IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN ARTHURS, 

Petitioner, 

v. Case No. 2:11-cv-541

 JUDGE ALGENON L. MARBLEY

WARDEN, WARREN CORRECTIONAL Magistrate Judge Kemp

INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2254. This matter is before the Court on that petition,

respondent’s return of writ, the exhibits attached to the return, and petitioner’s reply. 

For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner’s

claims be DISMISSED.

 I. PROCEDURAL HISTORY

On December 12, 2007, a Franklin County, Ohio grand jury indicted petitioner

and a co-defendant, John Lee Gibson, on five felony counts arising out of two

aggravated robberies and the killing of one Terry Salmons during the course of a

robbery. The offenses allegedly occurred on December 2, 2007. The indictment

contained two counts of aggravated robbery with firearm specifications, one count of

aggravated murder, one count of murder, and one count of having a weapon under a

disability. The murder counts also were accompanied by specifications relating both to

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the use of a firearm and to petitioner’s status as a repeat offender. Return of Writ,

Exhibit One.

Petitioner pleaded not guilty and the case went to trial. Petitioner waived his

right to trial by jury on the weapon under a disability count, and the remaining counts

were tried to a jury. On March 12, 2009, the jury convicted him of two counts of

aggravated robbery and one count of murder, but acquitted him of aggravated murder. 

The trial judge separately found him guilty of having a weapon under a disability. On

March 13, 2009 the trial judge sentenced him to thirteen years of imprisonment on each

of the aggravated robbery counts (ten years plus three consecutive years for the firearm

specification), fifteen years to life on the murder charge plus three years of consecutive

prison time for its firearm specification and eight years of consecutive prison time for its

repeat offender specification, and five years on the weapons count. The first two

sentences were run concurrently to each other but consecutively to the sentence on the

murder charge. Return of Writ, Exhibit Five. The sentences totaled forty-one years to

life.

Petitioner timely appealed his conviction to the Court of Appeals for the Tenth

Appellate District. He raised ten assignments of error:

ASSIGNMENT OF ERROR # 1

APPELLANT'S INDICTMENT WAS DEFECTIVE UNDER ARTICLE I,

SECTION 10 OF THE OHIO CONSTITUTION AS THE STATE FAILED

TO INCLUDE A MENTAL CULPABILITY ELEMENT FOR EITHER

AGGRAVATED ROBBERY OR MURDER IN THE INDICTMENT.

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ASSIGNMENT OF ERROR # 2

THE TRIAL COURT ERRED WHEN IT OMITTED ACCOMPLICE

INSTRUCTIONS FROM THE JURY CHARGE, THEREBY VIOLATING

THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE

U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 1 & 16 OF THE

OHIO CONSTITUTION.

ASSIGNMENT OF ERROR # 3

APPELLANT'S CONVICTION FOR MURDER UNDER R.C. § 2903.02(B)

VIOLATED HIS RIGHTS TO DUE PROCESS AND EQUAL

PROTECTION AS GUARANTEED BY ARTICLE 1, SECTIONS 2 & 10 OF

THE OHIO CONSTITUTION, AND THE 14TH AMENDMENT TO THE

U.S. CONSTITUTION.

ASSIGNMENT OF ERROR # 4

THE TRIAL COURT ERRED IN ENTERING A GUILTY VERDICT ON

THE CHARGE OF FELONY MURDER AS R.C. § 2903.02(B) EXPRESSLY

PROVIDES THAT THE STATUTE IS INAPPLICABLE WHEN THE

APPELLANT CAN BE CHARGED WITH INVOLUNTARY

MANSLAUGHTER.

ASSIGNMENT OF ERROR # 5

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

DECLARE A MISTRIAL, IN VIOLATION OF APPELLANT'S RIGHTS TO

REMAIN SILENT AND DUE PROCESS UNDER THE 5TH AND 14TH

AMENDMENTS TO THE U.S. CONSTITUTION, AND ARTICLE I,

SECTIONS 10 & 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR # 6

THE TRIAL COURT ERRED WHEN IT FOUND THAT THE

APPELLANT'S SON WAS COMPETENT TO TESTIFY IN VIOLATION

OF EVIDENCE RULE 601 AND THE DUE PROCESS CLAUSE OF THE

14TH AMENDMENT AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.

ASSIGNMENT OF ERROR # 7

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APPELLANT'S CONVICTIONS WERE BOTH AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WERE NOT

SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH

AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE 1,

SECTIONS 1 & 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR # 8

THE COMBINED EFFECT OF MULTIPLE TRIAL COURT ERRORS

VIOLATED APPELLANT'S DUE PROCESS RIGHTS UNDER THE 14TH

AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I,

SECTION 16 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR # 9

THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE THE

APPELLANT AT SENTENCING THAT HE WOULD BE SUBJECT TO

MANDATORY POST-RELEASE CONTROL UPON HIS RELEASE FROM

PRISON IN VIOLATION OF R.C. § 2967.28, THEREBY RENDERING

APPELLANT'S SENTENCE VOID.

ASSIGNMENT OF ERROR # 10

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S.

CONSTITUTION, AND ARTICLE I, SECTIONS 10 & 16 OF THE OHIO

CONSTITUTION.

. 

Return of Writ, Exhibit Seven. 

In a decision dated February 23, 2010, the Tenth District Court of Appeals 

affirmed petitioner’s conviction and sentence. State v. Arthurs, 2010 WL 628822

(Franklin Co. App. February 23, 2010). The Ohio Supreme Court subsequently denied

review. State v. Arthurs, 125 Ohio St.3d 1464 (June 23, 2010). 

On June 20, 2011, petitioner timely filed his petition for a writ of habeas corpus in

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this Court. In his petition, he has raised the same issues which were raised on appeal in

the state courts, stating that “[t]he grounds raised in Petitioner (sic) direct appeal are the

same grounds raised in this petition for a writ of habeas corpus.” (Petition, at 2). 

