Petition for Writ of Certiorari — DeLawrence A. King, Petitioner v. Ronald Erdos, Warden

Supreme Court briefJun 22, 2018

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No.

In The

Supreme Court of the United States

DELAWRENE A. KING,

Petitioner

CHARMAINE BRACY, Warden

Respondent

On Petition for Writ Of Certiorari

To The 6th Circuit Court and Northern District Court of

Appeals

PETITION FOR WRIT OF CERTIORARI

Resp.çtfç4Iy Submitted,

D1Øirence A. King, #472975

Ntheast Ohio Correctional Center

2240 Hubbard Road

Youngstown, Ohio 44505

Defendant, pro se

vrD

QUESTION(S) PRESENTED

Did the Sixth Circuit Court error when it failed to grant Petitioner a Certificate Of

Appealability after previously ruling in his favor, by stating that he had the right to challenge his

underlying conviction and sentence after receiving an de novo resentencing? King v. Morgan,

807 F.3d 154

As well Petitioner would like this Honorable Court to determine whether he was denied

his due process protection right as guaranteed by the United States Constitution, when the

state painted an uncharacteristic picture of Petitioner and in flame the passion of his jury by

attacking his defense of self-defense and stating that he was in their backyard, in their city, and

so forth.

Petitioner believes that the

6th

Cir. error in their determination that he did not make a

substantial showing of the denial of a federal constitutional right according to U.S.C.

§2253(c)(2) and asserts that there were no doubt that jurists could debate whether 1) was he

fully given fair notice as to the charges against him because his indictment failed to list the

requisite mens rea, as to counts three (3) and four (4), as require by Ohio's Constitution and the

Fifth, Sixth, and Fourteenth Amendment United States Constitution. 2) His conviction was

against the manifest and sufficiency of the evidence, after presenting evidence of perjured

testimony from several of the state's witnesses, and as well the inconsistency in the states

theory as to that of physical evidence, and with that of Petitioner's testimony along with the

testimony of 12 year old Jamie Williams [at the time], his conviction and sentence was in fact

against the sufficiency and manifest weight of the evidence. 3) He did receive ineffective

assistance of Appellant Counsel for counsel's failure to raise grounds five through seven in his

direct appeal for Petitioner. Petitioner has proved through clear and convincing evidence that

Grounds Five, Six and Seven should not, nor can not, be procedurally defaulted due to the

State's claim of procedural bar because he had the right to file a 26(B), Application to reopen

direct appeal, pursuant to Ohio Rule of Criminal Procedure after receiving an de novo

resentence. And as well Petitioner has shown that his constitutional right was violated by the

State's improper remarks that denied him affair trial and due process of law. And he was

denied the effective assistance of trial counsel for his failure to object to the State's improper

remarks that allowed the jury to believe that the state's remarks were true and correct.

LIST OF PARTIES

[x] All parties appear in the caption of the case on the cover page.

[] All parties do not appear in the caption of the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this

petition is a follows:

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION.........................................................................................................

CONSTITUTIONAL AND STATUORY PROVISIONS INVOLVED ........................... 9

STATEMENT OF THE CASE .................................................................................... 10

REASONS FOR GRANTING THE WRIT..................................................................13

CONCLUSION.........................................................................................................34

INDEX TO APPENDICES

APPENDIX A Order of Sixth Ciruit

APPENDIX B Motion for leave to proceed in forma pauperis

APPENDIX C Order of The Northern District Court of Appeals

APPENDIXD

APPENDIX E

APPENbIX F

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

State v. King, No. 04CA008577, 2005 WL 1962967

King v. Hudson, No. 07-3336

(6th

Cir. Oct. 12, 2007)

State v. King, No 10CA009755, 2010 WL 3619914 (Ohio Ct. App. Sept. 20, 2010)

State v. King, 939 N.E.2d 1265 (Ohio 2011)

State v. King, No. 10CA009755 (Ohio Ct. App. Apr. 13, 2011)

State v. King, No. 2011-0887 (Ohio Aug. 24, 2011)

King v. Morgan, 807 F.3d 154, 157

(6th

Cir. 2015)

Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed.2d 652 (1972)

Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884)

Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L.Ed.2d 114 (1994)

Valentine v. Konteh, 395 F.3d 626, 631-632

(6th

Cir. 2005)

Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L.Ed 644 (1948)

Roe v. Baker, 316 F.3d 557, 570

(6th

Cir. 2002),

Russell v. United States, 369 U.S. 749, 763, 82 S. Ct. 1038 (1962)

Williams v. Haviland, 467 F. 3d at 535

Koontz v. Glossa, 731 F. 2d 365, 369

Olsen v. McFaul, 843 F.2d 918, 930

(6th

Cir. 1984)

Cir. 1988)

In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682

De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S. Ct. 255, 259, 81 L. Ed. 278

Watson v. Jago [558 F.2d 330

(6th

Cir. 1977)

Blake, 563 F.2d at 250

Gautt v. Lewis, 489 F.3d 993, 1006-1007

(gth

Cir. 2007)

State v. Buehner, 110 Ohio St.3d 403

Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996)

Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977)

Murray v. Carrier, 477 U.S. 478, 488

Beavers v Saffle, 216 F.3d 918, 2000 U.S. App. LEXIS 14048

Krumpelman v. Heckler, 767 F.2d 586, 588

(gth

Cir. 1985)

Sanders v. united States (1963), 373 U.S. 1, 8

Felker, 518 U.S. at 664

McCleskey, 499 U.S. at 480-81

80 N.Y.u.L.Rev. 1156, 1179 (October 2005)

State v. Fischer, 128 Ohio St.3d 92 (2010)

Magwood v. Patterson, 561 U.S. 3201 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010)

Bies v. Sheldon, 775 F.3d 386, 395

(6th

Cir. 2014)

Doe v. Jackson Local Schs. Sch. Dist., 422 Fed. Appx. 497

(6th

Cir. 2011)

State v. Dapice (1989), 57 Ohio App. 3d 99, 102, 566 N.E.2d 1261

State v. Henderson (1979), 58 Ohio St. 2d 171, 179, 389 N.E.2d 494

State v. King, C.A. No. 10CA009755, cited as 2010-Ohio-4400

Brown v. City of Dayton, 1998 Ohio App. LEXIS 5879

Shimman v. Frank (C.A. 6, 1980), 625 F.2d 80, 89

State v. Davis, 119 Ohio St.3d 422

Whitehead v. General Tel. Co. (1969), 20 Ohio St.2d 108, 116

State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998 Ohio 271

Set Products, Inc. v. Bainbridge Twp. Bd. Of Zoning Appeals (1987), 31 Ohio St.3d 260

