IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DOMINIC BARKLEY, 

Petitioner, CASE NO. 2:10-CV-1182

 JUDGE ALGENON L. MARBLEY

v. Magistrate Judge E.A. Preston Deavers

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTION, 

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, 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 Tenth District Court of Appeals summarized the facts of this case as follows:

Barkley broke into a motel room occupied by Kevin Clark and Eve

Lauber. Barkley was armed with a firearm. He fought with Clark,

who attempted to take the gun away. Barkley ordered the two victims

to sit down, and then he used duct tape to restrain them. Barkley stole

their credit cards and cash. He also eventually stole their car.

The two victims were restrained only briefly. They were held

duct-taped to chairs for approximately 45 minutes while Barkley

apparently waited for a ride from another person. When no one else

showed up, Barkley used their car to flee. He left them still

duct-taped to their chairs.

State v. Barkley, 185 Ohio App.3d 686, 688 (Ohio App. 10th Dist. 2009). On May 14, 2008, after

a trial to the court, Petitioner was found guilty of two counts of aggravated robbery, two counts of

kidnapping, two counts of failure to comply with an order or signal of a police officer, one count of

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carrying a concealed weapon, and one count of improperly handling firearms in a motor vehicle,

with firearm specifications. The trial court imposed an aggregate term of fifteen and 1⁄2 years

incarceration. See Exhibits 2, 3 to Return of Writ. Petitioner filed a timely appeal, in which he

raised the following assignments of error:

ASSIGNMENT OF ERROR I:

The trial court committed plain error by convicting and sentencing

Mr. Kimbrough [sic] to separate, concurrent sentences on his two

offenses, after it had already determined that they were allied

offenses. That error contravened clearly established law under R.C.

2941.25(A), longstanding precedent, and Mr. Kimbrough’s [sic] state

and federal constitutional rights regarding due process and double

jeopardy.

ASSIGNMENT OF ERROR II:

The trial court erred by imposing court costs without notifying Mr.

Barkley that failure to pay court costs may result in the court’s

ordering him to perform community service.

ASSIGNMENT OF ERROR III:

An indictment for a count of aggravated robbery under R.C.

2911.01(A)(1) must contain the mens rea of recklessness with regard

to the element of either displaying, brandishing, indicating the

possession of, or using a deadly weapon.

See id. On October 20, 2009, the appellate court affirmed the judgment of the trial court. Id. On 

February 10, 2010, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.

Barkley, 124 Ohio St.3d 1477 (2010). 

On December 30, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Petitioner asserts that his convictions violate the Double Jeopardy

Clause, as they constitute allied offenses based on one act, and that the indictment was structurally

defective, depriving him of the right to notice of the charges against him, by failing to include the

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required mens rea of “recklessness” on the charges of aggravated robbery. See Petition. It is the

position of the Respondent that these claims are waived or without merit. 

CLAIM ONE

In claim one, Petitioner asserts that his convictions violate the Double Jeopardy Clause. 

Respondent preliminarily contends that Petitioner failed to fairly present this same federal issue to

the state courts because he argued his claim under Ohio’s statutes on allied offenses of similar

import. This Court, however, has previously rejected this same argument, noting that Ohio’s statute

on allied offenses, O.R.C. 2941.25, as defined by the Ohio Supreme Court in State v. Rance, 85 Ohio

St.3d 632 (1999), is derived from concerns of the Double Jeopardy Clause. See, e.g. Spence v.

Sheets, 675 F.Supp.2d 792 (S.D. Ohio 2009); Helton v. Jeffreys, No.2:06-cv-558, 2007 WL

1100428, at *4-5 (S.D. Ohio April 10, 2007)(citing Palmer v. Haviland, No.C-1-04-28, 2006 WL

1308219 (S.D. Ohio May 11, 2006). This Court therefore likewise concludes that Petitioner has

fairly presented his federal double jeopardy claim to the Ohio courts. 

The state appellate court rejected Petitioner’s claim, reasoning as follows:

Barkley argues that Barkley was convicted of allied offenses of

similar import in violation of R.C. 2941.25(A), which reads:

Where the same conduct by defendant can be

construed to constitute two or more allied offenses of

similar import, the indictment or information may

contain counts for all such offenses, but the defendant

may be convicted of only one.

Specifically, counsel asserts that Barkley should not have been

convicted of both aggravated robbery and kidnapping with respect to

each of the two victims. . . .

