IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSHUA L. SMITH, 

Petitioner, CASE NO. 2:10-CV-00130

JUDGE GEORGE C. SMITH

v. Magistrate Judge E.A. Preston Deavers

MICHAEL SHEETS, WARDEN 

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant Petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, Respondent’s Return

of Writ, Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, the

Magistrate Judge RECOMMENDS that this action be DISMISSED. 

FACTS and PROCEDURAL HISTORY

The Ohio Twelfth District Court of Appeals summarized the facts and procedural history of

this case as follows: 

In the early morning hours of January 1, 2006, the Washington Court

House Police Department received a call from appellant who reported

that he witnessed the murder of Michelle Morrison. After

investigating appellant’s report further, the police discovered the

lifeless body of Morrison located in the bedroom of a now vacant

home, a home in which appellant had lived two months earlier before

it sustained fire damage.

Later that same morning, while being questioned by police, appellant

claimed J.M., a former friend and current Chillicothe resident, got

into an argument with Morrison and hit her on the head with a PVC

pipe while the trio was walking from a local bar. Upon investigating

appellant’s claim further, the police discovered that J.M. was not in

Washington Courthouse that morning. Thereafter, following a police

investigation, appellant was arrested and indicted for Morrison’s

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murder.

At trial appellant testified that his original statement to police

implicating J.M. in Morrison’s murder was false. Instead, appellant

testified that he left the bar with Morrison that night, but, after she

had walked ahead of him, he saw her attacked and beaten by two men

smoking crack cocaine in an alley behind his former residence.

Appellant also testified that after seeing Morrison attacked he became

scared, ran into the vacant home, and hid in a small furnace room.

Thereafter, while appellant hid in the furnace room, the two men

dragged Morrison inside the house and hit her with a PVC pipe.

Although he claimed to know one of the men who attacked Morrison,

appellant refused to identify the attacker because he felt threatened

and believed that his family was in danger. A Fayette County jury

found appellant guilty and he was sentenced to serve a mandatory

term of fifteen years in prison.

State v. Smith, No. CA20060-08-030, 2009 WL 1198841 (Ohio App. 12th Dist. Jan. 20, 2009). 

Petitioner asserted the following assignments of error on appeal:1

1. THE TRIAL COURT ERRED WHEN IT FAILED TO

GRANT [APPELLANT’S] MOTION TO SUPPRESS HIS

STATEMENTS MADE TO LAW ENFORCEMENT.

2. THE TRIAL COURT ERRED WHEN IT PERMITTED

[APPELLANT’S] WIFE TO TESTIFY FOR THE STATE

WITHOUT DETERMINING HER COMPETENCY UNDER

EVID.R. 601.

3. THE TRIAL COURT ERRED BY ENTERING A

JUDGMENT OF CONVICTION FOLLOWING

PROSECUTORIAL MISCONDUCT DURING CLOSING

ARGUMENT, DENYING [APPELLANT] THE RIGHT TO

1

 On January 19, 2007, the state appellate court dismissed Petitioner’s timely appeal for

failure to prosecute. Exhibits 6, 7 to Return of Writ. On June 22, 2007, Petitioner wrote a letter

of complaint to the state appellate court. The Ohio Court of Appeals construed his letter as an

application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). On July 25, 2007, the

appellate court reopened Petitioner’s appeal and appointed new counsel on Petitioner’s behalf to

represent him in appellate proceedings. Exhibits 8, 9 to Return of Writ. 

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A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION AND ART. I. § 16 OF THE OHIO

CONSTITUTION.

4. [APPELLANT] WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL

FAILED TO USE OBJECTIONS, FAILED TO

EFFECTIVELY CROSS-EXAMINE WITNESSES, FAILED

TO SUBPOENA WITNESSES, FAILED TO

INVESTIGATE, AND FAILED TO MOVE FOR A

MISTRIAL WHEN WARRANTED.

5. THE TRIAL COURT ERRED IN OVERRULING

[APPELLANT’S] MOTION FOR JUDGMENT OF

ACQUITTAL PURSUANT TO CRIM.R. 29.

6. THE JUDGMENT OF CONVICTION IS CONTRARY TO

LAW AND TO THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, IN THAT THERE WAS INSUFFICIENT

EVIDENCE ADDUCED TO ESTABLISH EACH AND

EVERY ELEMENT OF THE OFFENSE CHARGED

BEYOND A REASONABLE DOUBT.

7. THE JUDGMENT OF THE TRIAL COURT IS

CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE.

Id. at *1-10. On January 20, 2009, the appellate court affirmed the trial court’s judgment. Id. On

June 17, 2009, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Smith,

122 Ohio St.3d 1410 (2009). 

Petitioner also pursued post conviction relief. On March 29, 2010, he filed a post conviction

petition in the state trial court. Exhibit 17 to Return of Writ. The trial court apparently has never

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issued a ruling on Petitioner’s post conviction petition.2

 

On February 16, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of

the United States Constitution based upon the following grounds: 

1. The trial court erred when it failed to grant Smith’s motion to

suppress his statements to law enforcement.

2. The trial court erred when it permitted Smith’s wife to testify

for the State without determining her competency. 

3. The trial court erred by entering a judgment of conviction

following prosecutorial misconduct during closing arguments,

denying Smith the right to a fair trial in violation of the

Fourteenth Amendment of the United States Constitution.

4. The petitioner was denied the effective assistance of counsel

when trial counsel failed to use objections, failed to crossexamine witnesses, failed to subpoena witnesses, failed to

investigate, failed to move for a mistrial when warranted, and

was suspended indefinitely from the practice of law by the

Supreme Court of Ohio.

5. The trial court erred in overruling Smith’s motion for

judgment of acquittal pursuant to Crim. R. 29. 

6. The judgment of conviction is contrary to law, and to the Due

Process Clause of the Fourteenth Amendment to the United

States Constitution, in that there was insufficient evidence

adduced to establish each and every element of the offense

charged beyond a reasonable doubt. 

7. The judgment of the trial court is contrary to the manifest

weight of the evidence. 

2

 Petitioner does not raise in these proceedings any issue set forth in his state habeas

corpus petition. 

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It is the position of the Respondent that Petitioner’s claims are procedurally defaulted or without

merit. 

PROCEDURAL DEFAULT

CLAIM THREE

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

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

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

the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to

do so, but the state still provides a remedy to pursue, his or her petition is subject to dismissal for

failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v.

Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no

longer present the relevant claims to a state court, the petitioner also waives the claims for purposes

of federal habeas review unless he or she can demonstrate cause for the procedural default and actual

prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451

(2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether

procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138 (6th

Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the fourpart analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth Circuit

requires the district courts to engage in the following inquiry:

First, the court must determine that there is a state procedural rule

that is applicable to the petitioner’s claim and that the petitioner

failed to comply with the rule. . . . Second, the court must decide

whether the state courts actually enforced the state procedural

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sanction. . . . Third, the court must decide whether the state

procedural forfeiture is an adequate and independent state ground on

which the state can rely to foreclose review of a federal constitutional

claim. 

Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if “the court determines that a state

procedural rule was not complied with and that the rule [has] an adequate and independent state

ground, then the petitioner” may still obtain review of his claims on the merits if he establishes: (1)

a substantial reason to excuse the default and (2) that he was actually prejudiced by the alleged

constitutional error. Id. ‘Cause’ under this test “must be something external to the petitioner,

something that cannot fairly be attributed to him[;] . . . some factor external to the defense [that]

impeded [] efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 753. This

“cause and prejudice” analysis also applies to failure to raise or preserve issues for review at the

appellate level or failure to appeal at all. Id at 750.

Nevertheless, “‘[i]n appropriate cases’ the principles of comity and finality that inform the

concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust

incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). 

Petitioners who fail to show cause and prejudice for procedural default may nonetheless receive a

review of their claims if they can demonstrate that a court’s refusal to consider a claim would result

in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261

F.3d 594, 601–02 (6th Cir. 2001) (same). The fundamental miscarriage of justice exception requires

a showing that “in light of the new evidence, no juror, acting reasonably, would have voted to find

him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995).

In claim three, Petitioner asserts that he was denied a fair trial due to prosecutorial

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misconduct during closing arguments. Petitioner raised this claim on direct appeal; however, the

state appellate court reviewed the claim for plain error because Petitioner had failed to object during

trial: 

[A]ppellant argues that the prosecutor made statements during

closing argument that prejudicially affected his substantial rights and

denied him a fair trial. This argument lacks merit.

The prosecution is entitled to a degree of latitude in its closing

remarks. State v. Cobb, Butler App. No. CA2007-06-153, 2008-

Ohio-5210, ¶ 115, citing State v. Smith (1984), 14 Ohio St.3d 13, 470

N.E.2d 883. For example, the “prosecutor may comment upon the

testimony and suggest the conclusions to be drawn from it.” State v.

Smith, Butler App. No. CA2007-05-133, 2008-Ohio-2499, ¶ 7.

However, “a prosecutor cannot express his personal belief or opinion

as to the credibility of a witness or as to the guilt of the accused, or

go beyond the evidence which is before the jury when arguing for

conviction.” Id. Isolated comments by a prosecutor are not to be

taken out of context and given their most damaging meaning. State

v. Hill, 75 Ohio St.3d 195, 204, 1996-Ohio-222. Instead,

prosecutorial misconduct will only be found when the remarks made

during closing argument were improper and those improper remarks

prejudicially affected substantial rights of the defendant. State v.

Elmore, 111 Ohio St.3d 515, 857 N.E.2d 547, 2006-Ohio-6207, ¶ 62.

Further, prosecutorial misconduct is not grounds for reversal unless

the defendant has been denied a fair trial due to the prosecutor’s

prejudicial remarks. State v. Murphy, Butler App. No. CA2007-03-

073, 2008-Ohio-3382, ¶ 9, citing State v. Maurer (1984), 15 Ohio

St.3d 239, 266, 473 N.E.2d 768. A reviewing court “will not deem a

trial unfair if, in the context of the entire trial, it appears beyond a

reasonable doubt that the jury would have found the defendant guilty

even without the improper comments.” Smith, 2008-Ohio-2499 at ¶

9.

Appellant failed to raise any objections at trial regarding

prosecutorial misconduct during the prosecution’s closing argument.

Therefore, because appellant raises the issue of prosecutorial

misconduct for the first time on appeal, he has waived any challenge

except for plain error. Cobb, 2008-Ohio-5210 at ¶ 117.

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A plain error is any error or defect “affecting substantial rights [that]

may be noticed although they were not brought to the attention of the

court.” Crim.R. 52(B). “Notice of plain error must be taken with

utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.” State v. Baldev, Butler App. No.

CA2004-05-106, 2005-Ohio-2369, ¶ 12, citing State v. Long (1978),

53 Ohio St.2d 91, 95, 372 N.E.2d 804. Accordingly, an error does not

rise to the level of a plain error unless, but for the error, the outcome

of the trial would have been different. Baldev at ¶ 12; State v. Krull,

154 Ohio App.3d 219, 796 N.E.2d 979, 2003-Ohio-4611, ¶ 38.

Initially, it should be noted that the jury was instructed that the

statements made during opening and closing arguments were not

evidence. See State v. Myers, Fayette App. No. CA2005-12-035,

2007-Ohio-915, ¶ 28. Therefore, we must presume that the jury

followed the trial court’s instructions. See State v. Manns, 169 Ohio

App.3d 687, 864 N.E.2d 657, 2006-Ohio-5802.

Appellant argues that his conviction should be reversed because the

“prosecution’s closing argument was packed with improper remarks,

vouching, assumption of facts that were not in evidence, and

misstatements of the evidence.” In support of this argument, appellant

first claims that the prosecutor made prejudicial remarks which

denied him a fair trial by stating that Officer Jean Boone “took a

report about a stolen wallet down on East Market Street and went out

there to investigate it” at approximately 2:50 a.m., thus placing her,

according to appellant, “across the alley from the crime scene.”

However, even though Officer Boone actually testified that she took

the report between 3:30 and 4:00 a.m., we fail to see how this

misstatement prejudiced appellant in any significant manner, let

alone denied him a fair trial. As a result, because appellant has failed

to demonstrate that the prosecutor’s statements had any prejudicial

affect on the outcome of the trial, there is no error, let alone plain

error.

Second, appellant essentially argues that the prosecutor made

prejudicial remarks which denied him a fair trial when he stated that

appellant had “extraordinarily short fingernails that you can’t get any

clippings from, [and that he] shaved [his] pubic hair, * * * the doctor

said he tried but he didn’t see anything in that manila envelope” to

test. Appellant claims that this statement improperly suggested that

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appellant cut his fingernails and shaved his pubic hair to eliminate

any evidence that may have implicated him in the murder. However,

based on our review of the record, we find that the prosecution was

merely reiterating the testimony of Dr. Albert George Gay, who

testified, in pertinent part, that he “was unable to collect any

fingernail cuttings because the fingernails had been cut so short * *

* and then also the pubic hair had been cut or shaved so short that

[he] could not collect any pubic hair.” As a result, the prosecutor was

not improperly misstating the evidence presented, and therefore, no

error exists, much less plain error.

Third, appellant argues that the prosecutor made prejudicial remarks

which denied him a fair trial by stating Phillip Henry, appellant’s

cellmate, was told by appellant that investigators would not find any

evidence on his shoes because he poured something on them.

Specifically, appellant claims that the prosecutor’s statement denied

him a fair trial because “a BCI analyst testified that presumptive

testing indicated the presence of blood on the shoes.” However, based

on our review of the record, the prosecutor’s statement reiterated the

exact testimony provided by Henry, who testified in pertinent part,

that appellant told him “he poured something onto his real nice,

expensive shoes * * * paint thinner, some kind of paint or something

like that to cover up something * * *.” As a result, the prosecutor’s

comment cannot be considered improper because it reiterated the

exact testimony of Henry, and therefore, not in error.

Fourth, appellant argues that the prosecutor made prejudicial remarks

when he “vouched for his own case” by stating; “Ladies and

Gentlemen, [the police] waited two weeks to make an arrest. They

wanted to make sure they had the right guy.” However, based on our

review of the record, we find that this statement was not improper

“vouching,” but instead, used to rebut appellant’s claim that the

police conducted a hurried investigation without eliminating all other

leads prior to his arrest. See State v. Farwell, Clermont App. No.

CA2001-03-041, 2002-Ohio-1912. Therefore, because we find this

comment was not improper, no error exists.