State v. Brown, 119 Ohio St.3d 447, 2008 Ohio 4569, 895 N.E.2d 149, P 43

State v. McGuire (1997), 80 Ohio St. 3d 390, 399, 1997 Ohio 335, 686 N.E.2d 1112

State v. Underwood, 124 Ohio St. 3d 365 at ]26

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182

State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512

State v. Williams, 2016-Ohio-7658

In re Johnson, 2011 Ohio 2466

State v. Maurer [1984], 15 Ohio St.3d 239

State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542

State v. Arnold (Mar. 17, 1983)

Muskingum App. No. 82-CA-13, unreported, 1983 WL 5076

State v. Draughn (1992), 76 Ohio App. 3d 664,671-72, 602 N.E.2d 790, 794

Martin v. Ohio, 480 U.S. 228

State v. Daugherty (1987), 41 Ohio App. 3d 91, 534 N.E.2d 888

Hodge v. Hurley, 425 F.3d 368

Darden v. Wainwright, 477 U.S. 168, 181

Alexander v. Phillips, 2006 U.S. Dist. Lexis 8926

United States v. Bedgood, 1954 U.S. Dist. LEXIS 4690

Apprendi v. New Jersey, 530 U.S. 4661 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

Alleyne v. United States, U.S. , 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)

State v. Wilson, 58 Ohio St. 2d 52

STATUTES AND RULES

Federal Rule App. P. 22(b), 24(a)(5)

28 USCS § 2254 (d)

Ohio R. App. P. 26(B)

Ohio Constitution Art. I, § 10,

Ohio Revised Code 2923.161

Ohio Revised Code 2903.11 (A)

Ohio's resjudicata bar

Ohio Revised Code 2941.25 (A)

Oho Revised Code 2953.08(D)

Ohio Revised Code 2903.02(B)

Ohio Revised Code 2903.03

Ohio Revised Code 2903.04

OTHER

Fifth, Sixth, Fourteenth Amendment to the United States Constitution

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioner's fifth, sixth, and fourteenth Amendments to these United States Constitution

were violated when the trail court failed to provide him with fair notice of the charges against

IlII1I

Petitioner's fourteenth Amendment to the United States Constitution rights were

violated when his conviction was against the manifest weight of the evidence.

Petitioner's fifth, sixth, and fourteenth Amendment rights to these United States

Constitution were violated when he was denied effective assistance of appellant and trial

counsel, and as well he was denied a fair and impartial trial when the state committed

misconduct to attain an conviction.

Petitioner's Fifth Amendment right to the United States Constitution were violated

when he is twice put in jeopardy for being convicted of allied offenses for the same person.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from

federal courts:

The opinion of the United States court of appeals appears at Appendix A

the petition and is

[11 reported at

Case No. 17-3408, (King vs Bracy) ;or,

[1 has been designated for publication but is not yet reported; or,

[] is unpublished.

The opinion of the United States district court appears at Appendix C to

the petition and is

(6th cir.)

[1 reported at King vs Morgan 807 Fd 3d 154, 157

;or,

[] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix N/A to the petition and is

State v. Kin g Find

on àttac.hed Paper

[ ] reported at State v. King

; or,

has

been designated for publication but is not yet reported; or,

[ ]

unpublished.

[ ]

•.

The opinion of the'Nin th District Appellate

court

appears at Appendix N/A to the petition and is

[ I reported at State v. King;COnt. Attached Pg.

;or,

[ I has been designated for publication but is not yet reported; or,

[ I is unpublished.

JURISDICTION

c] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was March 27, 2018

j No petition for rehearing was timely filed in my case.

[ 11 A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

, and a copy of the

order denying rehearing appears at Appendix

[ I An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ____________________ (date)

in Application No. .A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

For cases from state courts:

The date on which the highest state court decided my case was Next Pg.l

A copy of that decision appears at Appendix

[ I A timely petition for rehearing was thereafter denied on the following date:

appears at Appendix

and a copy of the order denying rehearing

[I An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No.

A_______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

(t) For cases from state courts:

The date on which the highest state court decided my case

was, application for delayed appeal, (Ohio 2011)

And, (Ohio Aug. 24, 2011)

(1)

Cont. from Page

() For cases from state courts:

State v. King, 939:iNE2d 1265 (Ohi620I1) (Eble)T-

•1

State v. King, No. 2011-0887 (Ohio Aug. 24, 2011)(entry).

() The opinion of the Ninth District Appellate court appears

at Appendix N/A to the petition and is

reported at State v. King, 10CA009755, 2010 WL 3619914 (Ohio

Ct. App. Sept. 20, 2010)

State v. King, No 10CA009755 (Ohio Ct. App; Apr. 13, 2011)

STATEMENT OF THE CASE

Delawrence King, a pro se Ohio prisoner, appeals the Sixth Circuit court judgment denial

his petition for certificate of appealability ("COA") and to proceed in forma pauperis ("lFP") on

appeal pursuant to Fed. R. App. P. 22(b), 24(a)(5).

In 2004, a jury convicted King of two counts of felony murder (Counts 3, 4) and one

count of felonious assault (Count 5), each with a gun specification. The trial courts sentenced

King to a total effective sentence of 21 years in prison. The Ohio Court of Appeals affirmed his

convictions on direct appeal. State v. King, No. 04CA008577, 2005 WL 1962967 (Ohio Ct. App.

Aug. 17, 2005) (unpublished decision and journal entry), perm. Appeal denied, 840 N.E.2d 205

(Ohio 2005).

In 2006, King filed his first § 2254 petition. The district court denied the petition, and the

Sixth Circuit declined to issues a COA. King v. Hudson, No. 07-3336

(6th

Cir. Oct. 12, 2007).

In 2009, King moved to vacate his conviction in state court because his criminal

judgment did not include a required term of post-release control. The trial court conducted a

de novo resentencing hearing, where it increased King's aggregate sentence to 33 to life in

prison and three years of post-release control. The Ohio Court's of Appeals affirmed King's

conviction and sentence. State v. King, No 10CA009755, 2010 WL 3619914 (Ohio Ct. App. Sept.

20, 2010). (Unpublished, decision and journal entry). The Ohio Supreme Court denied his pro se

motion for delayed appeal. State v. King, 939 N.E.2d 1265 (Ohio 2011).

