Petition for Writ of Certiorari — George R. Young, Petitioner v. Wanza Jackson-Mitchell, Warden

Supreme Court briefDec 17, 2019

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DEC |1 9 2G19

OFFICE (pF THE CLERK

No.19|

IN THE

SUPREME COURT OF THE UNITED STATES

GEORGE R.YOUNG

Petitioner,

;

v/s

STATE OF OHIO

)

Respondent,

On Petition for a writ of Certiorari

to the United States Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

GEORGE R,YOUNG

DAVE YOST

WARREN CORR.INST.. COUNSEL OF RECORD

P.O.BOX 120

441 vine St.16th FI.

LEBANON,OHIO 45036 1600 Carew Tower

Cincinnati,Ohio 45202

•;

;

QUESTIONS PRESENTED FOR REVIEW

On the record in this case,the District Court erred in

denying a writ of habeas corpus without a plenary hearing,

When an application by a state prisoner to a Federal Court

for a writ of habeas corpus alleges facts which,if proved,

would entitle him to relief,the Federal Court to which the

application is made has the power to receive evidence and

try the facts anew. TOWNSEND V.SAIN,372 U.S.310-312-318.

Where the facts are in dispute,the Federal District Court

must grant an evidentiary hearing if (1) the merits of the ;?

factual dispute were not resolved in the state hearing,

either at the time of the trial or in a collateral

proceeding;(2) the state factual determination is not

fairly supported by the record as a whole;(3) the fact

finding procedure employed by the State Court was not

adequate to afford a full and fair hearing;(4) there is a I

substantial allegation of newly discovered evidence;(5) the

(material facts were not adequately developed at the State

iCourt hearing;or (6) for any reason it appears that the

jstate trier of fact did not afford the applicant a full and

t fair fact hearing. ELLIS V.UNITED STATES,313 F.3d at 641.

fin this case,the District Court'erred in holding that

Jpetitioner does not identify any new,reliable evidence of

(his actual innocence;i.e.,exculpatory scientific evidence,

trustworthy eyewitness accounts,or critical physical

evidence that was not available to him at the time of his

underlying criminal proceedings.

I ,

Petitioner presented the District Court with a Subpoena

that was not available to him at the time of his underlying

criminal proceeding in support of his actual innocence

claim.(See Subpoena #875611;Doc#:15-1,at 287,290-292).

jThe District Court stated,a prisoner may pursue an untimely!

jclaim by passing through the "actual innocence"gateway,but i

jit is a difficult standard to meet,applying only in "cases

Sin which new evidence shows 'it is more likely than not

i'that no reasonable juror would have convicted [the

jpetitioner]." Dretke v.Haley,541 U.S.386,124 S.Ct.1847,158

|L.Ed.2d 659 (2004);McQuiggin v.Perkins,569 U.S.383,133 S.Ct.

11924,1928,185 L.Ed.Td 1019 (2013).

The question presented is^whether the District Court

erred in denying petitioner's actual innocence claim.

QUESTIONS PRESENTED FOR REVIEW

(1) Does a defendant in a criminal proceeding have a

constitutional right pursuant to Section 10,Article I,of the

Ohio/United States Constitutions Sixth and Fourteenth

Amendments to have adequate notice of the true nature and

cause of.the accusation against him as to afford him an

opportunity to defend the allegations made against him in a

criminal complaint pursuant to Crim.R.3,and Crim.R.5 (A)(1)

at the initial stage of the proceeding.

Petitioner was not adequately notified of the true

nature and cause of the accusation against him at the

initial stage of the proceeding on August 30,2012,

preventing him from having an opportunity to confront his

accuser (s) face-to-face under the Sixth and Fourteenth

Amendments to the United States Constitution, citing

CRAWFORD V.WASHINGTON,541 U.S.36,124 S.Ct.1354,158 L.Ed.2d

17/ (2004).See Transcript filed August 30,2013.

(2) After a defendant has been taken into custody,or

)

deprived of his freedom of action in any significant way

does he have a constitutional right to be informed of his

Fifth,Sixth and Fourteenth Amendment rights,privilege

against self-incrimination and right to retained or

appointed counsel in the face of interrogation. (Tr.585-588)

See,e.g.[1964] Cnm.L.Rev.,at 166-170s (Tr.594).

1h.e United States Supreme Court reversed the judgment of

three cases,and affirmed the fourth. When an individual was ■

taken into custody and subjected to questioning,the U.S.

Const.amend.V privilege against self-incrimination was

jeopardized. As in this Case, (Tr.561,575-578).

The failure of defense counsel to object to the improper

introduction at trial of an alleged statement obtained

during a brief interview by Detective John K.Hudelson,does

not preclude consideration of the issue by the Supreme

Court Of the United States,and does not constitute a waiver

of the claim,where the trial was held prior to a decision

of the Supreme Court establishing the pertinent rules for

the first time. See (Doc#:15-1,at 414;Tr.585,591-594).

r •

The lower court applied precedent to petitioner’s claims

denying him of a fair adjudication on the merits. All

aspects of this case presents this court with both a

substantial constitutional question and a matter of general

and great public interset.

QUESTIONS PRESENTED FOR REVIEW

(.3) Does a defendant in a criminal proceeding have a

constitutional right to present a complete defense by

presenting surrebuttal evidence.

The trial court allowed the State to put on rebuttal

evidence. However,petitioner was not permitted to defend

those additional assertions by Detective John K.Hudelson,

the State's witness. Detective John K.Hudelson presented

a false statement in a document filed on August 29,2012,

in which he claimed he advised me of my constitutional

rights. See (Doc#:15-1,at 414).

At trial Detective John K.Hudelson committed perjury

under Oath claiming he advised petitioner of his rights.

(Tr.585-594).

R.C.2921.11 Perjury.

(A) No person,in any official proceeding,shall knowingly

make a false statement under oath or affirmation,or

knowingly swear or affirm the truth of a false statement,

previously made,when either statement is material. (B).

R.C.2921.13 Falsification.

(A) No person shall knowingly make a false statement or

knowingly swear of affirm the truth of a false statement

previously made,when any of the following applies: (1)(2)

(3)(7)(10).

Defense counsel then indicated that he wanted to have

petitioner recalled as a surrebuttal witness. (Tr.599). The

court indicated that it reviewed the case on the statutory

law under R.C.2945.10,and the.trial court indicated there

is not an allowance for surrebuttal. (Tr.600-601). It is

clear that a defendant has a "fundamental constitutional"

right to have "a meaningful opportunity tp present a

complete defense."'

The United States Supreme Court has held this bedrock

procedural guarantee applies to both federal and State

prosecutions. Under the Sixth Amendment's confrontation

clause it provides, "In all criminal prosecutions,the

accused shall enjoy the right * * * to be confronted with

the witness (es) against him." CRAWFORD V.WASHINGTON,Supra,

POINTER V.TEXAS (1965),380 U.S.400,406; ROCK V.ARKANSAS,

483 U.S.44,51-53,107 S.Ct.2704,97 L.Ed.2d 37 (1987); See

CALIFORNIA V.TROMBETTA (1984),467 U.S.479,104 S.Ct.2528,81

L.Ed.2d 413.

PARTIES TO THE PROCEEDING

Petitioner George Young was a petitioner in the Sixth

(Circuit Court of Appeals. He seeks to appeal to this Court

ffrom the denial of his U.S.C.§2254. He applied for a

Certificate of Appealability which was denied September 26,

j2019,in Case No.19-3002. Respondent Dave Yosp was the sole

respondent in the court of appeals and he is the sole

respondent in this court.

)

;

{

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED........

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES...................

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW..............................

JURISDICTION

INTRODUCTION

STATEMENT OF THE CASE

FACTUAL AND PROCEDURAL BACKGROUND

PROCEDURAL HISTORY..........................

PRIVILEGE AGAINST SELF-INCRIMINATION

DEFECTIVE INDICTMENT

PROSECUTORIAL MISCONDUCT

ACTUAL INNOCENCE

CONCLUSION

{

TABLE OF AUTHORITIES

Cases

Page (s)

Allen v.Harry,2012 WL 3711552 at * 7 (6th Cir.2012

i Barefoot v.Estelle,463 U.S.880,893,n.4 (1983

\ Brecht

v.Abrahamson,507 U.S.619,113 S.Ct.1710,1721,123 L.

I Ed.2d 353 (1993)..................................................................31,33

Berger v.United States,295 U.S.78,88,55 S.Ct.79 L.Ed.1314

(1935)

;

Berger v.Kemp (1987),483 U.S.776,107 S.Ct.3114,97 L.Ed.2d

! 638

■

Benge v.Johnson,474 F.3d 236,241 (6th Cir.2007) ... .6

: Berry v.Warden,Southern Correctional Facility,2016 WL

’ 4177174 at * 3

Bradshaw v.Stumpf,545 U.S.175,183,125 S.Ct.2398,162 L.Ed.

■ 2d 143 (2005)

Bousley v.United States,523 U.S.614,618,118 S.Ct.1604,104

, L.Ed.2d 828 (1998)................................................................8,34

> Brown v.Davis,752 F.2d 1142,1145 (6th Cir.1985)....5

; Brookhart v.Janis (1966),384 U.S.1,4 [36 0.0.2d 141],.8,36

Carnley v.Cochran,369 U.S.506,516 (1962)

J Chambers v.Florida,309 U.S.227,60 S.Ct.472,84 L.Ed.716

j (1940)

! Coleman v.Thompson,501 U.S.722,749-50,111 S.Ct.2546,115

Gases

)

L.Ed.2d 640 (1991)

14,32

;Crawford v.Washington,541 U.S.36,124 S.Ct.1354,158 L.Ed.2d

J177 (2004)

'Davis v.Alaska,415 U.S.308,94 S.Ct.1105,39 L.Ed.2d 347

(1974)

Davis v.Bradshaw,900 F.3d 315,326 (6th Cir.2018 . . . . 5

! Davis v.Mississippi,394 U.S.721 (1969)..............

Dando v.Yukins,461 F,3d 791,796 (6th Cir.2006)

Dretke v.Haley,541 U.S.386,124 S.Ct.1847,158 L.Ed.2d 659

(2004)................................................

Doyle v.Ohio (1976),426 U.S.610

Dunway v.Newyork,442 U.S. at 212-216............

Ellis v.United States,313 F.3d at 641..........

Escobedo v.Illinois,378 U.S.478 (1964)........

19,23,24

Enker & Elson,49 Minn.L.Rev.47,66-68 (1964)

Evitts v.Lucey (1985),469 U.S.387,105 S.Ct.830,83 L.Ed.2d

638

Franklin v.Anderson,434 F.3d 412,417 (6th Cir.2006)..32

Franklin v.Rose,765 F.2d 82,84-85 (6th Cir.1985). . ..4

Fiore v.White,531 U.S.225,121 S.Ct.712,148,L.Ed.2d 629

■

vii

;

(

! Cases

j (2001)

I Gerstien v.Pugh,420 U.S.103,45 S.Ct.854,43 L.Ed.2d 54,19

! Fed.R.Serv.2d 1499 (1975)

I Giglio v.United States,405 U.S.150 (1972)...

! Gravely v.Mills,87 F.3d 779 (6th Cir.1996)..

| Gray v.Greer (7th Cir.1986),800 F.2d 644-646

i Henderson v.Morgan,426 U.S.at,645........................

f Hicks v.Franklin,546 F.3d 1279 (10th Cir.2008)

! In re Oliver (1948),333 U.S.257,68 S.Ct.499,92 L.Ed.682

i In re Winship,397 U.S.358,90 S.Ct.1068,1073,25 L.Ed.2d 368

' (1970)

! Jackson v.Virginia,443 U.S.307,99 S.Ct.2781,2791-92,61 L.

| ED.2d 560 (1979)

Johnson v.Zerbst,304 U.S.458 (1938)

Jones v.Barnes (1983),463 U.S.745,103 S.Ct.3308,77 L.Ed.

2d 987

Jones v.Bradshaw,489 F.Supp.2d 786,807 (N.D.Ohio 2007).32

Johnson v.Bell,525 F.3d 466,484 (6th Cir.2008)

Kelly v.Withrow,25 F.3d 363,370 (6th Cir.1994)

• • •

> Cases

* (1905)r V*NSW York’198 U.S.45,25 S.Ct.539,49 L.Ed.937

j Lopez v.Wilson,426 F.3d 339,341 (6th Cir.2005)

; Lundgren v.Mitchell,440 F.3d 754,763 (6th Cir.2006)..32

Mapes v.Coyle (6th Cir.1999),45 F.3d 408,427-429

; Mason v.Mitchell,320 F.3d 604,629 (6th Cir.2003)

{

i Maupin v.Smith,785 F.2d at 138-39 (6th Cir.1986)

409t(1895)nited States’156 U.S.237,15 S.Ct.337,39 L.Ed.

McFarland v.Yukins,356 F.3d 760,776 (6th Cir.2006)...14

McQuiggin v.Perkins,569 U.S.383,133 S.Ct.1924,1928,185 L.

Ed.2d 1019 (2013)......................................................; . . . . j #ij5

Miranda v.Arizona,384 U.S.436,86 S.Ct.1602,16 L.Ed.2d 694

(1966)

jMooney v.Holohan,294 U.S.103 (1935)...