However, they are phrased slightly differently; petitioner appears to have deleted any

reference to state law grounds for relief, and has added some language indicating the

federal constitutional basis for each claim to the extent that such a basis was not made

explicit in his state court assignments of error. The Court will highlight any significant

differences in its individual discussion of these claims.

It is respondent’s position that the first claim for relief, to the extent that it

attempts to raise a federal constitutional claim, was procedurally defaulted, and that the

same is true for petitioner’s second claim for relief. Respondent contends that the

remainder of petitioner’s claims lack merit.

II. FACTS

The pertinent facts are stated in the state court of appeals’ opinion as follows. 

These facts are presumed to be correct. See 28 U.S.C. §2254(e)(1); see also House v. Bell,

283 F.3d 37 (6th Cir.2002).

{¶ 3} In early December 2007, Terry Salmons (“Turtle”) and Rick Leitwein

(“Josh”) were selling drugs from a residence in the southern part of Columbus,

Ohio. John Arthurs (“Arthurs”) and John Lee Gibson (“Gibson”) decided to rob

the men at the residence to get drugs and money. During the course of the

robbery, Turtle was shot in the back. He died as a result of the wound he

received.

{¶ 4} Arthurs and Gibson both had firearms with them. Gibson denied shooting

Turtle, and testified for the State of Ohio after reaching a plea agreement, which

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guaranteed him only a ten-year term of incarceration for his involvement in the

homicide and robbery. Gibson testified that Arthurs followed Turtle into the

dining room of the house, following which Gibson heard a gunshot. Marijuana

was stolen from the residence.

{¶ 5} Other testimony at trial established that Arthurs had previously been

convicted of burglary, a felony of the second degree, which resulted in his legal

disability from owning a firearm. The same conviction qualified Arthurs for a

finding of guilty on a repeat violent offender specification under R.C. 2929.01.

{¶ 6} The testimony at trial provided sufficient proof that Arthurs, after

announcing that he and Gibson were there to rob Turtle and Josh, followed

Turtle into an adjoining room, and shot him in the back. Turtle died from the

wound. Arthurs and Gibson stole marijuana as part of the robbery.

State v. Arthurs, 2010 WL 628822, at *2. 

III. PROCEDURAL DEFAULT

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 fairly to present those claims to the highest court of the

state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue

open to him by which he may present the claims, his petition is subject to dismissal for

failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per

curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default,

the petitioner can no longer present his claims to a state court, he has also waived them

for purposes of federal habeas review unless he can demonstrate cause for the

procedural default and actual prejudice resulting from the alleged constitutional error.

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Murray v. Carrier, 447 U.S. 478, 485 (1986); Engle v. Issac, 456 U.S. 107, 129 (1982);

Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state

argues that a federal habeas claim is precluded by the petitioner's failure to observe a

state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “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.” Id. Second, the Court must

determine whether the state courts actually enforced the state procedural sanction. Id.

Third, it must be decided 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. Id. Finally, if the Court has determined that a state procedural rule

was not complied with and that the rule was an adequate and independent state

ground, then the petitioner is required to demonstrate that there was cause for him not

to follow the procedural rule and that he was actually prejudiced by the alleged

constitutional error. Id. This “cause and prejudice” analysis also applies to failure to

raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94

(6th Cir.1985).

Petitioner’s first claim, as phrased in his habeas corpus petition, is that the failure

of the indictment to include a mens rea element violates the Sixth Amendment to the

United States Constitution. His assignment of error on this point in the state court of

appeals referred only to Article I, Section 10 of the Ohio Constitution, although he

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added the reference to the United States Constitution when he petitioned the Ohio

Supreme Court for review. Respondent contends that any potential federal

constitutional claim was waived because petitioner’s trial counsel never objected to the

way in which the indictment was worded, and the state court of appeals reviewed the

issue only for plain error. It should be noted that this claim pertains only to the counts

of the indictment charging petitioner with murder and with aggravated robbery, and

does not apply to the weapons charge.

The state court of appeals disposed of this claim by noting that the Ohio Supreme

Court, in a now-overruled decision, State v. Colon, 118 Ohio St. 3d 26 (2008)(Colon I), had

held that the failure of an indictment to include a mens rea element - even if the

indictment tracked the language of the statute defining the crime - constituted

reversible error. Colon I also held that because the error was structural in nature, the

defendant did not need to object to the defective indictment at the time of trial in order

to preserve the issue for appeal. The Ohio Supreme Court quickly issued another

decision in the same case, upon the State’s motion for reconsideration, and held that

such a defect in the indictment would not be deemed “structural” and require reversal

absent a showing of prejudice if the defect did not result in other, related errors in the

trial proceedings, such as the failure to instruct the jury about the mens rea needed for

conviction. The Supreme Court suggested that in cases where no structural error was

present, the issue would ordinarily be reviewed under a “plain error” standard. State v.

Colon, 119 Ohio St. 3d 204 (2008)(Colon II). This was the state of Ohio law when

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petitioner’s case was tried and when his appeal was decided; on August 27, 2010, after

the court of appeals made its decision, the Ohio Supreme Court overruled Colon in State

v. Horner, 126 Ohio St.3d 466 (2010), including that portion of Colon which held that the

failure to object to the indictment at trial did not constitute a waiver of any structural

defect in the indictment.

Given this state of the law, it is not at all clear that Ohio law required counsel to

object at trial to the allegedly defective nature of the indictment, at least in order to

preserve any claim of structural error. It is also not clear, despite respondent’s

argument to the contrary, that the state court of appeals considered the claim to have

been waived or defaulted due to counsel’s failure to object at trial. In a relatively brief

discussion of the issue, the court concluded that because the same type of “related”

errors identified in Colon I were not present in petitioner’s case, he was not entitled to

relief: “We have consistently found that the rationale of Colon I does not apply to

situations where no defect in the indictment is alleged in the trial court such that the

indictment can be easily amended. Especially in situations where the defendant and his

or her counsel are on complete notice of the charges before and during trial as a result

of the indictment listing the applicable statute by number, we will not find reversible

error.” State v. Arthurs, 2010 WL 628822, at *4. This has some of the earmarks of a merits

determination.