On December

16th

2010 Petitioner moved to reopen his direct appeal from his

resentencing, asserting that his appellant counsel rendered ineffective assistance by failing to

raise major claims in his direct appeal challenging his conviction. See Ohio R. App. P. 26(B). The

Ohio Court of Appeal denied the motion, State v. King, No. 10CA009755 (Ohio Ct. App. Apr. 13,

2011), and the Ohio Supreme Court dismissed Petitioner's appeal. State v. King, No. 2011-0887

(Ohio Aug. 24, 2011).

In his second § 2254 petition, filed in 2012, Petitioner asserted that: (1) the indictment

did not include the mens rea for Counts 3 and 4; (2) his convictions were against the manifest

weight of the evidence; (3) his due process rights were violated by harsher penalty after

resentencing; (4) the Ohio Court of Appeals abused its discretion by denying his Rule 26(B)

motion; and appellate counsel rendered ineffective assistance by not arguing that (5) the felony

murder and felonious assault charged were allied offenses of similar import, (6) the prosecutor

committed misconduct during the closing argument, and (7) trial counsel rendered ineffective

assistance by failing to object to the prosecutor's misconduct.

A magistrate judge recommended dismissing the first, second, fifth, sixth, and seventh

claims as impermissible successive claims under 28 U.S.C. § 2244(b). The magistrate judge

reasoned that the third claim was procedurally defaulted due to King's untimely appeal to the

Ohio Supreme Court and that the fourth claim was not cognizable on federal habeas review

because it raised an issue of state law. Over Petitioner objections and upon de novo review, the

district court accepted the magistrate judge's report and denied the § 2254 petition and the

court denied a COA as to the remaining claims.

The Sixth Circuit Court granted Petitioner a COA on the issue of whether Petitioner's

second § 2254 petition was successive, the Court concluded that it was not King v. Morgan, 807

F.3d 154, 157

(6th

Cir. 2015). Accordingly, the Sixth Circuit vacated the district court's judgment

and remanded the action further consideration of the first, second, fifth, sixth, and seventh

claims.

On remand, the magistrate judge again recommended denying the § 2254 petition. The

magistrate judge reasoned that the first claim was not cognizable on federal review, that the

second claim lacked merit (when construed as a challenge to the sufficiency of the evidence),

and that the remaining claims were procedurally defaulted. Over Petitioner objections, the

district court accepted the magistrate judge's report and recommendation and denied his §

2254 petition and the court declined to issues a COA.

In his COA application, Petitioner reasserts his first, second, fifth, sixth, and seventh

claims. And he made a substantial showing that reasonable jurists could debate whether his

petition should have been resolved in a different manner, but however, the Sixth Circuit denied

his petition and IFP motion as moot.

REASONS FOR GRANTING THE PETITION

Petitioner feels that this Honorable court should grant his petition for the following

reasons as stated below following the latest court ruling.

Petitioner has shown the lower courts why his appeal should have been granted by a

denial of his constitutional rights and he will try to provide this court to the best of his ability.

Petitioner also prays this Court review them and construes them liberally under less stringent

standards than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594,

30 L. Ed.2d 652 (1972). Petitioner will identify [1] the potions of the proposed findings,

recommendations or report to which [he] has been denied was erroneous and was not based

on present law, but that of misapplied state law because [2] the basis for the state court ruling

was done by an state procedure case law that was later overruled by the Sixth Circuit's decision

in King v. Morgan, 807 F.3d 154.

PETITIONER HAS SHOWN THAT GROUND ONE OF HIS PETITION IS COGNIZABLE FOR

FRDERAL REVIEW AND RECOMMENDATION THAT THE GROUND BE RULED ON UPON THE

MERITS.

Petitioner Ground One is cognizable in habeas corpus proceedings. Petitioner's Ground

One was related to his indictment being defective as it failed to provide him with an adequate

description of the charge of felony murder, which he asserts led to his being convicted without

a mens rea for the crime of felony murder.

Petitioner understands that the Fifth Amendment right to indictment has not been

incorporated into the Due Process Clause of the Fourteenth Amendment as applicable to the

states. See Hurtado v. California, 110 U.S. 516, 4 .S.Ct. 111, 28 L.Ed. 232 (1884); Albright v.

Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L.Ed.2d 114 (1994)(noting that the Fifth Amendment

right to indictment was not among the Bill of Rights provisions incorporated into the

Fourteenth Amendment). Therefore, the specific requirement of the Fifth Amendment

pertaining to federal indictments are among the few provisions of the Bill of Rights not

incorporated into the Fourteenth Amendment requirements imposed on the states.

This Court has found that fair notice is an essential due process right in all criminal

prosecutions, state or federal. Valentine v. Konteh, 395 F.3d 626, 631-632 (6th Cir. 2005)

(quoting Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L.Ed 644 (1948)).

Thus, the Constitutional issue which arises on review of an indictment is whether the

indictment provides the defendant with sufficient information of the charged offense, to enable

him to defend himself against the accusations. Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002),

cert. denied, 540 U.S. 853, 124 S. Ct. 140 (2003). See also Russell v. United States, 369 U.S. 749,

763, 82 S. Ct. 1038 (1962); Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514 (1948).

Due process mandates that the defendant be provided with "fair notice of the charges

against him to permit adequate preparation of his defense." Williams v. Haviland, 467 F. 3d at

535 (quoting Koontz v. Glossa, 731 F. 2d 365, 369 (6th Cir. 1984)); Olsen v. McFaul, 843 F.2d 918,

930

(6th

Cir. 1988). Fair notice is given when the charged offense is "described with some

precision and certainty so as to apprised the accused of the crime with which he stands

charged." Williams v. Haviland, 467 F.3d at 535 [emphasis added]; see also Russell, 369 U.S. at

763; Olsen, 843 F.2d at 930; Koontz, 731 F.2d at 369. Where the defendant was fairly informed

of the charges, and had sufficient information to be able to admit or deny the charges and to

adequately prepare any defense that was available to him/her, there will be no federal due

process violation.

This Court has found that due process protection, rooted in the Sixth and Fourteenth

Amendments, is not limited to indictments, and applies to all criminal prosecutions, whatever

the charging method employed:

"No principle of procedural due process is more clearly established than that notice of

the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if

desired, are among the constitutional rights of every accused in a criminal proceeding in all

courts, state or federal. In re Oliver, 333 U.S. 2571 68 S. Ct. 499, 92 L. Ed. 682, and cases there

c ite d**** It is as much a violation of due process to send an accused to prison following

conviction of a charge on which he was never tried as it would be to convict him upon a charge

that was never made. De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S. Ct. 255, 259, 81 L.

