackson, 443 U.S. at 319. Consequently, the reviewing court is not permitted to

reweigh the evidence, reevaluate the credibility of witnesses, make its own subjective

determination of guilt or innocence, or otherwise substitute its opinion for that of the jury. Id. at

318-19 & n.13; see also Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

Under AEDPA, federal habeas review of a claim challenging the sufficiency of the

evidence is even more stingy. As the Sixth Circuit explained in Brown v. Konteh, the federal

habeas court is “bound by two layers of deference to groups who might view facts differently

than [the habeas court] would.” 567 F.3d at 205. The habeas court must defer not only to the

trier of fact’s findings as required by Jackson, but under 28 U.S.C. § 2254(d), must also “defer to

the state appellate court’s sufficiency determination as long as it is not unreasonable.” Id.

(emphasis in original). The Sixth Circuit went on to emphasize:

[W]e cannot rely simply upon our own personal conceptions of what evidentiary

showings would be sufficient to convince us of the petitioner’s guilt. We cannot

even inquire whether any rational trier of fact would conclude that petitioner . . . is

guilty of the offenses with which he was charged. Instead, we must determine

whether the Ohio Court of Appeals itself was unreasonable in its conclusion that a

rational trier of fact could find [the petitioner] guilty beyond a reasonable doubt

based upon the evidence introduced at trial.

567 F.3d at 205. All in all, a habeas petitioner raising a sufficiency-of-the-evidence claim faces

“a ‘nearly insurmountable hurdle.’” James v. Corrigan, 85 F.4th 392, 395 (6th Cir. 2023)

(quoting Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011)).

Here, the jury found Petitioner guilty of felonious assault and kidnapping, and he raised

sufficiency-of-the-evidence challenges on direct appeal to the Fourth District Court of Appeals.

(Doc. 10, at PageID 191, 205-11). The state appellate court began its analysis by identifying and

setting forth the applicable sections of the Ohio Revised Code governing those offenses, as well

as pertinent definitions. Blanton, 110 N.E.3d at 12, 18 (referencing O.R.C. § 2903.11(A)(1)

(felonious assault) and § 2905.01(B)(2) (kidnapping)); see Brown v. Palmer, 441 F.3d 347, 351

(6th Cir. 2006) (noting the Jackson standard must be applied “with explicit reference to the

substantive elements of the criminal offense as defined by state law”) (quoting Jackson, 443 U.S.

at 324 n.16). The state court then thoroughly analyzed the evidence that supported Petitioner’s

convictions and found it sufficient. Blanton, 110 N.E.3d at 11-22, ¶¶ 11-62.

1. Felonious Assault

The Court starts with the felonious assault conviction. Ohio Revised Code

§ 2903.11(A)(1) sets forth the crime of felonious assault and provides that “No person shall

knowingly . . . cause serious physical harm to another.” The Revised Code further states: “A

person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct

will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when the person is aware that such circumstances probably exist.”

O.R.C § 2901.22(B). Serious physical harm includes harm that produces “temporary, substantial

incapacity” or “acute pain of such duration as to result in substantial suffering or that involves

any degree of prolonged or intractable pain.” O.R.C. § 2901.01(A)(5)(c), (d), and (e).

In a detailed analysis, the state appellate court determined the evidence was enough to

show Petitioner knowingly caused serious physical harm to Lunsford. The evidence at trial

established that supervision in the Adams County jail was seriously lacking, and the inmates set

up a fight club for entertainment. The state appellate court noted the following:

{¶ 15} At trial, the jury saw surveillance footage from the jail’s video system which

showed the attack on Gary Lunsford by Appellant and the two other inmates.

Lunsford identified his attackers as he testified and the tape was shown. In support

of his argument hereunder, Appellant points to an approximate 2-4 minute interval

between the time when Lunsford sustained a “sucker punch” by another inmate,

Zach Mckee, and when Appellant “entered” into the fray. Appellant argues this

evidence eliminates him as the principal offender of the infliction of the blow that

allegedly resulted in the serious physical harm to Lunsford. Appellant also argues

that the testimony is insufficient to permit a rational trier of fact to find beyond a

reasonable doubt that he acted collectively to cause serious physical harm to

Lunsford.

{¶ 16} Based upon our review of the videotape and the testimony, however, we

disagree. As the State played the videotape, Gary Lunsford identified himself and

several other inmates: Robert Long, Mark Mefford, Zach McKee, Devon Michaels,

and Appellant. Mark Mefford testified that during the time frame between June 5,

2016 and June 20, 2016, fights were organized in the cell by Appellant.

Specifically, Mefford testified: “Blanton, he was the main spoke of it, he kept

saying, I want to see some wrestling, I want to see some action in here, and it was

for their amusement.” Mefford testified the fighting occurred “almost every night

to every other night.” * * *

{¶ 17} Gary Lunsford also testified these activities were going on daily during the

two weeks prior to his being injured. And, Lunsford also identified Appellant as

the instigator of the wrestling and fights. Lunsford testified “if you didn’t fight,

especially if you didn’t do what they said they was going to beat you up.” He

testified “they” referred to Zack McKee, Devon Michaels, and Appellant.

{¶ 18} Regarding the June 18, 2016 altercation, Lunsford testified that McKee,

Michaels, and Appellant “made him wrestle” Josh Gray. If he refused, his

alternative was to fight the others. On that day, when Lunsford and Gray wrestled

and one was pinned, Appellant would restart the match. Lunsford testified that at

one point, McKee “sucker punched” him. While Lunsford was lying on the ground,

Appellant was hitting him. However, Lunsford testified he did not recall Appellant

hitting him because he was unconscious. He was incapacitated and unable to move.

{¶ 19} Inmate Mark Mefford’s testimony also described the June 18, 2016 incident:

A: That night, Mr. Blanton got the idea that they were going to

throw, he said we were going to throw the mats on the floor and see

a wrestling match. And when he put the mats on the floor he said

that he, Mr. Blanton, said that he wanted Zack McKee and Josh Gray

to wrestle for them for their amusement.

Q: Was it Zack McKee or Gary Lunsford?

A: Gary Lunsford and Josh Gray.

* * *

Q: So how long did you observe that wrestling match?

A: Approximately about 20 to 30 minutes.

* * *

A: Josh and Gary Lunsford. They ended up stopping and Josh Gray

goes over to the sink to get himself a drink and he is worn out and

Gary he was about ready to get up, and then before he initially gets

up Mr. McKee upper cuts him in the mouth knocking him back, and

then he started repeatedly hitting him several more times. * * * Gary

Lunsford, when he was still on the floor. Well, this lasted for

approximately maybe 2–3 minutes and Mr. McKee and Devon

Michaels hitting him. And Gary he unconscious for like a few

minutes, two at the most. At that time he was on the floor.

Q: Who is he?

A: Mr. Gary Lunsford and at the time he was on the floor Mr.

Blanton proceeded to come over and he started hitting him. * * *

Q: My question is, was he hitting him with his hands, was he kicking

him with his foot, what part of Mr. Blanton’s body was he using to?

A: Fists and feet.

Q: Okay. How did you know that Gary Lunsford was unconscious?

A: Because he wasn’t moving.

{¶ 20} Another inmate, Robert Long, also described the June 18, 2016 incident:

“Zack McKee and Devon Michaels [was] beating Gary Lunsford, and then after

that Blanton went over and started punching on Lunsford.” Long also described

Lunsford’s becoming unconscious: “I seen he was wrapped up in a ball with his

hands over his face and then he was kicked in the back of his head and then his

arms went limp. He was out for a few seconds and then he come back to.”

Regarding the brief cessation of fighting, long testified, afterwards, he saw

Appellant punch Lunsford but did not observe Appellant kicking him.

{¶ 21} The above testimony given by inmates Mefford, Long, and the victim,

Inmate Lunsford, demonstrates that Appellant set into motion the sequence of

events which resulted in serious physical harm to Lunsford. We find the facts and

circumstances indicate Appellant’s awareness of the probability that his conduct

would result in serious physical harm to Lunsford. Appellant is responsible for the

natural and foreseeable consequences that follow in the ordinary course of events

unfolding as a result of Appellant’s actions as instigator of the June 18, 2016

altercation. Furthermore, the facts and circumstances demonstrate Appellant was

an active participant in the actual physical violence.

* * *

{¶ 31} Here, Appellant’s argument assumes that the only serious physical harm

Lunsford suffered was a “possible concussion” after the sucker punch which

rendered him, via eyewitness and admittedly not expert opinion, unconscious. We

disagree. The surveillance footage demonstrates Lunsford was obviously weakened

and had fallen down when Blanton administered repeated blows to Lunsford’s

head. Mefford described Lunsford’s injuries as follows:

Q: After seeing Mr. Blanton, Mr. McKee and Mr. Michaels strike

Gary did Gary have any injuries?

A: Yes, Ma’am. * * *

A: I seen blood coming out of [Gary’s] nose and stuff and several

lacerations around his face and head area.

{¶ 32} Lunsford was [] taken to the Adams County Hospital. At trial, he identified

State’s exhibits 1, 2, 3, 4, 5, and 7, photographs of his injuries which depicted two

black eyes; bruising of his eyes, ear, neck, stomach, and back; a busted lip; and a

gash on his head. Dr. Richard Durbin, the emergency room doctor who treated

Lunsford at Adams County Regional Medical Center on June 21, 2016, testified

Lunsford had “obvious” injuries to his face, and gave a history of being “knocked

unconscious.” Based on the subjective history, Dr. Durbin ordered a CT scan of the

head and x-rays of the left elbow and chest. He testified there were no fractures

seen.

{¶ 33} On cross-examination, Dr. Durbin testified Appellant was discharged in

“fair” condition back to the jail with a diagnosis of soft tissue injuries to the head,

face, left lateral chest wall and left elbow. He was advised to follow up with the

physician at the jail. On redirect, Dr. Durbin testified he “believed” that Lunsford

sustained a concussion.

{¶ 34} Even if Appellant was not responsible for the blow which may or may not

have rendered Lunsford unconscious and caused a “possible concussion,” we find

sufficient evidence that Appellant caused serious physical harm. * * *

{¶ 35} The Henry court observed that serious physical harm has been found where

a victim sustains a bloody cut and/or significant swelling to the face because this is

sufficient to establish serious physical harm in that it constitutes “temporary,

serious disfigurement.” Id. at ¶42. Courts have also determined that “serious

physical harm” exists “‘where the injuries caused the victim to seek medical

treatment.’” Adams, supra, at ¶30, quoting Scott, supra, at ¶3.

{¶ 36} Within his sufficiency argument, Appellant is quick to discredit the

testimony of Lunsford and the other “criminals.” We are mindful, however, “‘A

jury, sitting as the trier of fact, is free to believe all, part or none of the testimony

of any witness who appears before it.’” State v. Reyes–Rosales, 4th Dist. Adams

No. 15CA1010, 2016-Ohio-3338, 2016 WL 3216241, ¶ 17, quoting State v. West,

4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, 2014 WL 1875931, ¶23. “A

sufficiency assignment of error challenges the legal adequacy of the State’s prima

facie case, not its rational persuasiveness.” State v. Oldaker, 4th Dist. Meigs No.

16CA3, 2017-Ohio-1201, 2017 WL 1193818, ¶ 41 [internal quotation omitted].

“That limited review does not intrude on the jury’s role ‘to resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.’” Musacchio v. United States, [577 U.S. 237, 243 (2016)],

quoting Jackson at 319, 443 U.S. 307.

{¶ 37} Any doubts one might have as to the credibility of the witnesses’ testimony

is dispelled by the surveillance footage which demonstrates Appellant restarting the

wrestling match between Lunsford and Gray, and then repeatedly and viciously

striking Lunsford’s head later when he is lying on the floor. The jury further had

the photographic depiction of Lunsford’s serious, temporary disfigurement to his

face and body.