However, it is not essential for this Court to decide if a procedural default of this

claim occurred. Putting aside for the moment that any federal constitutional aspect of

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the claim appears not to have been raised in petitioner’s first appeal, and that the Ohio

Supreme Court will not ordinarily consider issues not raised before the intermediate

appellate courts, see State ex rel. Ohio Civ. Serv. Employees Assn., AFSCME, Local 11, AFLCIO, 104 Ohio St.3d 122, 129 (2004), the alleged defect in the indictment does not rise to

the level of federal constitutional error.

The Fifth Amendment to the Constitution provides, in part, that “No person shall

be held to answer for a capital, or otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury ....” The Sixth Amendment assures a criminal defendant

that he or she has the right “to be informed of the nature and cause of the accusation ....” 

The right not to be tried on a felony charge absent an indictment returned by a Grand

Jury does not apply to the States. Alexander v. Louisiana, 405 U.S. 625 (1972); however, a

State still must comply with the requirement that a defendant be given fair notice of the

charges. Cole v. Arkansas, 333 U.S. 196 (1948). It appears that petitioner is not arguing

that the defect he alleges in his indictment violated the Fifth Amendment, but that it did

not, in contravention to the Sixth Amendment, give him fair notice of the charges he

was facing. To the extent that this is the claim he raised on appeal in the state court,

that court found that he clearly had notice of the charge. The question here is whether

that was an objectively unreasonable determination.

The Court begins with the applicable standard under which claims for habeas

corpus relief are judged. The provisions of the Antiterrorism and Effective Death

Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's

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review. See Penry v. Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001);

Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008). AEDPA 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, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .

When the claims presented in a habeas corpus petition have been presented to

and decided by the state courts, 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

In applying this statute, the Supreme Court has held that “[t]he focus . . . is on

whether the state court's application of clearly established federal law is objectively

unreasonable . . . an unreasonable application is different from an incorrect one.” Bell v.

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Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a petitioner must show the

state court’s decision was “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Bobby v. Dixon, – S.Ct. –, 2011 WL 5299458, at *1 (Nov. 7, 2011), quoting

Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct. 770, 786–87 (2011). This bar is

“difficult to meet” because “habeas corpus is a ‘guard against extreme malfunctions in

the state criminal justice systems,’ not a substitute for ordinary error correction through

appeal.” Harrington v. Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307,

332, n. 5 (1979) (Stevens, J., concurring in judgment)). In short, “[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.” Id.,

quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

This Court cannot conclude that the denial of relief on this claim represented an

unreasonable result under applicable federal law. As the court explained in Moviel v.

Smith, 2010 WL 148141, at * 13 (N.D. Ohio Jan.12, 2010)::

Procedural due process requires that the indictment: “(1) contains the

elements of the charged offense, (2) gives the defendant adequate notice of

the charges, and (3) protects the defendant against double jeopardy.” Joseph

v. Coyle, 469 F.3d at 463 (quoting Valentine v. Konteh, 395 F.3d 626, 631 (6th

Cir.2005)); and see Cole v. Arkansas, 333 U.S. 196, 201, 68 S.C. 514, 92 L.Ed.

644 (1948). The law is clear that “[b]eyond notice, a claimed deficiency in a

state criminal indictment is not cognizable on federal collateral review.”

Roe v. Baker, 316 F.3d 557, 570 (6th Cir.2002) (citing Mira v. Marshall, 806

F.2d 636, 639 (6th Cir.1986)). The Constitution only requires that whatever

charging method a state employs, the state must give a defendant fair

notice of the charges to permit adequate preparation of his defense, so

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“that the offense be described with some precision and certainty so as to

apprise the accused of the crime with which he stands charged.” Olsen v.

McFaul, 843 F.2d 918, 930 (6th Cir.1988); Koontz v. Glossa, 731 F.2d 365, 369

(6th Cir .1984); Combs v. Tennessee, 438 F.2d 695, 698 (6th Cir.1976) cert.

denied, 425 U.S. 954 (1976); In re Ruffalo, 390 U.S. 544, 88 S.C. 1222, 20

L.Ed.2d 117 (1968).

Here, the indictment specifically identified the type of crime petitioner allegedly

committed (either murder or aggravated robbery), the date of the crime, and the names

of the alleged victims. That information was sufficient to allow him to prepare a

defense, and he does not argue otherwise. The fact that the indictment did not specify a

mens rea requirement - just as the underlying Ohio statutes do not - does not mean that

petitioner was unaware that the state had to prove mens rea, or unaware what mens rea

applied to these crimes. Thus, the constitutional requirements of fair notice were

satisfied. See Jordan v. Sheets, 2012 WL 553091 (S.D. Ohio Feb. 21, 2012)(“The charges of

aggravated burglary and aggravated robbery in Petitioner's indictment contain all the

essential elements of the offenses. The indictment also sets forth factual information

regarding the time of the offense and the victims. The indictment provided Petitioner of

fair notice of the charges against him and meets the requisite constitutional standard”);

see also Williams v. Haviland, 467 F.3d 527, 535-36 (6th Cir. 2006)(“Although the exact

mens rea requirements were not stated in the indictment, the indictment precisely

stated the offenses with which Williams was charged so that there could be no

confusion on this point”).

