Petition for Writ of Certiorari — Randy A. Thomas, Petitioner v. Cynthia Davis, Warden

Supreme Court briefJun 22, 2026

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No. 25In the

Supreme Court of the United States

RANDY A. THOMAS,

Petitioner,

CYNTHIA DAVIS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark Cipolletti

Thompson Hine LLP

1919 M Street NW, 7th Floor

Washington, DC 20036

Muna A bdallah

Thompson Hine LLP

41 South High Street

Columbus, OH 43215

Kip T. Bolin

Counsel of Record

Kyle A. Hutnick

Thompson Hine LLP

3900 Key Center

127 Public Square

Cleveland, OH 44114

(216) 566-5500

kip.bolin@thompsonhine.com

Counsel for Petitioner

392921

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Whether a criminal defendant’s right to be present at

all critical stages of trial includes the right to be present

for a trial court’s response to a jury’s request for additional

instructions.

Whether a defendant must show that his presence

during the trial court’s response to a jury’s request for

additional instructions would have changed the outcome

of trial.

Whether a district court’s fact finding that counsel was

absent during a critical stage of trial should be reviewed

for clear error.

PARTIES TO THE PROCEEDINGS

The petitioner is Randy A. Thomas (“Mr. Thomas”)

in his personal capacity. Respondent is Cynthia Davis,

the Warden for the Southern Ohio Correctional Facility

(“State”).

iii

PRIOR PROCEEDINGS RELATED TO THIS CASE

State of Ohio v. Randy A. Thomas, Summit Cnty.

Comm. Pleas No. 13-07-2069 (Feb. 12, 2014) (sentencing

order)

State of Ohio v. Randy A. Thomas, Summit Cnty.

Comm. Pleas No. CR-2013-07-2069 (Feb. 3, 2015) (order

denying petition for post-conviction relief)

State of Ohio v. Randy A. Thomas, 9th Dist. Summit

No. 27266, 2015-Ohio-2935 (denying Petitioner’s direct

appeal)

Randy A. Thomas v. Harold May, N.D. Ohio No.

5:20-cv-02628-JPC, Appendix 7a–39a (writ of habeas

corpus denied and certificate of appealability issued on

March 31, 2025)

Randy A. Thomas v. Cynthia Davis, 6th Cir. No. 253340, Appendix 1a–6a (habeas appeal denied on February

18, 2026)

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

PRIOR PRO CEEDI NG S R EL AT ED T O

THIS CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

Mr. Thomas Shot Mr. Smith in Self-Defense . . . 3

II. T he T r ia l Cou r t Responded t o the

Jury’s Question Without Mr. Thomas

or His Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. The District Court Denied Mr. Thomas’s

Habeas Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Table of Contents

Page

IV. The Sixth Circuit Improperly Required

Mr. Thomas to Show that Neither He

Nor His Counsel Were Present, Even

Though Either Would Be Sufficient to

Show Reversible Error . . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING THE PETITION . . . . . 9

This Court Should Exercise its Supervisory

Power to Answer Whether Petitioner, as

opposed to Counsel, has the Right to be

Personally Present During a Post-trial

Substantive Jury Question . . . . . . . . . . . . . . . . . . 9

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. This Court Has Not Yet Addressed

Whether a Defendant Has a Right to

Personal Presence During Responses to

Substantive Jury Questions . . . . . . . . . . . . 10

C. This Court Should Accept Certiorari

to A nswer W hether a Defendant

Has a Right to Personal Presence

During a Trial Court’s Response to a

Substantive Jury Question . . . . . . . . . . . . . 12

II. Lower Courts Reach Differing Outcomes

on Whether the Right to Personal Presence

Sounds Under the Sixth A mendment

Con f ront at ion Cl au se or t he F i f t h

Amendment’s Due Process Clause . . . . . . . . . . 13

Table of Contents

Page

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. T he Si x t h , Eight h , Ni nt h , a nd

Eleventh Circuits Find the Right

to Personal Presence Sounds in the

Fifth A mendment’s Due Process

Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(1) T he Ni nt h C i r c u it A ppl i e s

Stincer to Critical Stages of PreTrial and Trial, But Not Jury

Deliberations . . . . . . . . . . . . . . . . . . . . . 15

(2) The Sixth and Eleventh Circuits

Broadly apply Stincer to A ll

Stages of Trial . . . . . . . . . . . . . . . . . . . . 16

C. The Fifth Circuit Stands Alone as

the Only Circuit that Applies the

Si xth A mendment Confrontation

Clause t o t he Exclusion of t he

Due Process Clause . . . . . . . . . . . . . . . . . . . 17

D. The Eighth Circuit Analyzes the

Defendant’s Right to be Present Under

Both the Confrontation Clause and

the Due Process Clause . . . . . . . . . . . . . . . . 18

E. The Outcome of Mr. Thomas’s Petition

Would Have Been Different in Another

Circuit, and this Court Should Adopt

the Frantz Rule . . . . . . . . . . . . . . . . . . . . . . 19

vii

Table of Contents

Page

III. The Sixth Circuit Erred in Applying De Novo

Review to the District Court’s Fact Finding

that Mr. Thomas’s Counsel Was Not Present

at a Critical Stage of Trial . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

viii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF A PPEA LS

FOR T H E SI X T H CI RCU I T, FI LED

FEBRUARY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

N O R T H E R N DI S T R I C T O F O H I O ,

FILED MARCH 31, 2025 . . . . . . . . . . . . . . . . . . . . . . 7a

APPENDIX C — RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . 40a

TABLE OF CITED AUTHORITIES

Page

CASES:

Caver v. Straub,

349 F.3d 340 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 8

Crosby v. United States,

506 U.S. 255 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Dixon v. Jamrog,

121 Fed. App’x. 93 (6th Cir. 2005) . . . . . . . . . . . . . 7, 21

Edwards v. Burt,

823 F. App’x. 326 (6th Cir. 2020) . . . . . . . . . . . . . . . . . 8

Fillippon v. Albion Vein Slate Co.,

250 U.S. 76 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Frantz v. Hazey,

533 F.3d 724 (9th Cir. 2008) . . . . . . . . . . . 15, 16, 19, 20

French v. Jones,

332 F.3d 430 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 8

Garcia v. Quarterman,

454 F.3d 441 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 21

Gomez v. United States,

490 U.S. 858 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hopt v. Utah,

110 U.S. 574 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Cited Authorities

Page

Illinois v. Allen,

397 U.S. 337 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Jackson v. Hutto,

508 F.2d 890 (8th Cir. 1975) . . . . . . . . . . . . . . . . . . . . 19

Kentucky v. Stincer,

482 U.S. 730 (1987) . . . . . . . . . . . 2, 11, 14, 15, 17, 19, 20

Lewis v. United States,

146 U.S. 370 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

McKinney v. Horton,

826 Fed. App’x. 468 (6th Cir. 2020) . . . . . . . . . . . . . . 16

McKissick v. United States,

379 F.2d 754 (5th Cir. 1967) . . . . . . . . . . . . . . . . . 17, 18

Miller-El v. Cockrell,

537 U.S. 322 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Missouri v. Frye,

566 U.S. 134 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Mitchell v. Mason,

325 F.3d 732 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 8

Montejo v. Louisiana,

556 U.S. 778 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cited Authorities

Page

Peoples v. Lafler,

734 F.3d 503 (6th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . 8

681 F.3d 623 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 21

Rushen v. Spain,

464 U.S. 114 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 10-11, 13

Sandoval v. State,

665 S.W.3d 496 (Tex. Crim. App. 2022),

cert. denied, 144 S. Ct. 1166 (2024) . . . . . . . . . . . 11, 12

Schwab v. Berggren,

143 U.S. 442 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Snyder v. Massachusetts,

291 U.S. 97 (1934) . . . . . . . . . . . . . . . . 10, 12, 14, 17, 19

State v. Hendrickson,

4th Dist. Athens No. 08CA12, 2009-Ohio-4416 . . . . . 5

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Thomas v. Davis,

No. 25-3340, 2026 WL 464708 (6th Cir. 2026) . . . . . . 3

Thomas v. May,

No. 5:20-cv-2628, 2025 WL 957237

(N.D. Ohio Mar. 31, 2025) . . . . . . . . . . . . . . . . . . . . . 2-3

xii

Cited Authorities

Page

United States v. Carson,

796 Fed. App’x. 238 (6th Cir. 2019) . . . . . . . . . . . . . . 16

United States v. Carter,

491 F.2d 625 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . 15

United States v. Cronic,

466 U.S. 648 (1984) . . . . . . . . . . . . . . . . . . . . 1-2, 7, 8, 13

United States v. Florence,

150 F.4th 773 (6th Cir. 2025) . . . . . . . . . . . . . . . . . . . . 8

United States v. Gagnon,

470 U.S. 522 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

United States v. Giacalone,

588 F.2d 1158 (6th Cir. 1978) . . . . . . . . . . . . . . . . . . . 15

United States v. Graves,

669 F.2d 964 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 17

United States v. Gunter,

631 F.2d 583 (8th Cir. 1980) . . . . . . . . . . . . . . . . . 16, 19

United States v. Henderson,

626 F.3d 326 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 16

United States v. Lewis,

420 F.2d 686 (5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . 18

xiii

Cited Authorities

Page

United States v. Thomason,

940 F.3d 1166 (11th Cir. 2019) . . . . . . . . . . . . . . . . . . 16

United States v. Wade,

388 U.S. 218 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Valdez v. United States,

244 U.S. 432 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. V . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 8, 13, 14

U.S. Const., amend. VI . . . . . . . . . . . . . . . . . . . 2, 6, 8, 13, 17, 19

U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Fed. R. Crim. P. 43(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sup. Ct. R. 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sup. Ct. R. 30.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

INTRODUCTION

This case presents an opportunity for this Court to fill

in an outcome-determinative gap in its right to presence

jurisprudence by answering whether a defendant, as

opposed to counsel alone, has the right to be personally

present during a trial court’s response to a jury’s request

for additional instructions.

The District Court found that neither Mr. Thomas nor

his counsel were present when the trial judge answered

a jury’s substantive question about Mr. Thomas’s self

defense claim, but nonetheless denied Mr. Thomas’s

habeas petition. The Sixth Circuit did not accept those

fact findings—that alone is reversible error.

Instead the Sixth Circuit found that Mr. Thomas

could not prevail on his right to presence claim because

this Court has not yet answered whether the right to be

personally present at all critical stages of trial applies to

the trial court’s response to a jury’s request for additional

instructions. The Sixth Circuit also found that Mr. Thomas

could not succeed on his right to counsel claim since the

record was silent as to whether his counsel was present.

The Sixth Circuit’s decision leaves Mr. Thomas and

others in cases like this one in a catch-22. When a trial

judge answers a jury question outside the presence of a

defendant and counsel, the defendant cannot prevail on a

right to personal presence claim since there is no precedent

from this Court. On the other hand, where the record is

silent as to whether counsel was present, a defendant must

somehow prove a negative and show that counsel was not

present to prevail under this Court’s precedent in United

States v. Cronic, 466 U.S. 648 (1984) (absence of counsel

during a critical stage of trial is structural error where

prejudice is presumed).

Without guidance from this Court, circuit courts

are split on whether the right to be present at all critical

stages should be analyzed under the Confrontation Clause

or the Due Process Clause. The Sixth, Eighth, Ninth,

and Eleventh Circuits find the right to personal presence

sounds in the Fifth Amendment’s Due Process Clause. And

those circuits disagree on whether Stincer applies to jury

deliberations, or instead only to pre-trial and other trial

stages. The Fifth Circuit applies the Sixth Amendment

Confrontation Clause to the exclusion of the Due Process

Clause. This absence of clarity creates inconsistent

outcomes regarding the defendant’s constitutional right

to be present at all critical stages.

Therefore, this Court should grant certiorari to

review whether: (1) a trial court’s response to a jury’s

request for additional instruction outside the defendant’s

personal presence is a structural error, or prejudicial,

such that it requires reversal; (2) a defendant must show

that his presence would have changed the outcome of trial

to prevail on a due process claim; and (3) a circuit court

reviews a district court’s findings of fact on a habeas

petition for clear error.

OPINIONS BELOW

The District Court denied Mr. Thomas’s writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The District

Court’s opinion is reported at Thomas v. May, No. 5:20-cv-

2628, 2025 WL 957237 (N.D. Ohio Mar. 31, 2025). See App.

7a–39a. The Sixth Circuit’s opinion affirmed the District

Court’s decision denying habeas relief. The Sixth Circuit’s

opinion is reported at Thomas v. Davis, No. 25-3340, 2026

WL 464708 (6th Cir. Feb. 18, 2026). See App. 1a–6a.