Ed. 278." Cole, 333 U.S. at 201; see also Valetine, 395 F.3d at 631-632 (citing cases); Olsen, 843

F.2d at 930; Koontz, 731 F.2d at 369.

The Sixth Circuit has distinguished' those cases involving the sufficiency of an indictment

"when the notice given in the indictment fairly but imperfectly apprises the accused of an

offense for which he is to be tried, "from "the very different situation present in [a case such

as] Watson v. Jago [558 F.2d 330

(6th

Cir. 1977, where the Sixth Circuit stated that "[t]here is no

question that the Fourteenth Amendment encompasses the right to fair notice of criminal

charges.")], when a constitutional violation occurs because an accused is not given proper

notice in the indictment of an offense for which he is to be tried." Blake, 563 F.2d at 250. See

But, yet the Sixth Circuit Court still refused to apply the correct standards to Petitioner's case.

also Gautt v. Lewis, 489 F.3d 993, 1006-1007

(gth

Cir. 2007), cert. denied, 552 U.S. 1245, 128 S.

Ct. 1477 (2008).

In addition, Petitioner bases his argument on a right to fair notice and a fair trial, which

are rights of every citizen of the United States. Petitioner's issue would certainly be cognizable

under his claim to the violation of these rights. Petitioner's argument also hinges on Oh. Const.

Art. I, § 10, where the Ohio Constitution requires "no person shall be held to answer for a

capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury; and

the number of persons necessary to constitute such grand jury and the number thereof

necessary to concur in finding such indictment shall be determined by law. In any trial, in any

court, the party accused shall be allowed to appear and defend in person and with counsel; to

demand the nature and cause of the accusation against him, and to have a copy thereof..."

Surely the denial of a proper indictment would constitute a violation under 28 USCS § 2254 (d),

where the deprivation "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."

Under Ohio law, felony murder requires as a predicate offense of a felony of the first or

second degree that is not voluntary or involuntary manslaughter. Although Ohio courts have

held that an indictment that "tracks the language of the statute is not defective," (State v.

Buehner, 110 Ohio St.3d 403) Petitioner asserts that- while this may be true for most statutes in

Ohio—it is inadequate for statutes requiring a specific predicate offense to be void of that

offense. Petitioner contends that in order for the State of Ohio to have the fair notice in their

doctrine it has to first appear in some form of the constitution, therefore, any violation of this

doctrine must result in the denial of his constitutional rights. Petitioner's indictment failed to

make him aware of the charges against him with proper specificity and did not allow him to

prepare a proper defense nor gave him a complete understanding of the charges against him.

Petitioner's indictment was devoid of any mention of the required underlying predicate

offense; neither by adequate description nor by provision of the number of the statute.

Petitioner was indicted for two different felonies that the State of Ohio claimed could have

fulfilled the predicate offense for the murder charge at issue, but was acquitted of charge of

improperly discharging firearm at or into habitation, Ohio Revised Code 2923.161, a felony of

the second degree. Petitioner was also acquitted of Count Six (6) of his indictment, which was

the second count of felonious assault, R.C. 2903.11 (A), a felony of the second degree. This left

him with no possible underlying predicate offense to one of the counts of felony murder, which

will be addressed below.

Petitioner also add that the Northern District Court of Appeals did not provide a merit

review on the issue as deemed cognizable in the argument presented above.

PETITONER HAS SHOWN THAT HIS GROUNDS WERE NOT PROCEDURALLY BARRED AND/OR

DEFAULTED

Procedural default inferred for Ground Two Petitioner contends that the Northern District

and the Sixth Circuit2 inferred that his sufficiency of the evidence argument may be

procedurally defaulted. (Doc#: 31, PagelD#: 2015, F.N. 4) The Federal Courts clearly ignored the

clear and convincing evidence that he had presented showing he exercised due diligence with

regards to following the State rules and procedures to get his legal work and all necessarily

documents timely filed to all courts including the Ohio Supreme Court.

By their refusal to grant a Certificate of Appealability.

Petitioner explained that he was housed in a level 4B institution (maximum security) on

a 23 hour locked down at the Southern Ohio Correctional Facility (SOCF), in Lucasville, Ohio,

where he was denied access to the courts due to the State's interference3.

It is clear when this Honorable Court has held that the state must ensure inmates the

"capability" to pursue "actionable," civil rights or post conviction claims; this goal is usually

accomplished through some combination of legal assistance and access to legal materials

and/or a law library. See Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996) (To plead a

violation of this right, a plaintiff must allege that the state's interference led to an "actual

injury" by "frustrate[ing]," "imped[ing]," or "hinder[ing] his efforts to pursue a legal claim.");

Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977). Furthermore, to state a constitutional

claim that he has been denied access to the courts, an inmate must demonstrate that lack of

state assistance prevented him from filing an actionable claim or caused an otherwise

actionable claim to be rejected. Casey, 116 S. Ct. at 2182.

"The 'cause' standard requires a petitioner to show that some objective factor external

to the defense impeded ... efforts to comply with the state's procedural rule. Examples of

external include the discovery of new evidence, a change in the, or interference by state

officials." Murray v. Carrier, 477 U.S. 478, 488. Further, "[i]nterference by officials which makes

compliance with a state procedural rule impracticable can rise to the level of cause for failure to

act." Beavers v Saffle, 216 F.3d 918, 2000 U.S. App. LEXIS 14048.

Petitioner has shown that he timely provided legal filing to the institutional

representative and that representative did not return the documents to him in a time or

Ohio penal institutions are agents for the state.

manner that would allow him to file by the Ohio Supreme Court's legal deadline. This was a

denial of access to the courts by SOCF officials that was beyond Petitioner's control and which

prevented him from being compliant with Ohio's procedural rules. The State cannot cause the

procedural default and then penalize the Petitioner for their action/inaction.

The Federal Court's clearly overlooked this principle supported by the evidence.

Prejudice to Petitioner is obvious, as he was denied jurisdictional review of his issues to the

Ohio Supreme Court and was accounted a procedural default that prevented the review of his

Grounds on the merits on his habeas corpus petition. Therefore, Petitioner has shown that he

was prejudice by the state interference and states that the reviewing appeals court erred in

their determinations.