Finally, appellant argues that the prosecutor made prejudicial

remarks, which, according to appellant, were comments regarding his

“prior bad acts.” Specifically, appellant claims that the prosecutor

made an improper statement by noting the police, when dispatched

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to appellant’s home to investigate prior claims of domestic violence,

would “[u]sually [find] the lights * * * on, [and see appellant and his

wife] yelling and carrying on,” as opposed to the morning of January

1, 2006 when the police found the house dark and did not hear any

yelling. Here, the prosecutor’s statement, contrary to appellant’s

claims, did not constitute an improper comment on appellant’s prior

bad acts, but instead, merely highlighted what police believed to be

the unusual nature of the residence when they arrived at his home that

morning, and therefore, not in error.

In light of the foregoing, we find that the prosecution’s closing

statements were either not improper, or did not prejudice appellant so

as to deny him a fair trial. Therefore, because we find no error in any

of the prosecutor’s statements challenged by appellant, much less

plain error, his third assignment of error is overruled.

State v. Smith, 2009 WL 119841, at *5-7. 

“When a habeas petitioner fails to obtain consideration of a claim by a state court, . . . due

to the petitioner’s failure to raise that claim before the state courts while state-court remedies are still

available . . . that claim is procedurally defaulted and may not be considered by the federal court on

habeas review.” Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000). Petitioner contends that

he was denied a fair trial because of prosecutorial misconduct. This ground is defaulted because he

failed to raise it at trial and the court of appeals reviewed it for plain error. Moreover, the United

States Court of Appeals for the Sixth Circuit has held a state court’s review of a claim for plain error

review does not constitute a waiver of the state’s procedural default rules. Seymour, 224 F.3d at

557.

Ohio has a contemporaneous objection rule under which an appellant

who fails to object waives later review of the issue unless plain error

can be shown. Williams v. Bagley, 380 F.3d 932, 968 (6th Cir. 2004),

cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 L.Ed.2d 779 (2005)

(citing State v. Smith, 89 Ohio St.3d 323, 332, 731 N.E.2d 645

(2000)). The Sixth Circuit has held that Ohio’s contemporaneous

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objection rule constitutes an adequate and independent state ground

barring federal review absent a showing of cause for the waiver and

resulting prejudice. Id.; Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.

2001); Stojetz v. Ishee, 2006 WL 328155 *12 (S.D. Ohio Feb.10,

2006).

A state court’s review of an issue for plain error is considered by the

Sixth Circuit as the enforcement of a procedural default. Williams,

380 F.3d at 968; Hinkle, 271 F.3d at 244. The federal court, in

determining whether a state court has relied on a procedural rule to

bar review of an issue, examines the latest reasoned opinion of the

state courts and presumes that later courts enforced the bar instead of

rejecting the claim on the merits. Hinkle, 271 F.3d at 244 (citing Ylst,

v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706

(1991)).

Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D. Ohio 2007). Therefore, Petitioner has waived 

claim three for federal habeas corpus review. 

Petitioner may still may obtain review of this claim on the merits, if he establishes cause for

his procedural default, as well as actual prejudice from the alleged constitutional violation.

 “ ‘[C]ause’ under the cause and prejudice test must be something

external to the petitioner, something that cannot fairly be attributed

to him[;] ... some objective factor external to the defense [that]

impeded ... efforts to comply with the State’s procedural rule.”

Coleman v. Thompson, 501 U.S. 722, 753 (1991).

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). 

As cause for his procedural default, Petitioner asserts that his counsel was ineffective by

failing to object. He raises the same issue of ineffective assistance of counsel in claim four of his

Petition. Constitutionally-ineffective assistance of counsel may constitute cause for a procedural

default, so long as such claim has been presented to the state courts and is not, itself, procedurally

defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (citing Murray v. Carrier, 477 U.S.

478, 488-89 (1986)). 

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 The state appellate court rejected petitioner’s claim of ineffective assistance of counsel in

relevant part as follows:

[A]ppellant claims that his trial counsel was ineffective because he

failed to object during the state’s closing argument. However, as we

discussed in appellant’s third assignment of error, the prosecutor’s

closing argument was proper and did not prejudice appellant so as to

deny him a fair trial. As a result, we find appellant’s claim of

ineffective assistance of counsel based on his failure to object to the

statements made by the prosecutor during the state’s closing

argument is without merit.

State v. Smith, 2009 WL 119841, at *10. 

Under 28 U.S.C. § 2254(e)(1), the state court’s factual findings are presumed to be correct:

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 to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

Additionally, the state court’s decision is binding on this Court unless that decision is contrary to

or involves an unreasonable application of clearly established federal law as determined by the

United States Supreme Court:

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 upon an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d).

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

writ if the state court arrives at a conclusion opposite to that reached

by [the United States Supreme Court] on a question of law or if the

state court decides a case differently than [the United States Supreme

Court] has on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may grant

the writ if the state court identifies the correct governing legal

principle from [the United States Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Petitioner has failed to meet this standard here.

In this habeas corpus petition, Petitioner raises various claims of ineffective assistance of

counsel. In Strickland v. Washington, the Supreme Court reiterated that the right to counsel

guaranteed by the Sixth Amendment is the “right to effective assistance of counsel.” 466 U.S. 668,

686 (1984.) To prevail on a complaint of ineffective assistance of counsel, a petitioner must

demonstrate the following:

First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Id. at 687. Scrutiny of defense counsel's performance must be “highly deferential.” Id. at 689.

Given the difficulties “inherent” the analysis of whether an attorney’s performance was

constitutionally deficient,”a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance. . . .” Id. Nevertheless, “[a]n error by

counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment.” Id. at 692. A petitioner, therefore,

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must show prejudice in order to prevail on a claim of ineffective assistance of counsel. Id. at 693.

To do so, a petitioner must demonstrate that a reasonable probability exists that, but for counsel's

errors, the result of the proceedings would have been different. Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. Because

Petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of

counsel, should the court determine that Petitioner has failed to satisfy one prong, it need not

consider the other. Id. at 697.

For the reasons discussed by the state appellate court, this Court agrees that the prosecutor’s

statements about which Petitioner complains were not improper and did not prejudice him. He has

failed to establish either ineffective assistance under the test set forth in Strickland, or cause and

prejudice for his procedural default of claim three. 

 Beyond the four-part Maupin analysis, this Court is required to consider whether this is “an

extraordinary case, where a constitutional violation has probably resulted in the conviction of one

who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S.

333 (1992). After review of the record, the Court does not deem this to be such a case.

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CLAIMS TWO AND FIVE

In claim two, Petitioner asserts that the trial court improperly failed to determine whether

his wife was competent to testify under Rule 601(B) of the Ohio Rules of Evidence.3

 In claim five,

Petitioner asserts that the trial court improperly failed to grant his motion for judgment of acquittal

pursuant to Ohio Criminal Rule 26.4

 These claims present issues regarding the alleged violation of

state law and, therefore, fail to present issues appropriate for federal habeas corpus relief. 

A federal court may review a state prisoner’s habeas petition only on the grounds that the

challenged confinement violates the Constitution, laws or treaties of the United States. 28 U.S.C.