Moran v.Burbine,475 U.S.412,432 (1986)

(

Mitchell v.Mason,257 F.3d 554,556 (6th Cir.2001)....28

\ Moore v.Mitchell,708 F.3d 760,776 (6th Cir.2013)....14

| Murray v.Carrier,477 U.S.478,488 (1986)

Naupe v.Illinois,360 U.S.264 (1959)....

)

f Cases

Neil v.Biggers,409 U.S.188,34 L.Ed.2d 401,93 S.Ct.375

(1972).................................................................................................... 3

; Newburgh Hts. v.Hood,8th Dist.Cuyahoga No.84001,2004-0hio; 4236,11 5..........................................................................

Nolan v.Dixon,808 F.Supp.485 (W.D.N.C.1992)

Page v.United States (7th Cir.1989),884 F.2d 300,302..16

Paris v.Turner (6th Cir.1999),No.97-4129,at *2-*3

; Pension v.Ohio (1988),488 U.S.75,109 S.Ct.346,102 L.Ed.

; Roe v.Flores-Ortega (2000),528 U.S.470,479

\! Roraanez v•Berguis,490 F.3d 482,486 (6th Cir.2007)

6,29 i!

Sibron v.New York,392 U.S.40,61 (1968)......................

Simmons v.United States,390 U.S.377,19 L.Ed.2d 1247,88 S.

Ct.967 (1968)

; _ _3

; Smith v.Robbins (2000),528 U.S.259,275-76,285,120 S.Ct.

746,145 L.Ed.2d 756

14,16

; Smith v.Ohio Department of Rehab, and Corr.,463 F.3d 426,

432 (6th Cir.2006).................................................... ] . .

Smith v.O'Grady,312 U.S.329,334,61 S.Ct.512,85 L.Ed.859

(1941)

i Slack v.McDaniel,529 U.S.473,484,120 S.Ct.1597,1604,146 L.

f Ed.2d 542 (2002)............................................................... ..

Cases

Stewart v.State (1932),41 Ohio App,351,at 353-354....8

Spalla v.Foltz,615 F.Supp.224,227 (E.D.Mich.1985)....5

Schlup v.Delo,513 U.S.289,329 (1995)

Souter v.Jones,395 F.3d 577,589-90 (6th Cir.2005)....34

Strickler v.Greene,527 U.S.263,289,119 S.Ct.1936,144 L.Ed. (

2d 286 (1999)

Strickland v.Washington,466 U.S.668,687-88,104 S.Ct.2052,

80 L.Ed.2d 646 (1984)..............................................................16,34

Taylor v.Illinois,484 U.S.400,98 L.Ed.798,108 S.Ct.646

(1988)........................................................

Terry v.Ohio,392 U.S.1,16-19 (1968)

Thompson v.Bock,215 F.App'x 431,435-36 (6th Cir.2007).6

Tibbs v.Florida,457 U.S.31,102 S.Ct.2211,72 L.Ed.2d 652

(1982)................................................................. ;..............

Tinsley v.Millon,399 F.3d 796,815 (6th Cir.2005)

Towns v.Smith,395 F.3d 251,258 (6th Cir.2005)...

United States v.Cook (10th Cir.1995),45 F.3d 388,395.16

United States v.Briononi-Ponce,422 U.S.873,878 (1975).23

United States v.Estepa,471 F.2d 1132 (2d Cir.1972) ...28

United States v.Modena,302 F.3d 626,634 (6th Cir.2002).31

■

i Cases

i United States v.Nixon,418 U.S.683,709 (1974)

J United States v.White,58 F.App'x 610,617-18 (6th Cir.20O3)

United States v.Valenzuela-Bernal,458 U.S.858,867 (1982)..

United States v.Young,470 U.S.1,9-10,105 S.Ct.1038,84 L.

Ed.2d 1 (1985).........................................!..................

Valentine v.Konteh (6th Cir.2005),395 F.3d 626

Wainwright v.Sykes,433 U.S.72,87,97 S.Ct.2497,53 L.Ed.

594 (1977)..............................................................

Watts v.Indiana,338 U.S.49,59 (1964)..........

j Washington v.Texas,388 U.S.14,17-19 (1967)

Williams v.Taylor,529 U.S.362,405,120 S.Ct.1495,146 L.Ed.

2d 389 (2000).................................................................. !........6,38

White v.Scotten,201 F.3d 743,752,753 (6th Cir.2005)..14

United States v.Dorr (C.A.5,1981),636 F.2d 117..

Foster v.Wolfenbarger,687 F.3d 702 (6th Cir.2012

34,36

Elliott v.Williams,248 F.3d 1205 (10th Cir.2001)

Otte v.Houk,654 F.3d 594,599 (6th Cir.2011)

Lockyer-vcAndrade,538 U.S.63-, 75 (2003):i

i**t

■.■.,•.39

APPENDEX

The Eighth District Court of Appeals Affirmed the

Decision of the Trial Court (March 20,2014)........ 1,13

The Supreme Court of Ohio denied Delayed Appeal on

(October 22,2014)

The Northern District of Ohio Eastern Division denied

Petitioner's Petition (October 30,2018)

Reconsideration denied (June 4,2019)

The Sixth Circuit Court of Appeals denied Certificate

j of Appealability (September 26,2019)

)

■ I

PETITION FOR WRIT OF CERTIORARI

Petitioner George Young respectfully petitions for a

j writ of Certiorari to review the Judgment of the united

(States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

■

The opinion of the United States District Court

Northern District of Ohio Eastern Division Judgment entered

in Case No.1:18cv00411 Young v.Harris,2018 U.S.Dist.LEXIS I

185623 (N.D.Ohio,0ct.30,2018). Habeas Corpus Petition filed

from State v.Young,2014-0hio-1055,2014 Ohio LEXIS 965.

(

;

)

Reconsideration denied in Young v.Harris,2019 U.S.Dist.

: LEXIS 93278 (N.D.Ohio June 4,2019).

Judgment enterdd by Sixth Circuit Court of Appeals on

September 26,2019,Case No.19-3002.

JURISDICTION

This Court has Jurisdiction to review the Sixth Circuit ,

Court of Appeals Judgment denying Petitioner's Motion for j

Certificate of Appeaflbility under 28 U.S.C.§1254(1) that *

was entered September 26,2019.

‘

(

INTRODUCTION

This Court should grant review because,the district

| court improperly assessed petitioner's actual innocence

' claim for purposes of tolling the statute of limitations, t,

! the district court erroniously assumed that h petitioner '

with a credible claim of actual innocence had to

"■

additionally prove that he acted with reasonable diligence;,

in pursuing his rights and "that some extraordinary

circumstance stood in his way"of filing a timely petition,.*

A Certificate of Appealibility may issue where a habeas !

■ petitioner has made "a substantial showing of a denial of 1

a Constitutional Right."28 U.S.C.§2253 (C)(2). To make a

■ substantial showing of a denial of a constitutional right, |

a petitioner must show "that reasonable jurists could debate

whether (or,for that matter,agree that) the petition should!

• have been resolved in a different manner or that the issues'

; presented were 'adequate to deserve encouragement to

, proceed further. This also,requires a petitioner to

I demonstrate that reasonable "jurists would find the distric|t

;

if;

Court's assessment of the claims debateable or wrong."

SLACK V.McDANIEL,529 U.S.473,484,120 S.Ct.1597,1604,146

( L.Ed.2d 542 (2002)(quoting BAREFOOT V.ESTELLE,463 U.S.880,(

893,n.4 (1983).

Whether the District Court Abused its Discretion when i

applied the law to petitioner's actual innocence claim

without first reviewing the facts of the case, (citing

MATTOX V.UNITED STATES,156 U.S.237,15 S.Ct.337,39 L.Ed.409!!

(1895);TIBBS V.FLORIDA,457 U.S.31,102 S.Ct.2211,72 L.Ed.2d;

652 (1982).

Actual Innocence & Miscarriage of Justice,Proof of

! Innocence. The term "actual innocence"is somewhat of a

misnomer as this inquiry focuses on legal proof. To have

I defaulted claims considered on the merits,petitioner*s are’

\ not required to prove their factual innocence,but rather

I that it is more likely than not that no reasonable juror

| would have found petitioner guilty beyond a reasonable

l doubt.

TESTIMONY OF STATE'S WITNESS NICHOLAS KARANICOLAS IS AS

FOLLOWS:

"Q: Do you know who shot you? "A: Yeah. "Q: What is his

name? "A: Barry --or Gary --. "Q: The person that shot you?

"A: Huh? "Q: The person that shot, you? "A: Yeah. "Q? What ;

is his name? "A: Barry... "Q: Do you know a person by the

’ name -- Mr.McDonnell: Objection. May we approach? See (Tr.

507-508). (Thereupon,proceedings were had off the record

at side bar.) THE COURT: The objection is sustained.

Mr.Cecez,would you be kind ertough to ask your next

i. question?

MS.CECEZ:

Thank you.

; "Q: Do you recognize the person who shot you in the

courtroom today? "A: Yes. "Q: Where is he sitting?

. "A: Nicholas never said anything,he dropped his head and

' pointed at me (indicating).

.3.

"Q: And who are you pointing at? "A: Randy. "Q: Randy?

The question was asked and answered. Once a question is

answered by a witness,counsel cannot repeat the question

because he is dissatisfied with the answer. Nicholas was

coerced to point at me.(Tr.509-510).

As stated in CHAMBERS V.FLORIDA,309 U.S.227,60 S.Ct.472,

84 L.Ed.716 (1940),this court has recognized that coercion

can be mental as well as physical...

Defense Counsel [James J.McDonnell] was intentionally

ineffective as he refused to cross-examine [Nicholas

Raranicolas] as to who did he [testify] shotjhim? Counsel,

James J.McDonnell claim that would be badgering the witness.

DAVIS V.ALASKA,415 U.S.308,94 S.Ct.1105,39 L.Ed.2d 347(1974’).

Elizabeth Swiger testified,petitioner always came to heri

house to see her and her brother,Nicky. (Tr.187). Elizabeth*

further testified petitioner never had problems with her or

her brother Nicky,or Ashley. (Tr.226,233-235). Petitioner

and Barry Fletcher are not acquainted. (Tr.564,at 2).

Barry Fletcher testified he knows petitioner [as] Ashley's

ex-boyfriend. (Tr.334,at 13-14,335,at 3-5). Detective John

K.Hudelson testified he did not prepare any photo line-ups

in this case pursuant to R.C.2933.83. (Tr.515),the State's

identification procedure.See generally NEIL V.BIGGERS,409

U.S.188,34 L.Ed.2d 401,93 S.Ct.375 (1972);SIMMONS V.

UNITED STATES,390 U.S.377,19 L.Ed.2d 1247,88 S.Ct.967 (1968).

Petitioner was the only person in the courtroom,so of

course Barry was going to say he knows petitioner.

TESTIMONY OF STATE'S WITNESS ASHLEY SOWARDS IS AS FOLLOWS:

Ashley Sowards called 911 in this case.See State's Ex.56

(Tr.302). In the 911 call Ashley gave a brief explanation of

happened,and she said that Nicholas and her mother were

talking to SOMEONE,and she used those words. (Tr.308-310).

Ashley Sowards admitted she got upset with her mother

because she was going with George (petitioner). (Tr.293-296

308-309,at l-9)See (Tr.239-240).

Barry Fletcher was asked,was there anything ever said

between you two,any sort of fighting or anything like that?

Barry responded,No! (Tr.336,at 1-5).

I did not shoot Elizabeth Swiger,Nicholas Karanicolas,or

Barry Fletcher. I told the Court that it was my co-worker

[Will Jones] who was driving my vehicle and discharged a

firearm on August 24,2012,at Elizabeth Swiger (Betty)

resident. I told Public Defender Linda Hricko and James J.

McDonnell to subpoena him for trial. I never knew Public

Defender Linda Hricko had subpoenaed him for trial as she

withdrew from the case before trial which was scheduled for

December 17,2012. (Tr.548,551,556,560,562,564,572-574).

The District Court moved to dismiss ,petitioner-*s habeas

corpus petition as untimely,procedurally defaulted,and

meritless, over petitioner's objection the district court

dismissed the petition as untimely and declined to issue a

certificate of appealability.

Petitioner request this court to recognize his pro se

jstatus. It is stated pro se petitions receive a comparative!.y

ilenient construction by the court, citing FRANKLIN V.ROSE,

j765 F.2d 82,84-85 (6th Cir.1985)(noting that allegations

jof a pro se habeas petition,1 though vague and conclusory,

are entitled to a liberal construction'including "active

interpretation"toward encompassing an allegation stating

"federal relief;")

Petitioner is not an attorney. He has been presenting his

legal issues to the best of his ability with the assistance

of fellow inmates so as to show that he is actually innocen :

of the allegations and charges brought against him. The

district court further explained that petitioner could not

proceed through the "actual innocenbe"gateway.

Petitioner had received some incorrect legal advice from

his fellow inmates regarding the filing of his habeas corpus

yet he was still seeking the correct advice through the

office of the Ohio Public Defender and the legal aid society.

(Doc#:24-1,at 1644-1649,1650-1660).

The District Court claim petitioner has not been diligen;.