Blanton, 110 N.E.3d at 12-18.

In the Traverse, Petitioner argues the state appellate court got it wrong because the

evidence at trial established he committed only a simple assault. According to Petitioner, the

only serious physical harm that occurred was when McKee “sucker-punched” Lunsford and

knocked him unconscious, which occurred two to four minutes before Petitioner entered the fray.

(Doc. 18, at PageID 2098). Petitioner notes that an emergency room physician testified “no

fractures were seen” and none of Lunsford’s injuries, other than the suspected concussion,

required medical treatment. (Id. at PageID 2097 (citing Doc. 10-5, at PageID 1827-35)). Lastly,

Petitioner argues the state court erred by considering whether he was responsible for the

felonious assault under a foreseeability or complicity theory because the State charged him as a

principal offender and not under a theory of complicity. (Id. at PageID 2098-2102).

Applying the required double-layered deferential standard, the state appellate court’s

sufficiency determination is neither contrary to nor an unreasonable application of established

Supreme Court precedent. The Fourth District Court of Appeals’ decision evinces the

incorporation of the Jackson standard in Ohio law, and the court reasonably determined that the

State provided sufficient evidence to the jury to satisfy the Jackson standard. In addition to

concluding that Petitioner set into motion the sequence of events that resulted in serious physical

harm to Lunsford, the state court also determined that Petitioner was an active participant in the

physical violence against Lunsford.

Petitioner essentially asks this Court to dissect the altercation frame by frame in order to

find that he did not cause serious physical harm to Lunsford because he did not throw any

punches until after Lunsford lost consciousness. But under Ohio law, “[h]arm heaped on top of

serious physical harm must itself be considered serious physical harm even if under different

circumstances it may not have risen to that level.” Blanton, 110 N.E.3d at 16, ¶ 30 (quoting In re

Miller, No. 2000-A-0014, 2002-Ohio-3360, 2002 WL 1400544, *5 (Ohio App. 11th Dist. June

28, 2002) (noting that “[i]f, in fact, appellant did not enter the melee until the victim had already

suffered serious physical harm, his actions are all the more inculpatory”)). Here, the evidence,

viewed in a light most favorable to the prosecution, is more than sufficient to support Petitioner’s

conviction. The evidence at trial established that Petitioner and two other inmates assaulted

Lunsford for their own amusement and sport. Mark Mefford testified that Petitioner was the

main organizer of the fights. (Doc. 10-4, at PageID 1776-77). The State presented evidence that

Petitioner punched Lunsford multiple times in the head while he lay on the floor “not moving

much, if at all . . . .” Blanton, 171 Ohio St.3d at 22, ¶ 17. When Lunsford tried to get up,

Petitioner “ran over and delivered swift blows to Lunsford’s head.” Id. at ¶ 18. Lunsford

“stumbled away and fell to the floor, motionless.” Id. By the end of the attack, Lunsford

suffered a possible concussion, two black eyes, bruising to his face and body, a busted lip, and a

gash to his head. (See, e.g. Doc. 10-4, at PageID 1627-32; Doc. 10-5, at PageID 1813-1840).

Petitioner argues the state court erred by considering whether he was responsible for the

felonious assault under a foreseeability or complicity theory when he was charged as a principal

offender. However, under Ohio law, “an offender need not be charged under R.C. 2923.03 [the

complicity statute] but instead may be charged with complicity in terms of the principal offense.”

State v. McFarland, 162 Ohio St.3d 36, 43 (2020) (finding “the state was not required to

explicitly allege complicity”) (citing State v. Skatzes, 104 Ohio St.3d 195 (2004)).

Because Petitioner has not shown that the Fourth District’s application of Jackson is

objectively unreasonable or based on an unreasonable determination of the facts, his first ground

for relief must be DENIED.

2. Kidnapping

Ohio Revised Code § 2905.01(B)(2) sets forth the crime of kidnapping and provides that

“[n]o person, by force, threat, or deception” shall knowingly “[r]estrain another of the other

person’s liberty” under “circumstances that create a substantial risk of serious physical harm to

the victim . . . .” Petitioner argues the evidence was insufficient to support his conviction under

this statute for two reasons. First, Petitioner argues it was legally impossible for him to restrain

Lunsford’s liberty because Lunsford was in jail such that his liberty was already restrained.

(Doc. 18, at PageID 2102-04). Next, Petitioner notes that during closing argument, the State

argued he “took [Lunsford’s] freedom of choice to seek protection or medical assistance from the

corrections officers.” (Id. at PageID 2103). Petitioner asserts that taking Lunsford’s freedom of

choice, if believed, constitutes the misdemeanor offense of coercion, not felony kidnapping.

The state court of appeals flatly rejected this argument. The court noted that “prisoners

do not shed all Constitutional rights at the prison gate,” and “[i]nmates in Ohio jails have various

rights, subject to reasonable restrictions.” Blanton, 110 N.E.3d at 18-19. The court made the

following findings:

{¶ 45} As is mandated by federal and state law, jail inmates and prisoners do not

lose all liberties by the fact of their incarceration in a county jail or state prison

facility. They do not lose the rights such as receiving mail, accessing telephones,

taking showers, receiving visitors, and receiving medical care. Nothing in the

research indicates Lunsford lost the right to move freely about the jail cell, absent

some violation of conduct or pursuant to a disciplinary procedure, or to contact the

jailer and request medical care.

{¶ 46} The testimony at trial demonstrated that Lunsford was within Appellant’s

power and beyond immediate help, as well as compelled to stay out of the view of

jail personnel. We find Appellant’s “impossibility” argument has no applicability

to these facts and thus, without merit.

{¶ 47} At trial, the prosecutors argued that Appellant threatened Lunsford and

thereby took his “freedom of choice” to seek protection or medical assistance.

Appellant argues the State’s evidence demonstrated, at best, an effort by Appellant

to restrict Lunsford’s freedom of choice and therefore, should have been prosecuted

for violation of the coercion statute, a misdemeanor of the second degree. Appellant

asserts that the State improperly elevated, to first degree felony level, conduct that

the General Assembly intended to punish less seriously as a misdemeanor. R.C.

2905.12 (A)(1), coercion, provides that “No person, with purpose to coerce another

into taking or refraining from action concerning which the other person has a legal

freedom of choice, shall * * * [t]hreaten to commit any offense.” However, we are

not persuaded.

{¶ 48} Lunsford testified he was unable to get medical help for two days after the

attack because McKee, Michaels, and Appellant told him he was not allowed to

“hit the call box.” They told him if he tried to call for help, he would “get the same

treatment again.” Lunsford specifically testified Appellant told him, “don’t move

or your (sic.) going to get it again.” Because he didn’t want to get attacked again,

Lunsford covered his head whenever a jailer walked through so he wouldn’t be

seen. When the inmates’ food trays were served, he would lay on his bunk covered

up. Lunsford testified either McKee, Michaels, or Appellant would get his tray and

hand it to him so Lunsford’s injuries would not be discovered and no one would

get into trouble. Lunsford’s injuries were finally noticed when the jailer ordered

him to bring his tray to her, and she saw the marks on his face and body.

{¶ 49} Lunsford’s testimony was corroborated by Mark Mefford, who testified that

on June 18 and 19, 2016 when the food was delivered to their cell, Lunsford did

not get up because “[h]e was too scared and he was told not to get up because of

the laceration on his face,” by “McKee, Blanton, and Michaels.” And, on cross-

examination, when asked who was in charge of the cell, Mefford replied: “It seemed

to be that it was all three, Mr. McKee, Mr. Blanton, and Mr. Michaels.”

* * *

{¶ 53} Appellant asserts that restraining Lunsford’s freedom to seek medical help,

if it occurred, represents conduct punishable by two separate statutes with different

penalties. Under the general statute of kidnapping, R.C. 2905.01(B)(2), a

conviction results in a first-degree felony. Under the special provision of coercion,

R.C. 2905.12(A)(1), a conviction results in a misdemeanor. Therefore, appellant

contends that the statutes are definitely in conflict and the special provision of

coercion must prevail. We disagree.

{¶ 54} To be considered irreconcilable, the statutes must first prohibit the same

conduct, specifically the conduct of which appellant was convicted. Appellant

would have this court conclude that threatening Lunsford directly or indirectly is

the same conduct constituting coercion and kidnapping.

{¶ 55} If appellant had committed coercion by threatening Lunsford in some

manner in order to prevent him from seeking medical attention, separate conduct

still exists that results in more than a violation of coercion. This separate conduct

is the fact that Appellant’s threat also created a substantial risk of physical harm to

Lunsford.

{¶ 56} Appellant is correct in asserting that inherently, kidnapping includes the act

of coercion. However, acts committed under the coercion statute do not necessarily

violate the kidnapping statute. A person coerced into refraining from action he or

she is legally permitted to do may face a substantial risk of personal or professional

harm, but not necessarily a substantial risk of physical harm. Violations of the two

statutes result from different conduct. The statutes prohibit separate and distinct

offenses and therefore, the statutes are reconcilable.

{¶ 57} Appellee chose to prosecute Appellant on the conduct of kidnapping and

not for the conduct of coercion. “The mere fact that appellant’s conduct violates

more than one statute does not force the state to prosecute him under the lesser

statute.” Sufronko, supra, at 509, 664 N.E.2d 596; State v. Cooper, 66 Ohio App.3d

551, 553, 585 N.E.2d 868, 870 (1990).

Id. at 19-21.

At base, Petitioner invites this Court to substitute its own reading of Ohio law for that of

Ohio’s Fourth District Court of Appeals. This the Court may not do. On habeas corpus review,

this Court is bound by the Ohio courts’ interpretation and application of Ohio law. See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (reiterating that on habeas review, “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.”) (citing Estelle v. McGuire, 502 U.S.

62, 67-68 (1991)). See also Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988).

The state court of appeals resolved the issue of whether, as a matter of state law, an

inmate may restrain the liberty of another inmate for purposes of Ohio’s kidnapping statute. The

question for this Court is whether “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). The undersigned

finds, after applying the required double-layered deferential standard, that the state appellate

court’s sufficiency determination is neither contrary to nor an unreasonable application of

established Supreme Court precedent. The evidence at trial was sufficient to prove that

Petitioner knowingly restrained Lunsford’s liberty and movement within his jail cell by

preventing him from seeking medical treatment for his serious injuries under circumstances that

created a substantial risk of serious physical harm. Accordingly, Petitioner’s second ground for

relief must be DENIED.

B. Ground Three – Denial of Lesser Included Offense Instruction

In his third ground for relief, Petitioner argues the trial court violated his due process

rights by denying his request for a jury instruction on the lesser included offense of assault.

(Doc. 1, at PageID 8). He asserts that the trial court’s error “exposed [him] to a substantial risk

of being convicted of the more serious crime of felonious assault due to the jury’s natural

inclination to convict him of some offense rather than to acquit him of any wrongdoing.” (Id.)

For his part, Respondent argues Petitioner’s third ground for relief is non-cognizable. (Doc. 11,

at PageID 2050-51).

Petitioner’s claim fails. “The Supreme Court . . . has never held that the Due Process

Clause requires instructing the jury on a lesser included offense in a non-capital case.”

McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014) (citing Beck v. Alabama, 447 U.S. 625,

638 n.14 (1980)). Because there is no clearly established Supreme Court precedent entitling

Petitioner to an instruction on lesser included offenses in a non-capital case, Petitioner’s jury

instruction claim fails under 28 U.S.C. § 2254(d)(1). See also Davis v. Cargor, No. 2:24-cv-

12042, 2025 WL 1789638, at *6 (E.D. Mich. June 27, 2025) (same).