§ 2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a perceived error

of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th

Cir. 1988). “ ‘[E]rrors in application of state law, especially with regard to the admissibility of

evidence, are usually not cognizable in federal habeas corpus.’” Bugh v. Mitchell, 329 F.3d 496, 512

(6th Cir. 2003) (quoting Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983) (other citations

omitted)). The Court “must defer to a state court’s interpretation of its own rules of evidence and

3

 Rule 601(B) of the Ohio Rules of Evidence provides: 

Every person is competent to be a witness except:

(B) A spouse testifying against the other spouse charged with a crime except

when either of the following applies:

(1) a crime against the testifying spouse or a child of either spouse is charged;

(2) the testifying spouse elects to testify.

4

 To the extent that Petitioner raises a claim of insufficiency of the evidence, this

assertion is discussed infra.

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procedure when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.2005)

(internal quotation omitted). Claims of state law error are not cognizable in federal habeas corpus

“unless such error amounts to a fundamental miscarriage of justice or a violation of the right to due

process in violation of the United States Constitution.” Cristini v. McKee, 526 F.3d 388, 897 (6th

Cir. 2008). The record fails to reflect such circumstances here.

Claims two and five are without merit. 

CLAIM ONE

In claim one, Petitioner asserts that the trial court improperly admitted his statements to

police in violation of Miranda v. Arizona, 384 U.S. 436 (1966) and thus erred by failing to grant his

motion to suppress. The state appellate court rejected this claim as follows: 

[A]ppellant argues that the trial court erred in denying his motion to

suppress statements he made to police during three police interviews

conducted on January 1 and January 6, 2006. Specifically, appellant

claims that his statements to police were made while he was in

custody, and therefore, obtained in violation of his Fifth Amendment

right against self-incrimination because he was either not read his

Miranda warnings, or did not validly waive those rights. This

argument lacks merit.

Appellate review of a trial court’s ruling on a motion to suppress

evidence presents a mixed question of law and fact. State v. Long

(1998), 127 Ohio App.3d 329, 332. When considering a motion to

suppress, the trial court assumes the role of the trier of fact, and

therefore, is in the best position to resolve factual questions and

evaluate witness credibility. State v. Burnside, 100 Ohio St.3d 152,

797 N.E.2d 71, 2003-Ohio-5372, ¶ 8. A reviewing court must accept

the trial court’s findings of fact if they are supported by competent,

credible evidence. State v. Bryson (2001), 142 Ohio App.3d 397, 402,

755 N.E.2d 964. The appellate court then determines, as a matter of

law, and without deferring to the trial court’s conclusions, whether

the trial court applied the appropriate legal standard. Id.

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It is well-established that the “prosecution may not use statements,

whether exculpatory or inculpatory, stemming from a custodial

interrogation unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.” State v.

Huysman, Warren App. No. CA2005-09-107, 2006-Ohio-2245, ¶ 13,

quoting Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct.

1602, 16 L.Ed.2d 694. The warnings outlined in Miranda are only

required when there has been such a restriction on the person’s

freedom as to render him in custody. Id., citing Oregon v. Mathiason

(1977), 429 U.S. 492, 494, 97 S.Ct. 711, 50 L.Ed.2d 714.

In determining whether an individual was in custody, a court must

examine the totality of the circumstances surrounding the

interrogation. State v. Coleman, Butler App. No. CA2001-10-241,

2002-Ohio-2068, ¶ 23. “[T]he ultimate inquiry is simply whether

there [was] a ‘formal restraint or restraint on freedom of movement’

of the degree associated with a formal arrest.” Huysman at ¶ 15,

quoting California v. Beheler (1983), 463 U.S. 1121, 1125, 103 S.Ct.

3517, 77 L.Ed.2d 1275. In turn, a person is in custody if he is

formally placed under arrest prior to a police interrogation, or, if not

formally arrested, when there is a significant restraint on his freedom

of movement. Huysman at ¶ 15, citing State v. Staley (May 8, 2000),

Madison App. No. CA99-08-019, at 7.

Additionally, it should be noted that a person is not in custody merely

because he is questioned at the police station or because he is

considered a suspect. Mathiason, 429 U.S. at 495. In fact, “[e]ven a

clear statement from an officer that the person under interrogation is

a prime suspect, is not, in itself, dispositive of the custody issue, for

some suspects are free to come and go until the police decide to make

an arrest.” Huysman at ¶ 16, quoting Stansbury v. California (1994),

511 U.S. 318, 324, 114 S.Ct. 1526, 128 L.Ed.2d 293. Further, a

person is not in custody simply because they are transported to the

police station by a police officer. State v. Warren (Oct. 25, 1996),

Montgomery App. No. 15202, 1996 WL 612858, at *8. This is

especially true when the person is free to leave at any time. Id.

Instead, the ultimate determination of whether a person is in custody

depends “on the objective circumstances of the interrogation, not on

the subjective views harbored by either the interrogating officers or

the person being questioned.” Huysman at ¶ 16.

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Appellant, in regards to his first police interview, claims that the trial

court erred in finding that he was not in custody because he was

questioned as a suspect, not a witness, and therefore, should have

been given his Miranda warnings. However, contrary to appellant’s

claim, a determination of whether he was being questioned as a

suspect is not dispositive of the custody issue, but rather, such a

determination depends on the objective circumstances of the

interrogation. Mathiason at 495; Huysman at ¶ 16.

Appellant called the police on January 1, 2006 at approximately 4:00

a.m. to report that he was a witness to Morrison’s murder. In

response, the police went to appellant’s house, found him in a

distressed state, and transported him to the police station in an effort

to obtain his statement. Once he arrived at the police station,

appellant was placed in an interview room where he met with

Detective Jeff Funari. At the suppression hearing, Det. Funari

testified that the door to the interview room was kept open, that

appellant was given water, that appellant was able to use the

restroom, and that he was never arrested or placed in custody. Det.

Funari also testified that even though appellant was at the police

station for at least three hours, his interview lasted approximately 20

minutes and that appellant was free to leave once it concluded.FN1

FN1. Det. Funari testified that appellant stayed at the

police station after his interview was complete

because appellant’s wife was also being interviewed

and because photographs were being gathered in an

effort to conduct a photo-array.

Considering the foregoing circumstances, the trial court determined

that appellant was being questioned merely as a witness, not in

custody, and not deprived of his freedom in any significant way. We

find no error in the trial court’s conclusion.

Next, in regards to his second police interview conducted several

hours later, appellant argues that “the trial court erred in concluding

that [appellant] validly waived his Miranda rights,” and therefore, his

statements should have been suppressed.

On January 1, 2006 at approximately 1:00 p.m., after being

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transported by police back to the police station, appellant was

interviewed for a second time. Here, unlike his previous interview,

appellant’s second interview was conducted by Sergeant Russell

Martin Lowe in an upstairs office. At the suppression hearing, Sgt.

Lowe testified that he advised appellant of his Miranda rights and

appellant provided him with an oral statement. Thereafter, when

appellant told Sgt. Lowe that he was tired and that he wanted to go

home, appellant left the police station.

The trial court, contrary to appellant’s claim, did not conclude, let

alone discuss, whether appellant waived his Miranda rights at this

interview. Instead, the trial court found that appellant was given his

Miranda warnings “even though [he] was not in custody and was free

to leave.” We find no error in this conclusion.