Petitioner's Case is very important to him as he is wrongly

convicted through a malicious prosecution because of the

cases he has been acquitted of, (Tr.714-716),and because he

was having sex with his ex-girlfriend mom. ^Tr.234,239-240,

293-295,308-310,312-313,320,324).

;

■!

The District Court stated,a prisoner may pursue an

otherwise untimely claim by passing through the "actual

innocence"gateway,but it is a difficult standard to meet,

applying in "cases in which new evidence shows 'it is more

likely than not that no reasonable juror would have

|convicted the prisoner.'" McQUIGGIN V.PERKINS,569 U.S.383, !

(395 (2013)(alteration in original)(quoting SCHULP V.DELO,

1513 U.S.289,329 (1995).

;

The district court concluded that petitioner (Young)

iicould

not pass through the gateway because the evidence he

provided was not "new,reliable evidence,such as exculpatory

;scientific evidence,trustworthy eyewitness accounts,or

critical physical evidence, that was not presented at trial.','

DAVIS V.BRADSHAW,900 F.3d 315,326 (6th Cir.2018),cert.denied

139 S.Ct.1619 (2019),(Doc#:15-1,at 287,290-291).

The subpoena issued by Public Defender Linda Hricko is j

newly discovered evidence as it was not presented at trial.!

(Petitioner testified he was not driving his vehicle on the .

‘night in question,that it was his co-worker [Will Jones]

who was driving petitioner's vehicle and the person that

discharged a firearm on August 24,2012,at Elizabeth Swiger

resident. (Tr.523-524,547-556).

Will Jones was labeled as a witness (Doc#:24-1,at 1610),1

but he was not called for trial to testify as requested.

An accused has a constitutional right to call witnesses

whose testimony is "material and favorable"to his defense.

WASHINGTON V.TEXAS,388 U.S.14,17-19 (1967)also UNITED STATES

;V.VALENZUELA-BERNAL,458 U.S.858,867 (1982).

The Fourteenth Amendment right to due process "protects

the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the

crime with which he is charged." citing In re Winship,397

u.s.358,90 S.Ct.1068,1073,25 L.Ed.2d 368 (1970).

The issue before this court is whether sufficient .

evidence was presented to the jury from which a reasonable

fact-finder could find that the essential elements were

proven beyond a reasonable doubt. SPALLA V.FOLTZ,615 F.Supp.

224,227 (E.D.Mich.1985)(citing BROWN V.DAVIS,752 F.2d 1142,

1145 (6th Cir.1985).

;

Thus,a §2254 petitioner "is entitled to habeas corpus

‘relief if it is found that upon the record evidence adduced’

(

?I at trial no rational trier of fact could have found proof .

! of guilt beyond a reasonable doubt." citing JACKSON V.

t VIRGINIA,443 U.S.307,99 S.Ct.2781,2791-92,61 L.Ed.2d 560

; (1979).(Tr.226,233-235,309-310,336,507-508).

;

Courts analyze directed verdict/sufficiency of the

: evidence claims under the "unreasonable application"

1 catagory of §2254 (d)(1). THOMPSON V.BOCK,215 F.App'x 431,.

,435-36 (6th Cir.2007). "[R]elief is only available when the

! decision results in an objectively unreasonable application

of federal law." TINSLEY V.MILLION,399 F.3d 796,815 (6th

Cir.2005). In short,a reviewing court must determine

"whether the evidence was so overwhelmingly in favor of the

defendant that it compelled a verdict in his favor." See

THOMPSON,215 F.App'x at 436.

It is petitioner's contention that the trial court's

guilty verdict was insufficient to support a conviction

that petitioner was the person that caused serious physical

harm to (1) Elizabeth Swiger,(2) Barry Fletcher,and (3)

Nicholas Karanicolas. At best,all it proves is petitioner

was present when the shooting occured and was in the

vehicle when it left the scene. Petitioner had no knowledge

that anyone was shot. (Tr.562,564,574).

One cannot be convicted on mere presence. STATE V.WERE,

2008-Ohio-2762,118 Ohio St.3d 448,471,890 N.E.2d 263.

Anthony Karanicols testified, the shots were not

physically aimed at anyone. (Tr.408,418,423,428-429,562).

Therefore,the decision of the Eighth District Court of !

Appeals is 'diametrically different from the holdings in

Jackson v.Virginia,and is therefore,contrary to clearly

established federal law. See,e.g.ROMANEZ V.BERGUIS,490 F.3d

482,486 (6th Cir.2007)(citing DANDO V.YUKINS,461 F.3d 791,

796 (6th Cir.2006);See also BENGE V.JOHNSON,474 F.3d 236, i

241 (6th Cir.2007);

"A State-Court decision is considered 'contrary to ...

clearly established Federal Law 'if it is 'diametrically

different,opposite in character or nature,or mutually

opposed. t ff quoting WILLIAMS V.TAYLOR,529 U.S.362,405,120

S.Ct.1495,146 L.Ed.2d 389 (2000)(quotation marks omitted)* ?

Accbrding to FIORE V.WHITE,531 U.S.225,121 S.Ct.712,148 ’

L.Ed.2d 629 (2001),the federal constitution's Due Process

Clause "forbids a State to convict a person of a crime

without proving the elements beyond a reasonable doubt.” Idi

* at 228-29,121 S.Ct.712.

•7

STATEMENT OF THE CASE

I. Legal Background

The City of Cleveland initially filed charges against

petitioner on August 26,2012,but this case was improperly

bound over to the Cuyahoga County Court of Common Pleas for

further proceedings on August 30,2012.(See Cleveland Municipal Court Case Nos.2012-CRA-029673;2010-CRB-11430,see

docket entries dated August 26,2012 and August 30,2012.)(

l(Doc#:l-l,at 30-35;Doc#:18,at 14752-1476).

The filing of a valid complaitvt invokes the jurisdiction

!of the municipal court. State v.Mbodji,120 Ohio St.3d 325,

'2011-0hio-2880,951 N.E.2d 1025,1T 12;citing State v.Miller,

|47 Ohio App.3d 113,114,547 N.Ed,2d 399 (1st Dist.1988).

Therefore,the question of whether a complaint is valid

is a question of law,and this court's standard of review is

de novo. Id. Newburgh Hts. v.Hood,8th Dist.Cuyahoga No.

84001,2004-0hio-4236,tf 5.

Petitioner argues that the complaint in this case is

fatally defective and legally insufficient to charge

j'felonious assault'because it does not include all of the

essential elements of that offense,specifically,the culpable

mental state of KNOWINGLY,THEREBY RENDERING THE COMPLAINT

'FATALLY DEFECTIVE AND WARRANTING DISMISSAL. It is fatally

defective and fails to charge an offense divesting the

municipal court of subject-matter jurisdiction or the

authority to act. (Doc#:l,at 1,25; Doc#:l-l,at 31,35).

The complaint's in this case were withheld in 'Badfaith'

(thereby denying petitioner of the opportunity to know the

/real,true nature and cause of the accusation against him.

The United States Supreme Court has clearly established

|the rule that a defendant MUST receive REAL NOTICE of the

JTRUE NATURE of the charge against him, that is the first and

most universally £§eegfliz®d requirement of Procedural Due

Process, (citing Henderson v.Morgan,426 U.S.,at 645(quoting

'Smith v.O'Grady,312 U.S .329,334,61 S.Ct.512,85 L.Ed.859(1943

'see also Bradshaw v.Stumpf,545 U.S.175,183,125 S.Ct.2398,

162 L.Ed.2d 143 (2005).(Doc#:1-1,at 30).

Petitioner contends he was neither informed of the true

nature of the charge nor premitted to read the charging

instrument,in viloation of R.C.2937.02 (A)(1).

That subsection provides:

"When,after arrest,the accused is taken before a Court or

magistrate,or vdien the accused appears pursuant to terms of

summons or notice,the affidavit or complaint being first

filed,the Court or magistrate shall,before proceeding

further;SHALL: "(1) inform the accused of the nature of the

charge and the identity of the complainant and permit the

accused or counsel for the accused to see and read the

affidavit or complaint or a copy of the affidavit or the

complaint." THIS WAS NOT DONE IN THIS CASE. (Doc#:lrl,at -30)’.

Petitioner's probable cause determination was based Dn i

ill will.see Gerstein v.Pugh,420 U.S.103,95 S.Ct.854,43 L. X .

Ed.2d 54,19 Fed.R.Serv.2d 1499 (1975). Petitioner was ',V <

denied of the opportunity of facing his accuser(s) face to

face August 30,2012,denying him of his Sixth and Fourteenth

Amendments.(Doc#:1-1,at 32-34).

The Fourteenth Amendment's Due Process Clause is -*•violated unless a criminal defendant FIRST receives'real

notice of the true nature of the charge against him. cite

Bousley v.United States,523 U.S.614,618,118.JS,Ct.1604,104

L.Ed.2d 828 (1998).

"In the absence of a sufficient formal accusation,a

court acquires no jurisdiction whatever,and if it assumes

jurisdiction,a trial and conviction are a nullity." citing

Stewart v.State (1932),41 Ohio App.351,at 353-354;see also

Brookhart v.Janis (1966),384 U.S.1,4 [36 0.0.2d 141].

Section 10,Article I,of the Ohio Constitution guarantees;

every defendant the right to know the nature and cause of i

the accusation against him. State v.Burgun (1976),49 Ohio

App.2d 112. Due Process requires that a criminal defendant

be given fair notice of the charge(s) against him. cite as

In re Oliver (1948),333 U.S.257,68 S.Ct.499,92 L.Ed.682.

A. DEFECTIVE INDICTMENT

On September 24,2012,petitioner was indicted by the

Grand Jury of (1) three counts of felonious assault in

violation of Ohio Rev.Code("0.R.C.")§2903.11(A)(2)(counts

1,2,3);(2) three counts of felonious assault in violation

of O.R.C.§2903.11(A)(l)(counts 4,5,6);and(3) one count of

improperly discharging a firearm at or into Habitation or

School in violation of O.R.C.§2923.161(A)(l)(count seven)

)

a felony of the second degree. Each charge carried three

firearm specifications^ one-year,three-year and a fivet1

year firearm specification pursuant to R.C.2941.141,

2941.145,2941.146. (Doc#:15-l,Exh.l). At arraignment

petitioner entered a plea of NOT GUILTY to all counts,and

the Court assigned Public Defender Linda Hricko as counsel.*

(Doc#:15-1,Exh.3).

Trial

was

scheduled

for

December

17,2012,Trial

was

then

converted to final pre-trial,and the Court assigned James

J.McDonnell as counsel. (Doc#:15-1,at 457-458;Doc#:15-1,at ■t

620). Public Defender Linda Hricko withdrew without notice ,

[pursuant to Court of Common Pleas Rule 10.0,notice of

iwithdrawl.

;

The Case proceeded to a jury trial on March 11,2013,and \

ton March 14,2013,the jury returned a verdict of guilty on '

fall charges. (Doc#:15-2,Tr.4). Pursuant to Ohio Grim.R.29, k'

'petitioner moved for an aquittal at the close of the States[

[Case,which the trial court denied. (Doc#:15-4,Tr.529-534, v

|580). Petitioner renewed his Ohio Crim.R.29 Motion for

Acquittal after the defense rested and the state trial

[court denied the motion. (Id.,at 84).

The jury found petitioner guilty of felonious assault

'(Counts One through Six),and improperly discharging a

[firearm

into

habitation(Count

Seven).(Doc#:15-1,at

4),

The trial court merged Counts One and Four,Counts Two

and Five,and Counts Three and Six. (Doc#:15-l,EMi.5).

The trial court conducted a sentencing hearing on March ■

[21,2013,petitioner was sentenced to a 32-year prison term, it

i.1

!h B. DIRECT APPEAL

i.1

:«

On April 9,2013,petitioner through counsel,Thomas A.

!Rein,filed a Notice of Appeal in the Eighth District Court [

■of Appeals (state appellate court).(Doc#:15-1,Exh.6). In

[his appellate brief,counsel raised the following

(assignments of errors:

■T

The trial court erred in denying Appellant's motion \

for acquittal as to the charges when the State

failed to present sufficient evidence to sustain a

conviction.

\'3';

II. Appellant's convictions are against the manifest

weight of the evidence.

{

III..The trial court denied Appellant of his right to a

[

fair trial when it erred by not allowing Appellant to

present surrebuttal evidence and by not permitting him

to completely testify in his defense.

Ma The trial court erred by giving a jury instruction on

’flight which denied Appellant's right to a fair trial. i:

!:\ V.

Appellant was denied effective assistance of counsel

as guaranteed by Section 10,Article I,of the Ohio

Constitution and the Sixth and Fourteenth Amendments.

VI. The trial court erred by ordering Appellant to serve a l

consecutive sentence for the seperate firearm

specifications.

VII. The trial court erred by ordering Appellant to serve a !

consecutive sentence without making the appropriate

findings required by R.C.2929.14 and HB 86.

VIII.The trial court erred by ordering convictions and a

!•:

consecutive sentence for seperate counts of felonious j

assault because the offenses are allied offenses

pursuant

to R.C.2941.25 and they are part of the same

transaction under R.C.2929.14.

IX. The trial court erred by ordering Appellant to pay

costs.

(Doc#:15-l,Exh.7). The State filed a brief in response.