There is no other prejudice apparent on the record. For example, the jury

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instructions given in petitioner’s case advised the jurors that before they could convict

petitioner of either aggravated robbery or murder, they had to find that petitioner acted

purposefully with respect to his intent to deprive the victims of their property. See Trial

Transcript, at 601 (attached as an Exhibit to the Return of Writ). Because the aggravated

robberies were the predicate for the murder charge (it was a felony murder charge), that

same mens rea instruction applied to the murder charge. Petitioner did not object to

these instructions. Courts have held that, under similar circumstances, no

constitutional error relating to fair notice of the charges has occurred. See, e.g., Alston v.

Voorhies, 2008 WL 8101945, *21 (N.D. Ohio July 24, 2008) (“Although the indictment did

not charge the mens rea element of robbery, the jury instructions included a mens rea.

Thus, the jury considered the defendant's mens rea as an element of the offense”),

adopted and affirmed 2010 WL 3895069 (N.D. Ohio Sept. 30, 2010).

As part of his argument, in his traverse, petitioner appears to claim that the

defect in the indictment rendered it void, and that he may take advantage of the “actual

innocence” standard set forth in Kuhlmann v. Wilson, 477 U.S. 436 (1986). That argument

is misplaced. In addition to the fact that Kuhlmann deals only with the question of

whether a showing of actual innocence could allow a federal court to consider the

merits of an otherwise successive petition, as the Court of Appeals noted in Williams v.

Haviland, supra at 535, “[a] constitutionally deficient indictment is subject to

harmless-error review,” a statement totally inconsistent with the notion that a defect in

an indictment creates a jurisdictional problem for the state courts. This Court has

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consistently held that defects in an indictment such as the failure to allege a mens rea

element (assuming that such failure renders the indictment defective) are not

jurisdictional and do not make the indictment and all subsequent proceedings void. 

See, e.g., Taylor v. Brunsman, 2010 WL 2465373 (S.D. Ohio May 11, 2010), adopted and

affirmed 2010 WL 2465372 (S.D. Ohio June 10, 2010). Therefore, whether or not

petitioner procedurally defaulted this first claim, it has no merit.

The other claim which respondent contends has been procedurally defaulted is

claim two, in which petitioner asserts that the state trial judge erred by failing to give an

“accomplice instruction” to the jury regarding Mr. Gibson’s testimony at trial. 

Petitioner’s counsel never requested that instruction (which, under Ohio Rev. Code

§2923.03(D), Ohio trial judges must give if asked to), and respondent contends that this

claim was procedurally defaulted for that reason. It is clear that the state appellate

court considered the claim to have been waived, and reviewed it only for plain error. 

See State v. Arthurs, supra, at *5 (“Where counsel fails to draw an error to the attention of

the trial court, the appellate courts perform a ‘plain error’ analysis under Crim.R.

52(B)”). That court found no plain error, noting that given the amount and consistency

of the testimony at trial, the failure to give the instruction did not result in a miscarriage

of justice. Id. 

This claim, to the extent that it has a due process component which is cognizable

in federal habeas corpus, was clearly defaulted. Petitioner’s tenth ground for relief is

that his trial attorney was constitutionally ineffective for failing to ask for this

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instruction. Because ineffective assistance of counsel can excuse a procedural default,

see Murray v. Carrier, 477 U.S. 478 (1986), the Court will complete its discussion of this

claim when it considers petitioner’s tenth ground for relief.

IV. THE MERITS

Respondent does not raise any specific issues of procedural default with respect

to the remainder of petitioner’s grounds for relief. The Court must therefore consider

them on the merits. The standard of review applicable to each ground for relief is the

deferential standard contained in the AEDPA, as more fully described above.

 A. Grounds Three and Seven - Sufficiency of the Evidence

The return addresses grounds three, four, and seven together, because, according

to respondent, in each of these grounds, petitioner attacks some portion of the evidence

as insufficient to support a conviction. The Court will address claim seven first,

because it generally challenges the sufficiency of the evidence to support all of the jury’s

verdicts. The Court will also address ground three in this section because it raises

sufficiency of the evidence claims. Ground four will be discussed separately.

A challenge to the sufficiency of the evidence, when made in a habeas corpus

petition subject to the AEDPA, must meet an exacting standard. As this Court

explained in Lynch v. Hudson, 2011 WL 4537890, *81-82 (S.D. Ohio September 28, 2011): 

In Jackson v. Virginia [443 U.S. 307 (1979)], the United States Supreme

Court held that as a matter of fundamental due process, a criminal

conviction cannot stand unless each essential element is proven beyond a

reasonable doubt. 443 U.S. at 316. The Supreme Court explained that

when reviewing a challenge to the constitutional sufficiency of the

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evidence supporting a criminal conviction, “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.” Id. at 319. The Supreme

Court cautioned, with respect to the role of a reviewing court, that “[t]his

familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Id. Thus, after

reviewing the evidence in a light most favorable to the prosecution and

respecting the trier of fact's role in determining witnesses' credibility and

weighing the evidence, a federal court must grant habeas corpus relief “if

it is found that upon the record evidence at the trial no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.” Id. at 324.

It is important to remember when reviewing a sufficiency of the evidence

challenge that this Court “do[es] not reweigh the evidence, re-evaluate the

credibility of the witnesses, or substitute [its] judgment for that of the

jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009). If the record

contains credible, competent evidence enabling a rational jury to find each

essential element beyond a reasonable doubt, then Petitioner's challenge

to the sufficiency of the evidence fails. Cf. Matthews v. Abramajtys, 319 F.3d

780, 788–89 (6th Cir.2003) (“The mere existence of sufficient evidence to

convict therefore defeats a petitioner's claim.”).

*Further, as the Sixth Circuit has explained, “[i]n a habeas proceeding,

however, we cannot simply conduct de novo review of the state court's

application of [the Jackson v. Virginia] rule, but must review its

sufficiency-of-the-evidence decision under the highly deferential standard

of the AEDPA.” Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir.2008). In Tucker

v. Palmer, 541 F.3d 652 (6th Cir.2008), the Sixth Circuit explained in more

detail:

Accordingly, the law commands deference at two levels in

this case: First, deference should be given to the trier-of-fact's

verdict, as contemplated by Jackson; second, deference

should be given to the Michigan Court of Appeals'

consideration of the trier-of-fact's verdict, as dictated by the

AEDPA.