Finally, in regards to his third police interview conducted on January

6, 2006, appellant again argues that the trial court erred in denying

his motion to suppress because “at that point, [he] was a suspect,”

and that he did not voluntarily appear at the police station because he

was transported there by a police officer. However, as stated above,

a determination of whether a person was being questioned as a

suspect, or whether that person was transported to the police station

by the police, is not dispositive of the custody issue. Mathiason, 429

U.S. at 495; Huysman, 2006-Ohio-2245 at ¶ 16. Instead, such a

determination of custody depends on the objective circumstances of

the interrogation. Warren, 1996 WL 613858 at *8.

After Sgt. Lowe unsuccessfully attempted to persuade appellant to

take a polygraph test, he called appellant and asked him to come to

the police station so that he could “just explain * * * the problems

with [his previous] statements.” Prior to coming to the police station,

Sgt. Lowe also informed appellant that if he came to the police

station that he could then leave at anytime. A short time later,

appellant arrived at the police station and again met with Sgt. Lowe

in an upstairs office. Thereafter, prior to being questioned, Sgt. Lowe

told appellant that he was not in custody and that he did not intend to

place him in custody. After he was questioned for a short time,

appellant, who was now considered a suspect, asked to go home and

left the police station. Based on these facts, the trial court found

appellant was not in custody during the interview. We find no error

in this conclusion.

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In light of the foregoing, and considering the totality of the

circumstances, we find no error in the trial court’s determination that

appellant was not in custody during the three police interviews

conducted on January 1, and January 6, 2006, respectively. As a

result, because appellant was not in custody during his three police

interviews, a recitation of his Miranda warnings was not required,

and therefore, his Fifth Amendment rights were not violated.

Accordingly, appellant’s first assignment of error is overruled.

State v. Smith, 2009 WL 119841, at *1-4. 

The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case

to be a witness against himself.” U .S. Const. amend. V. The privilege against self-incrimination,

applicable to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 8 (1964),

forbids the State’s use of statements, “whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). An

individual taken into custody is guaranteed the right to remain silent and to the assistance of counsel,

either retained or appointed, during the custodial interrogation, and to be informed that anything he

says can be used against him in a court of law. Miranda, 384 U.S. at 478-79.5 The interrogation of

a suspect in custody who has not received these so-called Miranda warnings is “presumed

compelled.” Oregon v. Elstad, 470 U.S. 298, 317 (1985). Miranda warnings must be administered

“in the context of custodial interrogations given ‘the compulsion inherent in custodial

surroundings.’” Yarborough v. Alvarado, 541 U.S. 652, 661 (2004)(quoting Miranda, 384 U.S. at

5

 A defendant, however, can waive these rights as long as the waiver is voluntary,

knowing, and intelligent. Miranda, 384 U.S. at 444. The Government bears the burden of

proving waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168

(1986).

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458).

A custodial interrogation has been defined as “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom of action

in any significant way.” Id. The custody determination is an objective one that “must be determined

based on how a reasonable person in the suspect’s situation would perceive his circumstances.” Id.

The Court must consider (1) the circumstances surrounding the interrogation; and (2) whether a

reasonable person would have felt at liberty to terminate the interrogation and leave. Id. (citing

Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Factors relevant to the inquiry include: “the

location of the interview; the length and manner of questioning; whether the individual possessed

unrestrained freedom of movement during the interview; and whether the individual was told [he]

need not answer the questions.” United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009). 

Petitioner contends that the state appellate court improperly concluded that he was not in

custody while being questioned by police because Detective Jeff Funari interviewed him for two to

three hours,6

 police transported him to the police station, and he did not feel free to leave. 

6

 Detective Funari testified that Petitioner remained at the police station during the time

of his initial interview, between 2 1⁄2 to 3 hours. His taped statement, however, lasted only

twenty minutes. The remainder of this time, Funari was speaking with Petitioner’s wife, and

attempting to locate photographs for a photographic line-up so that Petitioner could make an

identification of Jeremiah Miller, whom he had identified as Morrison’s assailant. Trial

Transcript, at 156-57. During this time, police brought Jeremiah Miller to the station for

questioning. Miller overhead Petitioner mention his (Miller’s) name and was incredulous. 

Miller denied even being in the same city at the time of the murder:

I said Josh look me in the eye and tell me I was in [Washington] Court House

with you[.] [H]e said I just want to go home. Not raising his head one time. . . . I

stood there. . . [H]e went to walk out the door walking right past me. . . .

Id. at 198. 

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Additionally, Petitioner complains that police never told him he could leave, accompanied him to

the bathroom, denied him access to his wife, and interrogated him in a small room, requiring him

to write out his answers to questions. He again argues that his statements to police are inadmissable

because police obtained his statement without first advising him of his rights under Miranda. 

This Court is not persuaded by Petitioner’s arguments. This Court conducts “two discrete

inquiries” in determining whether a defendant has been placed “in custody” so as to require police

to issue the required warnings under Miranda. Yarborough v. Alvarado, 541 U.S. 652, 663

(2004)(citing Thompson v. Keohane, 516 U.S. 99 (1995)). 

“[F]irst, what were the circumstances surrounding the interrogation;

and second, given those circumstances, would a reasonable person

have felt he or she was not at liberty to terminate the interrogation and

leave. Once the scene is set and the players’ lines and actions are

reconstructed, the court must apply an objective test to resolve the

ultimate inquiry: was there a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.”

Id. (quoting Thomas v. Keohane, 516 U.S. at 112)(internal quotation marks and footnote omitted). 

 As discussed by the state appellate court, the record indicates that, on January 1, 2006, in

response to Petitioner’s call to police indicating he had been a witness to a possible murder, police

transported Petitioner and his wife to the station to obtain their statements.7

 Transcript, Hearing on

Motion to Suppress, at 9. Petitioner provided a two page hand-written statement. Petitioner

7

 In response to Petitioner’s call to police stating that he thought he had witnessed a

murder, police responded to the home of Petitioner and his wife, Tanya Smith. Trial Transcript,

at 110-112. Petitioner stated he had seen Jeremiah Miller hit Michelle Morrison with a PVC

pipe outside a fire-damaged home on Walnut Street near the alley. Id. at 118. Police

investigated that area and found Morrison’s body. Id. at 116. Officer Flynn returned to Smith’s

residence, “picked up him and his wife and asked them if they wouldn’t mind coming to the

police department to make a statement of what had happened, they agreed to it and I transported

them to the police department.” Id. at 138. 

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requested to go to the bathroom, and Detective Funari showed him where the bathroom was located. 

Id. at 14. Funari spoke with Petitioner for approximately twenty minutes, and then left Petitioner to

write out his own statement while Funari interviewed Petitioner’s wife. Id. at 19. Sergeant Lowe

later again interviewed Petitioner that same day, at which time Petitioner again gave the same

statement. Petitioner said he was tired and wanted to go home and sleep. Police permitted him to

do so. Id. at 27. Petitioner also called his wife at this time, and on two occasions got a drink from

the water fountain. Id. at 30. Police never told Petitioner he could not leave. Nor did they threaten

to place him under arrest or make a show of force by handcuffing Petitioner or brandishing firearms. 

Police permitted Petitioner to go home when he desired to do so. On January 6, 2006, police asked

Petitioner to come to the station to explain the problems with his statements. Id. at 31. He made no

further statements regarding his involvement in the crime charged at that time. Again, police let him

leave when he said he wanted to go home. Id. 