* * * 

Barkley broke into a motel room occupied by Kevin Clark and Eve

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Lauber. Barkley was armed with a firearm. He fought with Clark,

who attempted to take the gun away. Barkley ordered the two victims

to sit down, and then he used duct tape to restrain them. Barkley stole

their credit cards and cash. He also eventually stole their car.

The two victims were restrained only briefly. They were held

duct-taped to chairs for approximately 45 minutes while Barkley

apparently waited for a ride from another person. When no one else

showed up, Barkley used their car to flee. He left them still

duct-taped to their chairs.

Kidnapping is defined by R.C. 2905.01(A)(2) and (3) as follows:

No person, by force, threat, or deception, or, in the

case of a victim under the age of thirteen or mentally

incompetent, by any means, shall remove another

from the place where the other person is found or

restrain the liberty of the other person, for any of the

following purposes:

* * *

(2) To facilitate the commission of any felony or

flight thereafter;

(3) To terrorize, or to inflict serious physical harm on

the victim or another.

Aggravated robbery is defined by R.C. 2911.01(A)(1) and (2):

No person, in attempting or committing a theft

offense, as defined in section 2913.01 of the Revised

Code, or in fleeing immediately after the attempt or

offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender’s

person or under the offender’s control and either

display the weapon, brandish it, indicate that the

offender possesses it, or use it;

(2) Have a dangerous ordnance on or about the

offender’s person or under the offender’s control.

(Emphasis added.)

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In many situations, the statutes overlap to a significant degree. It is

very difficult to rob someone without at least briefly restraining them

of their liberty. As a result, the Supreme Court of Ohio held in State

v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, that

the offenses can be allied offenses of similar import. However, Winn

does not stand for the principle that the two offenses are

automatically allied offenses of similar import, especially when, as

here, the restraint is lengthy and continues after the aggravated

robbery is completed. Thus, the Supreme Court directed the

following analysis:

“ ‘In the first step, the elements of the two crimes are

compared. If the elements of the offenses correspond

to such a degree that the commission of one crime

will result in the commission of the other, the crimes

are allied offenses of similar import and the court

must then proceed to the second step. In the second

step, the defendant’s conduct is reviewed to determine

whether the defendant can be convicted of both

offenses. If the court finds either that the crimes were

committed separately or that there was a separate

animus for each crime, the defendant may be

convicted of both offenses.’ ”

(Emphasis sic.) Id., quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 19, quoting State v. Blankenship

(1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.

Technically, Barkley was guilty of several robberies, not just the two

for which he was convicted. The theft of the credit cards and cash had

occurred before Barkley stole the car. The restraint continued long

after the first theft. Barkley’s case simply does not present a situation

in which allied offenses of similar import have occurred. The trial

court was correct to convict Barkley of both kidnapping and

aggravated robbery as to each victim. R.C. 2941.25(A) did not

compel a different result.

State v. Barkley, 185 Ohio App. 3d at 687-89. 

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 

2254(e)(1) provides:

In a proceeding instituted by an application for a writ of habeas

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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.

Further, a federal habeas court may not grant relief unless the state court’s decision was contrary to

or an unreasonable application of clearly established federal law, or based on an unreasonable

determination of the facts in light of the evidence that was presented. 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.

The United States Supreme Court has explained: 

"[A]n unreasonable application of federal law is different from an

incorrect application of federal law." Williams v. Taylor, 529 U.S.

362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, "a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or

incorrectly." Id., at 411, 120 S.Ct. 1495. Rather, that application must

be "objectively unreasonable." Id., at 409, 120 S.Ct. 1495. This

distinction creates "a substantially higher threshold" for obtaining

relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473,

127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes a

"highly deferential standard for evaluating state-court rulings," Lindh

v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481

(1997), and "demands that state-court decisions be given the benefit

of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357,

154 L.Ed.2d 279 (2002) ( per curiam ).

Renico v. Lett, – U.S. –, 130 S.Ct. 1855,1862 (2010)(footnote omitted.)

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"[C]learly established" law under § 2254(d)(1) consists of "the

holdings, as opposed to the dicta, of this Court’s" cases. Williams v.

Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

An "unreasonable application" of that law involves not just an

erroneous or incorrect decision, but an objectively unreasonable one.

Renico v. Lett, 559 U.S. ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010).

Wong v. Smith, 131 S.Ct.10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). “A state court’s

determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, – U.S. –,

–, 131 S.Ct. 770, 786 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner

has failed to meet this standard here. 

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through

the Fourteenth Amendment, provides that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause has been interpreted as

protecting criminal defendants from successive prosecutions for the same offense after acquittal or

conviction, as well as from multiple punishments for the same offense. Brown v. Ohio, 432 U.S.