Id. at 656. See also Parker v. Renico, 506 F.3d 444, 448 (6th Cir.2007); Nash v.

Eberlin, 258 F. App'x 761, 765 (6th Cir.2007). This Court recognizes,

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however, that “even after AEDPA, [the Court] must ‘distinguish

reasonable speculation from sufficient evidence’ when reviewing a state

court's application of Jackson.” Smith v. Romanowski, No. 07–1578, 2009 WL

1884451, at *6 (6th Cir. Jul.1, 2009) (Moore, J., dissenting) (quoting Brown v.

Palmer, 441 F.3d 367, 352 (6th Cir.2006)).

The state court of appeals addressed petitioner’s seventh assignment of error

first. In that assignment of error and in his seventh ground for relief here, petitioner

raises a general challenge to the sufficiency of the evidence. The state court concluded,

in overruling that assignment of error, that “[a]ll the verdicts of guilty were

appropriate, being supported by sufficient evidence and the manifest weight of the

evidence.” State v. Arthurs supra, at *3. The state court cited no authority and did not

indicate what legal test it applied in reaching that conclusion. However, its analysis

focused on the presence of testimony that petitioner and Gibson announced, when they

entered the residence where the shooting occurred, that they were there to commit

robbery, that petitioner followed the shooting victim into another room, that gunshots

were fired, that petitioner had a weapon with him, that the victim died, and that a

robbery occurred. That evidence, coupled with evidence about the weapons and

petitioner’s prior conviction for a crime of violence, was enough, in the state court’s

view, to support each conviction and each specification found by the jury. That is the

correct and constitutionally-prescribed method of analysis and the state court’s

conclusion is one that fair-minded jurists could have reached on this record. 

In his traverse, petitioner appears to argue only that his conviction was against

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the manifest weight of the evidence because all of the witnesses were admitted drug

users and were friends of the victim. A claim that a conviction is against the manifest

weight of the evidence is a state law claim and a federal court cannot grant a petitioner

relief on that ground. See Hess v. Eberlin, 2006 WL 2090093, *8 (S.D. Ohio July 25, 2006). 

Further, in determining if the evidence is sufficient to support a conviction, matters

such as the credibility of the witnesses are left to the jury to decide. See, e.g., Spence v.

Sheets, 675 F.Supp. 2d 792, 803 (S.D. Ohio 2009)(“In reviewing a sufficiency of the

evidence claim, a federal habeas court must defer to the trier of fact with respect to

issues of conflicting testimony, weight of the evidence, and the credibility of the

witnesses”), citing Jackson v. Virginia, 443 U.S. at 319. Therefore, petitioner’s seventh

ground for relief is without merit.

Ground three appears to differ from ground seven in that it specifically

challenges the sufficiency of the evidence to support a finding that petitioner purposely

murdered the victim or knowingly committed the underlying robberies. This claim was

phrased somewhat differently in the state courts; the state court of appeals construed it

as a constitutional attack on Ohio’s felony murder statute, premised on the claim that all

murder convictions must be supported by a finding that the killing was purposeful,

whereas the felony murder statute does not require that showing to be made. To the

extent that petitioner has now altered his claim, it overlaps entirely with claim seven

except for the question of whether the evidence supported a finding that he

purposefully killed the victim. But if a purposeful killing is not a statutory or

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constitutional prerequisite to being found guilty of felony murder, then the absence of

evidence of a purposeful killing is irrelevant.

Ohio Rev. Code §2903.02, which encompasses the crime of murder, states, in

subsection (A), that purposefully causing the death of another is a murder. However,

subsection (B), under which petitioner was charged, alternatively defines murder as

proximately causing the death of another as a result of the commission of an offense of

violence that is a first or second degree felony. In a felony murder case, the State need

not show a purpose to kill, but only the knowing commission of the underlying felony,

and a proximate causal relationship between the commission of the underlying felony

and the victim’s death. State v. Miller, 96 Ohio St. 3d 384 (2002). Thus, even if petitioner

is correct that the evidence would not support a finding that he purposely killed Mr.

Salmons, it did not need to. The evidence was plainly sufficient to support both a

finding that he knowingly committed aggravated robbery - his announced intention to

do so is proof enough on that point - and that the killing occurred as a proximate or

reasonably foreseeable result of the robbery when, in the course of robbing Mr.

Salmons, petitioner shot him in the back. Thus, his third ground for relief is likewise

without merit.

B. Ground Four - Murder or Involuntary Manslaughter

In the state court of appeals, petitioner’s fourth assignment of error asserted that

the Ohio General Assembly, in enacting Rev. Code §2903.02(B) (the felony murder

statute discussed above), meant to prohibit a defendant’s being found guilty of felony

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murder if the evidence also supported a conviction for involuntary manslaughter. That

appears to be purely an issue of the proper interpretation of state law, and not a claim

that petitioner’s federal constitutional rights were violated. In this Court, he has

slightly rephrased this claim to include a reference to the Due Process clause. Again,

any federal component of this claim was likely waived because it was not argued to the

state court of appeals, but, perhaps because of the reference to the Due Process clause,

respondent has argued the issue as if it presents a question of the sufficiency of the

evidence to support the felony murder conviction. 

The traverse is not particularly helpful in defining this claim further. To some

extent, petitioner appears to repeat his argument that unless the State proved a

purposeful killing, he could not have properly been convicted of murder, but perhaps

only manslaughter. Again, however, the State was under no obligation to show

purpose in order to obtain a felony murder conviction. The Court sees no viable due

process argument about the way in which Ohio has defined felony murder, including

excluding both voluntary and involuntary manslaughter from serving as the underlying

felonies to support a felony murder conviction - which is how the state court of appeals

described the statutory scheme in question (“R.C. 2903.02 ... bars voluntary

manslaughter (R.C. 2903.03) or involuntary manslaughter (R.C. 2903.04) from

automatically becoming murder [even though] they are felonies of the first degree in

which the victims died”). State v. Arthurs, supra, at *5. Petitioner is not entitled to any

relief from this Court on his fourth claim.