JURISDICTION

The Sixth Circuit entered judgment on February 18,

2026. See Thomas v. Davis, No. 25-3340, 2026 WL 464708

(6th Cir. Feb. 18, 2026). Petitioner timely requested an

extension for time on May 7, 2026 to timely file a petition

for writ of certiorari by June 19, 2026. Under Supreme

Court Rule 30.1, a federal holiday allows for the filing to be

submitted the next business day, which is June 22, 2026.

Sup. Ct. R. 30. Petitioner requests a writ of certiorari

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent statutory provision involved is 28 U.S.C.

§ 2254. See App. 46a–49a.

STATEMENT OF THE CASE

Mr. Thomas Shot Mr. Smith in Self-Defense.

In April 2013, Mr. Thomas encountered Anthony Smith,

whom Mr. Thomas knew to be a violent gang member,

selling drugs in front of Mr. Thomas’s grandparents’ home.

Petition, R. 1, PageID 17. When Mr. Thomas asked him

to go elsewhere, Mr. Smith challenged Mr. Thomas to a

fight, and Mr. Thomas agreed. Id. at PageID 18.

Mr. Smith ran toward Mr. Thomas. Id. at PageID

18. Mr. Thomas threw a punch toward Mr. Smith, but

missed. Id. Mr. Smith pulled a gun on Mr. Thomas, and

Mr. Thomas knocked the gun from his hand. Id. As Mr.

Thomas was picking up the gun, Mr. Smith charged back

toward him. Id. Mr. Thomas then shot Mr. Smith in selfdefense. Id. Mr. Smith died from his wounds a short time

later. Dist. Ct. Order, R. 22, PageID 3024.

II. The Trial Court Responded to the Jury’s Question

Without Mr. Thomas or His Counsel.

Mr. Thomas was indicted on one count of aggravated

murder with a firearm specification. Indictment, R. 9-1,

PageID 150. Mr. Thomas pled not guilty and argued he

shot Mr. Smith in self-defense. Dist. Ct. Order, R. 22,

PageID 3024.

The case went to a jury trial, where the court

instructed the jury on Mr. Thomas’s self-defense claim as

follows: “To establish a claim of self defense, the defendant

must prove by the greater weight of the evidence that (A)

he was not at fault in creating the situation giving rise

to the dispute. . . .” Jury Instructions, R. 9-1, PageID

193–94. The jury instructions did not define what “at

fault” meant. Id.

During deliberations, the jury sent the following

question to the trial judge:

Under Self Defense, Part (A) states “he was

not at fault in creating the situation that gave

rise to the dispute[. . .]” We are having trouble

analyzing the issue of “fault.” If he were say

“10%” at fault for having agreed to fist fight,

is he considered at fault as it pertains to the

wording in this section.

Handwritten Jury Question, R. 9-1, PageID 201.

Ohio law answers the jury’s question: “A ‘non-deadly

aggressor’ who begins an encounter may justifiably

defend himself against a deadly attack. . .” Dissent,

R. 9-1, PageID 309 (quoting State v. Hendrickson, 4th

Dist. Athens No. 08CA12, 2009-Ohio-4416, ¶ 61). Even

though Hendrickson is on point—and exculpatory for

Mr. Thomas—the trial court told the jury that it could not

provide clarity, and gave the following written response:

You must re-review and apply your collective

understanding of the meaning of the terms

used in the jury instructions. The court cannot

further define the meaning of those terms.

Judge’s Handwritten Answer, R. 9-1, PageID 202.

The record was initially silent about whether Mr.

Thomas or his counsel was present for the trial court’s

response to the jury’s question. Decision, R. 9-1, PageID 297.

Mr. Thomas supplemented the record with his affidavit

that he was not present for any jury questions during trial,

his lawyers never discussed the jury questions with him,

and he did not waive his presence for the jury questions.

Petition for Post-Conviction Relief, R. 9-1, PageID 383,

¶ 8. The record remains silent on whether Mr. Thomas’s

counsel was present for the trial court’s response. Dist.

Ct. Order, R. 22, PageID 3026.

The jury found Mr. Thomas not guilty of aggravated

murder but found him guilty of the lesser-included offense

of murder with a firearm specification. Journal Entry, R.

9-1, PageID 203. Mr. Thomas was sentenced to nineteen

years to life in prison. Sentencing Entry, R. 9-1, PageID

204.

III. The District Court Denied Mr. Thomas’s Habeas

Petition.

Mr. Thomas exhausted his state-level appeals and filed

a petition for writ of habeas corpus in the United States

District Court for the Northern District of Ohio. Petition,

R. 1. On grounds four and thirteen, Mr. Thomas argued

that he was deprived of his Fifth, Sixth, and Fourteenth

Amendment rights to be present at all critical stages of

trial when the court answered the jury’s questions outside

the presence of Mr. Thomas and his counsel. Petition, R.

1, PageID 28–29, 37–38.

The District Court denied Mr. Thomas’s petition.

First, the District Court recognized that the jury’s

question “went to the heart of Mr. Thomas’s claim at

trial of self defense. . . .” Dist. Ct. Order, R. 22 PageID

3042. Therefore, the appellate court’s treatment of the

jury question as a critical stage of the proceeding was not

clearly erroneous. Id.

The District Court made fact findings that neither Mr.

Thomas nor his counsel were present for the trial court’s

response to the jury’s question. Id. at 3039. The District

Court also agreed that such absence was structural error.

Id. at 3043. The Supreme Court has routinely held that the

denial of counsel at a critical stage of criminal proceedings

constitutes structural error, that is, per se reversible error

that can never be treated as harmless. United States v.

Cronic, 466 U.S. 648 (1984).

Nevertheless, the District Court denied Mr. Thomas’s

petition because habeas review requires more than just

an incorrect outcome—there must be an unreasonable

application of clearly established federal law. Dist. Ct.

Order, R. 22, PageID 3045.

The District Court issued a certificate of appealability

on grounds four and thirteen regarding “whether the

absence of Mr. Thomas and his trial counsel at that critical

stage of the proceedings amounts to structural error.” Id.

at 3050. Mr. Thomas timely appealed. Notice of Appeal,

R. 25, PageID 3054.

IV. The Sixth Circuit Improperly Required Mr. Thomas

to Show that Neither He Nor His Counsel Were

Present, Even Though Either Would Be Sufficient

to Show Reversible Error.

On appeal to the Sixth Circuit, Mr. Thomas argued

that this Court has routinely held that the denial of counsel

at a critical stage of criminal proceedings constitutes

structural error, that is, per se reversible error that can

never be treated as harmless. United States v. Cronic,

466 U.S. 648 (1984). The District Court’s fact findings that

neither Mr. Thomas nor his counsel were present should

have been reviewed for clear error. Dixon v. Jamrog,

121 Fed. App’x. 93, 94 (6th Cir. 2005). However, the Sixth

Circuit ignored the District Court’s fact findings and

incorrectly reviewed the entire case de novo. App. 2a. Had

the Sixth Circuit applied the correct standard of review,

it should have reversed the District Court’s denial of Mr.

Thomas’s habeas petition. United States v. Florence, 150

F.4th 773, 780 (6th Cir. 2025).

And the Sixth Circuit has repeatedly held that

applying harmless error review to a structural error, like

the absence of counsel at a critical stage of trial, is both

incorrect and unreasonable. Edwards v. Burt, 823 Fed.

App’x. 326 (6th Cir. 2020); French v. Jones, 332 F.3d 430

(6th Cir. 2003); Caver v. Straub, 349 F.3d 340 (6th Cir.

2003); Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003);

Peoples v. Lafler, 734 F.3d 503 (6th Cir. 2013).

However, the Sixth Circuit sidestepped the Cronic

question by finding that Mr. Thomas “lacks any proof that

his counsel was absent” during the trial court’s response to

the jury’s question. App. 3a. Therefore, the Sixth Circuit

ignored the absence of Mr. Thomas’s counsel and looked

exclusively at Mr. Thomas’s absence.

The Sixth Circuit denied Mr. Thomas’s appeal because

there is no precedent from this Court holding that the

absence of a defendant (as opposed to counsel) during

the trial court’s response to a substantive jury question

is either a structural error, or prejudicial, such that it

requires reversal under the Fifth, Sixth, or Fourteenth

Amendments. App. 4a. (“Thomas contends that his absence

was a ‘structural’ error that demanded relief regardless of

prejudice—or, if harmless-error review applied, that his

absence for a substantive jury question was necessarily

prejudicial. But he fails to cite any precedent of the

Supreme Court holding that the absence of the defendant

alone at such a time required reversal.”).

Mr. Thomas now files his Petition for Writ of

Certiorari.

REASONS FOR GRANTING THE PETITION

When deciding whether to grant certiorari, this

Court considers whether: (a) appellate courts are split on

the same important matter; (b) a circuit court has so far

departed from the accepted course of proceedings as to

call for this Court to exercise its supervisory power; and

not yet been decided by this Court. Sup. Ct. R. 10. This

case presents all three.

This Court Should Exercise its Supervisory Power

to Answer Whether Petitioner, as opposed to

Counsel, has the Right to be Personally Present

During a Post-trial Substantive Jury Question.

Background.

This Court has recognized the clearly established

right of a criminal defendant to be present at all critical

stages of trial. Illinois v. Allen, 397 U.S. 337, 338 (1970).

There are two main aspects of this right. The first is that a

defendant has a right to have counsel present at a critical

stage of trial, and the second is that a defendant has a right

to be personally present at a critical stage.

The U.S. Constitution “guarantees a defendant the

right to have counsel present at all ‘critical’ stages of the

criminal proceedings.” Montejo v. Louisiana, 556 U.S.

778, 786 (2009) (citing United States v. Wade, 388 U.S.

218, 227–28 (1967)) (emphasis added); Missouri v. Frye,

566 U.S. 134, 140 (2012). This Court has highlighted that

presence of counsel alone is not enough, it is the presence

of “effective” counsel that satisfies this requirement.

Strickland v. Washington, 466 U.S. 668, 685 (1984).

This Court has also recognized the right for a

defendant to be personally present at all critical stages of

trial. United States v. Gagnon, 470 U.S. 522, 526 (1985);

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

B. This Court Has Not Yet Addressed Whether a

Defendant Has a Right to Personal Presence

During Responses to Substantive Jur y

Questions.

In the context of substantive jury questions, this

Court has recognized the right for counsel to be present,

but has not yet analyzed the defendant’s right to be

personally present in that context. Fillippon v. Albion

Vein Slate Co., 250 U.S. 76, 81 (1919) (supplemental jury

instructions “ought to be given either in the presence of

counsel or after notice and an opportunity to be present.”).

This Court has analyzed a defendant’s right to

personal presence in numerous other pre-, mid-, and

post-trial critical stages. See, e.g., Hopt v. Utah, 110 U.S.

574 (1884) (examination of jurors); Lewis v. United States,

146 U.S. 370 (1892) (peremptory challenges); Schwab v.

Berggren, 143 U.S. 442 (1892) (review and scheduling of

defendant’s execution); Valdez v. United States, 244 U.S.

432 (1917) (mid-trial inspection of the murder scene);

Snyder v. Massachusetts, 291 U.S. 97 (1934) (jury’s view

of the crime scene); Illinois v. Allen, 397 U.S. 337 (1970)

(defendant’s disruptive trial conduct); Rushen v. Spain,

464 U.S. 114 (1983) (ex parte judge-juror communications);

United States v. Gagnon, 470 U.S. 522 (1985) (judge-juror

in-camera meetings); Kentucky v. Stincer, 482 U.S. 730

(1987) (in-chambers witness competency hearings); Gomez

v. United States, 490 U.S. 858 (1989) (voir dire); Crosby

v. United States, 506 U.S. 255 (1993) (in absentia trials).

The closest this Court has come to recognizing a

defendant’s right to personal presence in this context

was Rushen v. Spain. 464 U.S. 114 (1983). In Rushen, a

juror recognized a defense witness as the murderer of

the juror’s childhood best friend. Id. at 115–16. The judge

made no record of two ex-parte discussions in-chambers

with the juror about her concerns. Id. at 116. The jury

convicted defendant of the above crimes and the defendant

appealed. This Court held that the trial judge and juror’s

communications were “innocuous” to the jury’s overall

verdict. Id. at 117–21. However, the Rushen Court left the

door open for reversal where the communication “relates

to some aspect of the trial” and its prejudicial effect

amounts to constitutional error. Id. at 119–20.