I'1

:( Doc#: 15 -1, Exh. 8 ) .

I C.

POST-CONVICTION FILINGS

Petition to Vacate or Set Aside Judgment

On October 15,2013,petitioner filed a pro se pleading

jwith

the

State

trial

court

captioned

"Defendant-petitioner,!

iGeorge

Young's Petition to Vacate or Set Aside the Judgment |

tor Sentence (Evidentiary Hearing Requested)."(Doc#:15-l,ExhJ

[10). This filing raised the following claim:

Petitioner's Constitutional right to effective

assistance of counsel under the Sixth Amendment to the !

United States Constitution was violated by virtue of

counsel's deficient performance which affected

Petitioner's substantial rights to a fair trial.

The State filed a response in opposition. (Doc#:15,l,Exh.

)

11). On November 27,2013,the trial court denied petitioner

motion without issuing findings of fact and conclusions of

law. (Doc#:15-1,Exh.12).

On December 2,2013,petitioner filed a pro se pleading

Iwith the trial court captioned "Defendant-Petitioner's

jReply to Plaintiff's Brief in Opposition to Defendant's

Petition to Vacate or Set Aside Judgment or Sentence."(Doc#:

(15-1,Exh.13).

On August 8,2014,Petitioner filed a third pro se pleading

(with the State trial court captioned "Defendant's Motion

Requesting Court Pursuant to R.C.2953.21 (C)(G) and Crim.R.

f35 (C) To make and file Findings of Fact and Conclusions of

jLaw with Respect to Dismissal of Defendant's Petition to

iVacate or Set Aside Judgment or Sentence."(Doc#:15-1,Exh.14]

Magistrate Judge Jonathan Greenberg stated in an order

dated July 31,2018,at Doc#:19,1486,he stated the State did

not file a response. On August 14,2014,the State trailed a

copy of the foregoing State's Notice of Filing Proposed ' ,

Findings of Fact and Conclusions of law to petitioner at

Lake Erie Correctional Institution which was not timestamped ,dated or signed by Judge Steven E.Gall.(Doc#:15,1,at

461-462,464-467|Doc#:l-l,at 47-55).

After not receiving an answer to his request petitioner (

filed a pro se Petition for a Writ of Mandamus in the

Eighth District Court of Appeals requesting the Court to

compel the trial court to provide him with the findings of

fact and conclusions of law. Subsequently,the Respondent

filed a Motion for Summary Judgment to Petition for Writ of

Mandamus on May 26,2015,which the Findings of Fact and

Conclusions of Law was attached(dated August 18,2014)(Doc#:

24-1,at 1640)(see also Doc#:24-l,at 1644-1646).

The Court's Findings of Fact and Conclusions of Law

further reflect the handwritten notations of "M-8-19-14"

under petitioner's name and address and that of the

‘ '

assistant prosecutor's in the service endorsement,indicating

that copies were mailed to bothparties on August 19,2014.

(Doc#:15-1,Exh.15). In fact,the Clerk of Court's mailing to

petitioner of the Eighth District's opinion was returned to

the Clerk marked "Return to Sender not Deliverable as

Addressed unable to Forward."(Doc#:1-1,at 61;Doc#:24-l,at

1636;Doc#:1-1,at 45;Doc#:24-l,at 1639).

The State's Findings of Fact and Conclusions of Law were

made under the penalty of perjury and with a reckless

disregard for the truth or for the law,pursuant to R.C.

2921.13(A)(1)(7). (Doc#:15-1,Exh.15).

The State denied petitioner’s Petition to Vacate or Set

Aside Judgment or Conviction stating: "The Court concludes

that Young failed to provide any credible supporting

documentation to support his claim that counsel was

ineffective.. Contrary to Young's claim that counsel failed

to Subpoena [Will Jones],the person who discharged a

firearm on August 24,2012,and shot [Elizabeth Swiger,Barry

Fletcher,Nicholas Karanicolas]. The State further claims

Jones was subpoenaed by counsel for trial. (Tr. 523-524.)/.

In support thereof,it attaches Defense Subpoena #875611

(Doc#:15-1,at 287). This argument fails for a couple of

reasons: First of all,the Subpoena attached to the State's

Opposition (Doc#:15-1,Exh.11,as Exhibit l,was requested by

Petitioner's first attorney[Public Defender Linda Hricko]

who withdrew from the case without notice before trial

which was scheduled for December 17,2012. Secondly,it

ordered [Will Jones] to appear before the Court for the

original trial date which was converted to final pretrial

by the State December 17,2012. Third,Ms.Hricko was

replaced with James J.McDonnell on December 17,2012,at the

« request of the State. (Doc#:15-1,at 457-458,620).

Petitioner did not request another attorney. Petitioner

was not arguing the ineffectiveness of Public Defender

l Linda Hricko,but challenges the performance of James J.

j McDonnell,as he should have known about the subpoena,as he

J was requested to subpoena [Will Jones].(See Doc#:15-1,Exh.

■ 10),Petitioner's Petition to Vacate or Set Aside Judgment

or conviction.(See also Doc#:l-l,at 49,57;Doc#:24-l,at

1610)(citing TOWNS V.SMITH,395 F.3d 251,258 (6th Cir.2005)

dispels

any doubt that a lawyer's Strickland duty includes

| the obligation to investigate all witnesses who may have

i. inf ormationcconceEningahis/heroclieht-'is^guilt Jor Linnocence.

]

Where Petitioner presented sufficient evidence showing

I he was entitled to relief Judge Steven E.Gall had a duty to

proceed to a prompt hearing on the issues presented in

Petitioner's Petition to Vacate or Set Aside Judgment or

conviction. His failure to do so deprived petitioner of a

meaningful review,thus violating his Constitutional right

to Due Process under the UnitCdaStates and Ohio

Constitution,further,Judge Steven E.Gall knew Public

Defender Linda Hricko did not represent petitioner at his

trial March 11,2013.(Doc#:1-1,at 38)(Doc#:1-1,at 53).

, >

Defendant's Rights,Right to Compulsory Process

At a minimum,criminal defendant's have the right to the ,

governments assistance in compelling the attendance^of all

favorable witnesses at trial and the right' to put before a

jury evidence that might influence the determination of his

^innocence or guilt. Federal Constitution's Sixth Amendment,

(to have compulsory process for obtaining witnesses in his/

her favor. (Doc#:15-1,at 287).

The right of an accused under the Federal Constitution's |

Sixth Amendment,to have Compulsory Process for obtaining

witnesses in his/her favor is applicable in State as well - ,j

as Federal prosecution. Taylor v.Illinois,484 U.S.400,98 L.i

Ed.2d 798,108 S.Ct.646 (1988); United States v.Nixon,418

U.S.683,709 (1974). (See Doc#:24-l,at 1610),

D. DIRECT APPEAL DECISION

On March 20,2014,the Eighth District Court of Appeals

subsequently affirmed petitioner's ^conviction and sentence.

STATE V.YOUNG,8th Dist.No.99752,20l'4-Ghib-l055. XDbc#: 15-1,

Exh.9)(See also STATE V.YOUNG,2014 WL 1327660 (Ohio App.8th

Dist.Mar.20,2014).

On September 4,2014,petitioner filed a Notice of Appeal

jwith the Supreme Court of Ohio. (Doc#: 15-1 ,Exh. 18) . That

same day,petitioner filed a Motion for Leave to file a

Belayed Appeal with the Supreme Court of Ohio with the help

of a fellow inmate,because appellate counsel failed to keep

petitioner informed of important decisions in the course of

the prosecution. (Doc#:15-1,Exh.19).

On October 22,2014,the Supreme Court of Ohio denied

petitioner's Motion for Leave to File Delayed Appeal and

dismissed his case. (Doc#: 15-1 ?Exh.20) . The Clerks duties

^ere not carried out proprely in this Case pursuant to App.

(R.30. App.R.30 Duties of Clerks (A) Notice of orders or

(judgments. Immediately upon the entry of an order or

(judgment,the clerk shall serve by mail a notice of entry

(upon each party to the proceeding and shall make a note in

the docket of the mailing. Service on a party represented by

counsel shall be made on counsel* STATE V.YOUNG,140 Ohio St.

3d 1465,2014-0hio-4629,18 N.E.3d 445.

The Clerk of Court did serve appellate counsel with a

copy of the judgment entry assuming. Appellate Counsel's

failure to timely mail a copy of the Eighth District Court

'of appeals decision is sufficient cause to excuse his

procedural default. Appellant Counsel Thomas A.Rein's

failure to mail petitioner a copy of the Appeal Courts

'decision amounts to a breach of duty of the first magnitude.

In short,Appellate Counsel Thomas A.Rein abandoned

petitioner and left him to figure out the complex procedure

for filing an appeal to the Supreme Court of Ohio. The

Clerk noted in the appeal courts judgment entry "copies

■mailed to counsel for all parties."(Doc#:15-1,at 247). Yet,

Counsel failed to mail petitioner a copy of the appeal

court's decision.

The Supreme Court of Ohio stated in its order,upon the

consideration of appellant's Motion for Delayed Appeal,it

is ordered by this court that the motion is denied. See

(Doc#:15-1,at 389,Ex.20).

CAUSE AND PREJUDICE

Under the cause and prejudice exception,it is required

that a petitioner demonstrate cause for the default and

actual prejudice as a result of the violation of federal

law. Petitioner contends that ineffective assistance of

his trial/appellate counsel supplies the cause needed to

excuse his procedural default.(citing MOORE V.MITCHELL,708

F. 3d 760,776 (6th Cir.2013);McFARLAND V.YUKINS,356 F.3d

688,699 (6th Cir.2004);also SMITH V.OHIO DEPARTMENT OF

REHAB. AND CORR. 463 F.3d 426,432 (6th Cir.2006),and BERRY

V.WARDEN,SOUTHERN CORRECTIONAL FACILITY,2016 WL 4177174 at ;

* 3 (N.D.Ohio Aug.8,2016).

There can be a Constitutional claim of ineffective

assistance of counsel only at a stage of the proceedings

when there is a right to counsel under the Sixth Amenedment.

(citing COLEMAN V.THOMPSON (2000),501 U.S.752. There is no ;

doubt that there is a Constitutional right to effective

assistance of counsel during a direct appeal as of right. f

See e.g.,SMITH V.ROBBINS (2000),528 U.S.259,275-76,and thatj

appellate counsel's duties do not terminate the moment the j

Court of Appeals hands down its decision.(citing WHITE V.

SC0TTEN,201 F.3d 743,752,753 (6th Cir.2005),overruled on

other grounds by LOPEZ V.WILSON,426 F.3d 339,341 (6th Cir. )

2005)(en banc).

}

Counsel failed to keep petitioner informed of important (

developments in the course of the prosecution. The Court's *k

ultimate decision regarding a particular proceeding is

{

part of that legal proceeding and appointed counsel's

duties in representing a client during that .legal

proceeding includes the duty of informing the defendant

of the outcome of the proceedings.(citing PARIS V.TURNER,

|(6th Cir.No.97-4129,at *2-*3 (1999)(unpublished).

(

Appellate Counsel Thomas A.Rein failed to consult with

\(petitioner on important decisions in the course of the

fprosecution. The Constitution require that Counsel make

[objectively reasonable choices and must do so not only

‘during the legal proceeding for which counsel represents

[the client,but also after the judicial proceeding has

(concluded in determining whether an appeal should be filed. (

iROE V.FLORES-ORTEGA (2000),528 U.S.470,479.

Counsel's performance would be Constitutionally adequate*;

if he consulted with petitioner about the advantages and

[disadvantages of taking an appeal and making a reasonable

ieffort to discover the client's wishes. Id.

!■

In this case,appellate counsel Thomas A.Rein never

^consulted with petitioner to find out whether he wanted to i

[continue the appeal process to the Supreme Court. Further

appellate counsel Thomas A.Rein never advised petitioner

(that he had '45-days to file an appeal to the Supreme Court[

rof Ohio after the Eighth District Court of Appeals decision

[was finalized.' He never advised petitioner what documents

were necessary to perfect an appeal.

E. APPLICATION TO REOPEN APPEAL UNDER OHIO APP.R.26(B)

On April 13,2016,petitioner filed a pro se Application

to Reopen Appeal Pursuant to Ohio App,R.26(B)(Doc#:15-1,Ex.

26). Petitioner's Application raised the following: ;

Appellate Counsel's failure to raise a State claim is

deficient. Counsel omitted significant and obvious

issues. Mayo v.Henderson,13 F.3d 528,533 (2Cir,1994).

Miranda Rights,Post-Arrest Silence. Brewer v.Williams,

(1977),430 U.S.387,at 402-405.

(Id). The State filed a brief in opposition (Doc#:15-1,Ex.!

27)

,to which petitioner replied. (Doc#:15-1,Ex.28).

!■

On May 25,2016,the State appellate court denied the

Application as untimely. (Doc#:15-1,Ex.29).

APPELLATE COUNSEL WAS INEFFECTIVE FOR OMITTING A DEAD

BANG WINNER,PREJUDICING PETITIONER FROM RECEIVING A

FULL AND FAIR REVIEW ON DIRECT APPEAL AS OF RIGHT.