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C. Ground Five - Failure to Declare a Mistrial

In his fifth ground for relief, petitioner asserts that his due process rights were

violated when the state trial judge refused to declare a mistrial. The event which led his

counsel to ask for a mistrial was an isolated and unanticipated statement made by

petitioner’s son to the effect that when petitioner was arrested on these charges, a parole

officer was present. According to petitioner, even though the testimony did not

specifically identify the parole officer in question as petitioner’s parole officer, the jury

could have so inferred. Thus, he argues, this statement alerted the jury to the fact that

he had some type of past criminal record, and the only reasonable solution to that

problem would have been a mistrial.

The state court of appeals dealt with this claim in very summary fashion, noting

that “[t]he trial judge discussed the problem presented by the mention of a parole

officer, and decided that [petitioner] was not unfairly prejudiced. The decision was

within the realm of the trial court's discretion.” State v. Arthurs, supra, at *6. The state

court decision did not cite to any state or federal decisions, but appears to have applied

a legal standard that the refusal to declare a mistrial will not lead to reversal of a

conviction unless the trial judge’s ruling was an abuse of discretion. 

Under the Due Process clause, if a federal appellate court were reviewing the

decision of a lower federal court not to grant a mistrial, the standard of review would

also be phrased in terms of an abuse of discretion. United States v. Chambers, 944 F.2d

1253, 1263 (6th Cir. 2003). However, “[w]hen conducting habeas review of a trial

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decision of a state court not touching on a specific provision of the Bill of Rights, the

standard of review is even higher: reversal is not warranted unless the comment ‘was

potentially so misleading and prejudicial that it deprived [the defendant] of a

constitutionally fair trial.’” Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003), quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 641-42 (1974). In making such a determination,

five factors have been identified as significant, including whether the remark which

occasioned the motion for a mistrial was unsolicited, whether the line of questioning

which led to the remark was reasonable, whether a prompt and clear limiting

instruction was given, whether there was any evidence of governmental bad faith, and

how the remark compared to the balance of the evidence at trial. See id. 

Here, the state court record reflects that the response given by petitioner’s son to

the question of who arrested his father was unanticipated and that the line of

questioning being pursued was reasonable. The trial judge did not give a limiting

instruction, but petitioner’s counsel did not object immediately to the statement and the

judge was concerned that to bring the matter back to the jury’s attention through a later

instruction would be prejudicial. There is no evidence of bad faith on the part of the

State, and the remark - which did not even affirmatively identify the parole officer who

arrested petitioner as his parole officer, and which certainly did not inform the jury of

any specific prior criminal record of petitioner’s - could not have been prejudicial in

light of the overwhelming evidence of petitioner’s guilt. Therefore, keeping in mind

how difficult it is to make out a Due Process violation on habeas review, petitioner is

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not entitled to any relief on his fifth claim.

D. Ground Six - Petitioner’s Son as a Competent Witness

Next, petitioner argues that his son, who provided some corroborating testimony

in this case but who was not actually present at the scene of the robbery and murder,

was not competent to testify. He asserts that the trial judge’s decision to allow the son

to testify violated his rights under the Due Process clause. The state court of appeals

held

The son of Arthurs who testified was 16 years of age. He understood right

from wrong and knew he would get in trouble if he lied under oath. His

testimony at trial demonstrated his ability to receive impressions of fact

and relate them. The trial court could reasonably find the young man to be

competent to testify. The judge's finding of competency was not an abuse

of discretion.

State v. Arthurs, supra, at *6. The factual findings made by the state court of appeals are

binding on this Court. 28 U.S.C. §2254(e)(1); Crosky v. Sheets, 2011 WL 1812430, *23 (S.D.

Ohio May 12, 2011) , adopted and affirmed 2011 WL 2884984 (S.D. Ohio July 18, 2011). 

Thus, the question before the Court is, assuming these facts about petitioner’s son’s

ability to comprehend right and wrong and to relate things he had seen or heard are

true, did the state court act unreasonably in finding that petitioner’s due process rights

were not violated? 

In his traverse, petitioner argues that the fact that his son had reached some

understanding with the juvenile authorities and that he may have been an accomplice to

the crime should have impacted the decision to let him testify or should have prompted

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a jury instruction about how to weigh his testimony. But these arguments go to the

credibility of the son’s testimony, not his competence to have given it, and the latter

issue is the only one presented to the state courts. As to that issue, respondent cites to

Peters v. Whitley, 942 F.2d 937, 940 (5th Cir. 1991) for the proposition that unless a

witness’s testimony is so clearly unreliable as to undermine the Court’s confidence in

the reliability of the conviction, no due process violation can be established. Although

that decision does not appear to have been cited within the Sixth Circuit for that

proposition, it falls well within the more general concept that errors in the admission of

evidence under state law do not rise to the level of a federal constitutional violation

“unless the error renders the proceeding so fundamentally unfair as to deprive the

petitioner of due process under the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d

487, 494 (6th Cir. 2004). 

Here, there was nothing fundamentally unfair about the trial judge’s decision to

allow petitioner’s son to testify. The matters which were explored about his

competency were appropriate, and, as noted, the state courts’ findings on the

underlying factual issues are presumed to be correct. Given the fact that a witness

should be declared incompetent only if that witness is “so impaired in some manner

that [he] cannot give meaningful testimony,” see United States v. Ramirez, 871 F.2d 582,

584 (6th Cir. 1989), the state court did not unreasonably determine that petitioner’s son

did not meet that standard. Under these circumstances, petitioner is not entitled to

relief on his sixth claim.