This Court recently denied certiorari in a case

involving a defendant’s due process right to be personally

present at a “special venire” proceeding before voir dire.

Sandoval v. State, 665 S.W.3d 496, 506 (Tex. Crim. App.

2022), cert. denied, 144 S. Ct. 1166, 1166 (2024). According

to Justice Jackson’s dissent, this Court should have

granted certiorari because there, as here, the underlying

issue “involve[d] clear constitutional and practical

significance that this Court should have granted certiorari

to resolve.” Id. at 1169 (Jackson, J. dissenting).

In Sandoval, a Texas trial court conducted a “special

venire” proceeding outside the defendant’s presence,

leading to numerous, unrecorded exchanges w ith

prospective jurors. Id. at 1166–67 (Jackson, J. dissenting).

Opposing denial of certiorari, the dissent criticized such

exchanges as corrosive to both the defendant’s right

to presence and to the overall accountability that such

presence would otherwise provide. Id. at 1168 (Jackson,

J. dissenting).

This is even more critical in the context of substantive

jury questions during post-trial jury deliberations. Unlike

Sandoval, Mr. Thomas’s absence did more than predispose

the jury “to look unfavorably at the facts of the case”—it

extinguished his self-defense claim. Id. at 1168 (Jackson,

J. dissenting) (quoting Snyder v. Massachusetts, 291

U.S. 97, 105–06 (1934)). Mr. Thomas’s absence thus and

unquestionably “bears on ‘the fulness of his opportunity

to defend against the charge’.” Id. (Jackson, J. dissenting)

(quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06

(1934)).

This Court Should Accept Certiorari to Answer

Whether a Defendant Has a Right to Personal

Presence During a Trial Court’s Response to

a Substantive Jury Question.

The Sixth Circuit’s decision creates a situation where

it is impossible for a criminal defendant to prevail. Under

a right to personal presence approach, Mr. Thomas needed

to show that his absence from the trial judge’s answer to

the jury’s question violated a clearly-established right as

declared by this Court. But he could not do that because

this Court has never answered that question. Yet this

Court’s precedent in Rushen suggests that the trial

court’s ex parte response to the jury’s questions should

be grounds for reversal because they involved the very

instructions relating to Mr. Thomas’ self-defense claim.

Under a right to counsel approach, Mr. Thomas

needed to show that his counsel was absent to show a

violation under Cronic. But Mr. Thomas could not do that

since the record was silent as to counsel’s whereabouts. It

is impossible for Mr. Thomas, or any defendant, to account

for counsel’s whereabouts at all times. A defendant is

powerless to fill the record’s silence with an affidavit since

it would be inadmissible hearsay.

II. Lower Courts Reach Differing Outcomes on

Whether the Right to Personal Presence Sounds

Under the Sixth Amendment Confrontation Clause

or the Fifth Amendment’s Due Process Clause.

Background.

Lower courts disagree on whether the defendant’s

right to be present at a critical stage sounds under either

the Sixth Amendment Confrontation Clause or the Fifth

Amendment’s Due Process Clause.

The Sixth Circuit, Ninth Circuit, and Eleventh Circuit

analyze claims regarding the defendant’s right to be

present at a critical stage under the Fifth Amendment’s

Due Process Clause. However, the Fifth Circuit analyzes

that right under the Sixth Amendment’s Confrontation

Clause. Finally, the Eighth Circuit analyzes the defendant’s

right to be present at a critical stage under both the Fifth

and Sixth Amendment—forming a hybrid position.

B. The Sixth, Eighth, Ninth, and Eleventh Circuits

Find the Right to Personal Presence Sounds in

the Fifth Amendment’s Due Process Clause.

The Sixth, Eighth, Ninth, and Eleventh Circuits find a

defendant’s right to personal presence sounds in the Fifth

Amendment’s Due Process Clause but are inconsistent

how the right should be applied. This is because they apply

this Court’s precedent in Stincer differently.

This Court held that a right to be present at a

competency hearing is not a violation of the Due Process

Clause if the defendant’s presence would not contribute to

the fairness of the hearing. Kentucky v. Stincer, 482 U.S.

730, 745 (1987). Under Stincer, a criminal defendant has

a Fifth Amendment Due Process right to be personally

present only when their presence has a relation,

“reasonably substantial, to the fullness of the opportunity

to defend against the charge.” Id. (citing Snyder v.

Massachusetts, 291 U.S. 97, 105–06 (1934)). The Stincer

Court relied on its earlier precedent in Snyder, which

held that the defendant’s personal presence at a jury’s

viewing of a crime scene was not guaranteed under Due

Process since “presence would be useless, or the benefit

but a shadow.” See Snyder, 291 U.S. at 106–07. Stincer

expanded Snyder and applied that test to all critical stages

of trial. Stincer, 482 U.S. at 745. As demonstrated below,

Circuit courts are split on whether a defendant must show

that their presence would not be useless or but a shadow

to succeed with a Due Process Clause claim.

(1) The Ninth Circuit Applies Stincer to

Critical Stages of Pre-Trial and Trial, But

Not Jury Deliberations.

The Ninth Circuit limits Stincer by recognizing the

weight a jury assigns to a trial court’s response to a

jury question and appropriately requires a defendant’s

presence during that critical stage. Frantz v. Hazey, 533

F.3d 724, 742 (9th Cir. 2008).

In Frantz, the defendant was excluded from an inchambers discussion with advisory counsel about how to

answer a question from the deliberating jury. Id. at 727.

In Frantz, as here, the record was silent as to whether

the defendant was personally present. Id. at 731. The

Ninth Circuit found that this was a critical stage and held

that defendants have a due process right to be present in

conferences when juror’s notes are being discussed. Id.

at 743.

According to Frantz, a trial judge’s response to a

substantive jury question is especially important because

the jury will rely on it heavily when determining the guilt

of the defendant. Id. at 742. Especially when it comes to

a question of law related to the defendant’s affirmative

defense, the jury is even more likely to over-rely on the

judge’s response. Id. at 743. This is why courts have held

that the proper procedure is for the trial judge to read the

question to both counsels and request input on a response.

United States v. Giacalone, 588 F.2d 1158, 1165–66 (6th

Cir. 1978) (citing United States v. Carter, 491 F.2d 625, 633

(5th Cir. 1974)). This allows for the defendant, such as Mr.

Thomas, to have input in the response given to the jury.

As discussed below, Frantz is the better approach and,

had the Sixth Circuit applied Frantz, the outcome would

have been fundamentally different.

(2) The Sixth and Eleventh Circuits Broadly

Apply Stincer to All Stages of Trial.

On the other hand, the Sixth Circuit applies Stincer to

all critical stages of trial where the defendant’s presence

would reasonably relate to the fullness of the opportunity

to be heard. United States v. Carson, 796 Fed. App’x.

238, 246 (6th Cir. 2019). For example, in Carson, the

Sixth Circuit held that a defendant’s absence from an

evidentiary hearing does not rise to the level of affecting

the defendant’s due process rights. Id. The Sixth Circuit

affirmed its earlier rule that a “defendant’s right to be

present exists only when ‘his presence has a relation,

reasonably substantial, to the fullness of his opportunity

to defend against the charge.’” Id. (citing United States

v. Henderson, 626 F.3d 326, 343 (6th Cir. 2010)).

Then in McKinney, the Sixth Circuit expanded Carson

by finding that matters of law are not necessarily required

to be held in the presence of the defendant, so there was no

violation of the defendant’s due process rights. McKinney

v. Horton, 826 Fed. App’x. 468, 475 (6th Cir. 2020).

Like the Sixth Circuit, the Eleventh Circuit also

follows the Fifth Amendment Due Process Clause right

and applies Stincer. See United States v. Thomason, 940

F.3d 1166, 1171 (11th Cir. 2019) (“Due Process Clause

grants criminal defendants a ‘right to be present at any

stage of the criminal proceeding[s] that is critical to its

outcome if his presence would contribute to the fairness

of the procedure.’”).

But this Court in Stincer did not go so far as to require

the defendant’s personal presence to have changed the

outcome of the trial. Stincer, 482 U.S. at 745. Lower

courts, like the Sixth Circuit and Eleventh Circuit, created

that rule on their own by broadly applying Stincer to all

critical stages of trial and mis-interpreting the language

in Snyder to require that the defendant prove an additional

requirement—defendant’s presence must contribute to

the fairness of the trial by having a but-for impact on the

outcome of the trial. Id. (citing Snyder v. Massachusetts,

291 U.S. 97, 105–06 (1934)).

The Fifth Circuit Stands Alone as the Only

Circuit that Applies the Sixth Amendment

Confrontation Clause to the Exclusion of the

Due Process Clause.

The Fifth Circuit, in similarly situated cases, declines

to apply Stincer entirely and only evaluates the claim

under the Sixth Amendment Confrontation Clause.

Instead of addressing Due Process, the Fifth Circuit

only addresses the Sixth Amendment, specifically the

Confrontation Clause.

In Graves, the Fifth Circuit held that the defendant

does not have a constitutional right to be personally

present at the informal discussion between the judge and

counsel. United States v. Graves, 669 F.2d 964, 972 (5th

Cir. 1982). The Fifth Circuit held that the Confrontation

Clause does not apply when the defendant is missing from

a conference or argument on a question of law. Id. (citing

Fed. R. Crim. P. 43(c)(3)).

The Sixth Circuit’s decision is also at odds with the

Fifth Circuit’s decision in McKissick. In that case, the

Fifth Circuit addressed whether the defendant was present

for an in-chambers meeting with counsel regarding the

defendant’s potential perjury. McKissick v. United States,

379 F.2d 754 (5th Cir. 1967); see United States v. Lewis, 420

F.2d 686, 687 (5th Cir. 1970) (discussing McKissick). The

Fifth Circuit remanded the case to determine whether

there was any prejudice occasioned by the defendant’s

absence.

Here, Mr. Thomas was not present for the trial court’s

response and the record is silent on whether his counsel

was present. Therefore, had the Sixth Circuit applied

the Fifth Circuit’s standard in McKissick, it would have

reached a different outcome and remanded the case for

additional fact finding.

The Eighth Circuit Analyzes the Defendant’s

Rig ht t o b e P r e s e nt Und e r Bot h t he

Confrontation Clause and the Due Process

Clause.

The Eighth Circuit analyzes the defendant’s right

to be present at a critical stage of trial under both the

Confrontation Clause and the Due Process Clause. See

United States v. Gunter, 631 F.2d 583 (8th Cir. 1980).

In Gunter, the petitioner argued that an in-chambers

meeting was a supplemental hearing regarding the

admissibility of evidence, making it a critical stage where

the right to personal presence attaches. Id. at 589. The

Eighth Circuit decided that the defendant, through his

counsel, waived the right to be personally present at

the in-chambers meeting because defendant’s attorney

did not object to the defendant’s personal presence at

the meeting. Id. at 589. The Eighth Circuit also applied

the Federal Rule of Criminal Procedure 43(c)(3) to find

that the defendant did not have a due process right to be

personally present at the meeting because the meeting

addressed a question of law. Id.

The Eighth Circuit correctly identified that “a

defendant’s right to be present is constitutionally grounded

in either the right to confrontation of the sixth amendment

or the right to due process of the fifth and fourteenth

amendments.” Id. (citing Jackson v. Hutto, 508 F.2d 890,

891 (8th Cir. 1975)). However, the Eighth Circuit failed

to acknowledge the distinction between a defendant’s

right to personal presence and the defendant’s right to

have counsel present. Even though Gunter involved the

defendant’s personal absence from chambers during a

critical stage (which should be analyzed under the Sixth

Amendment), the Eighth Circuit proceeded to analyze

both the Sixth Amendment and Due Process standards

(which would ordinarily be used to analyze the absence of

counsel). The Eighth Circuit also applied Snyder similar

to how the Sixth Circuit applies Stincer—the defendant

need not be present when their presence would be useless,

or the benefit but a shadow. Id.

E. The Outcome of Mr. Thomas’s Petition Would

Have Been Different in Another Circuit, and

this Court Should Adopt the Frantz Rule.

As demonstrated, the void in this Court’s right to

personal presence jurisprudence has left Circuit Courts

to apply different tests and reach different outcomes. Had

Mr. Thomas’s case been in the Ninth or Fifth Circuits,

he likely would have prevailed. Instead, his claim was

no match for the Sixth Circuit’s overly broad and harsh

application of Stincer.