Petitioner now contends that Grounds Five, Six, and Seven of his petition was not procedurally

defaulted because these Grounds were presented in an Application of Reopening Petitioner's

Appeal pursuant to Ohio App. R. 26 (B) following his de novo resentencing in the State trial

courts. The State courts claimed procedural default on the grounds of res judicata, and did not

adjudicate his Grounds on their merit[s]., nor did the Federal Court's even though a district

court has jurisdiction to determine whether res judicata was properly applied. Krumpelman v.

Heckler, 767 F.2d 586, 588

(9th

Cir. 1985) "Habeas corpus actions are exempt from res judicata

because conventional notions of finality of litigation have no place where life or liberty is at

st ake ***. Sanders v. United States (1963), 373 U.S. 1, 8.

However, due to Petitioner's resentencing being de novo, he asserts that he was

entitled to the right[s] of the direct appeal of the sentencing, which would include a claim of

ineffective assistance of appellate counsel4. This is the only mechanism with which to make this

claim to the Ohio Appellate Courts is via App.R. 26(B). With the Sixth Circuit's decision in King v.

Morgan, 807 F.3d 154, the court recognized that "res judicata generally does not apply to

habeas challenges even when a petitioner raises the same claim after resentencing as he had in

an earlier petition, see Felker, 518 U.S. at 664; McCleskey, 499 U.S. at 480-81." Thus, federal

courts readily recognize this principle. With regard to a resentencing and the procedures that

follow, the Sixth Circuit also held that "a court's choice to reenter a different judgment does

not. Petitioner was also ruled to have filed his appeal properly and was remanded to the

Northern District Court of Appeals for proceedings related to his petition. One of the most

telling findings in King, supra regarding raising different claims on the same convictions

following a de novo resentencing is as follows:

"Making that task more complicated is the reality that leaves a petitioner unable

to raise a now-more-critical challenge free from the "second or successive" limits. King,

supra many habeas petitioners are not represented (and, even when represented, are

not always well represented). Figuring out whether a claim relates to a conviction,

sentence, or both may be no easy feat for the litigants, to say nothing of the courts,

clerk's offices, and staff attorneys that must review these filings. If habeas petitions

made up a small part of each court's docket, any such complication could be

overlooked. But that is hardly the world in which we live.

A contrary approach also would shortchange some prisoners whose incentives to

challenge a conviction may differ after being resentenced." id. At 158. [Emphasis

added]

Petitioner provided the Court with the argument that the Sixth Circuit Court of Appeal's

decision, as noted above, justified his second appeal

which would be a direct appeal

and

would, therefore, justify the filing of his Application of Reopening pursuant to App.R. 26(B),

arguing the "decision and remand 'negated the State, Respondent, Magistrate, and the Sixth

Which is a 26(B).

Circuit claims that Petitioner's grounds were barred from review by the State courts, as he was

entitled to a successive appeal on the issues following a resentencing.' (Doc. 30, at 7). But he

presents no authority for the proposition that an appellate court's remand of a federal habeas

case to the district court for consideration of certain claims somehow cures a Petitioner's

procedural default of the remanded claims, and the undersigned can find none." Doc. 31,

PagelD# 2018.

Petitioner has addressed the issue that his de novo resentencing reset his appellate

rights related to his case by the ruling in King, supra., making the procedural bar imposed by the

state improper. If this is not the case, and the Northern District Court of Appeals, Magistrate

Judge could find no case law regarding this issue, then the bar should not be imposed, but the

case should be viewed as one of the first impression.

Black's law Dictionary

(9th

ed. 2009) defines a "case of first impression" as one "that

presents the court with an issue of law that has not previously been decided by any controlling

legal authority in that jurisdiction." See also S. Lindquist, F. Cross, Empirically Testing Dworkins

Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U.L.Rev. 1156, 1179 (October

2005)(A case of first impression is, by definition, one that presents a novel legal question and is

not ruled by prior precedents.")

Petitioner would ask this Court to review the case and make a ruling on the issue as a first

impression regarding the proper application and upholding of a state's procedural bar related

to res judicata when ruling of the Sixth Circuit clearly stated that Petitioner was entitled to

appeal the issues

where he was entitled to counsel on a direct appeal, making the filing of

an App.R. 26(B) Application proper by Rule and, therefore, a substantive right

----

following his

de novo resentencing and his direct appeal related to this sentence.

The Northern District Judge applied State v. Fischer, 128 Ohio St.3d 92 (2010), to make

his finding that the state court properly applied a resjudicata bar. This decision should be

considered ex post facto with regard to Petitioner, as his original offenses and sentencing took

place in 2003 and 2004, respectively. The state court made this finding by denying Petitioner's

issues related to his conviction, stating that he was only entitled to argue his sentence. The

Sixth Circuit, in King, addressed this issue:

Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010), fills in

some of the gap by focusing on whether the inmate challenges an intervening judgment. In this

Court's words: "[W]here.

petitions,

. . .

there is a new judgment intervening between the two habeas

an application challenging the resulting new judgment is not 'second or

successive' at all." Id. at 341-42(quotation omitted). Because petitions seek the "invalidation (in

whole or in part) of the judgment authorizing the prisoner's confinement," Magwood tells us,

no part of the petition counts as second or successive as long as it is the first to challenge the

new judgment. Id. at 332. That means that, if an initial federal habeas petition (or state—court

collateral challenge) leads to an amended judgment, the first petition that follows the entry of

the new judgment is not second or successive, even if it raises claims that the inmate could

have raised in the first petition. Id. at 328-29, 331.(Emphasis added)

The same principle should apply here. The Ohio courts never ruled on the merits of the

issues in his Application for Reopening under App.R. 26 (B), comprising Grounds Five, Six, &

Seven in his current habeas petition. When a state court fails to reach the merits due to the

improper application of a procedural bar, the State is afford no deference and the merits

should be ruled on de novo. Bies v. Sheldon, 775 F.3d 386, 395

(6th

Cir. 2014) The Northern

District Judge claimed the state court did not rule on the merits, as the state court claimed a res

judicata bar. Petitioner ask this Honorable Court to make a determination as to whether the

bar was properly applied, using Ohio's resjudicata standard. Doe v. Jackson Local Schs. Sch.

Dist., 422 Fed. Appx. 497

(6th

Cir. 2011), and as well this Court's decision in Magwood v.

Patterson, supra, also adding the Sixth Circuit ruling in King v Morgan supra.

In the state court ruling on the issue, the reference to State v. Fischer, supra, was

inappropriate, as the Fischer case was based on a sentence that was considered "voidable" and

not "void". Petitioner's adjudication was a de novo resentencing of a sentence deemed void

not voidable -----where the trial court specifically found the following at sentencing:

"Given the state of the law, Mr. Griffin [court-appointed attorney for the defense],

we're back to square one. This is a sentence given after a jury trial."