Petitioner had requested appellate counsel Thomas A.Rein f

(to address the issues of his Miranda Rights and Post-Arrest '

'Silence on direct appeal through a letter. Thomas A.Rein

mails petitioner a letter April 22,2013,stating he can only1

set forth issues and arguments that were actually on the

record;which is what the court reporter transcribed as to

what happened in court or motions filed which are part of '

j:the record. (Doc#: 24-1,at 1647). The issues relating to

("Miranda Rights and Post-Arrest Silence are part of the

irecord at: (Tr.561,565,575,585-589,593-594,599-600)."

A Criminal defendant is entitled to effective assistance

(of counsel on appeal as well as at trial. Counsel should

act as an advocate rather than merely as a friend of the

'court. EVITTS V.LUCEY (1985),469 U.S.387,105 S.Ct.830,83

iL.Ed.2d 821; PENSION V.0HI0 (1988),488 U.S.75,109 S.Ct.346,

102 L.Ed.300.

The Strickland test applies to Appellate Counsel.citing

?SMITH V.ROBBINS (2000),528 U.S.259,285,120 S.CT.746,145 L.

Ed.2d 756; BERGER V.KEMP (1987),483 U.S.776,107 S.Ct.3114,

97 L,Ed.2d 638. Although an attorney need not advance every

argument urged by appellant,JONES V.BARNES (1983),463 U.S. ■

745,103 S.Ct.3308,77 L.Ed.2d 987. Counsel can be

Constitutionally deficient for failing to raise a Dead-Bang

Winner. MAPES V.COYLE (6th Cir.l999),45 F.3d 408,427-429,

citing UNITED STATES V.C00K (10th Cir.l995),45 F.3d 388,395;

PAGE V.UNITED STATES (7th Cir.1989),884 F.2d 300,302.

A dead-bang winner has been defined as "an issue which

was obvious from the trial record. (Tr.511-513,561,565,575,

585-589,590-594,at 6-25,595-596,at 1-6,599-600,672,at 11-12,

675,at 14-14). COOK,Supra. To prevail on a claim of

ineffective assistance of counsel,an appellant must show

that appellate counsel ignored issues which were stronger

than those presented. See SMITH V.ROBBINS,528 U.S.,at 288,

120 S.Ct.746;(quoting GRAY V.GREER (7th Cir.1986),800 F.2d i

644,646.

To prove ineffective assistance of counsel,a defendant

imust show that "counsel's representation fell below an

objective standard of reasonableness,"and that "the

deficient performance prejudiced his defense." citing

■ STRICKLAND V.WASHINGTON,466 U.S.668,687-88,104 S.Ct.2052,

80 L.Ed.2d 674 (1984). To prove deficient performance,a

’ defendant must establish that counsel was not acting

i within the broad norms of professional competence. Id.,at

i 687-91. Furthermore,to prove prejudice,a defendant must

i establish that but for counsel's deficient performance,

there is a reasonable probability that the outcome would

;•

; have been different. Id.,at 694. As shown,these issues

were clear and obvious from the trial record,counsel's

i failure to raise these obvious issues certainly prejudiced .

i petitioner from receiving a full and fair review on his

direct appeal as of right. STRTCKLAND,Supra.

Detective John K.Hudelson #839,committed perjury under

oath pursuant to R.C.2921.11 (A)(B)(E)(F),when he

testified he read petitioner his Miranda Rights. (Tr.585, 588;589-593). Further,the record reveals the State failed

- to carry out its burden of proving warnings were given,as

| there was no evidence of any notes,video recordings,

written statements,or any other corroborating evidence to

! support Detective Hudelson's allegation,specifically,at

1 Detective Hudelson's own admission,he testified he did not

have petitioner sign a waiver,as defense counsel James J.

McDonnell referred to as a piece of paper,which rendered

his performance deficient denying petitioner of a fair

trial. (Tr.5<M,at 6-12,13-25).

Detective John K.Hudelson #839 further,did knowingly

and intentionally with.a reckless disregard for the truth

or for the rights of petitioner or for the law made a

false statement in a report typed by sdco dejesus,on 08/

25/2012,claiming he advised petitioner of his Miranda

Rights. (Doc#:15-1,at 413-414). Trial counsel failed to

suppress this information denying petitioner of a fair

trial.

A statement this court made in CARNLEY V.COCHRAN,369

U.S.506,516 (1962),is applicable here:

; "Presuming wavier from a silent record is impermissable,

the record must show,or there must be an allegation and

' evidence which show that an accused was offered counsel,

but knowingly and intelligently rejected the offer.

Anything less is not waiver."

This Court has always set high standards of proof for

the waiver of Constitutional Rights. JOHNSON V.ZERBST,304

U.S.458 (1938),and it reasserts these standards as applied

m-custody.interrogation. Since the State is responsible

for establishing the isolated circumstances under which the

...

interrogation takes place and has the only means of making

i available corroborated evidence of warnings given during

incommunicado.interrogation,the burden rests on the

; shoulders of the State.

!■'

"[M]oreover,where incustody interrogation is invloved

there is no room for the contention that the privilege is j

waived if the individual answers some questions or gives

some

information

his

own

prior

his

invoking

his

right

;

[to remain silent when he is interrogated,."

Judge Steven E,Gall,Assistant Prosecutor's Milko Cecez, ii

^Mollie Murphy were aware of Detective John K.Hudelson's

jperjured testimony. NAPUE V.ILLINOIS,360 U.S.264 (1959);

jMOONEY V.HOLOHAN,294 U.S.103 (1935); GIGLIO V.UNITED STATES 1

<405 U.S.150 (1972).

The Assistant Prosecutor Milko Cecez's use of Petitioner'I1

[post-arrest silence suggested he was guilty is a clear

^violation of his Constitutional Right Fifth, and. Fourteenth t

^Amendments privilege against self-incrimination. (Tr.561,at|

1,2-10,672,at 11.^12,675,at 14-15), Petitioner contends that |

1 the prosecutor's question in this regard made it appear as [

fthough he had something to hide and therefore needed an

attorney.

At trial the following exchange took place between

petitioner and.assistant prosecutor Milko Cecez as follows:'

|"Q: Did you ever tell the Detective about Will Jones?

)

'[■

|"A: No Sir,I did not.

, Q: Okay,why did you not tell the Detective about Will

. Jones ?

i. "A:

! Q:

Because I told Detective Hudelson once he came to

interview me,that I had spoken to an attorney,and he

told me not to talk to him until he came.

Well,you didn't do anything wrong,why would you speak

to an attorney? (Tr.561,at 2-10,564-565,575,at 2-12,

576-578).

| Assistant Prosecutor Milko Cecez,in closing mentioned

twice that petitioner never mentions a "Will Jones"when he "

jtalks to the Detective back in August. (Tr.672,at 11-12

,675,at 14-15). GRAVELY V.MILLS,87 F.3d 779 (6th Cir.1996);

(NOLAN V.DIXON,808 F.Supp.485 (W.D.N.C.1992).

}

"In DOYLE V.OHIO (1976),426 U.S.610,held that the use of

!?i0S!'"’nr5e?t. Sr

uncons11 tutiona 1, the Court stated

|that " * * * [w]hile * * * Miranda warnings contain no

^express assurance that silence will carry no penalty,such

(»!

assurance is implicit to any person who receives the

1 warnings." In this case,petitioner was not provided any

warnings. (Tr.594,at 6-12,13-25;599-600). ESCOBEDO V.

ILLINOIS,378 U.S.478 (1964). In such circumstances,it

would be fundamentally unfair and a deprivation of 'Due

Process'to allow the arrested person's silence to be used

to impeach an explanation subsequently offered at trial." ;

See (Tr.561,at 2-10).

;

In this Case,although references were made to the

effect that petitioner had not mentioned the name of ['Will

Jones] to Detective Hudelson,the rational of DOYLE,Supra,

is applicable since petitioner did not waive his Miranda

Rights. Defense counsel's failure to object to the

. j

improper admission of this questioning was prejudicial

error and rendered the trial as a whole fundamentally

unfair as to require a reversal. STATE V.SABBAH (1982),13

Ohio App.3d 124,13 OBR 155,468 N.E.2d 718. (Tr.561,672,at

11-12,675,at 14-15).

Petitioner is demonstrating that his trial was

fundamentally unfair and the results are unreliable as a

result of trial counsel's deficient performance.

Appellate Counsel raised ineffective assistance of

counsel as an appellate issue,but did so in a relatively

weak fashion. Appellate Counsel did not raise many of the

specific instances of trial counsel's ineffectiveness

that are mentioned,they are obvious when reviewing the

record and he did not present what is noted as potentially

meritorious ineffective assistance of counsel issues.

'[Ejrrors by a State Court in the admission of evidence

are not cognizable in habeas corpus proceedings unless they

so perniciously affect the prosecution of a criminal Case

as to deny the defendant the fundamental right to a fair

trial."' KELLY V.WITHROW,25 F.3d 363,370 (6th Cir.1994).

The District Court's decision rendered in opinion and

order June 4,2019,was clear error. (Doc#:29). Magistrate

Judge Johnathan D.Greenberg hereby determined in the order

on July 31.2018,that based on its initial review of

ipetitioner's petition,Return of Writ and Traverse,the Court

‘does not anticipate discovery and/or an evidentiary hearing

'will be necessary and is confident the issues raised in the

^petition can be resolved based on the State Court record,

ithe district court further stated,

At this time,and upon careful review of the pleadings,

!!'

the court does not anticipate that an evidentiary hearing

will be warrented in this matter,as all of Young's habeas

claims appear to involve legal issues which can be

independently resolved without additional factual inquiry.

(Doc#: 18,at 14793).,

The State Court debision^was^a final adjudication that:

(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;

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

determination of the facts in light of the evidenceApresdqted

in the State Court proceedings, (Doc#:19;Doc#:19,at 1510).

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner's Constitutional right to Procedural Due

Process,Compulsory Process was violated at the initial stage

of the proceeding pursuant to Crim.R.3;Crim.R.4(l)(C)(D)(3)

(E)(2);Crim.R.5(A)(l)(2)(3)(4)(5)(B)(l)(2)(3)(4)(5)(6).cite

LOCHNER V.NEWYORK,198 U.S.45,25 S.Ct.539,49 L.Ed.937 (1905).

A. On August 23,2012,petitioner spent the night with(Bettyj)

Elizabeth Swiger. Her brother Nicholas and her neice Heather

and her boyfriend James were there. (Tr. 187,225-226,234-235,'

239-242,543).

On August 24,2012,Friday morning I went to work from

(Betty) Elizabeth's house at approximately 6:30. I never

told Ashley I was having sex with her mother. Elizabeth and

I had sex 'twice'. Elizabeth had called my phone before I

left work and asked me if I was going to stop by her house.

I told her I would whyle I was out and about,that I would

stop over. Elizabeth knew I was dating other females and her

daughter Ashley.

On August 24,2012,my co-worker [Will Jones] and my two

nephews had stopped over my house after work.(Tr.547,559).

[Will Jones]leaves his car parked in my driveway'. He wants

to hang out for his birthday,so I let him drive my vehicle

because he wants to impress the girls.(Tr.548). While we

are out ,we were going over to East 63rd in Union,Union

crosses over East 55th street. Being that we were on Fleet

Ave. East 59th goes to East 55th street.

As we are going that way I ask [WILL Jones]jto back into

Elizabeth's driveway as there were other vehicles there and

in case anyone wanted to get out. I texted Elizabeth's cell

phone to let her know I was outside. (Tr.551-553),

Elizabeth and Nicholas came to the vehicle together.They

came to the driver's side because they knew it was my

vehicle. (Tr.186,191,193,295-296,312-313,315,339,407). The

windows on the vehicle were tinted and you cannot see inside

the vehicle in the dark. (Tr .427,44*1,480,484,488,493,495-499

State's Ex.27-28).

I introduced my co-worker to Elizabeth and Nicholas as

[Lil Will]. (Tr.547). Elizabeth and Nicholas were already

intoxicated when they came to the vehicle. Elizabeth v

testified she was not intoxicated,her daughter Ashley

Sowards testified her mom and her uncle were intoxicated.

(Tr.195-196,198,240,333,370-372,431-432). The four of us

were chilling minding our own business and smoking a blunt.

(Tr.191,at 24,236-238,293-296,316,338-341,366,407,418,553) .

While we were sitting there,Elizabeth told me the kids

were there (Skylar and Morgan). I gave her two milkshakes

that we had bought at Wendy's and I told her to give them ;

to the kids. (Tr.553,556-557). Elizabeth walked off towards

the backyard,that's when the loud-talking started in the

backyard. id.553,thats when dude came to the vehicle and

started threatening my co-worker.id.553r558)•

Barry Fletcher testified he came to the vehicle running

his mouth. (Tr.341-345?364,370,554-564). Will Jones, pulled

a pistol out of his waistband and started shooting,I thought

he was shooting in the air,I never knew that he had shot

anyone. (Tr.555-558,562,564,572-574).

On August 26,2012,according to (Doc#:l-l,at 35),reveals

the City of Clevelad initially filed charges against me

with a Complaint initiated by Detective John K.Hudelson for

Felonious Assault 0.R.C.2903.11 F-2. See also (Doc#:18,at

1475-1476).