This Court should adopt the approach in Frantz

and hold that the defendant’s presence is critical to the

fairness of the trial. Frantz v. Hazey, 533 F.3d 724,

742 (9th Cir. 2008). This Court should reject the Sixth

Circuit’s approach to Stincer and clarify that Stincer

should only apply to pre-trial and trial conferences and

hearings regarding the law. However, once the jury

begins deliberations, the defendant’s right to be present

resumes—as the importance of the communications with

the jury overrides the justifications in Stincer. The Sixth

Circuit’s approach improperly discounts the defendant’s

impact on how the judge responds to a question from the

jury.

Excluding a defendant from a uniquely critical and

structural stage of trial withholds fairness that is afforded

under the Due Process Clause. Mr. Thomas was excluded

from the trial court’s response that directly impacted his

defense. Without the opportunity to defend himself, Mr.

Thomas was denied his due process in a critical stage that

carried significant weight in the outcome of Mr. Thomas’s

trial.

By applying Stincer narrowly, the Ninth Circuit’s

approach in Frantz gives the appropriate weight the

defendant’s presence where, as here, trial court’s response

to a jury’s question will determine the outcome of trial.

This Court should grant certiorari and clarify that Stincer

does not apply to responses to substantive jury questions

and adopt the Frantz approach regarding conversations

between the court and parties after jury deliberations

begin.

III. The Sixth Circuit Erred in Applying De Novo

Review to the District Court’s Fact Finding that

Mr. Thomas’s Counsel Was Not Present at a Critical

Stage of Trial.

The Sixth Circuit reviews a district court’s findings

of fact for clear error and its conclusions of law de novo.

Dixon v. Jamrog, 121 Fed. App’x. 93, 94 (6th Cir. 2005);

see also Garcia v. Quarterman, 454 F.3d 441, 444 (5th

Cir. 2006); Register v. Thaler, 681 F.3d 623, 626 (5th

Cir. 2012). Although AEDPA affords deference to state

court decisions, a district court is free to make its own

fact findings based on the record. Miller-El v. Cockrell,

537 U.S. 322, 340 (2003) (“deference does not imply

abandonment or abdication of judicial review.”). These

cases recognize that the district court judge is in the

best position to review the record, evidence, and make a

factual finding—circuit courts respect those fact findings

and review for clear error.

The Sixth Circuit should have applied clear error

standard to the findings of fact made by the District Court.

The District Court made fact findings that neither Mr.

Thomas nor his counsel were present for the trial court’s

response to the jury’s question. Dist. Ct. Order, R. 22,

PageID 3045. The District Court also agreed that such

absence was structural error. Id. The District Court’s

fact findings that neither Mr. Thomas nor his counsel

were present should have been reviewed for clear error.

Dixon, 121 Fed. App’x. at 94. However, the Sixth Circuit

ignored the District Court’s fact findings and incorrectly

reviewed the entire case de novo. App. 2a. Had the Sixth

Circuit applied the correct standard of review, it should

have reversed the District Court’s denial of Mr. Thomas’s

habeas petition.

This Court should grant certiorari to confirm that a

district court’s fact findings on a habeas petition should

be reviewed for clear error, not de novo.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Mark Cipolletti

Kip T. Bolin

Thompson Hine LLP

Counsel of Record

1919 M Street NW, 7th Floor Kyle A. Hutnick

Washington, DC 20036

Thompson Hine LLP

3900 Key Center

Muna A bdallah

127 Public Square

Thompson Hine LLP

Cleveland, OH 44114

41 South High Street

(216) 566-5500

Columbus, OH 43215

kip.bolin@thompsonhine.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF A PPEA LS

FOR T H E SI X T H CI RCU I T, FI LED

FEBRUARY 18, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

N O R T H E R N DI S T R I C T O F O H I O ,

FILED MARCH 31, 2025 . . . . . . . . . . . . . . . . . . . . . . 7a

APPENDIX C — RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . 40a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT,

FILED FEBRUARY 18, 2026

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 25-3340

RANDY A. THOMAS,

Petitioner-Appellant,

CYNTHIA DAVIS, WARDEN,

Respondent-Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OHIO

Before: KETHLEDGE, BUSH, and NALBANDIAN,

Circuit Judges.

KETHLEDGE, Circuit Judge. Randy Thomas

appeals the district court’s denial of his petition for a writ

of habeas corpus. We reject his arguments and affirm.

In April 2013, Thomas visited his grandparents’ house

in Akron, Ohio. While he was there, he saw Anthony Smith

selling drugs in front of the house, so Thomas asked Smith

to move along. Smith responded by challenging Thomas

Appendix A

to a fight. Thomas accepted, and the two met on a nearby

street. Thomas threw the first punch, after which Smith

pulled out a gun; Thomas slapped the gun out of Smith’s

hand and picked it up. Smith then charged at him, Thomas

says, so Thomas shot Smith. Smith died shortly thereafter.

An Ohio grand jury later indicted Thomas on one

count of aggravated murder. He pled not guilty. At trial,

Thomas argued that he had shot Smith in self-defense. The

trial judge instructed the jury that Thomas’s claim of selfdefense required him to show that he was not “at fault” in

“creating the situation giving rise to the dispute.” R. 9-1,

Ex. 11. During its deliberations, the jury wrote a note to

the judge with several questions, including a request to

clarify the self-defense instruction:

We are having trouble analyzing the issue of

“fault.” If he were say “10%” at fault for having

agreed to fist fight, is he considered at fault as

it pertains to the wording in this section?

In response, the judge wrote:

You must re-review and apply your collective

understanding of the meaning of the terms

used in the jury instructions. The court cannot

further define the meaning of those terms.

Nothing in the record shows whether the judge

consulted the parties before he sent that response. After

further deliberation, the jury found Thomas not guilty of

aggravated murder, but guilty of murder, a lesser-included

Appendix A

offense. The court sentenced Thomas to between 19 years

and life in prison.

Thomas appealed, arguing that the trial court had

denied him (among other things) his constitutional right

to be present when the court responded to the jury’s

question about the self-defense instruction. The Ohio

Court of Appeals declined to reach this argument because,

it said, the record on the issue was undeveloped. The court

otherwise affirmed his conviction. Thomas then sought

post-conviction relief in the trial court, raising the same

claim. In that proceeding, he offered an affidavit in which

he said he had not been present for any jury questions and

had not waived his right to be present. The trial court

denied his petition on that claim, as did the Ohio Court

of Appeals. The Supreme Court of Ohio declined review.

Thomas later sought habeas relief in federal court under

28 U.S.C. § 2254, which the district court denied. This

appeal followed.

We review de novo the district court’s denial of

Thomas’s petition for a writ of habeas corpus. Mammone

v. Jenkins, 49 F.4th 1026, 1041 (6th Cir. 2022). To obtain

the writ here, Thomas must show that the Ohio Court of

Appeals’s decision to deny him relief was contrary to or

unreasonably applied “clearly established” federal law, as

determined by the holdings of the Supreme Court. Jones

v. Bradshaw, 46 F.4th 459, 472 (6th Cir. 2022) (quoting

§ 2254(d)(1)).

As an initial matter, we review the state court’s

“decision” to deny Thomas relief, not the court’s

Appendix A

intermediate reasoning. Davis v. Jenkins, 115 F.4th 545,

557-58 (6th Cir. 2024) (en banc); Davis v. Carpenter, 798

F.3d 468, 475 (6th Cir. 2015); Holland v. Rivard, 800

F.3d 224, 236 (6th Cir. 2015). Our task is to determine

what arguments or theories supported the state-court

decision, or could have supported it; and then to determine

whether fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding

in a prior decision of the Supreme Court. Carpenter, 798

F.3d at 475; see Pouncy v. Palmer, 846 F.3d 144, 160 (6th

Cir. 2017). Thus, so long as the Ohio Court of Appeals

reached a decision that reasonably applied Supreme

Court precedent—however deficient some of the court’s

reasoning might have been—we must deny the writ. See

Carpenter, 798 F.3d at 475.

Thomas claims that the trial judge responded to the

jury’s question in the absence of his counsel, which Thomas

says would violate the Sixth Amendment. But a petitioner

must prove “all facts necessary to show a constitutional

violation.” Black v. Carpenter, 866 F.3d 734, 744 (6th Cir.

2017). And here Thomas admits he lacks any proof that

his counsel was absent at that time. Pet’r Reply Br. at 2.

So this claim is meritless.

Thomas also argues that, by responding to the jury’s

question when Thomas himself was absent, the trial judge

violated his putative constitutional right to be present

then. True, a defendant has a right to be present at any

stage of a criminal proceeding “critical to its outcome

if his presence would contribute to the fairness of the

procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107

Appendix A

S. Ct. 2658, 96 L. Ed. 2d 631 (1987). But if the defendant’s

absence was harmless, then a reviewing court does not

reverse the conviction. See Arizona v. Fulminante, 499

U.S. 279, 306-07, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

Here, the jury wrote a note to the judge asking him

to clarify the meaning of “fault”—a legal element of

Thomas’s claim of self-defense. Yet the judge declined to

give a substantive answer. Instead, he simply responded

that the jurors should rely on their own understanding

of the instruction (to which Thomas had not objected,

either during the charge conference or when the judge

instructed the jury). Thereafter, during Thomas’s postconviction proceedings, Thomas argued only that his

absence prevented him from challenging the instruction

as unconstitutionally vague. The state countered that

nothing in the record showed that Thomas himself could

have meaningfully raised any legal arguments.

We must deny the writ if any legal theory consistent

with clearly established federal law could have supported

the Ohio Court of Appeals’s decision to deny Thomas relief

on this claim. Carpenter, 798 F.3d at 475. And the record

before that court, as the state said, lacked any evidence

that Thomas could have capably raised legal objections

to the jury instructions, or otherwise have contributed

to the judge’s response to the jury. The state court could

therefore have reasonably concluded that Thomas’s

absence did not affect the verdict in any way.

Thomas contends that his absence was a “structural”

error that demanded relief regardless of prejudice—or,

Appendix A

if harmless-error review applied, that his absence for a

substantive jury question was necessarily prejudicial.

But he fails to cite any precedent of the Supreme Court

holding that the absence of the defendant alone at such a

time required reversal. Thomas therefore has not met his

burden to show that all fairminded jurists would agree

that the state court’s decision was inconsistent with clearly

established federal law.

The district court’s judgment is affirmed.

Appendix

APPENDIX B — OPINION

OF THE

UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF OHIO, FILED MARCH 31, 2025

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Case No. 5:20-cv-2628

Judge J. Philip Calabrese

Magistrate Judge Darrell A. Clay

RANDY J. THOMAS,

Petitioner,

HAROLD MAY, WARDEN,

Respondent.

OPINION AND ORDER

In 2014, Petitioner Randy J. Thomas was convicted of

murder with a firearm specification at a jury trial in State

court. He was sentenced to prison for 19 years to life with

parole eligibility after 15 years. In his petition for a writ

of habeas corpus, Petitioner contends that this conviction

violates his constitutional rights under the Second, Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution and Article I, Sections 1, 4, and 10 of

the Ohio Constitution.

Appendix B

The Magistrate Judge recommends that the Court

deny Mr. Thomas’s petition. Mr. Thomas objects. For

the reasons stated below, the Court OVERRULES

Petitioner’s objections, ADOPTS the Magistrate Judge’s

report and recommendation, and ISSUES a certificate of

appealability under 28 U.S.C. § 2253(c).

FACTUAL AND PROCEDURAL BACKGROUND

O n A pr i l 13 , 2 013 , M r. T hom a s v i sit ed h i s

grandmother’s house in Akron, Ohio, where a man named

Anthony Smith was selling drugs outside. Mr. Thomas

asked Smith to go down the street instead. (ECF No.

9-1, PageID #282.) Smith responded by challenging Mr.

Thomas to a fist fight. (Id.) Mr. Thomas accepted the

challenge and suggested that they travel one street away

to hold their fight uninterrupted. (Id., PageID #294.) The

two men entered their respective cars and drove to the

suggested location. No one witnessed the altercation that

subsequently occurred between them. (Id.) Mr. Thomas

testified that he swung at Smith but missed. (Id., PageID

#282.) Then, Smith pulled out a gun. Mr. Thomas knocked

the gun out of Smith’s hand and got control of it. (Id.) When

Smith started toward him, Mr. Thomas shot Smith. (Id.)

Phyllis Brown, a resident on the street where the men

fought, testified that she heard three gunshots, looked out

her window, and saw Mr. Thomas holding a handgun. (Id.,

PageID #294.) She stated that Mr. Thomas was standing

several feet from Smith, who was prostrate on the ground.

(Id.) Brown then saw Mr. Thomas enter his car and drive

away from the scene, leaving Smith behind. (Id.) Also,

Appendix B

Brown testified that she saw Smith try to start his car

unsuccessfully and enter a nearby house for first aid. (Id.)