And Petitioner has not shown that the failure to give a lesser included offense instruction

on simple assault was an error “so egregious’ that it rendered his entire trial ‘fundamentally

unfair.” Phillips v. Mackey, No. 25-3391, 2025 WL 3436777, *2 (6th Cir. Nov. 6, 2025)

(quoting Wade v. Timmerman-Cooper, 785 F.3d 1059, 1078 (6th Cir. 2015)). The Ohio Court of

Appeals upheld the trial court’s determination that the evidence at trial did not support a jury

instruction on simple assault. See Blanton, 110 N.E.3d at 22-24. “Where a state court has

reviewed a habeas petitioner’s request for a lesser-included offense instruction and concludes

that it was not warranted by the evidence presented at trial, ‘that conclusion is axiomatically

correct, as a matter of state law.’” Evans v. Voorhies, No. 1:06-cv-746, 2007 WL 2891003, at

*16 (S.D. Ohio Sept. 28, 2007) (quoting Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990)).

For these reasons, Petitioner’s third ground for relief must be DENIED.

C. Ground Four – Defective Complicity Instruction

In his fourth ground for relief, Petitioner argues the trial court’s complicity instruction

deprived him of due process because it failed to define aiding and abetting and failed to set forth

the culpable mental state required for complicity. Specifically, Petitioner notes the trial court’s

instruction omitted the substantive requirements for vicarious liability from paragraph two and

the aiding and abetting language from paragraph nine of Ohio’s model jury instructions. (Doc.

18, at PageID 2110, citing OJI § 523.03(B)). According to Petitioner, “[w]ithout an explanation

of the mens rea and actus rea elements of complicity, the court’s open-ended instruction invited

the jurors to find Blanton guilty based on their own concept of vicarious wrongdoing, rather than

what the Ohio complicity statute actually requires.” (Id. at PageID 2112).

Respondent argues this ground for relief is procedurally defaulted because trial counsel

failed to object to the substance of the complicity instruction at trial. (Doc. 11, at PageID 2054-

55). Respondent points out that the Ohio Court of Appeals enforced the contemporaneous

objection rule by noting counsels’ failure to object and reviewing the claim for plain error. (Id.).

The undersigned agrees that Petitioner procedurally defaulted this ground for relief.

The record reflects that prior to closing arguments, the trial court asked the defense team

if they “wish[ed] to object to the inclusion of complicity.” (Doc. 10-5, at PageID 1905-06).

Defense counsel stated: “Your Honor, I don’t think, complicity . . . has been proven or shown in

the evidence presented here. I think they were all separate acts, they were not acting together, I

don’t think it’s one joint venture, Your Honor.” (Id. at PageID 1906). The court overruled

counsel’s objection, stating “I do intend to include the complicity under 523.01 of the Ohio Jury

Instructions . . . .” (Id.)

Although trial counsel objected, initially, to the inclusion of a complicity instruction,

counsel did not object to the substance of the court’s actual instruction or propose an alternative

instruction before the case was submitted to the jury for deliberation. It is apparent from the trial

transcript that the trial court provided counsel with a copy of the proposed instructions, and the

parties discussed the instructions during a lunch recess. (Id. at PageID 1912-14). Back on the

record, the trial court noted several changes to the proposed instructions discussed during the

recess, but none of the changes involved the complicity charge. (Id.) When the court asked

whether there were any additional objections, defense counsel replied there were “no objections”

to the proposed instructions but requested an instruction on the lesser included offense of assault.

(Id. at PageID 1914-15). The trial court declined to include the lesser included offense

instruction and asked counsel, for the third time, whether there was “anything further” and

defense counsel replied “no.” (Id. at PageID 1918-19). After closing arguments, the trial court

provided a fourth opportunity to be heard regarding the instructions, asking whether there were

“[a]ny objections to the jury instructions or verdict forms.” (Id. at PageID 1947). Still, defense

counsel did not challenge the substance of the complicity instruction.

Ohio’s contemporaneous objection rule has been explained many times. It “requires the

parties to preserve errors for appeal by calling them to the attention of the trial court at a time

when the error could be avoided or corrected.” Twyford v. Bradshaw, No. 2:03-cv-906, 2017

WL 4280955, at *19 (S.D. Ohio Sept. 27, 2017). The Fourth District Court of Appeals enforced

the contemporaneous objection rule against Petitioner and reviewed his claim for plain error.

Blanton, 110 N.E.3d at 24, ¶73 (noting that Petitioner “did not object to the trial court’s

complicity instruction” and “[w]here there exists a failure to object on the record, a plain error

analysis is appropriate”). Ultimately, the court of appeals determined that although the trial court

gave an incomplete complicity instruction, no prejudicial error occurred:

{¶ 82} Appellant contends that the instruction should have included the definition

of “aiding and abetting,” and that it should have included the culpable mental stat[e]

for the principal crime. The trial court gave the first paragraph of the model

instruction almost verbatim. We do not find the instruction given here to be an

incorrect statement of the law, but an incomplete one. Despite the lack of a second

paragraph, we do not find the incomplete [in]struction rose to the level of

prejudicial . . . error.

{¶ 83} Here, the instruction conformed to the evidence at trial. While Appellant

was charged as the principal offender, at no time did the trial court or the parties

refer to him as such. Furthermore, the surveillance footage and testimony

established that Appellant both acted not only as an instigator of the violence, a

principal offender, but also as a complicitor who contributed to the violence which

reigned in the atmosphere on E4 and who joined in the beating of Lunsford.

{¶ 84} And, while the trial court did not define the burden of proof, date,

jurisdiction, venue, and culpable mental state as to an actual charge of complicity,

the trial court had previously defined those terms as to the felonious assault and

kidnapping counts. Given the surveillance footage, pictorial evidence, and

testimony of the witnesses, we find the incomplete jury instruction did not rise to

the level of plain error and change the outcome of the trial.

Id. at 24-27.

The court of appeals’ review of Petitioner’s jury instruction claim for plain error was

“enforcement of a procedural rule” for default purposes. Theriot v. Vashaw, 982 F.3d 999, 1004

(6th Cir. 2020). This is because “[a] plain error analysis is not tantamount to a review on the

merits,” meaning the state appellate court’s review for plain error does not imply it overlooked

Petitioner’s procedural default. Scott v. Mitchell, 209 F.3d 854, 865 (6th Cir. 2000). And Ohio’s

“contemporaneous-objection rule is an independent and adequate state ground” for foreclosing

federal review. Hand v. Houk, 871 F.3d 390, 417 (6th Cir. 2017). In sum, Petitioner’s fourth

ground for relief is procedurally defaulted. See Haller v. Warden, No. 17-3342, 2017 WL

4764476, *2 (6th Cir. Aug. 28, 2017) (finding Petitioner’s challenge to jury instruction regarding

complicity procedurally defaulted where trial counsel failed to object to instruction at trial).

As cause to excuse the procedural default of his claim, Petitioner asserts that his trial

counsel were ineffective for failing to object to the substance and completeness of the complicity

instruction. (Doc. 18, at PageID 2111). This also happens to be subclaim (4) of Petitioner’s

eighth ground for relief. (Doc. 1, at PageID 13-14). Petitioner bears the burden of showing

cause and prejudice to overcome a procedural default. Hinkle v. Randle, 271 F.3d 239, 245 (6th

Cir. 2001).

The Supreme Court set forth the legal principles governing claims of ineffective

assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a

petitioner claiming the ineffective assistance of counsel to demonstrate both that his counsel’s

performance was deficient and that he suffered prejudice as a result. Id. at 687; Shinn v. Kayer,

592 U.S. 111 (2020). A petitioner shows deficient performance by demonstrating “that counsel’s

representation fell below an objective standard of reasonableness.” Davis v. Lafler, 658 F.3d 525,

536 (6th Cir. 2011) (citing Strickland). To make such a showing, a petitioner “must overcome

the ‘strong [ ] presum[ption]’ that his counsel ‘rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.’” Hale v. Davis, 512

F. App’x 516, 520 (6th Cir. 2013) (quoting Strickland, 466 U.S. at 690). “To avoid the warping

effects of hindsight, [courts must] ‘indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.’” Bigelow v. Haviland, 576 F.3d

284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689). This includes a presumption that,

“under the circumstances, the challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689.

The prejudice prong “requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is unreliable.” Id. at 687. The movant must

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 703. Counsel is constitutionally ineffective

only if counsel’s deficient performance “caused the defendant to lose what he otherwise would

probably have won” and it must have been “so manifestly ineffective that defeat was snatched

from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir.

1992). Because Petitioner must satisfy both prongs of the Strickland test to demonstrate

ineffective assistance of counsel, if the Court determines that Petitioner has failed to satisfy one

prong, it need not consider the other. Strickland, 466 U.S. at 697 (“Although we have discussed

the performance component of an ineffectiveness claim prior to the prejudice component, there is

no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the defendant makes an insufficient

showing on one.”).

On direct appeal, Petitioner raised a freestanding claim of ineffective assistance of trial

counsel based on counsel’s failure to object to the complicity instruction, and the Fourth District

Court of Appeals considered and rejected that claim on the merits. Although this Court must

conduct a de novo review of Petitioner’s ineffective assistance of counsel as cause argument, the

decision of the court of appeals is still persuasive. See Chase v. MaCauley, 971 F.3d 582, 592

(6th Cir. 2020) (citing Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2009) (“An argument

that ineffective assistance of counsel should excuse a procedural default is treated differently

than a free-standing claim of ineffective assistance of counsel. The latter must meet the higher

AEDPA standard of review, while the former need not.”)).

The state appellate court resolved Petitioner’s freestanding ineffective assistance claim as

follows:

{¶ 127} Appellant argues his counsel’s representation was deficient due to a failure

to object to the complicity jury instruction. In our discussion of assignment of error

three above, we found no plain error occurred due to the failure to object to the

complicity instruction given. We also do not find Appellant’s counsel was deficient

for failing to request clarification of the instruction.

{¶ 128} “Tactical or strategic trial decisions, even if ultimately unsuccessful, do

not generally constitute ineffective assistance of counsel.” State v. Rizer, 4th Dist.

Meigs No. 10CA3, 2011-Ohio-5702, 2011 WL 5299484, ¶ 37, quoting In re Wingo,

143 Ohio App.3d 652, 668, 758 N.E.2d 780 (4th Dist.2001), citing State v. Carter,

72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Often times, with respect to

“lesser-included offenses,” defense counsel will make the strategic decision not to

request a lesser-included offense jury instruction in the hopes that the jury will

outright acquit the defendant on the charged offense, having not been given the

option to find guilt as to the lesser-included offense.

{¶ 129} Appellant argues that the complicity jury instruction was incomplete and

misleading. However, it could be considered reasonable trial strategy to go for “all

or nothing,” taking the chance that jurors would be confused and the confusion

would result in an outright acquittal on the felonious assault and/or kidnapping

counts. Given that Appellant was not charged with complicity nor was he

specifically identified using the language “principal offender,” yet there was

evidence of complicity, we find counsel’s silence as to the incomplete complicity

instruction to be a debatable, yet reasonable trial strategy. As such, we do not find

counsel’s performance to be deficient in this regard.

{¶ 130} Based upon the foregoing, we do not find Appellant’s trial counsel’s

performance fell below an objective level of reasonable representation. Because

Appellant has failed to establish this first prong of the Strickland test, his claim of

ineffective assistan[ce] has no merit.

Blanton, 110 N.E.3d at 37-38.