CASE INFORMATION FORM PRINTED 08/29/12 Time:12:32:18

CIF#:324AI ITN#:211460CC Originating Complaint No.201200277215 CPD#017025 Booking Time:15:35---- This document reveals

petitioner was charged with:

1 ORC 2903.llA-Felonious Assault-CHGB-08/29/12-CT Case No.

2012-CRAj^29673

2 MC 600-Contempt of Court-CHGB-08/29/12-CT Case No.2010CRB-11430 (Doc#:1-1,at 32).

B.Procedural History

Monday,August 27,2012,1 went to work as usual at 16800

South Waterloo Rd,EastSideMetals. (Tr.557). That day my

co-worker [Will Jones] does not report to work. That same

morning Detective John K.Hudelson calls my place of

employment instead of my personal cell phone.(Tr.522,558,

583). Ashley and Elizabeth had my cell phone number. (Tr.

233,235,544).

I spoke with Detective Hudelson Monday August 27,2012,

and in that conversation he states he has issued a warrant

for my arrest without an explanation. (Tr.584). Detective

Hudelson asked me if I could come to the district nearest

me and speak to him after work. I told Detective Hudelson

that I did not have a problem speaking with him. I never

said anything about turning myself in,as I was not hiding.

Id.at 583. •

The weekend of the 24th of August,I was home. The police

never came to my house. (Tr.391,522). Officer Vicky

Przybylski testified they had a couple of officers go to

specific addresses,but she did not look for petitioner.also

Detective John K.Hudelson was asked,did he attempt to go

over to the house based on the information he had,he stated

'No!

Monday after work,at the advise of my supervisor I

contacted an attorney being that Detective Hudelson stated

he had issued a warrant for my arrest. (Tr.561,565,575-578).

I contacted Attorney Jaye Schlachet and he advised me not

to speak to Detective Hudelson until he spoke to me at his

office. We made an appointment for 5:30pm Tuesday August 28,

2012. citing WATTS V.INDIANA,338 U.S.49,59 (1964). "Any

lawyer worth his salt will tell the suspect in no uncertain

terms to make no statement to the police under any

circumstances." See ENKER & ELSEN,Counsel for the suspect,

49 Minn.L.Rev.47,66-68 (1964).

On Tuesday,August 28,2012,1 reported to work as usual,

7:00am,and again [Will Jones] does not report to work. At

approximately 9:00am my supervisor 'Mike Falachinski'came

to my work station and informed me that the police were up

front wanting to speak with me. As I approached the officer

I was told to put my hands behind my back,the officer merel)

stated,You know what this is about!

The officer's [Cruz 0214 D6 Plat and other unknown]

never apprised me of my Miranda Rights. The cuffs were

placed on me,and I was lead out of the building and placed

in a police cruiser and transported downtown to the City

Jail where I was booked,fingerprinted and detained.

I was arrested without a summons,warrant or an explanation.

(Tr.512-515,522-523,583-584). See (Doc#:l-l,at 32).

"[T]he Fourth Amendment applies to all seizures of the

person including seizures that involve only a brief detention

short of a traditional arrest." citing DAVIS V.MISSISSIPPI,

394 U.S.721 (1969);TERRY V.OHIO,392 U.S.1,16-19 (1968).

[wjhenever a police accosts an individual and restrains

his freedom to walk away,he has'seized'that person.Id.at 16

and the Fourth Amendment requires the seizure to reasonable,

citing UNITED STATES V.BRIGNONI-PONCE,422 U.S.873,878 (1975).

"[T]he government may not 'authorize police conduct which

trenches upon Fourth Amendment rights,regardless of labels i

it attaches to such conduct." citing SIBRON V.NEWYORK,392

U.S.40,61 (1968). compare DUNWAY V.NEWYORK,442 U.S.at 212216(seizure of suspect without probable cause and

custodial interrogation in police station violates Fourth

Amendment),and DAVIS V.MISSISSIPPI,394 U.S.721,727-728 (

(1996)(suspect may not be summarily detained and taken to

police station for fingerprinting,but may becordered to

appear at a specific time). (Tr.584-585).

C. Privilege Against Self-Incrimination

On Wednesday,August 29,2012,Detective John K.Hudelson

was acting as an agent of law enforcement when he briefly

interviewed petitioner at the City Jail. (Tr.585-588).

When Detective Hudelson first came to interview me,he took

me into a side room at the City Jail he asked me why didn't

I come see him Monday after work? (Tr.578). I explained to

him that I had spoke with an..attorney and he told me not to

speak to you. (Tr.561,565,575-577). I :gave Detective John K.

Hudelson Jaye Schlachet name and number,he looks at the care

and states,'Is he who you call all the time?(Doc#:19,at 1492)*

Detective Hudelson was asked,are you positive that you

had Mr.Young -- that you advised him of his rights? he

responded,absolutely. "Q: Don't you usually have him sign

something,a piece of paper? "A: No. (Tr.594-596).

"[T]he decision in ESCOBEDO V.ILLINOIS,378 U.S.478 (1964)

stressed the need for protective devices to make the process

of police interrogation conform to the dictates of the

privilege against self-incrimination." At the outset,if a

person in custody is subjected to interrogation he must

first be informed in clear and unequivocal terms that he has

the right to remain silent,he has the right to an attorney,

if he can't afford one,one will be appointed for him. If

the individual indicates in any manner,at any stage ,that he

has an attorney,the interrogation must cease.

"[l]f the interrogation continues without the presence of

an attorney,and a statement is taken,a heavy burden rests

on the State to demonstrate that the defendant knowingly

and intelligently waived his privilege against J ...

self-incrimination and his right to retained or appointed

Counsel. ESCOBEDO V.ILLINOIS,378 U.S.478,490,n.14.

Detective John K.Hudelson testified and filed in a report

on 8-25-2012 (Doc#:15-1,at 413-414),stated I told him I was

at my girlfriends house and that I didn't know anything

about it. (Tr.585-588,589-593). Furthermore,there was no

evidence of any notes,video recordings,written statements,

or any other corroborating evidence to support Detective

Hudelson testimony. (Tr.589-597).

"Pursuant to Miranda v.Arizona,384 U.S.436,86 S.Ct.1602,

16 L.Ed.2d 694 (1966),held that statement's stemming from

custodial interrogation of the defendant must be suppressed,

unless the defendant had been informed of his Fifth and

Sixth Amendmentsrights before being questioned.Id. Mirandi.

defines "custodial interrogation" as "any questioning*

initiated by law enforcement officers AFTER a person has

been taken into custody or otherwise deprived of his

freedom of action in any significant way."Id.at 444. (Tr.

582-588,589-595,599-600).

As stated,Detective John K.Hudelson was acting as an

agent of law enforcement when he briefly interviewed me at

the City Jail on August 29,2012. STATE V.BOLAN,27 Ohio St.

15,271 N.E.2d 839 (1971).(Tr.585).

"The prosecution may not use statements,whether

exculpatory or inculpatory,stemming from questioning

initiated by law enforcement officers ;after a person has

been taken into custody or otherwise deprived of his

freedom of action in any significant way, unless it

demonstrates the use of procedural safeguards effective to

secure the Fifth Amendment privilege against self

incrimination." (Tr.585-594). The District Court claim the

failure to give Miranda warnings was harmless error. The

same was said for the denial of Surrebuttal Testimony. See

(Doc#:15,at 137-138).

On Thursday,August 30,2012,petitioner was taken before

the municipal court for bond hearing where he was given a

high bond of 500.000.)dollars. The prosecutor read what he

referred to as a synopsis. (Doc#:24-1,at 1611). Petitioner

was not provided with an actual copy of the synopsis.

The synopsis read before the court contained the same

language that assistant prosecutor Milko Cecez presented to

the court in his opening statement that read as follows:

"Long story short,here is that this defendant,George Young

showed up to a birthday party that he was not invited to,he

was asked to leave,he showed up in his car. The synopsis

contained the statement that two family members asked him

to leave,he reached in the center console,took out a gun

and started shooting,three people were struck by these

rounds. This information provided to Judge Moore was

inconsistent with the trial testimony." (Tr.170-175).

At trial Elizabeth Swiger claimed she asked us to leave

that way there wouldn't cause no argument,no fight,whatever.

(Tr.186). Elizabeth never asked us to leave,the four of us

were smoking a blunt minding our own business.

Ashley Sowards testified she saw my vehicle backing in

the driveway,so she went to tell her mother that it would

be best if she goes and tell him to leave. (Tr.294*296,308309,312-313,315).

Barry Fletcher testified he was in the house when he saw

my vehicle backing into the driveway. He further testified

he was thinking about telling Elizabeth to tell him to J

leave. (Tr.338). He further testifies he was not aware if

anyone asked him to leave. He further testifies he was very

impatient that day,and he started talking loud. (Tr .330,-345)

Petitioner contends he was neither informed of the true

nature of the charge nor permitted to read the charging

instrument,in violation of R.C.2937.02 (A)(1). That

subsection provides:

"When,after arrest,the accused is taken before a Court or

magistrate,or when the accused appears pursuant to terms

of summons or notice,the affidavit or complaint being first

filed,the Court or magistrate shall,before proceeding

further:"(1) inform the accused of the nature of the charge

and identify the complainant and permit the accused or

counsel for the accused to see and read the affidavit or

complaint or a copy of the affidavit or complaint."

Petitioner contends the synopsis read by the prosecutor

before the municipal court August 30,2012,did not confer

jurisdiction on the municipal court as it cannot be deemed

a valid charging instrument pursuant to Crim.R.3. Petitioner

further argues that his constitutional due process rights

were violated when the reading of the synopsis did not

apprise him of what occurances formed the basis of the

charge (s) he faced,inorder to protect him from double

jeopardy. VALENTINE V.KONTEH (6th Cir.2005),395 F.3d 626.

There is no doubt the proper procedure under R.C.2935.09,

R.C.2935.10,was not followed in this case. Furthermore,

when a defendant challenges the fact that the complaint was

not reviewed by a reviewing official before filing,he is

challenging a procedural defect in the prosecution of the

case.

The General Assembly amended R.C.2935.09,effective June

30,2006,Am.H.B.No.214,151 Ohio laws,part 111,5973. The

current version of the statutes states in partinent part:

"(A) As used in this section,'viewing official'means a judge

of a Court of record,the prosecuting attorney or attorney

charged by law with the prosecution of offenses in a Court

or before a magistrate,or a magistrate." In this case,Judge

Moore acted in the clear absence of all jurisdiction as

there was no valid charging instrument before the municipal

court on August 30,2012,pursuant to Crim.R.3. See (Doc#:1-1,

at 31,33,35).

The filing of a valid complaint is a necessaryprerequisite to a court obtaining subject matter jurisdiction.

STATE V.K0ZL0WSKI (Apr.18,1996),Cuyahoga App.No.69138,citing

STATE V.BISHOP (Dec.3,1993),Clark App.No.3070. Therefore,the

question of whether the complaint is valid is a question of

law,and this court's standard of review is de novo.Id.

Criminal Rule 3 provides:

"The complaint is a written statement of the essential

facts constituting the offense charged. It shall also state

the numerical designation of the applicable statute or

ordinance. It shall be made upon oath before any person

authorized by law to administer oaths."

"The formal criminal charge whether by an indictment,an

information,or complaint under criminal Rule 3,must contain

the constituent elements of a criminal offense, while all

the specific facts relied upon to sustain the charge need

not be recited,the material elements of the crime must be

stated.” STATE V.BURGUN (1976),49 Ohio App.2d 112,at parag.

one of the syllabus, See also HARRIS V.STATE (1932),125 Ohio

St.257,181 N.E.104; STATE V.OLIVER (1972),32 Ohio St.2d 109;

STATE V.CIMPRITZ (1932),158 Ohio St.490.

Furthermore,the fact that the complaint contains the

numerical designation of the applicable statute or

ordinance violated cannot cure the failure of the complaint

to charge all of the essential elements of the offense. See

CENTERVILLE V.CORBITT (October 22,1980), Montgomery App.No.

6856; FOUTS V.STATE (1857),8 Ohio St.98.(Doc#:1-1,at 31).

Although the complaint could have been amended to include

the required culpable mental state,STATE V.O'BRIEN (1987),30

Ohio St.3d 122,the state never requested that the complaint

be amended and the trial court did not amend the complaint.

The complaint and the municipal court documents were

withheld in "bad Faith” to deny petitioner the equal

protection of the laws. (Doc#:T-l,at 30-35). I was not given

a copy of the complaint or any of the municipal court

documents on August 30,2012,when I was before the municipal

Court> HICKS V.FRANKLIN,546 F.3d 1279 (10th Cir.2008).

HIn the absence of a sufficient formal accusation,a court

acquires no jurisdiction whatever,and if it assumes ''

jurisdiction,a trial and conviction are a nullity.” cite

STATE V.BROWN (1981),2 Ohio App.3d 400,2 OBR 475,442 N.E.2d

475. The first essential for the attachment of jeopardy is

that the court seeking to act in the matter be of competent

jurisdiction.” The complaint is the jurisdictional instrumen ;

of the municipal court.Id. (Doc#:16 at 4-9).

In the case sub judice,the municipal court was not a cour ;

of competent jurisdiction as there was no valid charging

instrument before that court. Because the Municipal Court

was without jurisdiction,any proceedings before that court

are void. (Doc#:l-l,at 31).