In view of these circumstances, this Court is not persuaded that the state appellate court’s

determination that the facts failed to reflect Petitioner was in custody as defined under Miranda

constituted an unreasonable application of federal law so as to warrant federal habeas corpus relief. 

Even had this Court disagreed with the state court of appeals, “a federal habeas court may not issue

the writ simply because that court concludes in its independent judgment that the state-court decision

applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). “Relief

is available under § 2254(d)(1) only if the state court’s decision is objectively unreasonable.

Yarborough v. Alvarado, 541 U.S. at 666 (citing Williams, 529 U.S., at 410; Andrade, 538 U.S., at

75). 

Claim one is without merit. 

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CLAIM FOUR

In claim four, Petitioner asserts that he was denied the effective assistance of counsel. He

asserts, inter alia, that he was denied the effective assistance of appellate counsel because his

attorney was suspended indefinitely from the practice of law and failed to pursue his direct appeal. 

Respondent contends that this claim is waived because Petitioner never presented it to the state

courts. The state appellate court, however, construed Petitioner’s letter of complaint against counsel

as an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). The appellate

court granted Petitioner’s request to reopen his appeal, and appointed new appellate counsel on his

behalf. See Exhibits 6-9 to Return of Writ. Therefore, this claim plainly lacks merit. Petitioner

cannot establish prejudice, as that term is defined under Strickland based on his attorney’s failure to

pursue his direct appeal. 

 The state appellate court rejected the remainder of Petitioner’s claims of ineffective

assistance of trial counsel as follows:

To demonstrate ineffective assistance of counsel, a defendant must

establish that his counsel’s representation fell below an objective

standard of reasonableness, and was prejudiced from counsel’s

deficient performance. Strickland v. Washington (1984), 466 U.S.

668, 687-691, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley

(1989), 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373. “Reversal of a

conviction for ineffective assistance of counsel ‘requires showing that

counsel made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment.’” State

v. Hand, 107 Ohio St.3d 378, 840 N.E.2d 151, 2006-Ohio-18, ¶ 199,

quoting Strickland at 687. In addition, “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id.

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“Trial counsel is entitled to a strong presumption that his or her

conduct falls within the wide range of reasonable assistance.” State v.

Carver, Montgomery App. No. 21328, 2008-Ohio-4631, ¶ 112, citing

Strickland at 689. “Hindsight is not permitted to distort the assessment

of what was reasonable in light of counsel’s perspective at the time,

and a debatable decision concerning trial strategy cannot form the

basis of a finding of ineffective assistance of counsel.” Carver at ¶

112.

Appellant argues that his trial counsel was ineffective because he

failed to object to the state calling his wife as a witness at trial.

However, “the failure to object to error, alone, is not enough to sustain

a claim of ineffective assistance of counsel.” State v. Hale, 119 Ohio

St.3d 118, 892 N.E.2d 864, 2008-Ohio-3426, ¶ 233. Further, as was

discussed above in his second assignment of error, once appellant

called his wife to testify at the suppression hearing he waived any

challenge as to the issue of her competency under Evid.R. 601, and

therefore, no error occurred. Smith, 2003-Ohio-2850 at ¶ 10. As a

result, because we find that no error occurred, appellant cannot

establish prejudice due to his trial counsel’s failure to object to the

same. Therefore, we find appellant’s claim of ineffective assistance of

counsel based on his trial counsel’s failure to object to the state calling

his wife as a witness at trial is without merit.

Next, appellant argues that his trial counsel was ineffective because he

failed to object to the “bad act” testimony of Officer Boone when she

testified that appellant and his wife were “usually screaming and

yelling” when she responded to domestic violence calls at their

residence. Specifically, appellant claims that the failure to object to the

testimony amounted to ineffective assistance because such testimony

“unfairly bolstered” the state’s case-in-chief. However, as stated

above, the testimony of Officer Boone, which was reiterated in the

state’s closing argument, was not introduced in an attempt to show

appellant was involved in prior bad acts, but instead, used to highlight

the unusual nature of the residence when the police arrived at his

home on the morning of January 1, 2006. As a result, we find

appellant’s claim of ineffective assistance of counsel based on the

failure to object to the testimony of Officer Boone is without merit.

Appellant also argues that his trial counsel was ineffective because he

failed to object to “vast amounts of hearsay” testimony from Det.

Funari. Specifically, appellant claims that his trial counsel was

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ineffective because he failed to object to Det. Funari’s testimony

regarding his contact with J.M., the original suspect in the murder, and

the man appellant claimed had murdered Morrison in his initial

interview. However, as appellant notes, and to which we agree, most

of Det. Funari’s testimony regarding police contact with J.M. also

“came out at trial directly from them” on cross-examination. As a

result, based on our review of the record, we find appellant’s claim of

ineffective assistance of counsel based on his failure to object to the

testimony of Det. Funari is without merit.

Next, appellant argues that his trial counsel was ineffective because he

failed to subpoena necessary witnesses to show “major

inconsistencies” in statements concerning D.G., a suspect police later

eliminated from consideration, in an effort to prove the police “rushed

to judgment” in charging him with murder. Appellant claims that

“perhaps the jury would have found that reasonable doubt existed as

to whether [he] committed the crime, or merely witnessed it” if these

witnesses were subpoenaed.

The mere failure to subpoena witnesses for a trial is not a substantial

violation of defense counsel’s essential duty absent a showing of

prejudice. State v. Coulter (1992), 75 Ohio App.3d 219, 230, 598

N.E.2d 1324, citing State v. Hunt (1984), 20 Ohio App.3d 310, 312,

486 N.E.2d 108; State v. Reese (1982), 8 Ohio App.3d 202, 203, 456

N.E.2d 1253.

Based on our review of the record, we fail to see how the alleged

“necessary witnesses” would have assisted appellant in his case or

supported his claim that the police “rushed to judgment” in charging

him with Morrison’s murder. Here, none of the witnesses had any

firsthand knowledge regarding the murder, nor do they support

appellant’s theory that he witnessed the two men, who he now refuses

to identify, kill Morrison. In turn, because these witnesses were

merely collateral, appellant has not demonstrated that he was

prejudiced by the failure to subpoena these witnesses. Accordingly,

we find his claim of ineffective assistance is without merit.

Appellant further argues that his trial counsel was ineffective because

he failed to adequately investigate Henry, appellant’s cellmate.

Specifically, appellant claims that his trial counsel was ineffective

because he failed to investigate “the other occupants in a cell with

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[appellant] and Henry to prove that Henry fabricated his story,” failed

to obtain Henry’s records regarding his prior DUI arrest, and failed to

“inquire about Henry’s probation status from his prior felonies.”

It is well-established that a defendant is not deprived of effective

assistance of counsel when counsel chooses, for strategic reasons, not

to pursue every possible trial tactic. Coulter, 75 Ohio App.3d at 230,

598 N.E.2d 1324, citing State v. Brown (1988), 38 Ohio St.3d 305,

319, 528 N.E.2d 523. As a result, we find appellant’s trial counsel’s

failure to investigate more fully the criminal background of Henry

amounts to nothing more than defense strategy and trial tactic. Further,

the benefits of such an investigation, if any, are purely speculative,

and even if such an investigation would have been fruitful, it does not

necessarily indicate that his trial counsel was otherwise ineffective.