I'm going to advise [Petitioner] of his [appellate] rights under Criminal Rule 32.

Sir, you have the right to appeal my decision in this case and to appeal the conviction..."

(Resentencing transcripts, pgs. A

10 & A

11, emphasis added, federal headings for

evidentiary labeling were overwritten by Respondents of the Clerk and are unreadable.)

Under Ohio law, "[a] 'judgment of conviction' is defined as including both a plea or

verdict of guilty and the imposition of sentence." (Emphasis added.) State v. Dapice (1989), 57

Ohio App. 3d 99, 102, 566 N.E.2d 1261; citing State v. Henderson (1979), 58 Ohio St. 2d 171,

179, 389 N.E.2d 494.

To further prove Petitioner's claim that his sentence was void, the Ohio Ninth District

Court of Appeals made the following ruling regarding his resentencing in State v. King, C.A. no.

10CA009755, cited as 2010-Ohio-4400, at 1151:

"We have recently explained that Pearce is inapplicable to a case in which an appellant's

resentencing occurred as a result of a void judgment entry. Honaker, supra. 'Simply put,

it is as if [King's] sentence handed down in [2004], never existed. Logically speaking,

[King's] sentence from [December 17, 2009], cannot, therefore, constitute an increase

or a decrease from a nullity.' Id. at 119" [bracketed wording contained in the original

ruling.]

The Respondent and/or the State of Ohio cannot have it both ways and still provide

Petitioner with a fair and meaningful opportunity to defend him self. They cannot, on one hand,

claim the conviction was a legal nullity that entitled the trial court to resentence him to

consecutive sentences after first sentencing him concurrently; and then claim the conviction

was not a legal nullity and forbid him a direct appeal on the issues. If the State of Ohio is

permitted thus, the Petitioner is left without remedy to oppose his convictions, which violates

fundamental fairness required under the U.S. Constitution.

Petitioner also provides the impropriety of applying a resjudicata bar. Ohio's highest

court denied an absolute barring of the merits being heard by resjudicata on issues submitted

to the court

----

even in post-appeal motions-----by calling for justice over procedural bars:

"Thus, in a case where the time for direct appeal had elpsed, Murnahan sought to

balance a just application of resjudicata against the merits of the defendant's claim of

ineffective of appellate counsel. Murnahan thus envinced a preference against purely

procedural dismissals." State v. Davis, 119 Ohio St.3d 422.

Since the underlying rationale for the doctrine of res judicata is fairness, it should not be

rigidly applied. Brown v. City of Dayton, 1998 Ohio App. LEXIS 5879, citing Shimman v. Frank

(C.A. 6, 1980), 625 F.2d 80, 89. While the doctrine is a necessary judicial development involving

considerations of finality and multiplicity, it should not be permitted to encroach on

fundamental and imperative rights. Whitehead v. General Tel. Co. (1969), 20 Ohio St.2d 108,

116, or to contravene and overriding public policy, or result in a manifest injustice. A "manifest

injustice" has been defined as a clear or openly unjust act. State ex rel. Schneider v. Kreiner, 83

Ohio St.3d 203, 208, 1998 Ohio 271. There can be no doubt that to consider Petitioner's

resentencing based on a supposition of "voidable" sentences, injustice for assessing the

improper application of Ohio's resjudicata bar. Doe, supra.

Res judicata does not bar issues presented in a subsequent proceeding upon a proper

showing of changed circumstances. See Set Products, Inc. v. Bainbridge Twp. Bd. Of Zoning

Appeals (1987), 31 Ohio St.3d 260. Certainly, a de novo resentencing and the ruling by the Sixth

Circuit Court of Appeals would constitute a change of circumstances. Petitioner's understanding

at the time of his first sentencing-----having complete ignorance of Ohio law----was that his

concurrent sentencing for the murder charges were fair for the crime for which he was

convicted, never agreeing with the verdicts. He also prevailed on the issue of his felonious

assault charge was improperly ran consecutive with the murder charge. Even though it is now

concurrent to his other sentences5 After having been subject to layman experience with the

law, he now knows that his convictions were improper and his sentencing unfair. As he had

discovered that his convictions were improper, he sought to rectify the same through the

proper venue, appeal from the conviction----as stated by both the trial and appellate reviewing

courts-----following a de novo resentencing and the courts' concession that his first conviction

was a "nullity." King, 2010 Ohio 440 supra.

He still maintains that it is an allied offense for which he should not have a conviction.

With further regard to the application of Fischer, the appellate court ruled that

Petitioner was not entitled to an appeal following his resentencing, which made him ineligible

to file the appeal of his issues. The trial court explained his appellate rights; Petitioner was

given counsel under the precepts of the United States Constitution; Petitioner is afforded the

right to effective assistance of counsel under the same founding document; the only way to

address the ineffective assistance of counsel during a direct appeal as of right under Ohio law is

to file an Application for Reopening pursuant to App.R. 26(B); to deny Petitioner his right to file

his Application under App.R. 26(B) is to deprive him of a remedy for justice. Thus, Petitioner

objects to the Northern District Courts of Appeals denial of his habeas petition and the Sixth

Circuit refusal to grant a certificate of appealability on these Grounds. Ground Five

In F.N. 5 of

the Northern District Court of Appeal, addressed the merits of Petitioner's Grounds. For Ground

Five, he claims that Petitioner would not be entitled to relief on the issue of allied offenses due

to his sentences for allied offenses being run concurrently. A second sentence-----whether ran

concurrent or not-----prejudices a defendant under the Double Jeopardy Clause of the U.S.

Constitution.

It has previously been established that a conviction consists of both a verdict of guilt and

a sentence. Dapice, supra. The Ohio Supreme Court has held:

"R.C. 2941.25 (A) clearly provides that there may be only one conviction for allied offenses of

similar import. Because a defendant may be convicted of only one offenses for such conduct,

the defendant may be sentenced for only one offense. This court has previously said that allied

offenses of similar import are to be merged at sentencing. See State v. Brown, 119 Ohio St.3d

447, 2008 Ohio 4569, 895 N.E.2d 149, P 43; State v. McGuire (1997), 80 Ohio St. 3d 390, 399,

1997 Ohio 335, 686 N.E.2d 1112. Thus, a trial court is prohibited from imposing individual

sentences for counts that constitute allied offenses of similar import. A defendant's plea to

multiple counts does not affect the court's duty to merge those allied counts at sentencing. This

duty is mandatory, not discretionary. Therefore, we conclude that when a sentence is imposed

on multiple counts that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C.