SUBJECT MATTER JURISDICTION,

On August 30,2012,petitioner was improperly bound over to

the Cuyahoga County Court of Common Pleas. Boundover CIF#

CI123254AI. Transcript Filed,Cash/Sur/Prop/10% Bond Set,

Amount $500.000.00/No contact with victim.

D. Defective Indictment

On September 24,2012,an indictment was returned by the

Grand Jury with Six counts of felonious assault and one

count of improperly .discharging a firearm at or into a

habitation or school. The complaint that was withheld shows

a charge of one count of felonious assault. (Doc#:l-l,at 31,1

35;Doc#:15-1,Ex.3).

The court in UNITED STATES V.ESTEPA,471 F.2d 1132 (2d CirL

!1972),determined that a prosecutor may not mislead a grand

(jury into thinking that it is hearing eyewitness testimony

when it is actually hearing an account whose hearsay nature

is concealed. The court dismissed an indictment because of

improper use of hearsay evidence before the grandjury. This |

iis a case where the grand jury was deceived into believing i

that hearsay evidence was direct testimony.

The court further stated, we have previously condemed thej

casual attitude with respect to the presentation of evidence}

jto a grand jury manifested by the decision

to rely on j

testimony of the law enforcement officer who knew least.'

J/*

•.*„

The State's (5) five witnesses that consisted of the

(3) three victims (1) Elizabeth Swiger, (2) Barry Fletcher ’ i[

(3) Nicholas Karanicolas presented inconsistent testimony

at trial. There is a grave risk in this case that petitioner

jwas convicted on evidence that was not presented to the

jgrand jury. (Tr.507,at 21-25;508,at 1-6).

Defenses and motions pursuant to Crim.R.12. Defects in

Indictments,Information,or Complaint,Crim.R.12 (B)(2).

Failure to raise Defenses or Objections,Crim.R.12 (G),and

Mandatory Pre-Trial Motions Crim.R.12 (B)(2)(3),SHALL be

noted by the Court at any time.

At arraignment,the court assigned Public Defender Linda

|Hricko as counsel. (Doc#:15-1,at 163,Ex.3). Public Defender

iLinda Hricko was ineffective for failing to Obj.ect/file a

(pre-trial motion pursuant to Crim.R.12 (C)(2)(F),to

jchallenge/dismiss the defective complaint (Doc#:l-l,at 31),

jor to file any other pre-trial motions under the Rules of

(criminal procedure,thereby violating petitioner's Sixth

land Fourteenth Amendments.

The period between the appointment of counsel and the

start of trial is a "critical stage of the proceeding" for \

the Sixth Amendment purposes. MITCHELL V.MASON,257 F.3d 554,!

556 (6th Cir.2001); MORAN V.BURBINE,475 U.S.412,432 (1986). )

Trial was scheduled for December 17,2012. On December 17,j

'2012,trial was converted to final pre-trial. Public Defender

I Linda Hricko withdrew without notice pursuant to Court of

|Common Pleas rule 10.0. the appearance docket does not

[reflect an entry of withdrawl for Public Defender Linda

Hricko. (Doc#:15-1,at 620).

On December 17,2012,the record reveals the court assigns

[James J.McDonnell as counsel. (Doc#:15-1,at 457-458,620).

|l did not request another attorney. I received a .letter

from James J.McDonnell on December 18.2012,stating he was

appointed as counsel. (Doc#:l-l,at 37).

I had given Public Defender Linda Hricko my co-worker

[Will Jones] name and number on the day we were listening

to the 911 call in preparation for trial. The call came to

the part where Ashley was saying her mom and uncle were

talking to SOMEBODY,Linda asked me who did I have with me

I told her my co-worker [Will Jones^.was driving my vehicle.

See (Doc#:15-1,at 287;Doc#:24-l,at 1610). [Will Jones] is

listed as a witness in Response to Request For Discovery

-dated December 4,2012,(Tr.302,309-311,313;State's Ex.56).

After meeting with James J.McDonnell before trial I told ■

him to subpoena [Will Jones] and my two nephews who knew

my co-worker had left his vehicle in my driveway and drove

my vehicle on August 24,2012. I also told James J.McDonnell

[to subpoena my time card record and my co-worker's time

card record to show he did not report to work on Monday,

August 27,and Tuesday,August 28,2012. James J.McDonnell

! merely stated, 'What do we need them for?'

)

James J.McDonnell called my nephew Dwight Smith's cell

[phone and asked him an immaterial question,asking him if he

;knew about a shooting. James J.McDonnell was told to ask

[my nephew was my co-worker driving my vehicle and where did

'he leave his vehicle parked at? My nephew left a message on

James J,McDonnell's cell phone stating he did not know

anything about a shooting which he did not. He was not with

5my co-worker [Will Jones] and I at Elizabeth's resident on

"August 24,2012. (Doc#:l-l,at 49,57-59).

James J.McDonnell's failure to call my witnesses for

trial allowed the prosecution to coerce Elizabeth,Barry and j

Anthony to say I was driving my vehicle. Assistant

- '

prosecutor Milko Cecez telling the jury I swithced places

jwith the driver. (Tr.573). ROMANEZ V.BERGUIS,Supra.

:E. Prosecutorial Misconduct In Opening Statement and In

Closing Argument

Petitioner argues that the assistant prosecutor's opening

statement and closing arguments were "saturated with

emotion and served to inflame the jury."

UNFAIR PREJUDICE

The issue presented in this case is whether the

prosecutor's remarks in opening and closing argument

constituted prejudicial conduct sufficient to require a

reversal of petitioner's conviction. The statements by the

prosecution went beyond the record,were not substantiated

;by the evidence and characterized the defense in derogatory

terms clearly designed to sway the jury. This misconduct

substantially prejudiced petitioner (Young's) rights and

warrants reversal.(Tr.170-175;637-647;658-680).

The prosecution is normally entitled to a certain degree!

of latitude in its concluding remarks. A prosecutor is at

liberty to prosecute with earnestness and vigor,striking

hard blows,but may not strike foul ones. BERGER V.UNITED

STATES,2953U.S.78,88,55 S.Ct.79 L.Ed.1314 (1935). The

prosecutor is a servant of the law whose interest in a

jprosecution is not merely to emerge victorious but to see

j that justice is done. It is a prosecutor's duty in opening ;

jand closing arguments to avoid efforts to obtain a

conviction by going beyond the evidence which is before the I!

jury. UNITED STATES V.DORR (C.A.5,1981),636 F.2d 117. See j

also JOHNSON V.BELL,525 F.3d 466,484 (6th Cir.2008).

The test regarding prosecutorial misconduct in opening

and closing arguments is whether the remarks were improper f

and,if so,whether they prejudicially affected substantial j

rights of the defendant. UNITED STATES V.DORR,Supra,at 120J

To begin with,the prosecution must avoid insinuations and j

assertions which are calculated to mislead the jury. BERGER!

V.UNITED STATES,Supra,at 88. It is improper for an attorneyj

to express his personal belief or opinion as to the

credibility of a witness or as to the guilt of the accused.!

In the present case,assistant prosecutor Milko Cecez

expressing his personal beliefs and vouching for the

credibility of the witnesses in opening statement and in

closing argument. Defense counsel James J.McDonnell did not

object to the improper admission of such flagrant

misconduct "calculated to incite the passion and prejudice

of the jury."KIMMELMAN V.MORRISON,477 U.S.365 (1986).

The record reveals assistant prosecutor Milko Cecez

commented at length on inferences to be drawn from facts

which were not in evidence,characterized the defendant in j

terms designed to inflame the jury,and expressed personal j

opinions as to the credibility of a witness and the guilt f

of the accused. Assistant prosecutor Milko Cecez telling

the jury when you hear this evidence,you consider all the j

testimony,you consider that everyone knows who he is,he's

an ex-boyfriend who showed up uninvited to a party and was !

asked to leave,perhaps jealous that he's not invited there I

he's no longer with her,he decides to take his anger out ad

the three victims who are still suffering as of today. Seej

(Tr.170-175). It is also clear that this misconduct

prejudicially affected substantial rights of petitioner.

To begin with,in cases of such flagrant misconduct on

the part of the prosecution as was present here,the general

instruction that arguments of counsel are not to be

considered as evidence was insufficient to correct the

error. There was no more specific instruction from the

court. In view of the fact that improper insinuations and <

assertions of personal knowledge by the prosecution are

apt to carry great weight against the accused when they

i should properly carry none. BERGER V.UNITED STATES,Supra,

at 88,some more definite guidance from the court was

required. (Tr.636,at 18-19).

Closing argument of assistant prosecutors Mollie Murphy

and Milko Cecez expressing their personal opinions as to

credibility of the witnesses and the guilt of the accused.

(Tr.637-647;658-680). UNITED STATES V.WHITE,58 F.App'x 610,

617-18 (6th Cir.2003); UNITED STATES V.MODENA,302 F.3d 626,

634 (6th Cir.2002);also UNITED STATES V.YOUNG,470 U.S.l,9->

10,105 S.Ct.1038,84 L.Ed.2d 1 (1985).

Assistant prosecutor Milko Cecez telling the jury to

consider his made-up bogus story. Stating,does anyone

really expect to believe that? That these victims would

just make this whole thing up and have that much time to

■ just come up with a story and all decide that Mr.Young is :

the person? (Tr.674). He further states,Every single

person was brutally honest with you about this whole thing.

(Tr.661). BRECHT V.ABRAHAMSON,507 U.S.619,113 S.Ct.1710.

Defense counsel failed to object to the improper

admission of officer Vicky Przybylski's testimony,claiming :

the baby, Skylar said 'George did this.'(Tr.389-390,397398). Elizabeth testified noone calls me George. (Tr.189).

Ashley Sowards is the only person who knows me as George.

(Tr.309,569). GIGLIO V.UNITED STATES,Supra.

Federal Courts will not consider the merits of

procedurally defaulted claims,unless the petitioner

demonstrates cause for the default and prejudice resulting

therefrom,or where failure to review the claim would result

in a fundamental miscarriage of justice. See LUNDGREN V.

MITCHELL,440 F.3d 754,763 (6th Cir.2006)(citing WAINWRIGHT

V.SYKES,433 U.S.72,87,97 S.Ct.2497,53 L.Ed.2d 594 (1977).

A petitioner's procedural default,however,may be excused

upon a showing of "cause" for the procedural default and

i"actual prejudice" from the alleged error. See MAUPIN V.

;

!SMITH,785 F.2d at 138-39 (6th Cir.1986). "Demonstrating

^cause requires showing that an 'objective factor external .. j

[to the defense impeded counsel's efforts to comply' with

the state procedural rule." FRANKLIN V.ANDERSON,434 F.3d •

412,417 (6th Cir.2006)(quoting MURRAY V.CARRIER,477 U.S.478,1

{488 (1986).

Meanwhile, "[djemonstrating prejudice requires showing

[that the trial was infected with constitutional error." Id.

'Prejudice does not occur unless petitioner demonstrates "a

'reasonable probability" that the outcome of the trial

would have been different. See MASON V.MITCHELL,320 F.3d

604,629 (6th Cir.2003)(citing STRICKLER V.GREENE,527 U.s.

1263,289,119 S.Ct.1936,144 L.Ed.2d 286 (1999).

;

Finally,a petitioner's procedural default may also be

'excused where a petitioner is actually innocent in order to j

.prevent a "manifest injustice." See COLEMAN V.THOMPSON,501

iU.S.722,749-50,111 S,Ct.2546,115 L.Ed.2d 640 (1991).

Conclusory statements are not enough-a petitioner must

["support his allegations of constitutional error with new

[reliable evidence-whether it be exculpatory scientific

■evidence,trustworthy eyewitness accounts,or critical

physical evidence-that was not presented at trial." See

’SCHLUP

V.DELO,513 U.S.298,324,115 S.Ct.851,130 L.Ed.2d 808

1(1995). See also JONES V.BRADSHAW,489 F.Supp.2d 786,807

[(N.D.Ohio 2007); ALLEN V.HARRY,2012 WL 3711552 at * 7 (6th

iCir.Aug.29,2012).

Officer Vicky Przybylski testified she along with her

jpartner,0fficer Steven Schmitz were first on scene (Tr.375|379). Officer przybylski further testified when they first

!arrived,they abserved a large crowd of people (Tr.380),she

further testified the first thing they do is try to keep

[everybody that was on scene when the crime happened there,

and she ask other officer's to assist her in getting

everybody's information in regards to them being witnesses

or them being victims. (Tr.387). Officer Przybylski further

testifies she spoke to Elizabeth. (Tr.388). Elizabeth knew

I was not driving my vehicle as she was flirting with my

co-worker when he told her it was his birthday.

Officer Przybylski testified she spoke to the children,

Skylar and Morgan,a six-year old and a five-year old. (Tr.

397). Elizabeth and Ashley testified there were eight (8) .

ior nine (9) adults at this alleged party. (Tr.235,295,311,

f331) . Barry Fletcher was asked,how many people were at this

jparty? He stated, I know me,Nicky was there,Elizabeth and

|Anthony was there,his daughter,friend of his daughter was

(there.

’

Elizabeth mentioned Heather and James,but there is no

[mention of officer przybylski speaking to them. Elizabeth

[testified James is the one who put the white t-shirt around

[Nicky's neck to slow the bleeding down. (Tr.241-242). None

(of the eight or nine adults are listed as witnesses in the

(original narrative field report that was not presented at

[trial. (Doc#:15-1,at 419-420).