Upon de novo review, the undersigned agrees with the state court’s resolution of this

claim. A review of the state court record suggests that defense counsels’ strategy was to

minimize the State’s theory of complicity liability and attempt to separate Petitioner’s conduct

from that of Michaels and McKee. Because jail surveillance video recorded the attack, counsel

had no choice but to concede Petitioner’s involvement in the beating of Lunsford. Given the

indisputable evidence of Petitioner’s involvement, counsel sought to draw a bright line between

what happened before and what happened after Lunsford was knocked unconscious. To that end,

counsel argued that any serious physical harm to Lunsford occurred prior to Petitioner throwing

punches. It is therefore possible that counsel believed a more complete instruction on

complicity, including a definition of aiding and abetting, would have undermined the defense

theory that Petitioner was only guilty of simple assault because he acted separate and distinct

from the others. The fact that counsel reviewed the proposed instructions and requested other

changes indicates counsels’ silence regarding the substance of the complicity instruction was

strategic. (See, e.g., Doc. 10-5, at PageID 1913-15, discussing appropriate language regarding

the kidnapping instruction, discussing clarification that serious physical harm only applied to

Lunsford and not Josh Gray, requesting lesser-included offense of assault). Despite four

opportunities to address the specific language regarding complicity, counsel remained silent and

did not propose clarifying language.

As Petitioner points out, the Sixth Circuit granted habeas relief under similar

circumstances in Langford v. Warden, 593 F. App’x 422 (6th Cir. 2014). In that case, the Sixth

Circuit affirmed the district court’s grant of habeas corpus relief where the trial court failed to

instruct the jury “that conviction as an accomplice, under Ohio law, requires that the defendant

have the same intent as the principal.” Id. at 428. This is because an incomplete instruction that

omits all of the elements of an offense may violate the constitution. See Middleton v. McNeil,

541 U.S. 433, 437 (2004) (“In a criminal trial, the State must prove every element of the offense,

and a jury instruction violates due process if it fails to give effect to that requirement.”); Boyde v.

California, 494 U.S. 370, 380 (1990) (finding, in the context of an ambiguous jury instruction,

that “the proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied

the challenged instruction” incorrectly).

But this case is procedurally distinguishable from Langford because Petitioner

procedurally defaulted his claim by failing to object at trial. As a result, this Court must consider

the incomplete complicity instruction in the context of a claim for ineffective assistance of trial

counsel offered as cause to excuse a procedural default. In doing so, the Court owes a great deal

of deference to the strategic decisions of counsel even when they are unsuccessful. See Baze v.

Parker, 371 F.3d 310, 320-21 (6th Cir. 2004) (“[T]he Sixth Amendment guarantees reasonable

competence, not perfect litigation.”); McQueen v. Scroggy, 99 F.3d 1302, 1315 (6th Cir. 1996)

(stating that counsel “merely losing, being wrong, or miscalculating is not enough to free every

person convicted of a crime”).

It is also “difficult to establish ineffective assistance when counsel’s overall performance

indicates active and capable advocacy.” Harrington v. Richter, 562 U.S. 86, 111 (2011). Here,

Petitioner was represented at trial by two attorneys. Counsel did the best they could with what

they had, and their performance through three days of trial was commendable. Under these

circumstances, counsels’ failure to object or request additional instructions does not meet the

demanding requirements of Strickland.

Because Petitioner fails to establish cause and prejudice to excuse the procedural default

of his underlying claim of instructional error, his fourth claim for relief must be DISMISSED as

procedurally defaulted. For these same reasons, subclaim (4) of Petitioner’s eighth ground for

relief, which sets forth a freestanding claim of ineffective assistance of trial counsel regarding

counsel’s failure to object to the complicity instruction, lacks merit.

D. Failure to preserve evidence grounds

Petitioner’s fifth and seventh grounds for relief involve the State’s failure to preserve

additional jail surveillance video, as well as the trial court’s decision to hold a hearing on the

issue without Petitioner present. (Doc. 1, at PageID 12-13). The Ohio Supreme Court

summarized the facts and circumstances underlying this set of claims as follows:

{¶ 83} At Blanton’s trial, the state relied on video footage showing the attack on

Lunsford taken from the catwalk outside the jail cell. As previously noted, the video

shows Blanton punching Lunsford repeatedly in the head as Lunsford lay on the

cell’s floor. Blanton did this after watching Michael and McKee beat and stomp on

Lunsford. Lunsford testified that he lost consciousness during a portion of the

assault. And in the state’s closing argument, the prosecutor described the video as

portraying Blanton’s punching an “unconscious” Lunsford.

{¶ 84} Prior to trial, Blanton’s counsel filed a motion to dismiss the charges in the

jail case, claiming that Blanton’s due-process rights were violated by the state’s

failure to retain additional video footage. A due-process violation occurs when the

government fails to preserve materially exculpatory evidence or when it destroys

evidence in bad faith that is potentially useful to the defense. * * * Blanton’s motion

focused on footage from the day of and the day after the assault, a period during

which Lunsford claimed he had hidden when corrections officers approached the

cell. The defense contended that the video would have shown Lunsford’s actions

and thus was either inculpatory or exculpatory. The gist of the defense’s argument

was that Lieutenant Micah Poe, the jail’s administrator, had acted in bad faith by

selectively retaining only video footage that was helpful to the state’s case while

allowing additional footage from the time of the alleged crimes to be recorded over.

{¶ 85} The state responded that Lieutenant Poe had presented only the felonious-

assault charge to the prosecutor’s office and that he had therefore preserved only

the portion of the video showing the assault. According to the state, it was not until

the prosecutor’s office had conducted its own investigation that it decided to add

the kidnapping charge, and by that time, the footage had been recorded over. The

trial court concluded that the defense had not met its burden of demonstrating that

the video was exculpatory or destroyed in bad faith, and it denied the motion to

dismiss.

{¶ 86} Blanton was not present at the hearing on the motion to dismiss, but he

addressed the video evidence during his sentencing hearing. Blanton maintained

that Lunsford was never unconscious during the assault. He said that Lieutenant

Poe showed him footage of the assault taken from the other end of the catwalk,

which depicted Lunsford moving his arms to protect himself from Blanton’s

punches, and that Lunsford’s movements were not visible in the footage used

during trial that was taken from another angle. Lieutenant Poe testified during

Blanton’s trial that the camera on the other end of the catwalk did not capture

footage of the inside of the cell; Blanton alleged that this was a lie aimed at covering

up the evidence that Lunsford had remained conscious.

State v. Blanton, 171 Ohio St.3d 19, 37-38, 215 N.E.3d 467 (2022).

1. Ground Seven – failure to preserve additional surveillance video

In his seventh ground for relief, Petitioner argues the State of Ohio violated his due

process rights by failing to preserve and retain all of the jail surveillance video pertaining to the

assault on Lunsford. (Doc. 1, at PageID 12-13). According to Petitioner, Lieutenant Poe failed

to preserve video footage from a second camera that captured the assault from a different angle

than the first camera. That footage, Petitioner argues, established that he did not inflict serious

physical harm on Lunsford because Lunsford was able to defend himself. (Id. at 13). Petitioner

asserts that “[d]ue to the prosecutor’s emphasis on the importance of the video evidence from the

first camera, and the lack of overwhelming evidence of Petitioner’s guilt, the failure to preserve

the second camera footage was not harmless beyond a reasonable doubt.” (Id.)

Petitioner raised this claim on direct appeal as part of his fifth proposition of law.

Blanton, 110 N.E.3d at 27-32. The Fourth District Court of Appeals determined the missing

video, as described by Petitioner at his sentencing hearing, was not exculpatory. Id. at 30-31.

The court also concluded Petitioner failed to show bad faith by the State in failing to preserve the

additional video. Id. Petitioner sought to renew this claim during his post-conviction

proceedings and supplement his prior argument with his own affidavit. The Ohio Supreme Court

invoked the doctrine of res judicata to bar additional review:

{¶ 87} Blanton raised a due-process claim based on the destroyed video footage in

his direct appeal. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, at ¶ 86. The court of

appeals paid particular attention to the allegations that Blanton made during his

sentencing hearing, noting that he had alleged “personal knowledge of the

exculpatory nature of the discarded video footage and bad faith on the part of the

investigator in failing to preserve it.” Id. at ¶ 97. But the court of appeals concluded

that even “taking [Blanton’s] statements at sentencing as truthful,” the video

footage he described—showing that Lunsford continued to protect himself against

Blanton’s punches—was not exculpatory. Id. at ¶ 98. And it held that even

assuming the video would have been potentially useful to Blanton’s defense, there

had been no showing that it was destroyed in bad faith. Id. at ¶ 99.

{¶ 88} Blanton’s postconviction-relief claim relies primarily on the same factual

allegations. He argues that the footage taken from the other end of the catwalk

depicted a “very conscious Lunsford using both arms to defend himself from

[Blanton’s] punches,” but that the footage used at trial “did not capture Lunsford’s

defensive arm movements because a table was blocking the view of most of his

body.” His petition presents additional information relating to his allegation that

the video was destroyed in bad faith, however. Specifically, Blanton avers that

when Lieutenant Poe showed him the footage of the fight from both camera angles,

“[Poe] told me he had enough charges against me to ensure I would never go home.”

* * *

{¶ 91} As we have already explained, the general rule of res judicata is that “a final

judgment of conviction bars the convicted defendant from raising and litigating in

any proceeding, except an appeal from that judgment, any [claim] that was raised

or could have been raised by the defendant at the trial which resulted in that

judgment of conviction or on an appeal from that judgment.” Perry, 10 Ohio St.2d

at 180, 226 N.E.2d 104. We have recognized an exception to that rule in the limited

context of postconviction ineffective-assistance-of-counsel claims involving

evidence outside the record. See Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, at

syllabus.

{¶ 92} Blanton asks us to expand this exception to allow a postconviction petitioner

to proceed on a due-process claim based on the state’s failure to preserve evidence,

even when the alleged violation was known to the defense at the time of trial. In

essence, he asks us to reach the merits of a claim that could have been—but was

not—fully developed during the trial proceedings. This ignores our rationale for

adopting the limited exception to the application of res judicata for postconviction

ineffective-assistance claims: when a defendant must rely on his attorney to develop

the record or use evidence, and the attorney fails to do so, there is no other way for

the defendant to establish the attorney’s deficient performance except by presenting

evidence outside the trial record. See State v. Hester, 45 Ohio St.2d 71, 76, 341

N.E.2d 304 (1976). In other words, most claims of ineffective assistance cannot be

developed by the defendant during the trial proceedings.

{¶ 93} Blanton offers no basis to expand this exception to include constitutional

claims other than ineffective assistance of counsel, and we can see none. Indeed,

doing so would upend decades of caselaw to the contrary. It is true, however, that

res judicata precludes only those due-process claims that could have been

developed during the trial proceedings. Thus, when a petition alleges a due-process

violation based on the state’s wrongful concealment of evidence beneficial to the

defense, and that violation was not discovered until after trial, res judicata is no bar

to the claim. See Perry at 179, 226 N.E.2d 104, citing McMullen, 3 Ohio St.2d 160,

209 N.E.2d 449.

{¶ 94} But here, during the trial-court proceedings, the defense was aware of the

state’s failure to preserve the video evidence and knew of the information on which

Blanton now relies in postconviction. Because the basis for Blanton’s due-process

claim was known to him at the time of trial and could have been fully litigated at

that time, the claim is barred by res judicata.

Blanton, 171 Ohio St.3d at 38-39.