See Hale, 2008-Ohio-3426 at ¶ 232, 119 Ohio St.3d 118, 892 N.E.2d

864.

Next, appellant claims that his trial counsel was ineffective because he

failed to move for a mistrial after discovering the transcript of his

wife’s January 1, 2006 statement to police was incorrect. However,

once it was agreed that the transcript of Wife’s testimony was

incorrect, the trial court instructed the jury “to disregard completely

any reference to that phrase ‘fight me for a gun’ and any questions and

answers that were generated by it. It was simply a transcriptionist 

error and in some of the language is difficult to interpret but that

interpretation was incorrect * * *.” (Internal quotations added.)

Further, as the trial court stated in its jury instructions, “[s]tatements

or answers that were stricken by the court or which you were

instructed to disregard are not evidence and must be treated as though

you never heard them.”

We find that the trial court did not err by admitting an amended

statement of Wife’s testimony and by providing the jury with such a

curative instruction. As noted above, we must presume that the jury

followed the trial court’s instructions. See Manns, 2006-Ohio-5802,

169 Ohio App.3d 687, 864 N.E.2d 657. As a result, we find

appellant’s claim of ineffective assistance of counsel based on his

failure to move for a new trial is without merit.

State v. Smith, 2009 WL 119841, at *8-10. Again, the record fails to reflect that the state appellate

court’s decision is unreasonable so as to warrant federal habeas corpus relief. 28 U.S.C. § 2254(d),

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(e). 

The state appellate court concluded that Petitioner had waived any right to challenge his

wife’s competency to testify against him under Rule 601(B) by calling her as a witness at the motion

to suppress hearing. This Court will not second-guess that determination here. See Greer v. Mitchell,

264 F.3d 663, 675 (6th Cir. 2001)(“[g]enerally, a federal habeas court should not second-guess a state

court’s decision concerning matters of state law”); Bradshaw v. Richey, 546 U.S. 74 (2005)(“a state

court’s interpretation of state law. . . binds a federal court sitting on habeas review”). Therefore,

Petitioner cannot establish that his attorney acted unreasonably in failing to object to his wife’s

testimony. Moreover, the Court notes that Petitioner cannot establish prejudice. When called as a

prosecution witness, Tanya Smith stated she had seen the victim earlier on New Years Eve, and that

Petitioner came home early on New Years Day upset and crying, wanting to call the police because

he had witnessed a potential murder. These facts were not in dispute. Various other witnesses

testified and confirmed these facts throughout the trial. 

Petitioner likewise cannot establish prejudice as that term is defined under Strickland from

Officer Boone’s testimony. Boone had been called to Petitioner’s home “on domestics” several times

in the past. Trial Transcript, at 110. 

[T]here was a light on in the garage which struck me as odd. . . . and

I couldn’t hear any voices. I didn’t hear any screaming or yelling,

there was nobody outside, which again struck me as odd, because they

were usually screaming and yelling whenever we got there. 

Id. at 111. Admission of this testimony does not undermine confidence in the outcome of the

proceedings. Strickland, 466 U.S. at 694. 

Further, nothing in the record supports Petitioner’s contention that any witnesses not called

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by defense counsel would have provided exculpatory testimony for the defense or that further

investigation of Petitioner’s cell mates would have assisted him. Phillip Henry was incarcerated at

the time at issue on DUI charges and for violating his probation. He had prior convictions for theft

by deception and money laundering, and had served time in prison. Trial Transcript, at 505-07; 518-

19. He wrote bad checks from 1999-2001. Id. at 519. According to Henry, he and Petitioner were

alone in the four-man cell for four days. Id. at 518. 

Similarly, Petitioner has failed to establish prejudice by any alleged hearsay testimony from

Detective Funari regarding statements of Jeremiah Miller or, for the reasons set forth by the state

appellate court, admission of the transcript of Tanya Smith’s statement to police. Both Miller and

Miller’s wife, Melissa, testified at trial and were available for cross examination. 

Claim four is without merit. 

CLAIMS SIX AND SEVEN

In claim six, Petitioner asserts that the evidence was constitutionally insufficient to sustain

his murder conviction. In claim seven, Petitioner asserts that his conviction was against the manifest

weight of the evidence. The state appellate court rejected these claims, in relevant part, as follows: 

Whether the evidence presented is legally sufficient to sustain a

verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541, 1997-Ohio-52. An appellate court, in reviewing

the sufficiency of the evidence supporting a criminal conviction,

examines the evidence in order to determine whether such evidence,

if believed, would support a conviction. State v. Carroll, Clermont

App. Nos. CA2007-02-030, CA2007-03-041, 2007-Ohio-7075, ¶ 117.

After examining the evidence in a light most favorable to the

prosecution, the appellate court must determine if “any rational trier

of fact could have found the essential elements of the crime proven

beyond a reasonable doubt.” Id. Proof beyond a reasonable doubt is

“proof of such character that an ordinary person would be willing to

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rely and act upon it in the most important of his own affairs.” R.C.

2901.05(D).

***

“Because sufficiency is required to take a case to the jury, a finding

that a conviction is supported by the weight of the evidence must

necessarily include a finding of sufficiency.” State v. Wilson, Warren

App. No. CA2006-01-007, 2007-Ohio-2298, ¶ 35. . . . 

Appellant argues his conviction should be reversed because the state

presented “no evidence” that he was the perpetrator of the crime.

Specifically, appellant claims that the jury’s verdict “depended

entirely upon whom it chose to believe” and was “based entirely on

the credibility of Phillip Henry, a jailhouse snitch, an alcoholic, [and]

convicted felon,” and therefore, the evidence does not support his

conviction. This argument lacks merit.

At trial, Henry testified that he was an acquaintance of appellant who

had played pool with him at a bar previously. Further, Henry testified

that, while serving time for DUI and a probation violation, he was

placed in a four-man cell with appellant, who, at the time, was

awaiting trial. After being placed in a cell with appellant, Henry

testified that the two began to talk and that appellant asked him to be

a witness for his defense and “to say that [he] was [working] on the

bar that night.” Henry also testified that appellant told him that he

almost confessed to Morrison’s murder but “it took every bit of his life

not to just fold and fumble right there” when looking at pictures of her

body, and that calling the police to report he was a witness to

Morrison’s murder was the “biggest mistake he ever made in his life.”

Henry also testified that appellant confessed to the Morrison’s murder.

Specifically, Henry testified that appellant told him that his wife and

Morrison had gotten into an altercation, which prompted his wife to

hit Morrison with a PVC pipe. Thereafter, Henry testified that

appellant told him he “panicked, didn’t know what to do” and that he

“finished everything.” Furthermore, Henry testified that appellant told

him he “cleaned up” by wiping down the pipe with his wife’s bandana

and by pouring paint thinner on his shoes to conceal any evidence.

Finally, Henry testified that “the only key thing that was told to [him]

is that [appellant] had to try to clean up the mess and finish [Morrison]

off [but] it took him three attempts to do it.”

