IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARCUS T HICKMAN, 

Petitioner, CASE NO. 2:11-CV-00196

JUDGE SMITH

v. MAGISTRATE JUDGE ABEL

MICHAEL SHEETS, WARDEN, 

Respondent.

REPORT AND RECOMMENDATION

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

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

of Writ, and the exhibits of the parties. 

This action involves Petitioner’s convictions pursuant to the terms of his negotiated “no

contest” plea while represented by counsel on charges of attempted murder, felonious assault,

kidnapping, aggravated robbery and tampering with evidence. The Ohio Court of Appeals affirmed

the judgment of the trial court and the Ohio Supreme Court dismissed Petitioner’s appeal. As his

sole ground for federal habeas corpus relief, Petitioner asserts that the identification procedure used

by the State was unduly suggestive and violated his rights under the 5th and 14th Amendment to the

United States Constitution. For the reasons that follow, the Magistrate Judge concludes that

Petitioner waived his right to review of this claim in these proceedings by entry of his no contest

plea and therefore RECOMMENDS that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

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

case as follows:

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On the evening of March 30, 2008, Donna Wade was walking in a

residential area to meet a female friend, Dreama Azbell. Upon

meeting Dreama, the two were approached by a white male, later to

be identified as Dreama's brother, Tim Azbell. Both Tim and Dreama

Azbell held Donna Wade at gunpoint. A black male then exited a

parked, red Chevy Blazer and forced Donna Wade into the back seat

of the Blazer. Wade was seated directly behind the black male, who

drove the vehicle around town for a short period of time. The black

male then stopped the vehicle, forced Wade out of the vehicle, and

proceeded to shoot her in the neck.

Donna Wade survived the shooting, and was transported to an area

hospital. At the hospital, investigating officers from the Lancaster

Police Department presented Wade with a photo array of six black

males. Donna Wade identified Appellant from the photo array as the

man who shot her in the neck.

The Fairfield County Grand Jury indicted Appellant on attempted

murder, felonious assault, kidnapping, aggravated robbery and

tampering with evidence. On July 2, 2008, Appellant filed a motion

to suppress the identification from the photo lineup. Via Judgment

Entry of October 7, 2008, the trial court overruled the motion to

suppress. Appellant subsequently entered a plea of no contest to the

charges pursuant to a negotiated plea agreement.

State v. Hickman, No. 09-CA-15, 2009 WL 2986239, at *1 (Ohio App. 5th Dist. Sept. 14, 2009). As

his sole assignment of error on appeal, Petitioner asserted that the trial court erred in overruling his

motion to suppress. See id. On September 14, 2009, the appellate court affirmed the trial court’s

judgment. Id. It did not address the merits of the claim. Instead, it held that “[a]ssuming, arguendo,

we find the photo array at issue unduly suggestive and unreliable, Appellant cannot demonstrate

prejudice due to his plea of no contest to the charges.” Id, ¶ 11.The Court noted that there may have

been other evidence supporting the identification. By choosing not to contest the facts alleged in the

indictment, petitioner waived his right to challenge his identification at trial. Id.

As his sole proposition of law in his motion for leave to appeal to the Supreme Court of

Ohio, petitioner asserted that a plea of no contest preserves the right to appeal an adverse ruling on

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a motion to suppress an out-of-court and in court identification by a witness based on an

unconstitutional pretrial identification procedure. On January 27, 2010, the Ohio Supreme Court

dismissed Petitioner’s subsequent appeal. State v. Hickman, 124 Ohio St.3d 1445 (2010). 

On March 4, 2011, Petitioner filed the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. As his sole ground for habeas corpus relief, Petitioner asserts that the

identification procedure used by the State was unduly suggestive and violated his rights under the

5th and 14th Amendment to the United States Constitution. It is the position of the Respondent that

this claim is procedurally defaulted and, alternatively, that the claim lacks merit. 