In his Traverse, Petitioner argues the Ohio Supreme Court improperly invoked res

judicata where the trial court failed to hold an evidentiary hearing on the issues raised in his

motion to dismiss the indictment. According to Petitioner, because a pre-trial evidentiary

hearing was necessary to question Lieutenant Poe and develop additional facts regarding the

content and destruction of the surveillance video, res judicata does not apply and this Court

should review his claim de novo. (Doc. 18, at PageID 2126-27).

Ohio’s doctrine of res judicata in criminal cases, set forth in State v. Perry, 10 Ohio St.2d

175 (1967), “bars from post-conviction proceedings any claim that could have been fully

litigated at trial or on direct appeal.” Boaston v. Watson, No. 24-3800, 2025 WL 774929, *2 (6th

Cir. Feb. 7, 2025). Only claims involving evidence outside the trial record may be raised in post-

conviction proceedings. “But not all evidence will do.” Jones v. Bradshaw, 46 F.4th 459 (6th

Cir. 2022). “The newly presented evidence must ‘meet some threshold standard of cogency;

otherwise, it would be too easy to defeat the [res judicata rule] by simply attaching as exhibits

evidence which is only marginally significant and does not advance the petitioner’s claim

beyond mere hypothesis and a desire for further discovery.’” Id. (quoting State v. Lawson, 103

Ohio App.3d 307, 659 N.E.2d 362, 367 (1995)). The rule is an adequate and independent state

ground of decision. Id.

The Ohio Supreme Court rejected Petitioner’s attempt to supplement his due process

claim in post-conviction, finding the basis of the claim “was known to him at the time of trial

and could have been fully litigated at that time . . . .” Blanton, 171 Ohio St.3d at 39. The record

does not support a reasonable argument to the contrary. Rather, the record reflects that the trial

court held a pre-trial conference with counsel and heard argument regarding the circumstances

under which the additional video was deleted. Although the trial court left open the possibility

of revisiting the issue once Petitioner was transferred for trial, Petitioner did not renew the issue.

And Petitioner fails to explain why he waited until his sentencing hearing to inform the trial

court that he had personal knowledge regarding the content of the deleted video. Additionally,

the supplemental evidence he offered in post-conviction, by way of his own affidavit, essentially

repackaged the personal statement he made at sentencing and upon which the state court of

appeals relied in rejecting his due process argument on direct appeal. Petitioner failed to offer

the kind of new and competent evidence outside the appellate record that Ohio law requires to

escape the bar of res judicata during post-conviction proceedings.

Petitioner also fails to demonstrate that the decision of the court of appeals rejecting his

due process claim on direct appeal involved unreasonable factual findings or was either contrary

to or an unreasonable application of Brady v. Maryland, 373 U.S. 83 (1963), California v.

Trombetta, 467 U.S. 479 (1984), or Arizona v. Youngblood, 488 U.S. 51 (1988). In Brady, the

Supreme Court held that the State may not withhold exculpatory evidence that is material to guilt

or punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is

“material” within the meaning of Brady only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.

See United States v. Bagley, 473 U.S. 667 (1985). Trombetta extended the Brady rule to

exculpatory evidence that is not suppressed but is altered or destroyed. 467 U.S. at 489. Under

Trombetta, the evidence “must both possess an exculpatory value that was apparent before the

evidence was destroyed and be of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.” Id. (emphasis added).

By contrast, the failure to preserve evidence that is only potentially useful to a defendant

is not a denial of due process unless the defendant can show bad faith on the part of the state.

Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). A habeas petitioner has the burden of

establishing that the state acted in bad faith in failing to preserve potentially useful evidence, and

“[t]he mere fact that the police had control over evidence and failed to preserve it is insufficient,

by itself, to establish bad faith, nor will bad faith be found in the government’s negligent failure

to preserve potentially exculpatory evidence.” Cunningham v. Cargor, No. 5:24-cv-12415, 2026

WL 285961, *7 (E.D. Mich. Feb. 3, 2026). The determination of bad faith “‘must necessarily

turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or

destroyed.’” Id. (quoting Youngblood, 488 U.S. at 56).

Here, the state appellate court determined it was Petitioner’s responsibility to prove the

missing surveillance footage was exculpatory. Blanton, 110 N.E.3d at 29, ¶ 94. Petitioner failed

to meet this burden because counsel’s argument pertaining to what the video would have shown

was based on pure speculation. Id. at 29, ¶ 95-96 (noting that counsel argued, as to the

kidnapping counts, that “[t]he video is going to show one of two things, either that they did

commit the crime, or they did not commit the crime. It has to be on there, they are under

surveillance.”). Regarding the felonious assault count, the court of appeals considered

Petitioner’s statement at sentencing that he saw the missing footage of the assault from the

second camera, and concluded Petitioner’s description of the video did not establish it was

exculpatory:

{¶ 98} * * * While defense counsel’s argument on appeal is that the requested

surveillance footage would be materially exculpatory as to the kidnapping count,

Appellant indicated at sentencing the materially exculpatory footage somehow

exonerates him as to the felonious assault conviction. Based on the record before

us, the facts demonstrate that no one seems to know what was on the alleged

materially exculpatory surveillance footage. And, taking Appellant’s statements at

sentencing as truthful, that he saw the alleged materially exculpatory footage that

was later unavailable, any evidence of Lunsford, the victim “protecting himself and

protecting [Appellant’s] punches,” is irrelevant to Appellant’s guilt on either the

felonious assault or kidnapping counts.

{¶ 99} Based upon the foregoing, we find the requested surveillance footage was

not materially exculpatory. Appellant cannot show the missing footage provides

evidence which exonerates him or in any way challenges the substance of the

allegations. Furthermore, in the event the surveillance footage could be somehow

considered potentially useful, there has been no showing of bad faith. To establish

bad faith, a defendant must show more than an accidental erasure of the tape or that

the tape was reused in accordance with routine procedures. Fox, supra, at ¶ 38

(Internal citations omitted.) Based upon our de novo review of this matter, we agree

with the trial court’s rulings.

Id. at 30-31.

Petitioner is not entitled to relief on his seventh ground for relief and the undersigned

recommends this claim be denied. As determined by the court of appeals, even if Petitioner’s

statement at sentencing is considered as true, the fact that Lunsford may have protected himself

from some of Petitioner’s repeated blows is still inculpatory. Regardless, for a due process

violation, Trombetta requires the evidence to be exculpatory and there must be an absence of

“comparable evidence by other reasonably available means.” 467 U.S. at 489. A video of the

assault was available at trial. And although Petitioner may have preferred video from a different

angle, the available video was comparable evidence. Additionally, “[t]he Sixth Circuit has held

that eyewitness testimony and cross-examination of the government’s witnesses constitute

‘comparable evidence’ to audio and video recordings.” Cunningham, 2026 WL 285961, at *6-8

(quoting United States v. Stevenson, No. CR 24-34-DLB-CJS, 2025 WL 2997857, at *3 (E.D.

Ky. Oct. 24, 2025) (citing Elmore v. Foltz, 768 F.2d 773, 778 (6th Cir. 1985)). See also United

States v. Gaither, 65 F. App’x 514, 517 (6th Cir. 2003). Comparable evidence of this sort was

available here, as Lunsford and other eyewitnesses were subject to cross-examination at trial.

To the extent the video was potentially useful to show that Lunsford protected himself at

points in time, Petitioner fails to meet his burden of demonstrating that the jail administrator or

anyone else acted in bad faith. The prosecutor explained during the conference on this issue that

the jail used a rolling hard drive where video was automatically recorded over every six days.

And although the jail administrator initially saved video of the actual assault, it was not until

after the six-day period that prosecutors, after reviewing the case, decided to pursue additional

kidnapping charges, making video after the assault potentially relevant. (See Doc. 10-2, at

PageID 1381-82). At that point, video from the time frame before and after the assault or video

of the assault from other cameras no longer existed due to routine procedure. Petitioner bears the

burden of proving bad faith but nothing here suggests anything nefarious occurred or that the

video was intentionally destroyed. As the Ohio Supreme Court noted, Petitioner at most asserts

that Poe “had some animosity toward” him, but “animosity doesn’t equate to a showing that he

deliberately destroyed evidence.” Blanton, 171 Ohio St.3d at 41, ¶ 102. This claim must

therefore be denied.

2. Ground Five – absence during critical stage of proceedings

In his fifth ground for relief, Petitioner argues the trial court violated his due process right

to be present at a critical stage of the proceedings when the court held a pretrial hearing on his

motion to dismiss without arranging for his attendance and transfer from prison. (Doc. 1, at

PageID 24). Citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987), Petitioner asserts his presence

was necessary to the fact-finding process because he knew the lost video was exculpatory and he

knew the jail administrator acted in bad faith. (Doc. 18, at PageID 2119-2120).

Petitioner raised this claim as his fifth proposition of law on direct appeal. The court of

appeals rejected the claim as follows:

{¶ 103} In this case, we must consider whether Appellant was deprived of a fair

and just hearing on the motion to dismiss by his absence. Essentially, Appellant

argues the trial court had a duty to hear his testimony on the issue of the additional

surveillance footage and its value to his defense. We have carefully reviewed the

record in its entirety and based on it, we disagree with Appellant, that his presence

was required at the motion to dismiss hearing.

{¶ 104} The record reflects the trial court raised the issue of when Appellant should

be returned from the state prison to Adams County for the purposes of trial at the

final pretrial on October 6, 2016. Defense counsel requested Appellant’s return for

the Friday prior to trial. The trial court advised, since trial was to begin on Monday,

November 7, 2016, that it would order Appellant’s conveyance to occur on the 3rd

or 4th of November. However, Appellant thereafter subpoenaed specific

surveillance footage on October 14, 2016 and filed a motion to dismiss based on

the failure to provide the footage on October 27, 2016.

{¶ 105} At the October 31, 2016 hearing on the motion, the trial court immediately

addressed the issue of Appellant’s absence. It is clear the court felt compelled to

proceed with the hearing, when it stated, “I know of no other means of preparing

counsel for the matters in the event that it does proceed to trial other than to proceed

without the defendant.” The court then asked if the attorneys wished to be heard on

the issue. Both defense counsel and the State’s counsel declined further discussion

about Appellant’s presence.

{¶ 106} Based on the evidence contained in the record before us, Appellant’s

argument that he was deprived of his constitutional and procedural rights to

confrontation by his absence at the October 31, 2016 hearing has no merit. The

record supports these findings: (1) that Appellant’s interests were adequately

protected by his counsel; (2) that Appellant’s presence would have contributed

little; and (3) that the failure to timely object constitutes a waiver of this argument.

{¶ 107} We find that while Appellant’s counsel has zealously argued that the

alleged materially exculpatory surveillance footage contained evidence which

challenged the substance of the kidnapping count, the record reflects, as set forth in

detail above, had Appellant been present at the October 31, 2016 conference, he

may have made a quite different argument which would not have contributed to his

defense. Based on the foregoing, we find no merit to Appellant’s fifth assignment

of error. It is hereby overruled.

Blanton, 110 N.E.3d at 32.

It is well settled that “a defendant is guaranteed the right to be present at any stage of the

criminal proceeding that is critical to its outcome if his presence would contribute to the fairness

of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). The right to be present is

rooted in both the Due Process Clause and the Confrontation Clause of the Sixth Amendment.

Gray v. Moore, 520 F.3d 616, 622 (6th Cir. 2008). This right, however, “is not absolute, but

exists only when ‘his presence has a relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge.’” United States v. Henderson, 626 F.3d 326, 343 (6th

Cir. 2010) (quoting United States v. Brika, 416 F.3d 514, 526 (6th Cir. 2005)). See also Lee v.