2953.08(D) does not bar appellate review of that sentence even though it was jointly

recommended by the parties and imposed by the court." State v. Underwood, 124 Ohio St. 3d

365 at WE

Prejudice is also present when a second conviction/sentence is present for an allied offense,

even when ran concurrent. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, explains that

trial courts have a mandatory duty to merge allied offenses, that imposition of concurrent

sentences for allied offenses is not authorized by law, and that an offender is prejudiced by

having more convictions than authorized by statute. The Ohio Supreme Court has also

unequivocally ruled:

"A court only has authority to impose a sentence that conforms to law, and R.C. 2941.25

prohibits the imposition of multiple sentences for allied offenses of similar import. Thus, when

a sentencing court concludes that an offender has been found guilty of two or more offenses

that are allied offenses of similar import, in conformity with State v. Whitfield, 124 Ohio St.3d

319, 2010-Ohio-2, 922 N.E.2d 182, it should permit the state to select the allied offense to

proceed on for purposes of imposing sentence and it should impose sentence for only that

offense. Accordingly, imposing separate sentences for allied offenses of similar import is

contrary to law and such sentences are void. Therefore, res judicata does not preclude a court

from correcting those sentences after a direct appeal ... the court imposed concurrent sentences

on each of the three offenses instead of sentencing on only one offense. However, the

imposition of concurrent sentences is not the equivalent of merging allied offenses, State v.

Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ] 17..." State v. Williams, 2016Ohio-7658

Therefore, concurrent sentences do not correct the appellate counsel's error and result

in cumulative punishments----even when ran concurrently----and Petitioner objects to the

improper application of a legal standard.

Ground Six & Seven

Petitioner argued that appellate counsel was ineffective for failing

to address prosecutorial misconduct during closing arguments. The Northern District Court then

lists some of the statements constituting the misconduct in his Recommendation in F.N. 5,

providing a minimal summary of Petitioner's argument presented in his Traverse. The Northern

District Court's decision is based on the interpretation of the evidence adduced at trail,

justifying the prosecutor's improper and prejudicial remarks that contributed to the Petitioner's

convictions. Petitioner objected to the failure to address the issue of the arguments presented.

The Northern District Court of Appeals did not address the Petitioner's claim of

prejudice due to the prosecutor's use of the "Golden Rule" argument. At no time did testimony

support the prosecutor's use of the "Golden Rule" argument, where he put the jury in the

position of looking at Petitioner from the point of view of their own circumstances and possible

danger from Petitioner. The prosecutor inflamed the jury by telling them that Petitioner was

"going to come to us here in Elyria." Doc#: 30, PagelD#: 1986. This was improper, prejudicial

and walled Petitioner off from the jury while creating a cohesive bond between the prosecutor

and the jurors, his "neighbors," and appealed to the jury to "abandon their position of

impartiality" by referring to their being a possible victim of the Petitioner if he was released. In

re Johnson, 2011 Ohio 2466 at $18. His comments were made with the singular intention of

inflaming and impassioning the jury. As the Petitioner's credibility was at issue under a self

defense claim-----he having to sustain a burden of proof----the comments were prejudicial and

prevented him from receiving a fair trial.

While there is case law that supports use of the word "lie" and "liar" to a Petitioner's

testimony based on the evidence in certain circumstances---- which Petitioner asserts in

unsupported here----the Northern District and Six Circuit uses the example of Petitioner's

admission of being a drug dealer to justify the prosecutor's remarks labeling him a "liar".

However, Petitioner never denied selling drugs, making the comment unjustifiable in that

regard. There was no excuse for using the words "garbage" and "garbage lies" in reference to

the Petitioner and his defense of self-defense. Additionally, the prosecutor referred to

Petitioner's testimony as a "con." Doc# 30, Page ID# 1988. This would appear to require

evidence outside of the record, as he was never accused of being a "con man" related to any of

his charges. This, too, is improper.

The Northern District Court's decision on the issue of ineffective assistance of counsel

and the relation to prosecutorial misconduct to be dismissed due to the strength of the

evidence contradicting Petitioner's testimony," Id., PagelD #2021, f.N.5. was inaccurate

because the strength of the evidence against Petitioner should not nor cannot have an effect

on the determination of ineffective assistance of counsel regarding the prosecutor's

misconduct.

"It strikes us that courts have been too quick to label prosecutorial behavior

misconduct, justifying an affirmance of the conviction on the ground that the evidence of guilt

was overwhelming. See [State v. Maurer [1984], 15 Ohio St.3d 239 and State v. DePew (1988),

38 Ohio St.3d 275, 528 N.E.2d 542, certiorari denied (1989), 489 U.S. 1042, 109 S. Ct 1099] the

incongruity of this rationale is that the better the state's case, the more leeway is given to the

prosecutor to overstep. As the state court's asked almost a decade ago, if the argument is

harmless because the evidence of guilt is overwhelming, why must the prosecutor overstep in

final argument? State v. Arnold (Mar. 17, 1983), Muskingum App. No. 82-CA-13, unreported,

1983 WL 5076. It is in the close case that the conduct is scrutinized more closely. Thus a

prosecutor [*8] jeopardizes his case by misconduct in direct proportion to its prosecutive merit.

We believe the consequences of misconduct should be resolved essentially without regard to

the merit of the evidence. The quality and quantity of the evidence is almost always subject to

an independent assignment of error and judicial review." State v. Draughn (1992), 76 Ohio App.

3d 664,671-72, 602 N.E.2d 790, 794

The Petitioner put forth the affirmative defense of self defense. In doing so, "the burden

of going forward with the evidence of an affirmative defense, and the burden of proof by a

preponderance of the evidence, for an affirmative defense, is upon the accused in according to

the State." Martin v. Ohio, 480 U.S. 228. Questions that make factual assertions of unproven

information rely on the jury to balance the credibility of the prosecutor, who in all likelihood

was not present when asserted facts were taking place, with that of the defendant. State v.

Daugherty (1987), 41 Ohio App. 3d 91, 534 N.E.2d 888. To unfairly and improperly undermine

Petitioner's credibility, when the acceptance of his defense by the trier of fact was basically a

contest of credibility, was prejudicial, as the prosecution----as he represents the State (i.e., the

"good guys") and has not been charged with a crime----is always given more credibility from the

jury than an accused. The prosecutor's misconduct tainted the jury on the issue of Petitioner's

credibility, and counsel's failure to address constitutes ineffective assistance of counsel.