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 to present those claims to

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

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

to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391

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

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

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

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

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

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

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

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Cir.1986); see also Scuba v. Brigano, 259 F. App'x. 713, 718 (6th Cir. 2007) (following the four-part

analysis of Maupin ). Specifically, the United States Court of Appeals for the Sixth Circuit requires

the district courts to engage in the following inquiry:

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

that is applicable to the petitioner's claim and that the petitioner failed

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

state courts actually enforced the state procedural sanction.... Third,

the court must decide whether the state procedural forfeiture is an

adequate and independent state ground on which the state can rely to

foreclose review of a federal constitutional claim.

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

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

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

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

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

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

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

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

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

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

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

incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1892)).

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

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

in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261 F.3d

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

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

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

As his sole claim for relief, Petitioner asserts he was denied a fair trial due to admission of

Donna Wade’s identification of him as the perpetrator from a photograph line-up. Petitioner raised

this claim on direct appeal; however, the state appellate court concluded he had waived the issue by

entry of his no-contest plea: 

Appellant entered a plea of no contest to the charges in the indictment

following the trial court's denial of his motion to suppress the victim's

pretrial photo array identification. Assuming, arguendo, we find the

photo array at issue unduly suggestive and unreliable, Appellant

cannot demonstrate prejudice due to his plea of no contest to the

charges. Suppression of the victim's identification of Appellant from

the photo array prepared by the police would not necessarily preclude

a valid identification of Appellant by the victim at trial. Furthermore,

there may have been identification evidence independent from the

victim's testimony. Appellant having entered a no contest plea to the

facts alleged in the indictment, the matter did not proceed to trial.

Appellant cannot demonstrate prejudice as result of the trial court's

denial of his motion to suppress because by pleading no contest, he

waived the right to challenge his identification at trial.

State v. Wade, 2009 WL 2986239, at *2. Petitioner argued on appeal to the Ohio Supreme Court

that, contrary to the conclusion of the state appellate court, he had preserved his claim regarding an

unduly suggestive identification by Donna Wade for appeal despite entry of his no-contest plea. See

Exhibit 15 to Return of Writ. Respondent argues that Petitioner thereby has waived this claim for

federal habeas corpus review. 

The Magistrate Judge agrees. Petitioner did not raise in the Ohio Supreme Court a claim that

Wade’s identification of him was unduly prejudicial, but argued solely that he had properly

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 After a criminal defendant leads guilty on the advice of counsel, he waives federal

habeas review of antecedent constitutional infirmities and non-jurisdictional defects. Tollett v.

Henderson, 411 U.S. 258, 266 (1973). See also Peterson v. McLemore, No. 07-15389, 2009 WL

1874096, at *6 (W.D. Mich. June 25, 2009)(citing Tollett v. Henderson, 411 U.S. at 267 (1973);

United States v. Freed, 688 F.2d 24, 25 (6th Cir. 1982). Here, however, Petitioner entered a plea

of “no contest” to the charges, thus preserving his right to appeal the trial court’s denial of his

motion to suppress under Ohio law. See State v. Luna, 2 Ohio St.3d 57 (1982); Ohio Criminal

Rule 12(I). 

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preserved this claim for review by entry of his no contest plea. See Exhibit 15 to Return of Writ. 1

Moreover, he can now no longer raise his claim that Wade’s identification of him was unduly

suggestive in the state courts under Ohio’s doctrine of res judicata. See State v. Cole, 2 Ohio St.3d

112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). 

The Court of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res

judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v.

Mitchell, 440 F.3d 754, 765 (6th Cir.2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th

Cir.2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir.2000); Byrd v. Collins, 209 F.3d 486,

521-22 (6th Cir.2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.1998). The doctrine of res

judicata is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have

consistently refused, in reliance on that doctrine, to review the merits of claims. State v. Cole, 2 Ohio

St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Further, the doctrine of res judicata serves the

state's interest in finality and in ensuring that claims are adjudicated at the earliest possible

opportunity. With respect to the independence prong, the Court concludes that res judicata does not

rely on or otherwise implicate federal law. The third part of the Maupin test has been met. 

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

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

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

333

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/Mark R. Abel 

United States Magistrate Judge

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