Jackson, No. 2:19-cv-11962, 2022 WL 3161671, at *3 (E.D. Mich. Aug. 8, 2022) (noting the

Constitution “does not require the defendant to be present when his ‘presence would be useless,

or the benefit but a shadow’”) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-107 (1934),

overruled on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)). A defendant’s presence at

a hearing is “largely a matter of form” when a defendant’s counsel is present and the proceedings

“raise largely legal issues.” Id. at *3 (citing Cathron v. Jones, 190 F. Supp. 2d 990, 1001-02

(E.D. Mich. 2002)). The right to be present may be waived and is generally subject to harmless

error analysis. See United States v. Gagnon, 470 U.S. 522, 526-27 (1985); Bourne v. Curtin, 666

F.3d 411, 413 (6th Cir. 2012) (citing Rushen v. Spain, 464 U.S. 114, 117 (1983)) (other citations

omitted). On habeas review, an error is harmless unless the defendant suffered “actual

prejudice.” Davis v. Ayala, 576 U.S. 257, 267 (2015) (quoting Brecht v. Abrahamson, 507 U.S.

619, 637 (1993)). Finally, “the exclusion of a defendant from a trial proceeding should be

considered in light of the whole record.” Gagnon, 470 U.S. at 526-27.

The record here reflects that shortly before trial, defense counsel filed a motion to dismiss

the indictment on the basis that the State failed to preserve all surveillance video. (Doc. 10,

PageID 43-47, 49, 52); Blanton, 110 N.E.3d at 28-29. The trial court held a status conference on

the record to address the motion. (Doc. 10-2, at PageID 1365-97). Petitioner was not present for

the conference because he was still awaiting transport from the Ohio Department of

Rehabilitation and Correction, where he was serving his prison sentence in the rape case. The

trial court opted to proceed with the hearing in Petitioner’s absence to allow counsel adequate

time to prepare for the trial. However, the court specifically advised counsel they could revisit

the issue once Petitioner arrived back in Adams County for trial. (Id. at PageID 1366-67).

Defense counsel did not object to proceeding without Petitioner, and counsel did not ask the trial

court to revisit the issue once Petitioner arrived. As a result, Petitioner waived this issue. See

Gagnon, 470 U.S. at 538 (finding a defendant’s failure to assert his right to be present at a jury

conference, as least in the context of Fed. R. Crim. P. 43, “was an adequate waiver” of his

claim).

Additionally, to the extent any error occurred, that error was harmless. Petitioner was

represented by two attorneys and counsel made factual and legal arguments advocating the

defense position. The written motion to dismiss, as well as counsels’ argument at the hearing,

focused on speculation about the missing video and the kidnapping charges. Defense counsel

expressed no knowledge regarding the substance of the missing video, suggesting it could go

either way. (See Doc. 10-2, PageID 1370, arguing, generally, that the jail cell was under

“constant 24 hour surveillance” so the deleted video would have shown “one of two things”). It

was not until sentencing that Petitioner informed the trial court that the missing video was

relevant to the felonious assault charge. Petitioner, for the first time, stated he saw the deleted

footage and it captured a different view of the assault, revealing Lunsford was conscious and

able to defend himself as Petitioner punched him. (Doc. 18, at PageID 2120, citing Doc. 10-5,

PageID 1985). He also claimed the jail administrator lied about the video and expressed bias.

(Id.). But there is nothing to suggest that counsel would have permitted Petitioner to testify at a

pretrial hearing regarding the facts and circumstances of the crimes charged. And even if

counsel permitted Petitioner to testify, his account of the missing video fails to establish the

video was exculpatory or that it would have played a significant role in his defense. Simply put,

there is no showing of prejudice here.

Because Petitioner fails to establish that his absence from the pretrial conference on his

motion to dismiss prejudiced him or deprived him of a fair trial, his fifth claim must be denied.

E. Ground Six – Confrontation Clause

In his sixth ground for relief, Petitioner argues the trial court’s refusal to allow him to

cross-examine the jail administrator about his failure to preserve potentially exculpatory video

evidence violated his right of confrontation and right to present a complete defense under the

Sixth and Fourteenth Amendments. (Doc. 1, at PageID 12). Petitioner asserts:

This unreasonable restriction on cross-examination deprived Petitioner of the

opportunity to develop testimony undermining the completeness of the video

footage that was offered into evidence, its value as corroborative evidence, and the

integrity and thoroughness of the investigation. As a consequence, Petitioner’s jury

was left with the false perception that the video footage had been screened by the

parties for relevancy, that the segments played for them contained the only relevant

images, and that none of the deleted segments favored the defense position. Due

to lack of overwhelming evidence of Petitioner’[s] guilt, the restriction on cross-

examination was not harmless beyond a reasonable doubt.

(Id.).

The Sixth Amendment’s Confrontation Clause guarantees criminal defendants the right to

physically confront and cross examine adverse witnesses at all stages of trial. Illinois v. Allen,

397 U.S. 337, 388 (1970). A criminal defendant’s right to cross-examine witnesses against him,

however, is not unlimited. “Trial judges retain wide latitude . . . to impose reasonable limits on

such cross-examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. VanArsdall, 475 U.S. 673, 679 (1986). The Confrontation Clause thus

guarantees “‘an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defendant might wish.” Id. (quoting

Delaware v. Fensterer, 474 U.S. 15, 20 (1985)); see also Norris v. Schotten, 146 F.3d 314, 330

(6th Cir. 1998) (no Confrontation Clause violation where relevance of questions prohibited on

cross is unclear and risk of prejudice real) (citations omitted)). Where a trial court limits the

extent of a criminal defendant’s cross-examination but does not bar it completely, the trial court

is afforded wider latitude. See Stewart v. Wolfenbarger, 468 F.3d 338, 347 (6th Cir. 2007)

(quoting Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir. 1989)). Under such circumstances, the

test is “whether the jury had enough information, despite the limits placed on otherwise

permitted cross-examination, to assess the defense theory.” Id. (citing Dorsey v. Parke).

Habeas review of Petitioner’s claim is subject to the harmless error review set forth in

Brecht v. Abrahamson, 507 U.S. 619 (1993), which requires the Court to ask whether a

constitutional violation “had substantial and injurious effect or influence in determining the

jury’s verdict.” Id. at 623. For Confrontation Clause violations, the inquiry involves

consideration of several factors including “the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s

case.” Van Arsdall, 475 U.S. at 673, 684; see also Miller v. Genovese, 994 F.3d 734, 744-45

(6th Cir. 2021) (applying the Van Arsdall factors under the Brecht standard). “If the

constitutional error had no material effect, the verdict must stand. However, if the court has

‘grave doubts’ whether the error had a substantial or injurious effect or influence in determining

the jury’s verdict,” the court must grant the petitioner’s writ. Jensen v. Romanowski, 590 F.3d

373, 379 (6th Cir. 2009) (citing O’Neal v. McAninch 513 U.S. 432, 435–36 (1995); Stallings v.

Bobby, 464 F.3d 576, 582 (2006)).

Where the state courts adjudicated a Confrontation Clause claim on the merits, “the

Brecht test subsumes the limitations imposed by AEDPA.” Davis v. Ayala, 576 U.S. 257, 270

(2015). See also McCarley v. Kelly, 801 F.3d 652, 655 (6th Cir. 2015) (citing Davis and

applying Brecht to confrontation clause claim with AEDPA deferential review). Here, the

Fourth District Court of Appeals considered the merits and rejected Petitioner’s Confrontation

Clause claim on direct appeal. The court of appeals determined the trial court exercised its

inherent power to limit the scope of cross-examination in order to prevent confusion regarding

legal issues already decided by the court:

{¶ 108} In this assignment of error, Appellant argues the trial court foreclosed his

cross-examination of Lieutenant Poe at trial regarding his failure to preserve all the

video surveillance footage and this limitation violated Appellant’s federal and state

constitutional right of confrontation. At trial, the prosecutor objected to defense

counsel’s attempt to cross-examine Lieutenant Poe about the missing and allegedly

relevant surveillance footage. The trial court sustained the objection.

{¶ 109} Appellant contends he still retained a right to cross-examine Lieutenant

Poe regarding this subject in the jury’s presence for purposes of challenging the

completeness of the video footage that was offered into evidence, its value as

collaborative evidence, and the integrity and thoroughness of the investigation. He

argues denial of the opportunity to cross-examine on this issue violated his right of

confrontation and right to present a complete defense. Appellant asserts the jurors

were left with the false impression that the surveillance footage contained the only

relevant images.

* * *

{¶ 112} As set forth above, Evid.R. 611(B) provides that “Cross-examination shall

be permitted on all relevant matters and matters affecting credibility.” Id. Potts, ¶

73. The pertinent portion of Lieutenant Poe’s cross-examination is as follows:

Q: You are responsible as you testified to keeping all of the footage,

correct?

A: Yes.

Q: And the footage that we looked at here that is what you kept?

A: Yes.

Q: You didn’t keep anything before the 18th of June?

A: No.

Q: And didn’t keep anything after the 18th of June?

A: No.

Q: So just the footage that Miss Harris and I have?

A: What was provided to the Prosecutor’s office is what I

downloaded.

Q: And you did not feel it was a good idea to keep the remaining –

Ms. Harris: Objection.

The trial court thereafter conducted this side bar conference:

Ms. Harris: Your Honor, just that this line of question and this topic

has already been ruled on * * *. The State was previously barred

from using testimony outside the video.

Mr. Cantrell: I was just asking whether or not he kept anything else.

The Court: Well, you asked him that and he answered that.

Mr. Cantrell: Okay.

The Court: Seems like you are trying to go around the Court’s

orders.

Mr. Cantrell: I didn’t mean it that way, I was just wanting to get that

out.

The Court: How else would it have been determined?

Mr. Cantrell: I wasn’t trying to get in what was on the video, but that

they just didn’t keep it.

The Court: He answered that. I’ll sustain the objection.

{¶ 113} In opening, defense counsel planted the idea the jury should cast doubt on

the completeness of the footage. Counsel stated in opening:

“You will likely see some video footage as you can imagine a jail

cell is under constant video surveillance. All the allegations are to

alleged to have been in that jail cell, any actions occurred in that jail

cell. You’ll see some video footage approximately consisting of

about 157 minutes. That’s all the video footage that was ever

retained or kept from that jail cell. We have all these five crimes,

three of which being kidnappings, one felonious assault and one

assault, but they didn’t manage to keep any of the video footage that

alleged[ly] show these things.”

Then, in closing, defense counsel emphasized as follows:

“Mr. Poe testified that there was only around 157 minutes of

footage, he was the one that decided what to keep. He didn’t keep

any more. He did talk about how they only retain footage for so long

but he got footage of the 18th, he didn’t get anything on the 19th

when Mr. Lunsford was allegedly confined to his bed. There was no

footage of that. Nor was there footage of anything prior, we didn’t

have any of that, it wasn’t kept.”

{¶ 114} Based upon our review of the transcript, we find no confrontation clause

violation by the trial court’s sustaining the objection and not allowing defense

counsel to question Lieutenant Poe as to whether or not he “did not feel it was a

good idea to keep the remaining [footage.]” First, Appellant was not foreclosed

from appropriate cross-examination. If a trial court allows cross-examination to

expose a motive to lie, then “it is of peripheral concern to the Sixth Amendment

how much opportunity defense counsel gets to hammer that point home to the jury.”

McKelton, quoting Nelson at 708. Under those circumstances, the extent of cross

examination is within the sound discretion of the trial court. McKelton, supra, citing

State v. Freeman, 7th Dist. Jefferson No. 07JE5, 2008-Ohio-2925, 2008 WL

2425532, ¶ 12. Similarly, since defense counsel was able to plant the idea in

opening that the surveillance footage was suspect, and present through cross-

examination that Lieutenant Poe did not give the prosecutor’s office any video

footage before and after the June 18, 2016, and the jury was able to draw their own

conclusions from that testimony, it is within the trial court’s discretion how much

more counsel got to advance that point. At sidebar, defense counsel argued he was

only trying to question whether or not he kept any other footage and the trial court

found that question had been asked and answered.