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E. Ground Eight - Effect of “Combined Errors”

Petitioner does not actually raise a separate constitutional claim in Ground Eight. 

Rather, he contends that even if none of the other trial errors he has identified would

independently support relief, their cumulative effect deprived him of a fair trial. The

state appellate court, having found no merit to any of petitioner’s other arguments, held

that “[t]he assigned errors set forth above have been overruled and do not in anyway

indicate a violation of due process of law.” State v. Arthurs, supra, at *7. It went on to

address a number of other claimed errors he identified in this category, all of which

have to do with claimed violations of state law, and held that none of them supported

reversal of the convictions. Respondent correctly points out that such cumulative error

claims cannot support the issuance of a writ of habeas corpus. See Williams v. Anderson,

460 F.3d 789, 816 (6th Cir. 2006)(“the law of this Circuit is that cumulative error claims

are not cognizable on habeas [corpus]”). Consequently, the Court will address only one

aspect of this claim, which is that the trial judge erroneously gave the jury an instruction

about continuing deliberations after it became deadlocked (known in Ohio as a Howard

instruction) before the need to give that instruction arose, even though petitioner does

not refer to this specific claim in his traverse.

The state court of appeals, when addressing this issue, noted that the instruction

was given on the third day of jury deliberations “after the jury asked if it needed to

come to full agreement on all accounts to avoid a mistrial.” State v. Arthurs, supra, at *7. 

Petitioner’s argument to that court was not that the language of the instruction was

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problematic, but that he was prejudiced because the note did not really mean that the

jury had reached an impasse, and that the trial judge acted prematurely by delivering

the charge. The state court of appeals found no abuse of discretion, noting that the

length of time the jury had spent deliberating made it reasonable for the trial judge to

think that the instruction would be helpful. 

 In this Circuit, “the due process inquiry associated with [such a jury] charge

focuses on the circumstances that triggered the charge, as well as the language of the

charge itself.” Henderson v. Collins, 262 F.3d 615, 619 (6th Cir. 2001). If properly given,

most courts have found such an instruction not to be inherently coercive. See United

States v. Strothers, 77 F.3d 1389, 1395 (D.C. Cir. 1996). Nevertheless, a reviewing court

should make an inquiry into matters such as how long the jury deliberated before the

charge was given, and if there are other reasons to believe that it was coercive. See, e.g.,

Moore v. Adams, 2008 WL 2441084 (E.D. Cal. June 13, 2008), adopted and affirmed 2008 WL

2915078 (E.D. Cal. July 25, 2008). The state court of appeals made the correct inquiry

and reasonable jurists could have reached the same conclusion as that court, namely

that it was within the trial judge’s discretion to have given this instruction to the jury,

and that the record does not contain any indication that the instruction or the

circumstances surrounding it were unduly coercive. Thus, nothing in this ground for

relief merits the granting of a writ.

F. Ground Nine - Failure to Explain Mandatory Nature of Post-Release Control

Petitioner’s ninth assignment of error to the Tenth District Court of Appeals was

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couched purely in terms of state law. He claimed that the trial judge’s failure to

explain, at his sentencing, that he would be subject to post-release control should he

ever be released from prison was a violation of Ohio Rev. Code §2967.28 and rendered

the entire sentence void. The state court of appeals analyzed the issue under Ohio law

and found no error requiring reversal. Here, petitioner appears to claim that the trial

judge’s failure to comply with Ohio law somehow violated his due process rights.

As with many of his other claims, petitioner’s failure to present this issue as a

federal constitutional issue in the state courts is potentially fatal to his ability to obtain

habeas corpus relief. To the extent that he continues to advance the claim as an error of

state law, it is true, of course, that a federal court cannot grant habeas corpus relief on

the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). Even if

he had argued this as a due process violation, it is hard to see how this particular

omission affected the validity of the remainder of his sentence from a federal

constitutional viewpoint. Perhaps if he is ever placed on post-release control, and he

raises a claim that it was not properly part of his sentence, he might have some due

process claim (although the Court hastens to add that it is by no means certain that such

a claim would exist or be meritorious), but the Court fails to see how this affected his

current sentence of incarceration. Because, in order to obtain habeas corpus relief in this

Court, petitioner must show that he is currently being held in custody in violation of

federal law, this claim does not provide any basis for relief.

G. Ground Ten - Ineffective Assistance of Counsel

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In his final ground for relief, petitioner claims that he did not receive effective

assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments, because

his counsel failed to ask the trial judge for an “accomplice instruction” which must be

given by Ohio trial judges upon request. Because of that failure, the instruction was not

given, and petitioner claims that counsel’s performance both fell below the standard

required by the Constitution, and that he suffered prejudice from the absence of such an

instruction. He also claimed, in his state court appeal, that trial counsel was ineffective

for failing to ask for an instruction on the lesser-included offense of involuntary

manslaughter. The state court of appeals found otherwise, holding that trial counsel’s

failure to ask for the accomplice instruction may have been improper but that “the

failure to do so could not have conceivably affected the outcome of the trial.” State v.

Arthurs, supra, at *8. The state court of appeals also found no other deficiencies in

counsel’s performance, noting that he “litigated diligently” and was able to obtain an

acquittal on the aggravated murder charge. Id. In making those findings, the state

court relied on Strickland v. Washington, 466 U.S. 668 (1984), which is the controlling

federal decision on the standard to apply to Sixth Amendment-based challenges to the

effectiveness of counsel in a criminal case. Therefore, this Court’s inquiry is limited to

the question of whether the state court unreasonably applied Strickland to the facts of

this case.