161, 165 (1977). The traditional test for double jeopardy claims is the “same elements” test set forth

in Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the court to determine whether

each charged offense “requires proof of an additional fact which the other does not”). The

Blockburger test is designed to deal with the situation where closely connected conduct results in

multiple charges under separate statutes. Under Blockburger, the critical question is whether the

multiple charges in reality constitute the same offense. Thus, the Blockburger test focuses on

whether the statutory elements of the two crimes charged are duplicative. If the elements of the two

statutes are substantially the same, then double jeopardy is violated by charging the defendant under

both.

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In view of the facts of this case, and applying the test set forth in Blockburger, this Court is

not persuaded that the state appellate court’s conclusion that evidence reflected separate criminal

acts due to the prolonged restraint of the movement of the victims and that petitioner’s convictions

therefore did not violate the Double Jeopardy Clause was unreasonable so as to justify federal

habeas corpus relief. 28 U.S.C. § 2254(d), (e); see Jones v. Baker, 35 F.3d 566, unpublished, 1994

WL 464191 (6th Cir. August 26, 1994) (no double jeopardy violation where kidnapping not “merely

incidental” to aggravated robbery and involved substantial restraint of the victim); Watkins v.

Schotten, 103 F.3d 132, unpublished, 1996 WL 690159 (6th Cir. Nov. 27, 1996) (no double jeopardy

violation on aggravated robbery and kidnapping convictions where the offenses were committed

separately with separate animus and since the crimes have separate elements); McKitrick v. Smith,

2009 WL 1067321 (N.D. Ohio April 21, 2009) (trial court’s finding that petitioner had “separate

animi” for robbery and kidnapping is due deference in habeas proceedings and therefore petitioner’s

convictions did not violate Blockburger ).

Claim one is without merit. 

CLAIM TWO

In claim two, Petitioner asserts that his indictment was structurally defective and deprived

him of the right to notice of the charges against him, in violation of due process, because the charges

on aggravated robbery failed to include the required mens rea of recklessness. Respondent correctly

notes that Petitioner failed to present this claim as a federal constitutional issue to the state appellate

court. See Exhibit 6 to Return of Writ. Petitioner argued solely that the indictment failed to comply

with Ohio law. He did not, however, contend that he was unconstitutionally denied fair notice of

the charges against him, or argue that the indictment was otherwise constitutionally defective. See

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id. 

In order to exhaust available state remedies, a petitioner must first fairly present the

substance of his federal habeas corpus claims to the state courts. Picard v. Connor, 404 U.S. 270,

275 (1971); Anderson v.Harless, 459 U.S. 4, 6 (1982). “The state courts must be provided with a fair

opportunity to apply controlling legal principles to the facts bearing upon petitioner’s constitutional

claims.” Sampson v. Love, 782 F.2d 53, 55 (6th Cir. 1986). Petitioner does not fairly present his

claim simply because the necessary facts supporting a federal constitutional claim are present or

because the constitutional claim appears self evident. Haggins v. Warden, 715 F.2d 1050, 1054 (6th

Cir. 1983)(citing Harless, 459 U.S. at 6). Furthermore, “[a] petitioner ‘fairly presents’ his claim to

the state courts by citing a provision of the Constitution, federal decisions employing constitutional

analysis, or state decisions employing constitutional analysis in similar fact patterns.” Levine v.

Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993)(citing Franklin v. Rose, 811 F. 2s 322, 326 (6th Cir.

1987)). Courts normally require more than a single broad generalization that petitioner was denied

a “fair trial” or “due process of law.” Franklin, 811 F.2d at 326; Petrucelli v. Coombe, 735 F.2d 684,

688 (6th Cir. 1984). Petitioner, however, need not “cite book and verse on the federal constitution.”

Picard, 404 U.S. at 277 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1960)). The

Sixth Circuit has strictly followed the requirement that petitioner fairly presented his federal

constitutional claims to the state courts as a precondition to federal habeas review. Weaver v. Foltz,

888 F.2d 1097, 1098 (6th Cir. 1989). 

Moreover, Petitioner has failed to establish cause for his failure to present claim two to the

state courts. He thereby has waived this claim for federal habeas corpus review. To the extent that

Petitioner raises an issue regarding the alleged violation of state law, this claim fails to present an

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issue appropriate for federal habeas corpus relief. 28 U.S.C. § 2254(a). 

 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. s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

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Date: June 19, 2012

 

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