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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ERIC A. JACKSON, 

 CASE NO. 2:11-CV-0072 

 Petitioner, JUDGE JAMES L. GRAHAM 

 Magistrate Judge Elizabeth A. Preston Deavers 

 v. 

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On January 28, 2014, the Magistrate Judge issued a Report and Recommendation

recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 

be denied and that this action be dismissed. ECF No. 21. Petitioner has filed an Objection to the 

Magistrate Judge’s Report and Recommendation. ECF No. 24. 

 Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the 

reasons that follow, Petitioner’s Objection is OVERRULED. The Report and Recommendation

is ADOPTED and AFFIRMED. This action hereby is DISMISSED. Petitioner’s request for a 

certificate of appealability is GRANTED. Petitioner's request to proceed in forma pauperis on 

appeal (see Objection, PageID #1320) is DENIED without prejudice to renewal in a separate 

motion that complies with Federal Rule of Appellate Procedure 24(a)(1). 

 Petitioner asserts, as his sole ground for federal habeas corpus relief, that he was denied 

effective assistance of counsel because his attorney failed to conduct an adequate pre-trial 

investigation which, according to Petitioner, would have revealed exculpatory evidence 

exonerating him from his conviction for aggravated murder. Specifically, Petitioner complains 

that his attorney failed to explore the possibility that eyewitnesses to the events at issue existed in 

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addition to those provided by the prosecution in discovery. If counsel had done so, Petitioner 

argues, his attorney would have learned that Kaci Chaffin, an employee of the Heartland Nursing 

Home, witnessed the shooting of the deceased, Petitioner’s mother Donna Levan, from a 

resident’s window. Chaffin indicated that Levan was killed when she attempted to prevent 

Petitioner from shooting himself in the head by grabbing his shotgun. According to Chaffin, the 

firearm Petitioner had pointed toward his head then discharged, shooting off Levan’s hand, 

ultimately resulting in her death. See Affidavit of Kaci Chaffin, ECF No. 9-1. The Magistrate 

Judge recommended dismissal of Petitioner’s claim on the merits. 

 Petitioner objects to the Magistrate Judge’s conclusion that the state appellate court did 

not unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), so as to warrant federal 

habeas corpus relief. Petitioner argues that the facts of this case, including the location and time 

of the crime alleged, should have alerted defense counsel to the likelihood that additional and 

potentially critical eyewitnesses may have existed, so as to require additional investigation 

beyond that provided by the prosecution, and beyond that already conducted by defense 

counsel.1

 Petitioner again argues that his attorney performed in a patently inadequate manner by 

failing to investigate potential witnesses beyond the thirty-five witnesses provided in the State’s 

discovery. He contends that the Magistrate Judge improperly concluded that granting this claim 

would be tantamount to imposing unworkable burdens on defense attorneys to unearth 

unforeseeable evidence in developing and supporting a theory of defense. 

                                                            

1 The record indicates that defense counsel reviewed the discovery provided by the prosecution 

including, a list of thirty-five potential witnesses, police reports and narratives, witness 

statements, property custody documents, vehicle inventory documents, gunshot residue analysis, 

inventory of items obtained by search warrant vehicle identifications, press releases and 

newspaper articles. State v. Jackson, No. 14-09-24, 2009 WL 3720578, at *5 (Ohio App. 3 Dist. 

Nov. 9, 2009). Defense counsel additionally interviewed Petitioner, his wife and his psychiatrist 

before selecting the insanity-defense strategy. See Report and Recommendation, PageID #1293. 

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 After careful consideration of the entire record, this Court does not find Petitioner’s 

arguments to be persuasive. The record fails to reflect that counsel’s improperly failed to 

conduct a constitutionally adequate investigation into all potential witnesses to the events at 

issue. Petitioner maintains that a reasonably thorough investigation into the facts of this case 

specifically required trial counsel “to review employee records and schedules in order to 

discover whether there was an eyewitness.” Objection, PageID #1315. He also argues that “[a] 

reasonable investigation under Strickland required counsel to seek out the residents and 

employees present at the nursing home that day and during the timeframe in question.” Id. at 

PageID #1317. 