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Further, contrary to appellant’s claim, the state provided evidence,

albeit circumstantial, to support the jury’s guilt finding. See, e.g., State

v. Carmen, Clinton App. No. CA2007-05-028, 2008-Ohio-5841, ¶ 15

(the state can use either direct or circumstantial evidence to prove the

elements of a crime). Here, the evidence presented indicated that

appellant was seen talking with Morrison on the night of her murder,

that he was present at the scene during her murder, which occurred at

a vacant house where appellant had previously resided, and that he

hailed a cab near the scene of the crime at approximately 3:45 a.m.,

mere minutes after Morrison’s presumed time of death.

In his defense, appellant testified that his original statement to police

implicating J.M. in Morrison’s murder was false, but that he actually

saw her attacked and beaten by two men who had been smoking crack

cocaine in an alley behind his former residence. After he saw

Morrison attacked, he became scared and ran into the vacant house

and hid in a small furnace room where he stayed while the two men

dragged Morrison inside the house and hit her with a PVC pipe,

killing her. Further, although appellant claimed to have known one of

the men who attacked Morrison, he refused to identify the attacker

because he felt threatened and believed that his family was in danger.

While there may be a question as to Henry’s credibility, “the weight

to be given the evidence and the credibility of witnesses are primarily

for the trier of facts.” State v. Pringle, Butler App. Nos. CA2007-08-

193, CA2007-09-238, 2008-Ohio-5421, ¶ 28. As a result, we defer to

the jury’s decision finding Henry’s testimony credible, even after

being subject to a lengthy cross-examination, because the jury was

“best able to view the witnesses and observe their demeanor, gestures

and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Id.

After reviewing the record, we cannot say that the jury clearly lost its

way in finding Henry’s testimony to be competent, credible and

reliable, or that the circumstantial evidence presented by the state did

not support his conviction. As a result, because we cannot say

appellant’s conviction created such a manifest miscarriage of justice

that his conviction must be reversed, we find no reason to disturb the

jury’s finding of guilt. Therefore, appellant’s fifth, sixth, and seventh

assignments of error are overruled.

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State v. Smith, 2009 WL 119841, at *10-12. 

A. Claim Six - Sufficiency of the Evidence

 Petitioner asserts in claim six that the evidence was constitutionally insufficient to sustain his

convictions. For a sufficiency of the evidence claim, “the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). The prosecution is not affirmatively required to “rule out every hypothesis except that

of guilty.” Wright v. West, 505 U.S. 277, 296 (1992)(quoting Jackson, at 326). “[A] reviewing court

‘faced with a record that supports conflicting inferences must presume-even if it does not appear on

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

to that resolution.’ “ Id. (quoting Jackson, at 326).

 Further, this Court affords a “double layer” of deference to state court determinations about

the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009),

deference is due to the jury’s finding of guilt because the standard, announced in Jackson v. Virginia,

is whether “viewing the trial testimony and exhibits in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Even if a de novo review of the evidence leads to the conclusion that no rational trier of fact

could have so found, a federal habeas court “must still defer to the state appellate court’s sufficiency

determination as long as it is not unreasonable.” See also White v. Steele, 602 F.3d 707, 710 (6th Cir.

2009). This is a substantial hurdle for a habeas corpus petitioner to overcome, and Petitioner has not

done so here. 

 Petitioner contends that the evidence was constitutionally insufficient to sustain his

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conviction for murder, because the State failed to introduce any physical evidence or witnesses to

testify that he was Michelle Morrison’s killer. He had no blood on his clothing. Tanya Smith

testified that Petitioner was scared, had no stains on his clothing, and told stories of being stalked,

threatened, and terrorized by the true killers. Petitioner complains that the testimony of Phillip

Henry, a jailhouse snitch and convicted felon with an extensive criminal record, provided the only

evidence against him, and that Henry’s testimony was not credible. He alleges that police improperly

charged him solely because he gave an initial untruthful statement to law enforcement. See Petition,

Traverse. Petitioner’s arguments are not persuasive. First, as to his assertions regarding the

trustworthiness of Phillip Henry’s testimony, “[a]ssessment of the credibility of the witnesses is

beyond the scope of federal habeas corpus review of a claim of insufficient evidence.” Bowen v.

Haney, 622 F.Supp.2d 516, 546 (W.D. Ky. 2008)(citing Matthews v. Abramajtys, 319 F.3d 780, 788-

89 (6th Cir.2003)(internal citation omitted). Moreover, circumstantial evidence alone may support

a guilty verdict “and is not required to eliminate any reasonable hypothesis except that of the

defendant’s guilt.” Id. (citing United States v. Talley, 194 F.3d 758 (6th Cir. 1999). Based on the

evidence, it was not an unreasonable application of federal law for a state court to find that a rational

trier of fact would find beyond a reasonable doubt that Petitioner committed the crime of murder.

B. Claim Seven - Manifest Weight of the Evidence

The law recognizes a distinction between a claim asserting that a criminal conviction is

against the manifest weight of the evidence and a claim under the Due Process Clause of the

Fourteenth Amendment regarding sufficiency of the evidence. This Court thoroughly discussed the

distinction in Echols v. Houck, No. C-1-03-66, 2005 WL 1745475 at *3 (S.D. Ohio, July 25, 2005)

as follows:

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In essence, sufficiency, which implicates due process concerns, tests the adequacy of

the evidence in proving the essential elements of the offense charged and presents a

question of law, which may not be resolved by the reviewing court through weighing

the evidence. In contrast, in determining whether reversal is warranted based on the

weight of the evidence, the appellate court sits as a ‘thirteenth juror’ to assess the

jury's resolution of conflicting testimony upon review of the entire record, which

includes weighing the evidence and all reasonable inferences and considering the

credibility of witnesses. Thompkins, 678 N.E.2d at 546–47; see also Tibbs, 457 U.S.

at 41–42; Martin, 485 N.E.2d 720–21.

As the Supreme Court explained in Tibbs, 457 U.S. at 43, unlike a reversal on the

ground of insufficient evidence, a reversal based on the weight of the evidence ‘does

not mean that acquittal was the only proper verdict.’ Rather, a reversal based on the

weight of the evidence ‘can occur only after the State both has presented sufficient

evidence to support a conviction and has persuaded the jury to convict. The reversal

simply affords the defendant a second opportunity to seek a favorable judgment. Id.

at 42–43.

A federal court may review a state prisoner's habeas corpus petition only on the

ground that the challenged confinement violates the Constitution, law, or treaties of

the United States, 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas

corpus ‘on the basis of a perceived error of state law.’ Pulley v. Harris, 465 U.S. 37,

41, 104 S.Ct. 871, 79 L.Ed.2d 29 ... (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th

Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 169, 102 L.Ed.2d 139 . . . (1988).

Based on this analysis, the District Court in Echols dismissed the petitioner’s claim that his

conviction was against the manifest weight of the evidence because it did not implicate a federal

constitutional concern but instead raised an issue of state law that was not cognizable upon federal

habeas review. Echols, 2005 WL 1745475 at *3. The same reasoning and result apply to Petitioner’s

claim here that his conviction was against the manifest weight of the evidence. Petitioner’s claim that

his convictions are against the manifest weight of the evidence cannot be considered by this Court.

Thus, claim six is without merit and claim seven provides no basis for federal habeas corpus

relief.

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WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting authority

for the objection(s). A judge of this Court shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which objection is made. Upon

proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also operates as a waiver of the right to appeal the decision of the District Court

adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

 IT IS SO ORDERED. 

DATE: January 11, 2012 /s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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