She went outside to assist Smith, who was bleeding heavily

from gunshot wounds. (Id.) No firearm was located at the

scene of the fight, and Smith died from his wounds a short

time later. (Id.)

A. Trial

On August 9, 2013, a grand jury returned an

indictment charging Mr. Thomas with one count of

aggravated murder with a firearm specification. (ECF

No. 9-1, PageID #150.) He pled not guilty to the charge

on August 28, 2013, asserting that he shot Mr. Smith in

an act of self-defense. (Id., PageID #286 & #926.)

A.1. Pretrial Motions

Barely a month before trial, Mr. Thomas moved for

the appropriation of funds for an investigator to support

his defense. (Id., PageID #151-54.) On November 6, 2013,

the State trial court granted Mr. Thomas’s motion and

authorized defense counsel to retain an investigator, but

the State trial court held the trial date for December 9,

2013, as scheduled. (Id., PageID #155.)

Mr. Thomas moved to suppress testimony from a

purported expert on gangs and evidence discovered

during a search of his brother’s vehicle. (Id., PageID

#161-66.) After a suppression hearing on December 3,

2013 (continued to January 3, 2014), the State trial court

ruled that the expert on gangs could testify at trial. (Id.,

10a

Appendix B

PageID #173.) It denied Mr. Thomas’s motion to suppress

the evidence from the vehicle because Mr. Thomas lacked

standing to challenge the search. (Id., PageID #174-83.)

Additionally, Mr. Thomas filed a motion in limine to

exclude eyewitness testimony from Phyllis Brown (id.,

PageID #169-71), which the State trial court also denied

(id., PageID #184-86).

A.2. The Jury’s Question

A jury trial commenced on January 29, 2014 and

ran through February 3, 2014, when the jury retired to

deliberate. (Id., PageID #203.) During deliberations on

February 4, 2014, the jury sent a note to the trial judge

listing three questions. The first two questions requested

records or transcripts from the trial. (Id., PageID #201.)

The third question asked about the jury instruction on

self-defense:

Under Self Defense, Part (A) states “he was

not at fault in creating the situation that gave

rise to the dispute [. . . ]”. We are having trouble

analyzing the issue of “fault.” If he were say

“10%” at fault for having agreed to fist fight

is he considered at fault as it pertains to the

wording in this section?

(Id.) In response to that question, the trial judge wrote

back:

You must re-review and apply your collective

understanding of the meaning of the terms

11a

Appendix B

used in the jury instructions. The court cannot

further define the meaning of those terms.

(Id., PageID #202.) The record contains no indication that

the trial judge contemporaneously informed or consulted

the parties about the jury’s communication or the trial

court’s response. Later that day, the jury returned a

verdict of not guilty on the aggravated murder charge

but found Mr. Thomas guilty of the lesser included offense

of murder with a firearm specification. (ECF No. 9-1,

PageID #203.)

On February 5, 2014, the trial court sentenced Mr.

Thomas to life in prison with parole eligibility after 15

years, 3 years of incarceration on the firearm specification,

and to an additional 1-year sentence from another case,

each to be served consecutively, for a total of 19 years to

life imprisonment. (ECF No. 9-1, PageID #204.)

B. Direct Appeal

On March 3, 2014, Mr. Thomas appealed his conviction

and sentence and the denials of his motion to suppress

and motion in limine. (Id., PageID #206). He raised

fourteen assignments of error in the appeal. As relevant

here, Mr. Thomas (1) argued that the State trial court

violated his constitutional rights by answering the jury’s

question about the self-defense instruction outside of his

presence, which also violated his right to a public trial; (2)

challenged the sufficiency of the evidence; and (3) raised

ineffective assistance of counsel—for failing to raise

self-defense in the opening statement and throughout the

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Appendix B

trial. (Id., PageID #213-14.) Over a dissent, which would

have reversed on the basis of the jury question and the

instructions on self-defense even under plain error review,

the State appellate court overruled each objection and

affirmed Mr. Thomas’s conviction. (Id., PageID #282-310;

see also Thomas I, 2015-Ohio-2935 (Ohio App. Ct.).)

Mr. Thomas appealed to the Ohio Supreme Court

(ECF No. 9-1, PageID #311-27), which declined to exercise

jurisdiction to hear the appeal (id., PageID #328). Mr.

Thomas filed a petition for a writ of certiorari to the

United States Supreme Court, which also denied review.

(Id., PageID #329-30.)

C. Petition for Post-Conviction Relief

Under Section 2953.21 of the Ohio Revised Code, Mr.

Thomas petitioned for post-conviction relief on November

10, 2014. (Id., PageID #331-93.) As relevant here, he

challenged his conviction based on (1) his absence from

the courtroom for the jury’s question and response, which

also violated his right to a public trial; and (2) ineffective

assistance of counsel in many respects. (Id., PageID #33193.) On February 3, 2015, the State trial court denied the

petition. (Id., PageID #413-18.)

On appeal, the State appellate court affirmed in part

and reversed in part. (Id., PageID #518-32; see State v.

Thomas, 2016-Ohio-5507, ¶ 1 (Ohio Ct. App.) (“Thomas

II”).) Again, one judge dissented, in part. (ECF No. 9-1,

PageID #530-32 (Carr, J., dissenting in part); Thomas

II, 2016-Ohio-5507, ¶¶ 27-34 (Carr, J., dissenting in part).)

13a

Appendix B

The State appellate court ruled that the State trial court

should have held a hearing on Mr. Thomas’s claims of

ineffective assistance of counsel. (ECF No. 9-1, PageID

#526; Thomas II, 2016-Ohio-5507, ¶ 21.) Mr. Thomas

sought review at the Ohio Supreme Court, which declined

to exercise jurisdiction (ECF No. 9-1, PageID #534-35,

#566), as did the United States Supreme Court (id.,

PageID #567-68).

On remand, the State trial court held an evidentiary

hearing on May 9 and 10, 2018 (id., PageID #569-613), then

denied his petition on June 25, 2018 (id., PageID #614-41).

Mr. Thomas appealed on the basis of ineffective assistance

of counsel, specifically contending that counsel failed to

investigate and present available evidence about his state

of mind and to retain a mental health expert. (Id., PageID

#642 & #673.) On October 16, 2019, the State appellate

court affirmed. (Id., PageID #793-802; see also State v.

Thomas, 2019-Ohio-4247, at *4 (Ohio Ct. App. Oct. 16,

2019) (“Thomas III”).) Again, one judge dissented. (Id.)

The Ohio Supreme Court declined to exercise jurisdiction

(id., PageID #843), and the United States Supreme Court

denied certiorari on October 5, 2020 (id., PageID #844917).

D. Habeas Petition

On November 23, 2020, Mr. Thomas filed a petition for

a writ of habeas corpus. (ECF No. 1.) His petition asserts

fifteen grounds for relief, challenging the self-defense jury

instruction as vague (ground one) and unlawfully placing

the burden of proof on him (ground three); the State trial

14a

Appendix B

court’s response to the jury’s question outside his presence

(ground two, ground four, ground five, ground twelve, and

ground thirteen); the refusal of an instruction on a lesser

included offense (ground six); jury misconduct (ground

seven); ineffective assistance of counsel (ground eight,

ground eleven, ground fourteen, and ground fifteen),

sufficiency of the evidence (ground ten); and cumulative

error (ground nine). (ECF No. 1, PageID #24-47.)

T he M a g i st r at e Judge i s sued a rep or t a nd

recommendation that the Court dismiss grounds one,

two, three, five, seven, and twelve as procedurally

defaulted, dismiss grounds six and nine as not cognizable

on habeas review, and dismiss grounds four, ten, eleven,

thirteen, fourteen, and fifteen on the merits. (ECF No. 18.)

Petitioner filed timely objections. (ECF No. 20.) Though

Petitioner’s objections are not numbered or organized

under headings, the Court counts six objections to the

Magistrate Judge’s report and recommendation, which

the Court groups as follows:

First, Petitioner objects by averring that the

Magistrate Judge failed to examine or analyze his

arg uments that application of the A ntiterrorism

and Effective Death Penalty Act of 1996 violates the

Thirteenth and Fourteenth Amendments and is otherwise

unconstitutional. (ECF No. 20, PageID #2999.)

Second, Petitioner objects to the Magistrate Judge’s

recommendation that grounds two, five, and twelve are

procedurally defaulted. (ECF No. 20, PageID #3018.)

Also, he objects to the Magistrate Judge’s finding that

15a

Appendix B

ground six is not cognizable on habeas review. (Id., PageID

#3017.)

Third, Petitioner objects to the Magistrate Judge’s

analysis and conclusions on ground four and ground

thirteen, which address the right to be present at all

stages of the proceedings. (Id., PageID #3004.)

Fourth, Petitioner objects to the Magistrate Judge’s

analysis of his insufficient evidence claim (ground ten).

(Id., PageID #3004.) In this regard, Petitioner also objects

to the finding that there was insufficient briefing on the

issue. (Id., PageID #3006.)

Fifth, Petitioner objects that the Magistrate Judge

conducted an insufficient analysis of his ineffective

assistance of counsel claims. (Id., PageID #3006-14.)

Respondent did not file a brief addressing any of these

objections.

STANDARD OF REVIEW

A district court judge may direct a Magistrate Judge

to submit “proposed findings of fact and recommendations

for the disposition, by a judge of the court,” 28 U.S.C.

§ 636(b)(1)(B), of a petition for a writ of habeas corpus,

which the Court does by Local Rule, see L.R. 72.2. When

reviewing a report and recommendation, if a party objects

within the allotted time, the district court is required to

“make a de novo determination of those portions of the

report or specified proposed findings or recommendations

16a

Appendix B

to which the objection is made.” 28 U.S.C. § 636(b)(1)

(C); United States v. Walters, 638 F.2d 947, 949-50 (6th

Cir. 1981). Objections must be specific, not general, and

should direct the Court’s attention to a particular dispute.

Howard v. Secretary of Health & Hum. Servs., 932 F.2d

505, 509 (6th Cir. 1991). “The filing of objections to a

magistrate’s report enables the district judge to focus

attention on those issues--factual and legal--that are at

the heart of the parties’ dispute.” Thomas v. Arn, 474 U.S.

140, 147, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).

Upon review, the court may “accept, reject, or modify,

in whole or in part, the findings or recommendations

made by the Magistrate Judge.” 28 U.S.C. § 636(b)

(1)(C). Importantly, the Court’s job is not to conduct

a free-wheeling examination of the entire report and

recommendation, but only to address any specific

objections that a party has advanced to some identified

portion of it. Accordingly, it is the Court’s task in this

matter to review the Magistrate Judge’s report and

recommendation de novo, based on the specific objections

that Petitioner raises.

ANALYSIS

Where a petitioner is “in custody in violation of the

Constitution or laws or treaties of the United States,” he

is entitled to a writ of habeas corpus. 28 U.S.C. §§ 2241

(c)(3) & 2254(a). The writ tests the fundamental fairness

of State court proceedings resulting in the deprivation

of an individual’s liberty. See, e.g., Brown v. Allen, 344

U.S. 443, 463, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Powell

17a

Appendix B

v. Collins, 332 F.3d 376, 388 (6th Cir. 2003) (citing Estelle

v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed.

2d 385 (1991)); Skaggs v. Parker, 235 F.3d 261, 266 (6th

Cir. 2000). 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the

United States; or

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

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

“With the AEDPA, Congress limited the source of law

for habeas relief to cases decided by the United States

Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135 (6th

Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412,

120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

A State court adjudication is “contrary to” Supreme

Court precedent under Section 2254(d)(1) “if the state

court arrives at a conclusion opposite to that reached by

18a

Appendix B

[the Supreme] Court on a question of law,” or “if the state

court confronts facts that are materially indistinguishable

from a relevant Supreme Court precedent” and arrives

at a different result. Williams, 529 U.S. at 405. “Avoiding

these pitfalls does not require citation of [Supreme Court]

cases—indeed, it does not even require awareness of

[Supreme Court] cases, so long as neither the reasoning

nor the result of the state-court decision contradicts

them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154

L. Ed. 2d 263 (2002).

Under Section 2254(d)(1), an unreasonable application

of federal law is different from an incorrect application of

federal law. See Harrington v. Richter, 562 U.S. 86, 101,

131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (citing Williams,

529 U.S. at 410). A State court adjudication involves “an

unreasonable application of” Supreme Court precedent

under Section 2254(d)(1) in one of two ways: (1) if the State

court identifies the correct governing legal rule from the

Supreme Court’s cases[,] but unreasonably applies it to the

facts of the particular State prisoner’s case; or (2) if the

State court either unreasonably extends a legal principle

from the Court’s precedent to a new context where it

should not apply or unreasonably refuses to extend that

principle to a new context where it should apply. See

Williams, 529 U.S. at 407.