Yet, the constitution does not impose such specific duties upon counsel. Certainly, as the 

Magistrate Judge correctly determined, before arriving at a defense strategy, “‘counsel has a duty 

to make reasonable investigations or to make a reasonable decision that makes particular 

investigations unnecessary.’” Poole v. MacLauren, -- F. App’x --, No. 12-1705, 2013 WL 

6284355 at *6 (6th Cir. Dec. 5, 2013) (quoting Strickland, 466 U.S. at 691). “‘This duty includes 

the obligation to investigate all witnesses who may have information concerning his or her 

client’s guilt or innocence.’” Id. (quoting Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005)). 

This is not a case in which defense counsel deliberately failed to interview or investigate 

known witnesses. As the Magistrate Judge noted, the Court of Appeals for the Sixth Circuit 

recently emphasized, “counsel cannot be expected to investigate a defense or a witness unknown 

to him. . . . The duty to investigate does not force defense lawyers to scour the globe on the off 

chance something will turn up.” Hale v. Davis, 512 F. App’x 516, 520–21 (6th Cir. 2013). 

More specifically: 

“[C]ounsel has a duty to make reasonable investigations or to make 

a reasonable decision that makes particular investigations 

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unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052, 80 

L.Ed.2d 674. “This duty includes the obligation to investigate all 

witnesses who may have information concerning his or her client's 

guilt or innocence.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 

2005) (citations omitted). When determining counsel's 

effectiveness in investigating a case, “a particular decision not to 

investigate must be directly assessed for reasonableness in all the 

circumstances, applying a heavy measure of deference to counsel's 

judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052, 80 

L.Ed.2d 674. 

However, “[c]ounsel cannot be expected to investigate a defense or 

a witness unknown to him.” Collins v. Berghuis, No. 1:08–cv–

369, 2011 WL 4346333, *19 (W.D. Mich. Aug.22, 2011) (citing 

Bigelow v. Williams, 367 F.3d 562, 571 (6th Cir. 2004); Sones v. 

Bell, No. 1:07–cv–552, 2010 WL 2472760, at * 12 (W.D. 

Mich.Apr.26, 2010)). “[T]he duty to investigate does not force 

defense lawyers to scour the globe on the off chance something 

will turn up [.]” Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 

2456, 162 L.Ed.2d 360 (2005) (citations omitted). 

Poole, 2013 WL 6284355 at *6. 

Nothing in the record suggests that defense counsel could have foreseen that the 

prosecution had not already revealed all potential evidence at issue, or that counsel made 

constitutionally unreasonable strategic decisions based on unreasonable investigation. This 

Court simply cannot conclude, in view of the record presented, that the state appellate court 

unreasonably applied or contravened Strickland in denying Petitioner’s claim, or based its 

decision on an unreasonable determination of the facts in light of the evidence presented. 28 

U.S.C. § 2254(d)(1), (2). 

 Petitioner seeks a certificate of appealability. Objection, PageID #1320. When a claim 

has been denied on the merits, a certificate of appealability may issue only if the petitioner “has 

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 

standard is a codification of Barefoot v. Estelle, 463 U.S. 880, 103 (1983). See Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 

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2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner 

must show “that reasonable jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the issues presented were 

‘adequate to deserve encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting 

Barefoot, 463 U.S. at 893 & n.4). The Court concludes that reasonable jurists could disagree as 

to the outcome of this case and that the issue presented deserves to proceed. 

 The Court certifies the following issue for appeal: 

Was Petitioner denied effective assistance of counsel under the test 

set forth in Strickland v. Washington, 466 U.S. 668 (1984), based 

on his failure to conduct an adequate pre-trial investigation before 

arriving at his defense strategy? 

For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and 

Recommendation, Petitioner’s Objection, ECF No. 24, is OVERRULED. The Report and 

Recommendation is hereby ADOPTED and AFFIRMED. This action is DISMISSED. 

Petitioner’s request for a certificate of appealability is GRANTED. Petitioner's request to 

proceed in forma pauperis on appeal, see Objection, PageID #1320, is DENIED without 

prejudice to renewal in a separate motion that complies with Federal Rule of Appellate 

Procedure 24(a)(1). 

IT IS SO ORDERED. 

Date: March 14, 2014 s/James L. Graham

 ________________________ 

 JAMES L. GRAHAM 

 United States District Judge 

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