{¶ 115} More importantly, we find the question as to whether or not Lieutenant Poe

“felt it was a good idea to keep remaining [footage]” to be an unfair question, which

could have caused confusion, given the fact of the trial court’s ruling that there was

no bad faith on the part of the officer’s in not providing additional footage. The trial

court ruled the footage not provided was not materially exculpatory nor potentially

useful and there had been no bad faith as it was no longer available due to routine

procedures. In doing so, the trial court was required to make a legal analysis. Had

the court allowed the defense counsel to continue with the line of questioning, both

parties may have engaged in further questioning which may necessarily have

involved consideration of legal conclusions or extrinsic matters. We are mindful

that “‘[a] trial court retains wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

* * * or interrogation that is repetitive or only marginally relevant.’” State v. Potts,

2016-Ohio-5555, 69 N.E.3d 1227 (3rd Dist.), ¶ 76. (Internal citations omitted.)

{¶ 116} Additionally, there is no evidence in the record that Lieutenant Poe made

any conscious determination to keep or not to keep the requested footage. The only

evidence of a “motive to lie” in the record is Appellant’s self-serving statement on

the record that Lieutenant Poe showed him surveillance footage which helped his

case and then destroyed it. Given the finding of no bad faith, the jury was not left

with a false impression by the court’s ruling, as it would have been if Appellant had

been allowed to continue with a line of questioning insinuating that Lieutenant Poe

actively took steps to prevent the jury from seeing additional surveillance footage.

{¶ 117} We find Appellant’s federal and state constitutional rights to confrontation

of witnesses was not foreclosed and he was not prohibited from engaging in

otherwise appropriate cross-examination. As such, we find no merit to the sixth

assignment of error. Accordingly, it is hereby overruled.

Blanton, 110 N.E.3d at 32-35.

Petitioner’s claim fails. First, the state appellate court determined that no error occurred

where the trial court limited the scope but did not prevent Petitioner’s cross-examination of

Lieutenant Poe regarding the deleted surveillance video. Specifically, the state court noted that

the jury was aware that Lieutenant Poe failed to save any video from before and after the June

18, 2016 assault, and the jury was free to draw their own conclusions from that testimony.

Blanton, 110 N.E.3d at 35. This determination is not based on an unreasonable determination of

the facts in light of the evidence presented, and it is neither contrary to nor an unreasonable

application of clearly established Supreme Court precedent.

Moreover, to the extent any error occurred, the Court finds the limits imposed on the

scope of Petitioner’s cross-examination of Poe were harmless under the strict standard applicable

to habeas cases. The trial court permitted enough cross-examination to establish that Poe failed

to download or save all the available video. And in opening statement and closing argument,

defense counsel made their point by arguing the video presented at trial was incomplete and

failed to tell the whole story. (See, e.g., Doc. 10, PageID 445). This, coupled with the strength

of the prosecution’s case which included eye-witness testimony and other video evidence,

defeats Petitioner’s claim. Because the Court cannot say it harbors grave doubt as to the effect or

influence the trial court’s restriction on cross-examination had on the jury’s verdict, Petitioner’s

sixth ground for relief must be denied.

F. Ground Eight – Ineffective Assistance of Counsel

In his eighth ground for relief, Petitioner sets forth six sub-claims of ineffective

assistance of trial counsel. (Doc. 1, PageID 13-14). The undersigned addressed the merits of

subclaim eight (4) in connection with Petitioner’s third ground for relief. The Court addresses

the remaining subclaims as follows.

1. Subclaim Eight (1)

In subclaim (1), Petitioner argues trial counsel failed to insist on his presence at the

pretrial hearing on his motion to dismiss for failure to preserve all jail surveillance video.

Petitioner asserts he could have testified that the jail administrator showed him the deleted

footage from the second camera and that footage contradicted the prosecutor’s argument that

Lunsford was unconscious and defenseless. (Doc. 1, PageID 13). He also argues counsel failed

to subpoena the jail administrator to testify about the missing video. (Id.)

Petitioner raised at least part of this claim on direct appeal as his seventh proposition of

law. The Court of Appeals rejected the claim on the merits, finding counsel “made a wise

strategic decision not to insist on his client’s presence” where Petitioner’s proposed testimony

did not exonerate him on the issue of serious physical harm and risked Petitioner admitting to the

crime. Blanton, 110 N.E.3d at 36-37 (noting Blanton’s statement at sentencing that the missing

video “showed Lunsford ‘protecting himself and protecting my punches’” was an admission to

assaulting Lunsford). Petitioner raised this claim again in post-conviction, supporting it with his

own affidavit stating that Lieutenant Poe was biased against him. The Ohio Supreme Court

rejected Petitioner’s claim as follows:

{¶ 95} Perhaps anticipating our holding on his due-process claim, Blanton also

contends that his counsel was ineffective for not requesting that he be present for

the hearing on the motion to dismiss. Blanton asserts that if he had attended the

hearing, he would have told his attorneys about the footage allegedly showing that

Lunsford had been conscious throughout the attack, emphasized the need for his

counsel to call Lieutenant Poe to the stand, and testified on his own behalf.

* * *

{¶ 99} * * * The focus of Blanton’s claim about the missing video was that,

according to Blanton, the video would have shown that Lunsford never lost

consciousness when Blanton was attacking him as he lay on the ground. And his

claim about his absence from the hearing on the motion to dismiss is premised on

his assertion that if he had been present, he would have demonstrated that the

destroyed video would have shown that Lunsford was conscious during the attack

and that the video was destroyed in bad faith.

{¶ 100} But that is all a non sequitur. Blanton’s allegations about the content of the

video do not establish that it was materially exculpatory. To convict Blanton of

felonious assault, the state was required to prove that he knowingly caused serious

physical harm to Lunsford. See R.C. 2903.11(A)(1). Blanton watched as other

inmates dragged Lunsford to the floor and began kicking him in the head. Once

Lunsford was incapacitated, Blanton joined in and punched him about 15 times in

the head. The attackers then dispersed for a few moments. But when Lunsford tried

to stand up, Blanton dealt him a few more blows to the head. He then pinned

Lunsford up against the wall, beating him until he collapsed. The group continued

to attack Lunsford until he stopped moving. A doctor determined that the assault

caused Lunsford to sustain a concussion. As the court of appeals concluded in

Blanton’s direct appeal, whether Lunsford was moving during the entirety of

Blanton’s assault has no bearing on whether Blanton knowingly caused him serious

physical harm. See Blanton, 2018-Ohio-1278, 110 N.E.3d 1, at ¶ 98.

{¶ 101} The court of appeals also determined in Blanton’s direct appeal that even

if the footage of the assault from a different angle would have been “potentially

useful” to his defense, Blanton had made no showing that it was destroyed in bad

faith. Id. at ¶ 99. Blanton’s petition sets forth additional allegations on the issue of

bad faith based on evidence outside the trial record. Blanton alleges that Lieutenant

Poe laughed at him when he was convicted of the charges in the rape case and told

him that he “would have 30 years to think about what [he] did.” And Blanton says

that following the assault on Lunsford, Poe claimed to have “enough charges

against [Blanton] to ensure that [he] would never go home.”

{¶ 102} The problem with Blanton’s bad-faith argument is that his allegations –

even if believed – don’t establish bad faith. At most, the allegations could establish

that Poe had some animosity toward Blanton. Poe’s animosity doesn’t equate to a

showing that he deliberately destroyed evidence. Thus, even if we credit Blanton’s

outside-the-record evidence about what he would have added to the hearing on the

motion to dismiss, Blanton is still not entitled to relief. Blanton has failed to set

forth facts that, if believed, show that the result of the hearing on the motion to

dismiss would have been different had he been present. See Cole, 2 Ohio St.3d at

114, 443 N.E.2d 169.

Blanton, 215 N.E.3d 467, 489-90.

As discussed in the prior sections of this Report and Recommendation addressing the

fifth and seventh grounds for relief, no constitutional error occurred when the trial court held a

status conference on the motion to dismiss without Petitioner present. Because no error

occurred, Petitioner cannot satisfy the prejudice prong of Strickland’s demanding and deferential

standard for claims of ineffective assistance of counsel. Accordingly, Subclaim eight (1) must be

dismissed.

2. Subclaims Eight (2) and (3)

In subclaim (2), Petitioner argues his trial counsel were ineffective for failing to argue it

is a legal impossibility for an inmate to kidnap another inmate confined with him in the same jail.

And in subclaim (3), he contends counsel should have moved to dismiss the kidnapping count on

the basis that Ohio’s misdemeanor coercion statute and not the felony kidnapping statute applied

to the facts of this case. (Doc. 10, PageID 13).

On direct appeal, the Fourth District Court of Appeals determined the Ohio kidnapping

statute applies in a jail setting. Because kidnapping another jail inmate is a legal possibility

under Ohio law, the court held that “counsel can hardly be deemed ineffective for failing to

advance a fruitless argument.” Blanton, 110 N.E.3d at 37. As discussed in the prior section of

this Report and Recommendation addressing Petitioner’s second claim for relief, this Court is

bound by the Ohio court’s interpretation and application of Ohio law. See Bradshaw v. Richey,

546 U.S. 74, 76 (2005) (reiterating that on habeas review, “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”) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Because the

Fourth District Court of Appeals determined that an inmate may restrain the liberty of another

inmate for purposes of Ohio’s kidnapping statute, Petitioner cannot establish deficient

performance or prejudice under Strickland based on counsels’ failure to argue legal impossibility

or coercion. Subclaims (2) and (3) lack merit.

3. Subclaim Eight (5)

In subclaim (5), Petitioner argues trial counsel advised him not to testify on his own

behalf based on an erroneous belief that the prosecution “had an absolute right” to impeach him

with his prior convictions for rape and kidnapping. (Doc. 1, PageID 14). For the following

reasons, this claim is procedurally defaulted.

The record reflects that Petitioner raised this subclaim of ineffective assistance of counsel

for the first time during his state post-conviction proceedings. The trial court rejected the claim

on the basis of res judicata, finding Petitioner could have raised the claim on direct appeal.

(Doc. 10, PageID 592-93). The trial court also determined the claim lacked merit. (Id.) The

Fourth District affirmed the decision of the trial court on both points. State v. Blanton, No.

19CA1096, 19CA1097, 2020-Ohio-7018, ¶¶ 46-47, 2020 WL 8093524, *11 (Ohio App. 4th Dist.

Dec. 23, 2020). Petitioner appealed to the Ohio Supreme Court, but he only challenged the

lower courts’ application of res judicata to bar review of his claim; he did not appeal the

alternative merits decisions. The Ohio Supreme Court determined the lower courts erred by

invoking res judicata to bar review of his claim but held that Petitioner failed to appeal the

alternative merits decision:

{¶ 103} Blanton further asserts that his trial counsel gave him incorrect legal advice

that influenced his decision not to testify in his own defense in the jail case. He

avers that his attorneys advised him against testifying, telling him that the

prosecutor would have the right to “impeach [him]” with his recent convictions in

the rape case. He maintains that this advice was incomplete, in that the state does

not have an absolute right to impeach a defendant with his prior convictions. Rather,

under Evid.R. 609(A)(2), evidence that the accused has been convicted of crime is

admissible only if the trial court “determines that the probative value of the

evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.” Blanton maintains that had he known this, he would have

sought a pretrial ruling on the admissibility of his convictions from the rape case

before deciding whether to testify in the jail case.