Petitioner makes numerous objections to the report

and recommendation. Most of his arguments, though

styled as objections, reconstruct the underlying grounds

for relief asserted in his original habeas petition. However,

some are sufficiently specific to allow review.

19a

Appendix B

Constitutionality of the AEDPA

In his traverse, Petitioner argues for the first time

that the AEDPA is unconstitutional. (ECF No. 13, PageID

#2646-67.) Specifically, he contends that the Act violates

the Thirteenth and Fourteenth Amendments. He takes

issue with the Act’s deference to State-court judgments

and to the limitations on review in the federal courts.

Ordinarily, failing to raise an argument in his petition

waives the argument. Accordingly, the Magistrate Judge

did not address these arguments and did so properly.

Although the argument is waived, the Court notes

that Petitioner’s counsel has unsuccessfully raised

similar arguments for more than a decade. See, e.g., Betts

v. Tibbals, No. 1:11-cv-01107, 2014 U.S. Dist. LEXIS

135398, 2014 WL 4794530, at *3 (N.D. Ohio Sept. 24, 2014)

(“Moreover, Betts’ current counsel has made this exact

same argument before the Sixth Circuit in the past but

to no avail.”) (citing Andera v. Tibbals, No. 1:11-cv-2606,

2012 U.S. Dist. LEXIS 149227, 2012 WL 4955290, at *1

(N.D. Ohio Oct. 17, 2012)). A panel of the “Sixth Circuit

has never concluded that the AEDPA is unconstitutional.”

Betts, 2014 U.S. Dist. LEXIS 135398, 2014 WL 4794530, at

*3 (cleaned up). Additionally, courts in this District have

upheld the AEDPA as constitutional, finding “universal

agreement” among the Circuits that deference to State

courts as envisioned under the Act does not violate an

individual’s constitutional rights. Id.

Bowling v. Parker, 882 F. Supp. 2d 891 (E.D. Ky.

2012), addresses most of the arguments Petitioner makes

20a

Appendix B

here. There, the court reinforced the principle that “state

courts are capable interpreters of federal constitutional

law” and are, not unlike federal courts, “bound to ‘guard

and protect rights secured by the Constitution.’” Id. at

895-96 (quoting Ex parte Royall, 117 U.S. 241, 251, 6 S. Ct.

734, 29 L. Ed. 868 (1886)). Because lower federal courts

derive their power from statutes, Congress can “expand or

contract lower federal courts’ power to grant habeas relief

to state prisoners.” Id. at 896-97; see also id. at 898 (“But

even if [Section] 2254(d)(1) did limit the sources of law a

lower federal court could rely on, such a restriction would

be constitutional.”). Additionally, the limitation imposed by

Congress is “logical” because State courts are not bound

by the federal appellate courts, only the Supreme Court,

which remains the final word on judicial interpretation of

the Constitution. Id. at 898-99, 901.

Nor does the AEDPA violate the Suspension Clause

because it “only modifies the conditions in which a federal

court can grant relief;” it does not “withdraw jurisdiction.”

Id. at 902. Habeas relief is subject to a high bar because

it is a last resort “against extreme malfunctions,” rather

than mere “error correction,” which should have occurred

on direct appeal. Id. Indeed, Mr. Thomas had ample

opportunity to pursue his claimed errors in State court.

In any event, even if the AEDPA were unconstitutional

as applied to Mr. Thomas, the Court would consider

the petition without application of the Act, which leaves

untouched many of the common-law principles to which

he objects.

Because Petitioner waived this argument, which has

no merit in any event, at least as applied here, the Court

21a

Appendix B

applies the AEDPA to the grounds for relief presented

in the petition.

II. Procedural Default and Issues Not Cognizable in

Habeas

As a general rule, a petitioner must demonstrate that

he has “exhaust[ed] all available opportunities to pursue

his claim in state court.” Gerth v. Warden, Allen Oakwood

Corr. Inst., 938 F.3d 821, 826-27 (6th Cir. 2019). A federal

court may not consider a habeas petition unless a State

prisoner has presented their claim to the State courts

in accordance with their procedural rules. See Shinn v.

Ramirez, 596 U.S. 366, 371, 142 S. Ct. 1718, 212 L. Ed. 2d

713 (2022). A petitioner may procedurally default a claim

by failing to raise it in State court and pursue it through

the State’s appellate review procedures. Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). If State law

no longer allows the petitioner to raise or appeal the claim

at the time of the habeas petition, the claim is procedurally

defaulted. Id.; see also Shinn, 596 U.S. at 371.

Procedural default may be excused where a petitioner

can show that an external factor prevented him from

complying with the procedural rule at issue, through no

fault of his own, and that the alleged constitutional violation

resulted in actual prejudice. Coleman v. Thompson, 501

U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).

And if “the last state court rendering a judgment in the

case” reached the merits notwithstanding a petitioner’s

failure to raise and present an issue according to the

State’s rules, procedural default does not apply. Harris

v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d

22a

Appendix B

308 (1989); see also Victor v. Neb, 511 U.S. 1, 19, 114 S. Ct.

1239, 127 L. Ed. 2d 583 (1994).

The Magistrate Judge determined that Petitioner

procedurally defaulted six of his grounds for relief-ground one (challenging the self-defense jury instruction

as vague), ground three (regarding the burden of proof

for self-defense), ground seven (jury misconduct), and

grounds two, five, and twelve (relating to the State trial

court’s response to the jury’s question). (ECF No. 18,

PageID #2946.) Petitioner objects to this recommendation

on grounds two, five, and twelve. (ECF No. 20, PageID

#3018.) On these grounds, the Magistrate Judge

determined that petitioner failed to follow the Ohio Rules

of Appellate Procedure. (ECF No. 18, PageID #2954; see

Maupin v. Smith, 782 F.2d 135, 138 (6th Cir. 1986).) He

also objects to the Magistrate Judge’s recommendation

that ground six (instruction on a lesser included offense)

be denied as non-cognizable in federal habeas corpus

proceedings. (Id., PageID #2984; ECF No. 20, PageID

#3017.)

II.A. Jury Question

Rule 16 of the Ohio Rules of Appellate Procedure

requires an appellant to include in his brief an “argument

containing the contentions of the appellant with respect

to each assignment of error presented for review and

the reasons in support of the contentions, with citations

to the authorities, statutes, and parts of the record on

which appellant relies.” Ohio R. App. P. 16(A)(7). Rule 12

empowers appellate courts to “disregard an assignment

23a

Appendix B

of error presented for review if the party raising it fails to

identify in the record the error on which the assignment of

error is based or fails to argue the assignment separately

in the brief, as required under App. R. 16(A).” Ohio R.

App. P. 12(A)(2); see also Campbell v. Bunting, No. 1:14cv-1187, 2015 U.S. Dist. LEXIS 109496, 2015 WL 4984871,

at *1 (N.D. Ohio Aug. 19, 2015) (“Ohio App. R. 12(A)(2) . . .

empowers the court to disregard any assignment of error

the appellant fails to brief in conformity with Rule 16(A)”).

On direct appeal, Mr. Thomas raised three assignments

of error. However, the State appellate court found that he

failed properly to support his arguments. On that basis, it

overruled the assignments of error. (ECF No. 18, PageID

#2958; Thomas I, 2015 Ohio 2935, 2015 WL 4464893, at

*9-10.) Petitioner objects that he sufficiently briefed the

issue on direct appeal such that “there is no procedural

default.” (ECF No. 20, PageID #3018.) But the State

appellate court found otherwise. On a petition for a writ

of habeas corpus, the Court’s review is limited to whether

the State courts determined that a petitioner failed

to follow the procedural rules, not correctness of that

determination. Maupin v. Smith, 782 F.2d 135, 138-39 (6th

Cir. 1986). Moreover, examination of Petitioner’s briefing

on direct appeal confirms the ruling of the State appellate

court. His brief contains two short paragraphs supporting

these grounds for review and failed to provide support or

develop an argument. (See ECF No. 9-1, PageID #263.)

For these reasons, the Court determines that Petitioner

failed to preserve these claims for federal habeas review

and, therefore, OVERRULES Petitioner’s objections.

24a

Appendix B

II.B. Lesser Included Offense

Also, Petitioner asserts that the State trial court erred

in refusing to instruct the jury on the lesser charges of

“Voluntary Manslaughter and Reckless Homicide and

violated the Sixth and Fourteenth Amendments of the

federal Constitution.” (ECF No. 1, PageID #30.) In

his report and recommendation, the Magistrate Judge

recommends that the Court dismiss this ground because

it is not cognizable on federal habeas corpus review. (ECF

No. 18, PageID #2988.) In Beck v. Alabama, 447 U.S.

625, 638, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), the

Supreme Court held that in capital cases, a court must

instruct the jury as to a lesser included non-capital offense.

However, the Supreme Court declined to decide whether

this requirement extends to non-capital cases. Id. at 635

n.7. Nor has the Sixth Circuit required an instruction on

a lesser included offense in non-capital cases: “[W]e are

not required to extend Beck to noncapital cases.” Bagby

v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990) (en banc)

(explaining that Beck arises from Eighth Amendment

concerns, not the Fourteenth Amendment’s Due Process

Clause). (See ECF No. 9, PageID #107 (collecting cases).)

Finding that clearly established Supreme Court precedent

does not support Petitioner’s claim, the Magistrate

Judge recommends denying relief on this ground as not

cognizable under habeas corpus review. (ECF No. 18,

PageID #2986.)

Petitioner objects, arguing that the State trial court’s

refusal to instruct the jury on the accused’s theory of the

case violated his due process rights. (ECF No. 20, PageID

25a

Appendix B

#3017.) In support, Petitioner relies on cases from the

Second Circuit. See Harris v. Alexander, 548 F.3d 200

(2d Cir. 2008); Jackson v. Edwards, 404 F.3d 612 (2d Cir.

2005); Davis v. Strack, 270 F.3d 111 (2d Cir. 2001); see

also Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999). Each

of these cases involved the State trial court’s failure to

instruct a jury on the defendant’s theory of defense. In

each, the court found that the failure to instruct violated

due process, the appellate court’s affirmation of which

was objectively unreasonable. Harris v. Alexander, 548

F.3d at 205-06; Jackson, 404 F.3d at 627-28; Davis, 270

F.3d at 132.

Without question, a defendant “is entitled to an

instruction on a lesser included offense if the evidence

would permit a jury rationally to find him guilty of the

lesser offense and acquit him of the greater.” Keeble v.

United States, 412 U.S. 205, 208, 93 S. Ct. 1993, 36 L. Ed.

2d 844 (1973). However, a defendant is not entitled to such

an instruction if the evidence would not so permit. The

Sixth Circuit has determined that review of a decision

whether the evidence supports a jury instruction on a

lesser included offense is generally not cognizable on

habeas review, even on a due-process theory. Bagby,

894 F.2d at 794. That result might differ in the Second

Circuit, but the Court sees no exceptional circumstances

warranting such a departure here.

In this case, the jury received instructions on

aggravated murder and the lesser included offense of

murder. (ECF No. 18, PageID #2998.) Having received an

instruction on a lesser included offense, this case does not

26a

Appendix B

present the type of circumstances warranting examination

and second-guessing of the trial record on collateral

review. After all, the jury rejected Petitioner’s selfdefense argument and found Mr. Thomas guilty of murder.

For these reasons, the Court OVERRULES Petitioner’s

objection to the Magistrate Judge’s recommendation on

ground six.

III. Review Under the AEDPA

The Mag istrate Judge addressed Petitioner’s

remaining grounds for relief on the merits under the

AEDPA.

III.A. Right to Presence (Ground Four and Ground

Thirteen)

While deliberating, the jury submitted a question

to the State trial court about the self-defense jury

instruction, and the court apparently provided a written

answer without notifying either party or making a record

in open court. (ECF No. 9-1, ¶¶ 12-13, PageID #522; id.,

PageID #241-42; ECF No. 1, PageID #37.) The jury

asked for clarification on the degree of fault of a defendant

claiming self-defense:

Under Self Defense, Part (A) states “he was

not at fault in creating the situation that gave

rise to the dispute [. . . ]”. We are having trouble

analyzing the issue of “fault.” If he were say

“10%” at fault for having agreed to fist fight

is he considered at fault as it pertains to the

wording in this section?