Only the three babies are listed as witnesses,a six-year

(old,a five -year old,and a six-month old. (Doc#:l,at 2,6,10

[12). Officer Vicky Przybylski was asked,did you make notes

■at the scene? She testified she threw them away. She was

(asked,and in that report did you mention that you had a

(conversation with Skylar? She committed perjupy and said

[she did not. (Tr.398;See Doc#:15-l,at 419-420).

Officer Vicky Przybylski was asked,how many people did

[she speak to? She testified, besides other of f icers , f our .

[ (Tr.399).

In petitioner's 28 U.S.C.§2254 proceeding,the court

[should have assessed the prejudicial impact of

(Constitutional error in State Court Criminal trial under.

(Substantial and injurious effect standard for plain error.

[The prosecutorial misconduct had "a substantial and

! injurious effect"on the jury verdict. BRECHT V.ABRAHAMSON,

Supra,at 637.

! F. Actual Innocence

Reason For Granting The Writ

Although the United States Supreme Court has not so far

explicitly held that actual innocence can constitute

i| equitable tolling,the Sixth Circuit has held that the

I statute of limitations may be tolled for a showing of

I actual innocence. SOUTER V.JONES,395 F.3d 577,589-90 (6th

j Cir.2005). The Sixth Circuit applies the standard taken

j from SCHLUP V.DEL0,513 U.S.298,316 (1995). Succinctly

; stated,the standard as follows:

The United States Supreme Court has held that if a

habeas petitioner "presents evidence of innocence so strong,

■ that a Court cannot have confidence in the outcome of the

j trial unless the Court is also satisfied that the trial

| was free of nonharmless constitutional error,the petitioner!

should be allowed to pass through the gateway and argue the

Imerits of his underlying claim." SCHLUP,513 U.S.at 316.

Thus,the threshold inquiry is whether "new facts raise[]

! sufficient doubt about [the petitioner's] guilt to

^ undermine the confidence in the result of the trial."Id.at

i- 317. To establish actual innocence, "a petitioner must

‘ show that it is more likely than not no reasonable juror

would have found petitioner guilty beyond a reasonable

doubt."Id.at 337. This Court has noted that "actual

innocence means factual innocence,not mere legal

insufficiency." BOUSLEY V.UNITED STATES,523 U.S.614,623,

140 L.Ed.2d 828,118 S.Ct.1604 (1998).

"To be credible,such a claim requires petitioner to

: support his allegations of constitutional error with new

reliable evidence -- whether it be exculpatory scientific

evidence,trustworthy eyewitness accounts,or critical

physical evidence -- that was not presented at trial." See

SCHLUP,513 U.S. at 324. The Court counseled however,that

the actual innocence exception should "remain rare" and

"only in the "extraordinary Case." Id.at 321. See

SOUTER V.JONES,395 F.3d at 590.

My co-worker [Will Jones] was subpoenaed for trial by

Public Defender Linda Hricko on December 5,2012,the docket

reveals the subpoena was returned. See (Doc#:15-1,at 287),

subpoena #875611 was not issued. My witnesses were not

called for trial as requested. See (Doc#:24-1,at 1610),

I contend that I was denied of effective assistance of

counsel as required of the Sixth and Fourteenth Amendment, \

right to conflict free counsel as required by STRICKLAND V

, WASHINGTON,466 U.S.668,687-88,104 S.Ct.2052,80 L.Ed.2d 646

(1984),FOSTER V.WOLFENBARGER,687 F.3d 702 (6th Cir.2012).

Defense counsel refused to investigate the case,failed to

raise alibi defense.

■i

i Defense counsel James J.McDonnell failed to address the . , i

5 issues of the State's witnesses inconsistent testimony and

t lack of evidence when presenting the Rule 29 Motion. (Tr. E

I 529). Defense counsel further failed to object to assistant1

j prosecutor Milko Cecez's statement when he renewed the Rule;

! 29 Motion claiming,we've already had testimony from (five

' different people putting him as the driver of the car,

, deceiving the jury. Assistant prosecutor Milko Cecez also

expressing his personal opinion tampering with the jury

; stating, 'the defendant at this time puts himself there,

tries to switch the roles between himself and the passenger.

(Tr.580).

I never said I wasn't at (Betty),Elizabeth's resident,

(Tr.599-600). The court reporter misquoted what was said.

Only Elizabeth,Ashley,Barry and Anthony testified and said J

I was driving my vehicle. Elizabeth claimed she asked us

to leave. (Tr.186). Elizabeth was asked, 'Was anyone else <

in the car with him?' She responded, Yes,sir. Elizabeth was;

asked, 'Do you know who this other person was?" She replied

, No,sir. (Tr.190). Defense counsel did not object to the

leading question,by prosecutor Milko Cecez asking, 'Now,

who was driving the car? (Tr.191).

’

Defense counsel asked Elizabeth, 'Now,you also said .

j that there was someone else in the car,is that correct?

Elizabeth asked, At the time of the shooting? (Tr.250).

■ Elizabeth was asked,can you describe that young gentleman? >

i She responded,No. Not really. All I know is a black

; gentleman. (Tr.251,399,523-525).

Petitioner further argues that defense counsel James J. »

McDonnell was ineffective when he failed to file a Motion f

j to Suppress or object to the testimony that petitioner had j

I a gun by, 'Elizabeth Swiger,Ashley Sowards,Barry Fletcher, I

f and Anthony Karanicolas (the state witnesses),and even the f

prosecutor's Milko Cecez,Mollie Murphy constituted

prejudicial error,and rendered the trial as a whole

. fundamentally unfair. JAMISON V.KERESTES,U.S.LEXIS 74918. t

;

Detective Frank Costanzo was asked, 'Do you recall

; finding a gun or anything of that sort in the vehicle? He

■ responded, No,I do not. (Tr.461-462).

)

Petitioner further argues that defense counsel James J.

McDonnell was ineffective in that he did not file a motion i

to suppress the testimony of Detective John K.Hudelson in j

regards to petitioner making a statement. (Doc#:15-1,at

4l4;Tr.585-588,589-593).

The mere fact that an individual held for interrogation

by a law enforcement "'officer may have answered some brief

questions of volunteered some statements on his own does ~ u

not deprive him of the right to refrain from answering any'

further questions until he has consulted with an attorney

and thereafter consents to be questioned. (Tr.561,565,575578).

In this case,defense counsel,James J.McDonnell1s

absolute failure to investigate [Will Jones],or call alibi

witnesses,obtain or present any evidenceftime card; records]

let alone the record reveals that defense counsel did "not

give an opening statement in this case,he should have,and

he could have,especially after assistant prosecutor Milko

Cecez deceived the jury with his personal opinions and his

own personal beliefs in his opening statement. See (Tr.170175) ^FOSTERlV,.w6lFENBARGER,Supra,687 F.3d 702 (6th Cir.2012

Rather,defense counsel addressed the court: Your Honor,

may it please the court,at this time we would reserve the

right to make an opening statement at another time. (Tr.176

Defense counsel's failure to give an opening statement

prevented the jurors from hearing anything at all about the

defendant before them. Jurors and human psychology is that

people remeber what they hear[first and last],along the;?;; ,

lines of primacy and recency. Later,defense counsel could

have made an opening statement pursuant to 0.R.C.2945.10

(B). The court may deviate from the order of proceedings

listed in this section. Effective date:10-01-1953.

As in ELLIOTT V.WILLIAMS,248 F.3d 1205 (10th Cir.2001),

attorney who failed to put on a defense or make an opening

statement was deemed prejudicial. Counsel's ineffectiveness

in fact precipitated a "breakdown in the adversarial

process." Counsel's failure to make an opening statement

prejudiced petitioner and affected the outcome of the trial

What is relevant is that counsel's deficient performance

prejudiced petitioner's rights to effective and competent

representation as provided by the U.S.Constitution and Ohio

Constitution. These actions and omissions cannot be viewed

as strategy and falls below the acceptable standards of

professional conduct. It deprived petitioner of a fair

trial.

With no witnesses in my,defense,1'was compelled to

testify in my own defense. BRAM V.UNITED STATES,168 U.S.532

‘.542 (1897) held that no person 'shall be compelled to be a

witness against himself.

On January 3,2013,defense counsel James J.McDonnell

mailed me a letter stating: I spoke with your mother and

she informed me that Michael Young is homeless and she

cannot locate him. Also,she does not have Dwight Smith's

address nor his phone number. See letter attached.

Defense Counsel James J.McDonnell,instead of him

investigating [Will Jones] he questions Detective HudelsOn

as follows:

•

■'*

"Q: Is there any reason that you did not arrest his .. -j

co-worker whose name is Mr.Will -MR.CECEZ^ objection.

THE COURT":"Why don't you rephrase the question.

"Q: Do you know a Mr. Jones who works with my client?

"A: A Mr. Jones?

"Q: Yes.

"A: No.

"Q: Was his name ever given to you by anybody?

"A: No.

"Q: Did you investigate a Mr.Jones as it relates to this

incident?

"A: I wasn't given any information about a Mr.Jones so no.

"Q: During the course of your investigation,were you ever

told how many people were in the car where the gunshots

came from?

"A: No.

"Q: Did you ever ask?

"A: No. All the information that I had is that George-Young

was the operator,and that was the information I was given,

and I wasn't given any information about other people in

the vehicle.

"Q: So during the course of your investigation you were

never told that there was anyone else in the car,correct?

"A: To my knowledge,no.

"Q: And you reviewed your notes and everything before you

testified here today?

:"A: Correct.

^"Q: So we can be pretty sure that nobody ever told you that |

there was someone else besides Mr.Young in the car?

A: I wasn't given any information about another male in

the vehicle. (Tr.523-524). See State's Exhibit 56-911 call

and the original narrative field report written by officer

Vicky Przybylski #66 on August 24,2012. (Doc#:15-1,at 419420) .

;■

;

At trial,Elizabeth Swiger,Ashley Sowards,Barry Fletcher,

and Anthony Karanicolas testified there was someone in the i

^vehicle with me,but they claim he was the.passanger. They

were coached to say I was the driver. I had introduced my

co-worker to Elizabeth and Nicky when we arrived as [Lil

mil]. (Tr.547;(Tr.186,190,250-251,314-315,320-321,337,343, i

369-370,411,418,424,433-434).

Elizabeth and Nicky were intoxicated,it is believed they

forgot my co-worker's name. (Tr.195-196,236-238,311-313 ,

339-340,366,370-371,407-408,418,431-432,507-508).

Reasonable minds would believe prosecutor Milko Cecez

Icoached them on what to say. At sentencing Judge Steven E.

■Gall expressing his bias personal opinion as to the credibi-i

lity of the witnesses and the guilt of the accused stating: J

; "[T]his mystry person,this co-worker,just is not credible !

;at all. There wasn't any motive for any of these folks to

icome up and lie on you,say you were the one who did the

!shooting." (Tr.720;See also Doc#:15-l,at 287-Subpoena for

■[Will Jones][Doc#:24-1,at 1610-witness list]. This judicial I'

!misconduct resulted in an unreasonable determination of

jfacts by the State Court. I It

"A decision is 'contrary to 'clearly established federal t

Jlaw when' the State Court arrives at a conclusion opposite \

to that reached by the Supreme Court on a question of law

'or decides a case differently than the Supreme Court on a

■set of materially indistinguishable facts. I If OTTE V.HOUK,

654 F.3d 594,599 (6th Cir.2011)(quoting WILLIAMS V.TAYLOR, \

529 U.S.362,412-13 (2000)).

!■

' 4

(

f’*

"A State Court's adjudication only results in an unreas-|

onable application'of clearly established federal law when

'the State Court identifies the correct governing legal

principle from the Supreme Court's decisions,but unreason

ably applies that principle to the facts of the prisoner's i

case. i u Id.,at 599-600.(quoting WILLIAMS,529 U.S.,at 413).

‘

The unreasonable application 'clause requires the State

;Court decision to be more than incorrect or erroneous. See

LOCKYER V,ANDRADE,538 U.S.63,75 (2003). The State Court's

:application of clearly established law must be objectively E

iunresaonable. Id.

In order to obtain federal habeas corpus relief,a

jpetitioner must establish that the State Court's decision II;;

!. 'was so lacking in justification that there was an error

well understood and comprehended in existing law beyond

any possibility for fairminded disagreement. BOBBY V.DIXON,

132 S.Ct.26,27 (2011)(quoting HARRINGTON V.RICHTER,131 S.

jCt.770,786-87 (2011).

{

!: CONCLUSION

Considering the foregoing petitioner concludes that he

has shown that the Ohio Court of Appeals determination was

jso lacking in justification that there was an error well

^understood and comprehended in existing law beyond any

possibility for fairminded disagreement. HARRINGTON,562

U.S.,at 103.

Pursuant to the preceeding issues presented for this

court's review,petitioner respectfully request this Court

'grant his Petition for Writ of Certiorari.

Respectfully Submitted,

George^R.You

#640832

Warren Correctional Inst.

P.O.Box 120

Lebanon,Ohio 45036

Petitioner Pro Se

December ,.14,2019

i;;

:-i

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.