{¶ 104} The trial court rejected this claim on two grounds. It concluded that the

claim was barred by res judicata because it could have been raised on direct appeal

and that the allegations failed to establish a substantive claim for relief. We disagree

with the trial court’s first determination and are unable to consider the second.

{¶ 105} In determining that res judicata applied, the trial court reasoned that the

fact “[t]hat the specific reasons for the decision not to testify were not in the record

did not prevent [Blanton] from arguing [in his direct appeal] that counsel was

ineffective for failing to have him testify.” The court of appeals agreed, concluding

that Blanton’s claim “could have been included in the direct appeal.” 2020-Ohio-

7018 at ¶ 46. We disagree. Blanton’s ineffective-assistance claim alleges that he

was given bad legal advice regarding his decision whether to testify. That

information is not in the trial record, and the claim could not have been adjudicated

in his direct appeal. This claim was therefore not subject to dismissal on res judicata

grounds.

{¶ 106} Nevertheless, both the trial court and the court of appeals alternatively

determined that Blanton’s ineffective-assistance claim failed on the merits. Id. at ¶

47. The court of appeals noted that Blanton’s affidavit stated: “If called to the

witness stand, I would have told the jury that Gary Lunsford was fully conscious

and deflecting my punches with his arms.” Id. The court of appeals concluded,

“[Blanton] fails to see how the statement ‘deflecting my punches with his arms’

would not be helpful to him.” Id. Thus, the court of appeals determined that even if

Blanton’s allegations were taken as true, he failed to show that he was prejudiced

by his counsel’s performance. See id. Because Blanton has not challenged that

determination, that portion of the court of appeals’ judgment is not before us. See

Estate of Ridley, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, at ¶ 27, citing

Timken Mercy Med. Ctr., 61 Ohio St.3d at 87, 572 N.E.2d 673. We affirm the

judgment of the court of appeals rejecting this claim.

Blanton, 171 Ohio St.3d at 41-42.

It is well settled that a federal court may not grant habeas corpus relief unless a petitioner

exhausts all available state court remedies. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999). This includes fairly presenting each federal claim to all levels of the state

appellate system to ensure the state has a “full and fair opportunity to rule on the petitioner’s

claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990) (citing Justices v. Boston

Mun. Court v. Lydon, 466 U.S. 294, 302–03 (1984)). And a petitioner must present “the same

claim under the same theory” to the state courts. See Pillette v. Foltz, 824 F.2d 494, 497 (6th

Cir. 1987) (citing Franklin v. Rose, 811 F.2d 322 (6th Cir, 1987)). “If a prisoner never presented

a claim to the highest state court and a state procedural rule now bars presentation of the claim,

the claim is technically exhausted but procedurally defaulted.” Collins v. Fitz, No. 3:23-CV-

387-JRG-JEM, 2026 WL 458609, at *3 (E.D. Tenn. Feb. 18, 2026) (citing Gray v. Netherland,

518 U.S. 2074, 2080 (1996); Coleman v. Thompson, 501 U.S. 722, 731–32, 750 (1991)).

Petitioner argues his subclaim is not procedurally defaulted because the Fourth District’s

alternative discussion of the “possible merits” of his claim was dictum. (Doc. 18, PageID 2134).

Petitioner cites Cruz v. Arizona, 143 S.Ct. 650, 661 (2023), for the proposition that “where a

state-court judgment rests on a novel and unforeseeable state-court procedural decision lacking

fair or substantial support in prior state law, that decision is not adequate to preclude review of a

federal question.” (Doc. 18, PageID 2135).

The undersigned disagrees. It is evident from the Fourth District’s decision that the

appellate court did more than discuss the possible merits of his claim: the appellate court decided

Petitioner’s claim on both procedural, and alternatively, substantive grounds. This is not a case

where the appellate court merely expressed “reservations” or made an “offhand remark” about

the merits of the underlying claim. See, e.g., Barton v. Warden, 786 F.3d 450, 461 (6th Cir.

2015). To the contrary, the Fourth district discussed the facts of the claim and applied the

Strickland standard to conclude counsel did not perform deficiently. The Court of Appeals

stated:

{¶47} Even if Appellant could raise an ineffective assistance claim for his counsel’s

failure to call him as a witness, we would find no error. In the direct appeal, we

noted that we found based on the record—in particular Appellant’s statements at

sentencing—that Appellant’s presence would have “contributed little.” Likewise,

in Appellant’s affidavit, he avers at paragraph 14: “If called to the witness stand, I

would have told the jury that Gary Lunsford was fully conscious and deflecting my

punches with his arms.” Appellant fails to see how the statement “deflecting my

punches with his arms” would not be helpful to him. Counsel’s failure to call

Appellant as a witness would be considered a matter of trial strategy.

Blanton, 2020 WL 8093524, *11. Further, there is nothing novel or unforeseeable about the

“firmly established principle of habeas review that a defendant’s decision during a later step of

the appeal process to drop arguments advanced in a prior step of that appeal constitutes

procedural default.” Boaston v. Watson, No. 3:22-CV-00854-SL, 2024 WL 4133851, at *16

(N.D. Ohio May 2, 2024), report and recommendation adopted, 2024 WL 3647611 (N.D. Ohio

Aug. 5, 2024) (citing O’Sullivan, 526 U.S. at 848). See also Stewart v. IHT Ins. Agency Grp.,

LLC, 990 F.3d 455, 456 (6th Cir. 2021) (noting that when there are two alternative grounds for a

decision, “[a]n appellant’s goal is to undo the judgment below” and “[i]t does no good for a

track-and-field hurdler to clear just the first hurdle in a race and then sit down on the track”).

Because the Ohio Supreme Court enforced the waiver against Petitioner, subclaim (5) is

procedurally defaulted. However, even if this subclaim was properly before the Court, it lacks

merit. Petitioner’s proposed testimony regarding Lunsford’s defensive actions was inculpatory

and did not negate the issue of whether Lunsford suffered serious physical harm. Accordingly,

Petitioner cannot establish prejudice under Strickland.

4. Subclaim Eight (6)

In subclaim (6), Petitioner argues trial counsel failed to file an affidavit to disqualify the

trial judge for bias arising from the judge’s relationship with the participants in Petitioner’s prior

rape trial. Specifically, Petitioner notes that the judge’s wife was employed by the county school

district where the father of the victim in the rape case served as Superintendent. (Doc. 18,

PageID 2136). Petitioner asserts “[t]he judge’s ongoing bias and lack of impartiality influenced

his rulings and deprived Petitioner of an opportunity to develop evidence regarding the

intentional failure of the jail administrator to preserve exculpatory evidence.” (Doc. 10, PageID

14).

The Ohio Supreme Court rejected Petitioner’s claim on post-conviction review, finding

that Petitioner failed to point to any evidence suggesting bias:

{¶ 107} Blanton next asserts that his counsel provided ineffective assistance by

failing to move for the trial judge’s recusal or to file an affidavit in this court to

have him disqualified in the jail case. The lower courts concluded, as they did with

the similar allegation in the rape case, that this claim was barred by res judicata.

See 2020-Ohio-7018 at ¶ 52-54.

{¶ 108} But the analysis for this claim is not the same in both cases. As we

explained earlier, Blanton’s claim regarding his attorneys’ failure to pursue an

affidavit of disqualification in the rape case was barred by res judicata because the

factual allegations of bias were contained in the trial record, through the motion for

recusal and the subsequent hearing on that motion. But Blanton’s counsel did not

file a motion to recuse in the jail case. As a result, the facts on which Blanton now

relies are not contained in the trial record. Because the claim relies on information

outside the trial record, it is not barred by res judicata.

{¶ 109} Still, we conclude that the lower courts reached the correct judgment. The

allegations of bias on which Blanton relies in his petition in the jail case stem

entirely from the rape case: Blanton again highlights the fact that the judge’s wife

was an employee of the school district for which J.S.’s father served as

superintendent. He also vaguely alleges that during the rape trial, the judge “made

comments, some of which were not recorded, and rulings” that reinforced Blanton’s

belief that the judge was biased against him. His petition does not elaborate on the

nature of the comments or rulings in the rape case. Nor does he allege any conduct

by the trial judge during the jail case that suggests any improper bias. Indeed,

Blanton contends only that his counsel should have filed a motion to recuse to

prevent the judge’s alleged bias in the rape case from “carrying over” to the jail

case. But the fact that a judge has presided over a previous case involving the same

defendant does not by itself establish bias in the current case. We therefore

conclude that Blanton has failed to allege facts sufficient to establish that he was

denied effective assistance of counsel in this respect, and we affirm the judgment

of the court of appeals on that basis.

Blanton, 171 Ohio St.3d at 43.

Because the Ohio Supreme Court rejected this ineffective assistance of counsel subclaim

on the merits, “‘the pivotal question” is not ‘whether defense counsel’s performance fell below

Strickland’s standard,’ but ‘whether the state court’s application of the Strickland standard was

unreasonable.’” Davis v. Burgess, No. 24-1154, 2024 WL 3928161, at *3 (6th Cir. Aug. 2,

2024) (citing Harrington, 562 U.S. at 101). This results in a doubly deferential standard of

review that “gives both the state court and the defense attorney the benefit of the doubt.” Id.

(quoting Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190

(2011)).

Here, the Ohio Supreme Court properly analyzed Petitioner’s claim under Strickland

because Petitioner failed to establish any judicial bias. See Davis, 2024 WL 3928161, *3

(finding “because Davis failed to show judicial bias, the state court reasonably analyzed his

claims under the Strickland-prejudice prong” and distinguishing the standard applied in Coley v.

Bagley, 706 F.3d 741, 750 (6th Cir. 2013)). And the decision of the Ohio Supreme Court

denying Petitioner’s subclaim is not an unreasonable application of Strickland, because

Petitioner’s suggestion that judicial bias carried over from the rape case to this case is

speculative at best. Without identifying any particular biased conduct or comments by the trial

judge, Petitioner cannot establish his attorneys performed deficiently by failing to file an

affidavit of disqualification. Moreover, as Respondent notes, “[j]udicial rulings alone almost

never constitute a valid basis for a bias or partiality motion.” (Doc. 11, PageID 2085, quoting

Liteky v. United States, 510 U.S. 540, 555 (1994)). The undersigned therefore recommends that

subclaim (6) be denied.

5. Cumulative error

Finally, Petitioner argues the cumulative effect of counsel’s errors prejudiced the

outcome of his trial. This claim likewise fails. “The Supreme Court has not held that distinct

constitutional claims can be cumulated to grant habeas relief.” Lorraine v. Coyle, 291 F.3d 416,

447 (6th Cir. 2002). See also Hill v. Mitchell, 842 F.3d 910, 948 (6th Cir. 2016) (“Under

AEDPA, we do not recognize claims of cumulative error.”); Kissner v. Palmer, 826 F.3d 898,

903-04 (6th Cir. 2016) (“[T]he Supreme Court has not recognized cumulative error as a basis for

relief in non-capital [habeas] cases.”). In any event, Petitioner has not established that he is

entitled to relief on any of his individual ineffective assistance of trial counsel claims, so there

are no instances to cumulate.

V. Recommended Disposition

For the foregoing reasons, the undersigned RECOMMENDS that Petitioner’s claims be

DENIED and this action be DISMISSED.

IT IS SO RECOMMENDED.

July 31, 2026 /s/ Chelsey M. Vascura

CHELSEY M. VASCURA

United States Magistrate Judge

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence, or may

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo and operates as a waiver of the right to appeal the decision of the

District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised

that, if they intend to file an appeal of any adverse decision, they may submit arguments in any

objections filed, regarding whether a certificate of appealability should issue.