27a

Appendix B

(ECF No. 9-1, PageID #201.) In response to that question,

the trial judge wrote back:

You must re-review and apply your collective

understanding of the meaning of the terms

used in the jury instructions. The court cannot

further define the meaning of those terms.

(Id., PageID #202.) Listed as ground four and ground

thirteen in his petition, Petitioner argues that this

response to the jury’s question violated his right to be

present at all critical stages of trial under the Sixth and

Fourteenth Amendments. (ECF No. 1, PageID #28 &

#37.)

In his report and recommendation, the Magistrate

Judge recommends that the Court deny grounds four and

thirteen. (ECF No. 18, PageID #2968.) On direct appeal,

the State appellate court, with one judge dissenting, found

that the record lacked sufficient evidence to determine

whether Mr. Thomas was absent from proceedings

relating to the jury’s question and declined to review the

issue. (ECF No. 9-1, ¶ 47, PageID #297-98; Thomas I,

2015-Ohio-310, ¶ 47; see also ECF No. 9-1, ¶ 75, PageID

#307-08.) On appeal after remand, the State appellate

court assumed that the question from the jury presumed

a critical stage of the proceedings requiring Mr. Thomas’s

presence but determined that there was not prejudice

from his absence. (ECF No. 9-1, ¶¶ 12-13, PageID #52223; Thomas II, 2016-Ohio-5607, ¶ 13.) Viewing Mr.

Thomas’s absence as more fundamental and structural,

the dissenting judge disagreed. (ECF No. 9-1, PageID

#532; Thomas II, 2016-Ohio-5607, ¶¶ 32-33.)

28a

Appendix B

Clearly established Supreme Court precedent

supports the right of an accused to be present at all

critical stages of a trial. Illinois v. Allen, 397 U.S. 337,

338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) (citing Lewis

v. United States, 146 U.S. 370, 372, 13 S. Ct. 136, 36 L. Ed.

1011 (1892)); see also United States v. Gagnon, 470 U.S.

522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (cleaned

up). This right derives from the Sixth Amendment’s

Confrontation Clause; but where, as here, the issue does

not involve confronting the evidence against a person,

the right sounds in due process. Gagnon, 470 U.S. at 526

(citing Allen, 397 U.S. at 338). “A leading principle that

pervades the entire law of criminal procedure is that, after

indictment found, nothing shall be done in the absence

of the prisoner.” Crowe v. United States, 200 F.2d 526,

528 (6th Cir. 1952) (quoting Lewis, 146 U.S. at 372.) “The

right to personal presence at all critical stages of the trial

and the right to counsel are fundamental rights of each

criminal defendant.” Rushen v. Spain, 464 U.S. 114, 117,

104 S. Ct. 453, 78 L. Ed. 2d 267 (1983).

III.A.1. Critical Stage of the Proceedings

A “critical” stage of the proceedings is one that holds

“significant consequences for the accused.” Bell v. Cone,

535 U.S. 685, 695-96, 122 S. Ct. 1843, 152 L. Ed. 2d 914

(2002); Van v. Jones, 475 F.3d 292, 313 (6th Cir. 2007).

A question from the jury that goes to the defendant’s

core theory of the case presents a critical stage of the

proceedings. Indeed, the State appellate court treated it

as such. (ECF No. 9-1, ¶¶ 12-13, PageID #522-23; Thomas

II, 2016-Ohio-5607, ¶ 13.) Although Respondent contends

29a

Appendix B

that a jury’s question does not present a critical stage of

the proceedings (ECF No. 9, PageID #101), its cases do

not speak to the facts and circumstances of this case. For

example, in Martin v. Moore, No. 2:12-cv-878, 2013 U.S.

Dist. LEXIS 176073, at *32 (S.D. Ohio Dec. 16, 2013), the

trial judge answered two questions from the jury in the

presence of counsel, who waived the defendant’s presence.

And in Simmons v. Sheets, No. 2:09-cv-1077, 2011 U.S.

Dist. LEXIS 27502, at *83-84 (S.D. Ohio Feb. 23, 2011), the

jury’s question took only one minute to resolve, making it

factually unlikely to have implicated a fundamental right

of the defendant.

Further, Respondent argues that the Supreme Court’s

failure specifically to hold that a defendant’s absence,

without a waiver, from a proceeding during deliberations

when the State trial court responds to a jury’s question

forecloses relief. (ECF No. 9, PageID #101.) This position

does not hold up. Even under the AEDPA’s source-of-law

provision, federal courts may look for guidance to the

decisions of other courts applying the principles that the

Supreme Court has determined. See, e.g., French v. Jones,

332 F.3d 430, 436 (6th Cir. 2003). Moreover, Respondent

draws a fine line between responding to a question and

giving a supplemental instruction, a distinction which finds

no support in the Supreme Court’s jurisprudence. Because

of the nature of the jury’s question, this is not a case where

a defendant’s “presence would be useless, or the benefit

but a shadow.” Snyder v. Massachusetts, 291 U.S. 97, 10607, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled on other

grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489,

12 L. Ed. 2d 653 (1964). In any event, the State appellate

30a

Appendix B

court here treated the jury’s question as constituting a

critical stage of the proceeding. As a mixed question of

law and fact, see id. at 435, the Court gives deference to

that finding. Because the jury’s question went to the heart

of Mr. Thomas’s claim at trial of self-defense, that finding

is not clearly erroneous.

III.A.2. Harmless Error and Structural Error

As a general rule, constitutional error does not demand

automatic reversal. Arizona v. Fulminante, 499 U.S. 279,

306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Ordinarily, a

petitioner must also show that the error was not harmless.

Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710,

123 L. Ed. 2d 353 (1993). On habeas review, an error

may be considered harmless unless it had “substantial

and injurious effect or influence in determining the

jury’s verdict.” Id. (quoting Kotteakos v. United States,

328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)).

However, that principle has limits. Structural errors “by

their very nature cast so much doubt on the fairness of

the trial process that, as a matter of law, they can never

be considered harmless.” Satterwhite v. Texas, 486 U.S.

249, 256, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988). In other

words, a court should not apply harmless error review to

claims of structural error. Indeed, “constitutional error”

occurs, without the need to show prejudice, “when counsel

was either totally absent, or prevented from assisting the

accused during a critical stage of the proceeding.” United

States v. Cronic, 466 U.S. 648, 659 n.25, 104 S. Ct. 2039,

80 L. Ed. 2d 657 (1984) (collecting cases).

31a

Appendix B

In this case, the absence of Mr. Thomas when the

State trial court answered the jury’s question about

self-defense constitutes an error. The question comes

down to whether that error is structural—an issue on

which the State appellate court divided. The majority

applied harmless error review and found that Mr. Thomas

“cannot demonstrate prejudice. . . . His claim of prejudice

stems strictly from his inability to challenge the court’s

allegedly vague answer through an objection.” (ECF No.

9-1, PageID #522; Thomas II, 2016-Ohio-5607, ¶ 13.) A

dissenting judge saw the error as structural: “Whether

his presence, and his input on the appropriate answer,

would have made a difference in the trial court’s answer

is a different issue than the one Thomas raised.” (ECF

No. 9-1, PageID #532; Thomas II, 2016-Ohio-5607, ¶ 32.)

Under the AEDPA, the question is whether the State

courts’ adjudication of this issue meets the standard in

Section 2254(d) for relief. Brown v. Davenport, 596 U.S.

118, 122, 142 S. Ct. 1510, 212 L. Ed. 2d 463 (2022). For its

conclusion that Petitioner could not show prejudice, the

State appellate court majority relied on State v. Davison,

2011-Ohio-1528, ¶ 7 (Ohio Ct. App.), which in turn traces

through State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio3426, 892 N.E.2d 864, ¶ 100, back to the Supreme Court’s

decision in Snyder. In Snyder, the Supreme Court assumed

that “in a prosecution for a felony the defendant has the

privilege under the Fourteenth Amendment to be present

in his own person whenever his presence has a relation,

reasonably substantial, to the fullness of his opportunity to

defend against the charge.” 291 U.S. at 105-06. However,

32a

Appendix B

“the presence of a defendant is a condition of due process to

the extent that a fair and just hearing would be thwarted

by his absence, and to that extent only.” Hale, 2008-Ohio3426, ¶ 100, 119 Ohio St. 3d 118, 892 N.E.2d 864 (quoting

Snyder, 291 U.S. at 107-08). This determination must be

made on the record as a whole. See Gagnon, 470 U.S. at

526-27 (citing Snyder, 291 U.S. at 115).

With this background, the question in this case is

exceedingly close—even under the AEDPA’s deferential

standard. On the one hand, structural error involving the

absence of counsel at a critical stage of the proceedings

does not admit harmless error analysis. Chronic, 466 U.S.

at 659 n.25; Holloway v. Arkansas, 435 U.S. 475, 489, 98

S. Ct. 1173, 55 L. Ed. 2d 426 (1978); French, 332 F.3d at

438. In this regard, the State appellate court’s dissent

appears to have the better of the argument.

On habeas review, however, the question is not whether

the Court would make the same decision as the State

courts in the first instance, but whether the State courts’

adjudication meets the standard under Section 2254(d).

Under Section 2254(d)(1), an unreasonable application of

federal law is not the same as an incorrect application of

it. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct.

770, 178 L. Ed. 2d 624 (2011) (citing Williams, 529 U.S. at

410). On the record as a whole, the State courts’ decision

that the State trial judge’s written response to the jury,

made outside the presence of Mr. Thomas, his counsel, or

the prosecutor, did not violate his constitutional rights is

not unreasonable. At bottom, the State courts might have

erred in determining whether some form of harmless

33a

Appendix B

error analysis applied and its proper formulation. But

the Court cannot say that the State courts’ adjudication

was contrary to or an unreasonable application of clearly

established federal constitutional law as determined by

the Supreme Court. Therefore, the Court OVERRULES

Petitioner’s objection.

III.B. Sufficiency of the Evidence (Ground Ten)

As his tenth ground for relief, Petitioner argued

that the evidence is insufficient to maintain a murder

conviction. (ECF No. 1, PageID #34.) The Magistrate

Judge recommended that the Court deny this ground

because Petitioner did not show that the State courts

unreasonably applied Jackson v. Virginia, 443 U.S. 307,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), or unreasonably

determined the facts. (ECF No. 18, PageID #2969.)

Petitioner objects by rearguing his case on the issue.

However, objections must be specific, and a petitioner

may not generally object to the Magistrate Judge’s

recommendations.

On this issue, the only objection that Defendant

makes with any specificity is that the Magistrate Judge

failed to analyze the cased cited. (ECF No. 20, PageID

#3006.) As the Magistrate Judge noted, however, the

Court must defer to the jury’s determinations when

resolving conflicts in testimony, weighing the evidence,

and drawing reasonable inferences from that evidence;

a reviewing court is not permitted to substitute its own

opinion for that of the jury. Jackson, 443 U.S. at 318-19 &

n.13. Additionally, on habeas review, a federal court must

34a

Appendix B

defer to a State appellate court’s “consideration of the

trier-of-fact’s verdict, as dictated by AEDPA.” Davis v.

Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting Tucker

v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). Even if the

Magistrate Judge failed to consider Petitioner’s cases to

his satisfaction, the record shows that the double deference

due on a challenge to the sufficiency of the evidence on

collateral review leaves no doubt that Mr. Thomas’s

conviction meets the standard for relief under Section

2254(d). Therefore, the Court OVERRULES Petitioner’s

objections on ground ten.

III.C. Ineffective Assistance of Counsel

The Sixth and Fourteenth Amendments to the

Constitution afford criminal defendants the right to

“reasonably effective assistance” of counsel. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); Yarborough v. Gentry, 540 U.S. 1, 8,

124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). To succeed on a claim

of ineffective assistance of counsel, a petitioner must

show that (1) the performance of counsel fell below an

objective standard of reasonableness, such that counsel

was not functioning as the counsel guaranteed by the Sixth

Amendment, and (2) the ineffectiveness of the counsel

prejudiced the petitioner’s defense. Strickland, 466

U.S. at 687-88. Counsel enjoy the presumption that they

discharge their duties in a sufficiently effective manner

and exercise reasonable professional judgment based on

the circumstances at the time. Id. at 690.

To thwart a petitioner’s temptation “to second-guess

counsel’s assistance after conviction or adverse sentence,

35a

Appendix B

and [because] it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was

unreasonable,” a court “must indulge a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. In other

words, “the defendant must overcome the presumption

that, under the circumstances, the challenged action

might be considered sound trial strategy.” Id. (cleaned

up). To establish prejudice, a petitioner must “show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Id. at 694.