It is unclear if petitioner intended to raise one or both of these claims here, but,

liberally construing his petition and the traverse, which makes brief mention of the

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involuntary manslaughter charge in connection with the tenth ground for relief, the

Court will assume that he has done so. His traverse also appears to argue that counsel’s

failure to address the issue of post-release control at the time of sentencing was

ineffective assistance, but that claim was not raised on appeal, and his contention that

the sentence was improper was reviewed by the state court of appeals on its merits, so

anything trial counsel may or may not have done in that regard is irrelevant to the

question of whether counsel properly preserved the issue for review.

The right to counsel guaranteed by the Sixth Amendment is the right to the

effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The

standard for demonstrating a claim of ineffective assistance of counsel is composed of

two parts:

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.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of defense counsel's

performance must be “highly deferential.” Id. at 689.

With respect to the first prong of the Strickland test, “[b]ecause of the difficulties

inherent in making the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance.” Id .

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To establish the second prong of the Strickland test, prejudice, a petitioner must

demonstrate that there is a reasonable probability 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

Taking the two claimed instances of ineffective assistance of counsel in reverse

order, as a general matter, “failure to request instructions on lesser included offenses is

a matter of trial strategy and does not support a claim of ineffective assistance.” Brakeall

v. Warden Ross Correctional Inst., 2011 WL 2374855, *14 (S.D. Ohio June 9, 2011), adopted

and affirmed 2011 WL 4712774 (S.D. Ohio October 6, 2011). There is no evidence in this

record from which it could be argued that the failure to request an involuntary

manslaughter instruction was not a strategic decision.

Second, the Ohio courts have explained the difference between felony murder

and involuntary manslaughter is in this way:

A comparison of the felony murder statute, R.C. 2903.02(B), and the

involuntary manslaughter statute, R.C. 2903.04(A), reveals that they do

not prohibit identical activity and require identical proof. Causing

another's death as a proximate result of committing any felony, which is

sufficient to prove involuntary manslaughter, is not always or necessarily

sufficient to prove felony murder. In order to prove felony murder the

State is required to prove more: that the underlying felony is an offense of

violence, defined in R.C. 2901.01(A)(9), that is a felony of the first or

second degree, and not a violation of R.C. 2903.03 or 2903.04.

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State v. Dixon, 2002 WL 191582, *3 (Montgomery Co. App. February 8, 2002). In this

case, petitioner was charged with and convicted of an underlying felony, aggravated

robbery, which is a crime of violence and which is a first or second degree felony, so

that all of the elements of felony murder were present. Since the jury believed that he

committed the underlying aggravated robbery, it is highly unlikely that had it been

given the option of finding him guilty of only involuntary manslaughter as opposed to

felony murder, it would have chosen that option. Thus, regardless of whether counsel

acted strategically or ineffectively in failing to ask for an involuntary manslaughter

instruction, there is little likelihood that such a failure deprived petitioner of the right to

a fair trial or affected the outcome of the case.

As to the accomplice instruction, the court of appeals seems to have assumed

that there was no reasonable explanation for trial counsel’s failure to request the

instruction, but it found that even if the instruction had been given, it would not likely

have affected the result of the trial. In so holding, the court noted that “ [t]he testimony

of Gibson [the accomplice] and Lowery was consistent as to the circumstances

surrounding the robbery and murder. That testimony was supported by the testimony

of Josh, who was in the residence at the time of the robbery and homicide. Further,

[petitioner] confessed the shooting to his son, who also was called as a witness for the

State of Ohio.” State v. Arthurs, supra, at *5. The trial court did instruct the jury

generally as to the credibility of the witnesses, telling the jurors that interest and bias

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were factors which could lead them to disbelieve a witness’ testimony. Trial Transcript,

at 597. The jurors also learned that Mr. Gibson had made an agreement to testify

against petitioner in exchange for a more lenient sentence, and petitioner’s counsel

argued that point in his closing statement. 

In some instances, particularly where an accomplice’s testimony is

uncorroborated, the failure to give this type of instruction requires reversal. See, e.g.,

United States v. Gardner, 244 F.3 784 (10th Cir. 2001). Generally, however, the failure to

give a specific instruction on accomplice testimony is held not to be reversible error so

long as the jury was adequately informed of the general reasons why it might decide

not to credit a particular witness’ testimony. See, e.g., United States v. Carr, 5 F.3d 986,

992 (6th Cir. 1993)(“[t]he court's instruction adequately informed the jury regarding the

credibility of witness testimony, and so we are not troubled simply because the court

chose not to explicitly highlight the credibility problems inhering in accomplice

testimony”). Other courts have noted that if “the jury had sufficient evidence to assess

[the accomplices’] credibility and their possible motives for lying,” the failure to give

this type of instruction does not deprive the defendant of a fair trial. See Young v.

Trombley, 2009 WL 909563, *6 (E.D. Mich. March 31, 2009), aff’d 435 Fed. Appx. 499 (6th

Cir. Aug. 16, 2011).

Given this state of the law, and given the factors present in this case - the

existence of substantial corroborating evidence, the jury’s knowledge of the plea

agreement given to Mr. Gibson, the general instruction on credibility, and counsel’s

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ability to argue this point to the jury - the state court did not unreasonably conclude

that the failure to give an accomplice instruction had no material impact on the jury’s

decision. Because that is so, the state court of appeals did not unreasonably apply the

Strickland test to petitioner’s claim of ineffective assistance of trial counsel, and this

Court may not disturb its ruling on this point. This ruling is also dispositive of

petitioner’s contention that ineffective assistance of counsel can serve as a basis for

excusing the procedural default of his second ground for relief. Consequently, as did

the state court of appeals, this Court determines that none of petitioner’s claims have

merit, and that he is not entitled to any relief.

 V. RECOMMENDED DISPOSITION

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that the

petition for a writ of habeas corpus be DISMISSED. 

VI. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within

fourteen 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

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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).

 /s/ Terence P. Kemp 

United States Magistrate Judge

35

Case: 2:11-cv-00541-ALM-TPK Doc #: 11 Filed: 03/23/12 Page: 35 of 35 PAGEID #: <pageID>