The repeated pattern of intentionally misleading the jury and unfairly prejudiced

Petitioner's defense and contributed to his wrongful convictions, surely a denial of Due Process.

Hodge v. Hurley, 425 F.3d 368; see also Darden v. Wainwright, 477 U.S. 168, 181. The Petitioner

"suffered actual prejudice because the prosecutor's comments during summation had a

substantial and injurious effect or influence in determining the jury's verdict." Alexander v.

Phillips, 2006 U.S. Dist. Lexis 8926, at 140-41

Therefore, due to the Northern District Court improper evaluation of the evidence and

the lack of application of the proper legal standard, Petitioner feels that the Northern District

Court of Appeals was wrong in their judgment that Grounds Six & Seven as being without merit

and thus request this Honorable Court to overturn the lower court's ruling.

PETITIONER'S CLAIM OF MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE DID NOT

SUPPORT HIS CONVICTIONS.

Petitioner's second ground for relief should not have been dismissed for the reasons set

forth below.

The evidence adduced at trial provides sufficiency under the well-known Jackson and

Winship standards. There Standards encompass both substance and persuasiveness of the

evidence supporting the charges beyond a reasonable doubt. Petitioner has shown that the

evidence relied upon to support his convictions came from the relatives and friends of the

victims. The comments made regarding the witnesses were made to preface the argument of

sufficiency.

The issue is not purely one of witness credibility, but that the witnesses' testimonies

were not supported by the evidence. There was a witness, a twelve year old girl, Jamie

Williams, who was not related to or friends with any party of the altercation, whose testimony

should have been relied upon more so due to lack of bias. She testified that the victim, Corlew,

was in possession ofa firearm at the scene. It is not unheard of for other people at a scene to

grab a weapon, either to cover up the crime of a friend or their own involvement in the affray.

The Court's claims that Petitioner did not argue the facts as presented at trial. Direct

evidence is that type of evidence which seeks to prove the guilt of a defendant directly or

immediately, but circumstantial or indirect evidence does not do so, but it seeks to prove the

guilt of a defendant by proof of other facts and circumstances, sustaining by their consistency

the theory of guilt. In order to convict upon circumstantial evidence, the proven facts and

circumstances must not only be consistent with the theory of guilt, but must exclude beyond a

reasonable doubt any other theory except that of the guilt of the accused. United States v.

Bedgood, 1954 U.S. Dist. LEXIS 4690.

Petitioner put forth argument directly related to the testimony and evidence provided

at trial. He did not try nor created a new story, but showed by clear and convincing evidence

from the record that the theory put forth by the State was not supported by the evidence. The

trial of bullet casings show Petitioner was in a clear pattern of retreat from the affray. They led

away from the building, with one directly in front of the door of the dwelling and the rest in a

line leading away from the scene.

The Coroner's report showed the pattern of wounds to the victim show a distinct

pattern of traveling up the body, starting at the ankle; the next one to the thigh, and two to the

chest in a downward trajectory. This is consistent with immediately firing a weapon after

withdrawing it from a waistband in close range while retreating. The downward trajectory of

the bullets through the chest show the victim was bent over at the time the bullets struck him,

which is consistent with being struck in the lower extremity first. This is not reconstruction, but

proper evaluation of the evidence as presented.

Additionally, the prosecutor labeled the Petitioner a "career criminal." Doc#31,

PagelD#2024. This statement is untrue, prejudicial, and would require evidence outside of the

record to make it true. Petitioner was not convicted of being a conman. Petitioner has only one

prior conviction as an adult, serving less than three years for a conviction in Nebraska. This

would hardly constitute a "career" of criminal activity. Additionally, Petitioner committed the

offense in Nebraska at the age of seventeen, a juvenile. The prosecutor in Ohio also brought up

Petitioner's Ohio juvenile record, which also used against him at sentencing. The Ohio Supreme

Court has determined in State v. Hand, 2016-Ohio-5504 that the use of a juvenile record at an

adult proceeding in not just improper, but prejudicial and unconstitutional. Id.,citing Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United

States, U.S. , 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). This is extremely important, as

Petitioner's credibility was at issue due to his claim of self defense. Petitioner would point out

that Ohio is the only state to shift the burden of proof to the defendant for this defense. To

improperly undermine his credibility was highly prejudicial. The Magistrate's

Recommendations, then, are surely objectionable.

As noted above, the jury found Petitioner not guilty of the second felonious assault

charge and not guilty of shooting into a habitation. The jury left no predicate felony upon which

a second charge of murder under R.C. 2903.02(B) could be charged. The pertinent part of the

statute reads, "No person shall cause the death of another as a proximate result of the

offender's committing or attempting to commit an offense of violence that is a felony of the

first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised

Code." The conviction for felony murder is dependent on the predicate offense, which did not

exist due to the jury's acquittal of the same. It would be a manifest injustice to maintain

Petitioner's conviction for the second count of felony murder when the underlying predicate

offense does not exist.

With regard to the felony murder, a 15 years to life sentence, the Ohio statute for

involuntary manslaughter, R.C. 2903.04, a 3

11 year flat term, has identical criteria. The

statute reads, "(A) No person shall cause the death of another or the unlawful termination of

another's pregnancy as a proximate result of the offender's committing or attempting to

commit a felony." When two statutes share the same language, but have different

punishments, Petitioner is entitled to be sentenced for the lesser offense. (State v. Wilson, 58

Ohio St. 2d 52, "Therefore, if the statutes prohibit identical activity, require identical proof, and

yet impose different penalties, then sentencing a person under the statute with the higher

penalty violates the Equal Protection Clause.")

CONCLUSION

As the evidence was misrepresented, the Petitioner was improperly labeled by the

prosecution, the underlying predicate offense was non-existing for the second felony murder

charge, and Petitioner's juvenile record was improperly related to the jury and used to gain his

conviction, the jury made the finding of sufficient evidence under the thick veil of prejudice

draped over them by the prosecution. THEREFORE, Petitioner respectfully request that this

Honorable Court to review his entire proceedings and overturn the decisions of the State and

Federal Courts of Appeals.

The petition for a writ of certiorari should be granted.

ecYØlly Subm

03iwrence A. King, 4472975

Northeast Ohio Correctional Center

2240 Hubbard Road

Youngstown, Ohio 44505

Defendant, pro se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.