In his petition, Mr. Thomas asserted that trial counsel

was ineffective because (1) he failed to discuss self-defense

during his opening statement (ground eleven); (2) he

failed to investigate and present available evidence of

Mr. Thomas’s state of mind (ground fourteen); and (3) he

failed to properly utilize a mental health expert at trial

(ground fifteen). (ECF No. 1, PageID #34-35 & #39-48.)

III.C.1. Ground Eleven

Apply i ng Str ickl an d, the Mag ist rat e Judge

recommended that the Court deny Petitioner relief on

ground eleven. At trial, Mr. Thomas’s counsel focused in

his opening statement on intent—not self-defense. (ECF

No. 18, PageID #2975-76.) On appeal, the State appellate

court reasoned that this opening statement resulted from

the strategy of directing the defense’s case in response

to how the prosecution’s case unfolded and to secure an

acquittal on the aggravated murder charge. (ECF No.

36a

Appendix B

9-1, PageID #282; Thomas I, 2015-Ohio-2935, ¶ 13.) The

Magistrate Judge reached the same conclusion. (ECF No.

18, PageID #2976.) Therefore, he determined that the

record does not contain evidence sufficient to overcome

the presumption that counsel’s choice not to mention selfdefense in the opening statement was trial strategy. (Id.)

Petitioner objects that “[t]he law required that the jury

understand [his] weaknesses . . . so it could properly apply

the law of self-defense” and that the Magistrate Judge

“practically ignored all of the case law and facts cited by

Thomas.” (ECF No. 20, PageID #3007.) Because of trial

counsel’s alleged failure, Petitioner contends that “[t]he

jury was deprived of this information which is relevant to

his conduct and state of mind and how he perceived the

threat from the victim.” (Id., PageID #3010.)

But the cases on which Petitioner relies do not help

him meet the Strickland standard. For example, Petitioner

cites State v. Moses, 2014-Ohio-1748, ¶ 40 (Ohio Ct. App.),

which recites the elements for establishing self-defense

and the burden of proof. And in State v. Jackson, 22 Ohio

St. 3d 281, 284, 22 Ohio B. 452, 490 N.E.2d 893 (1986),

the Ohio Supreme Court analyzed jury instructions on

the issue. But the record provides no reason to think that

trial counsel was unaware of Ohio law on self-defense. Only

State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989),

speaks to opening statements. In dissent, one justice saw

no trial strategy in completely waiving opening statement,

in his view making that decision ineffective on the facts

presented. Id. at 156 (Wright, J., dissenting).

37a

Appendix B

Petitioner’s argument focuses on self-defense as

the key to the case. (See ECF No. 20, PageID #3007.)

But the Court is not tasked with determining whether

another strategy might have proved more effective.

Indeed, under Strickland, the inquiry avoids such secondguessing in hindsight. Counsel had a clear strategy during

opening statement. Therefore, the Court OVERRULES

Petitioner’s objections to ground eleven.

III.C.2. Ground Fourteen and Ground Fifteen

Petitioner claims that his trial counsel rendered

constitutionally deficient performance when he failed

to present evidence of his “very low intelligence” that

would allow a jury to step into his shoes in the claim of

self-defense and when his counsel failed to hire a mental

health expert to testify regarding the available health

records. (ECF No. 1, PageID #39-48.) In his Report and

Recommendation, the Magistrate Judge found no error

sufficient to warrant relief and recommended that the

Court deny both grounds fourteen and fifteen. (ECF No.

18, PageID #2984.)

Petitioner’s objections are limited. He maintains that

the Magistrate Judge “made the same error” as the State

courts when he “failed to properly analyze or discuss the

impact of [Mr. Thomas’s] state of mind in this self defense

case.” (Id., PageID #3012.) Whatever the importance of

Mr. Thomas’s state of mind, the evidence in the record fails

to overcome the presumption that counsel strategically

omitted Mr. Thomas’s mental health records and evidence.

38a

Appendix B

(ECF No. 18, PageID #2977-78.) The record developed

on post-conviction relief shows that trial counsel was

aware of this evidence, but did not want to introduce it

because it might negatively affect the jury’s view of Mr.

Thomas. (ECF No. 9, PageID #137-39.) Petitioner has not

demonstrated that his counsel performed deficiently or

that, but for his trial counsel’s performance, the jury would

have accepted his claim of self-defense and found him not

guilty of murder. Accordingly, the Court OVERRULES

Petitioner’s objections on grounds fourteen and fifteen.

CERTIFICATE OF APPEALABILITY

Without a certificate of appealability, a habeas

petitioner cannot appeal a final order in a habeas

proceeding. 28 U.S.C. § 2253(c)(1). Issuance of a certificate

of appealability requires a petitioner to make “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). This means that the petitioner

must show that reasonable jurists would find the district

court’s determination of the relevant constitutional claims

debatable or incorrect. Tennard v. Dretke, 542 U.S.

274, 282, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004). The

petitioner need not show that the appeal would succeed

to be eligible for a certificate of appealability. Miller-El

v. Cockrell, 537 U.S. 322, 337, 123 S. Ct. 1029, 154 L. Ed.

2d 931 (2003).

Based on this standard, the Court issues a certificate

of appealability on ground four and ground thirteen

(relating to Mr. Thomas’s right to be present for the State

trial court’s response to the jury’s question). Reasonable

39a

Appendix B

jurists could fairly debate whether the absence of Mr.

Thomas and his trial counsel at that critical stage of

the proceedings amounts to structural error. Indeed,

the State appellate court disagreed on that question.

Therefore, the Court issues a certificate of appealability.

CONCLUSION

For the foregoing reasons, the Court the Court

OVERRULES Mr. Thomas’ objections (ECF No.

20), ADOPTS the Magistrate Judge’s report and

recommendation (ECF No. 18), DISMISSES the petition,

and issues a certificate of appealability on ground four

and ground thirteen.

SO ORDERED.

Dated: March 31, 2025

/s/ J. Philip Calabrese

J. Philip Calabrese

United States District Judge

Northern District of Ohio

40a

Appendix CCONSTITUTIONAL

APPENDIX C — RELEVANT

AND STATUTORY PROVISIONS

U.S. Const. Amend. 5

Criminal actions—Provisions concerning—Due

process of law and just compensation clauses.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

41a

Appendix C

U.S. Const. Amend. 6

Rights of the accused.

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance

of Counsel for his defence.

42a

Appendix C

U.S. Const. Amend. 14

Sec. 1. [Citizens of the United States.] All persons

born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

S e c . 2 . [ R e p r e s e nt a t i ve s — Powe r t o r e d u c e

apportionment.] Representatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in each

State, excluding Indians not taxed. But when the right to

vote at any election for the choice of electors for President

and Vice-President of the United States, Representatives

in Congress, the Executive and Judicial officers of a State,

or the members of the Legislature thereof, is denied to

any of the male inhabitants of such State, being twentyone years of age, and citizens of the United States, or in

any way abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall be

reduced in the proportion which the number of such male

citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

Sec. 3. [Disqualification to hold office.] No person

shall be a Senator or Representative in Congress, or

elector of President and Vice-President, or hold any office,

43a

Appendix C

civil or military, under the United States, or under any

State, who, having previously taken an oath, as a member

of Congress, or as an officer of the United States, or as

a member of any State legislature, or as an executive or

judicial officer of any State, to support the Constitution

of the United States, shall have engaged in insurrection

or rebellion against the same, or given aid or comfort to

the enemies thereof. But Congress may by a vote of twothirds of each House, remove such disability.

Sec. 4. [Public debt not to be questioned—Debts of the

Confederacy and claims not to be paid.] The validity

of the public debt of the United States, authorized by

law, including debts incurred for payment of pensions

and bounties for services in suppressing insurrection or

rebellion, shall not be questioned. But neither the United

States nor any State shall assume or pay any debt or

obligation incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or

emancipation of any slave; but all such debts, obligations

and claims shall be held illegal and void.

Sec. 5. [Power to enforce amendment.] The Congress

shall have the power to enforce, by appropriate legislation,

the provisions of this article.

44a

Appendix C

28 U.S.C. § 2253

Appeal

(a) In a habeas corpus proceeding or a proceeding under

section 2255 [28 USCS § 2255] before a district judge, the

final order shall be subject to review, on appeal, by the

court of appeals for the circuit in which the proceeding

is held.

(b) There shall be no right of appeal from a final order in

a proceeding to test the validity of a warrant to remove to

another district or place for commitment or trial a person

charged with a criminal offense against the United States,

or to test the validity of such person’s detention pending

removal proceedings.

(c)

(1) Unless a circuit justice or judge issues a certificate

of appealability, an appeal may not be taken to the court

of appeals from—

(A) the final order in a habeas corpus proceeding

in which the detention complained of arises out of

process issued by a State court; or

(B) the final order in a proceeding under section

2255 [28 USCS § 2255].

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a substantial

showing of the denial of a constitutional right.

45a

Appendix C

(3) The certificate of appealability under paragraph

(1) shall indicate which specific issue or issues satisfy

the showing required by paragraph (2).

46a

Appendix C

28 U.S.C. § 2254

State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for a writ

of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or

treaties of the United States.

(b)

(1) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B)

(i) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the

courts of the State.

47a

Appendix C

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through counsel,

expressly waives the requirement.

the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the

question presented.

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

(e)

(1) In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant

to the judgment of a State court, a determination of a

factual issue made by a State court shall be presumed

48a

Appendix C

to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and

convincing evidence.

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court

shall not hold an evidentiary hearing on the claim unless

the applicant shows that—

(A)

the claim relies on—

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable factfinder would have found the applicant

guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to

support the State court’s determination of a factual issue

made therein, the applicant, if able, shall produce that

part of the record pertinent to a determination of the

sufficiency of the evidence to support such determination.

If the applicant, because of indigency or other reason is

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unable to produce such part of the record, then the State

shall produce such part of the record and the Federal

court shall direct the State to do so by order directed to

an appropriate State official. If the State cannot provide

such pertinent part of the record, then the court shall

determine under the existing facts and circumstances

what weight shall be given to the State court’s factual

determination.

(g) A copy of the official records of the State court, duly

certified by the clerk of such court to be a true and correct

copy of a finding, judicial opinion, or other reliable written

indicia showing such a factual determination by the State

court shall be admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the Controlled

Substance Acts [21 USCS § 848], in all proceedings brought

under this section, and any subsequent proceedings on

review, the court may appoint counsel for an applicant who

is or becomes financially unable to afford counsel, except

as provided by a rule promulgated by the Supreme Court

pursuant to statutory authority. Appointment of counsel

under this section shall be governed by section 3006A of

title 18.

(i) The ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings

shall not be a ground for relief in a proceeding arising

under section 2254 [28 USCS § 2254].

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28 U.S.C. § 2255

Federal custody; remedies on motion

attacking sentence

(a) A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose

such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto. If the court

finds that the judgment was rendered without jurisdiction,

or that the sentence imposed was not authorized by law

or otherwise open to collateral attack, or that there has

been such a denial or infringement of the constitutional

rights of the prisoner as to render the judgment vulnerable

to collateral attack, the court shall vacate and set the

judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sentence

as may appear appropriate.

without requiring the production of the prisoner at the

hearing.

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(d) An appeal may be taken to the court of appeals from

the order entered on the motion as from the final judgment

on application for a writ of habeas corpus.

(e) An application for a writ of habeas corpus in behalf of

a prisoner who is authorized to apply for relief by motion

pursuant to this section, shall not be entertained if it

appears that the applicant has failed to apply for relief,

by motion, to the court which sentenced him, or that such

court has denied him relief, unless it also appears that the

remedy by motion is inadequate or ineffective to test the

legality of his detention.

(f) A 1-year period of limitation shall apply to a motion

under this section. The limitation period shall run from

the latest of—

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making a

motion created by governmental action in violation of

the Constitution or laws of the United States is removed,

if the movant was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or

claims presented could have been discovered through

the exercise of due diligence.

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Appendix C

(g) Except as provided in section 408 of the Controlled

Substances Act [21 USCS § 848], in all proceedings brought

under this section, and any subsequent proceedings on

review, the court may appoint counsel, except as provided

by a rule promulgated by the Supreme Court pursuant

to statutory authority. Appointment of counsel under this

section shall be governed by section 3006A of title 18.

(h) A second or successive motion must be certified as

provided in section 2244 [28 USCS § 2244] by a panel of

the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence

that no reasonable factfinder would have found the

movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court,

that was previously unavailable.

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.