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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TIMOTHY L. SNYDER, 

 CASE NO. 2:11-CV-800 

 Petitioner, JUDGE ALGENON L. MARBLEY 

 MAGISTRATE JUDGE MICHAEL R. MERZ 

 v. 

WARDEN, MARION 

CORRECTIONAL INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On April 24, 2013, the Magistrate Judge issued a Report and Recommendation

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

be dismissed. Petitioner objects to the Magistrate Judge’s recommendation of dismissal of 

habeas corpus claims one, two, and three, in which he asserts that the evidence was 

constitutionally insufficient to sustain his convictions. For the reasons that follow, Petitioner’s 

Objection, Doc. 19, is OVERRULED. 

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claims as 

procedurally defaulted, on the basis that he presented only a claim that his convictions were 

against the manifest weight of the evidence to the state appellate court. Petitioner contends that 

he has preserved his insufficiency of the evidence claims for review in these proceedings, 

because the state appellate court addressed this claim and because he presented this same claim 

in his appeal to the Ohio Supreme Court. 

 This Court does not agree. The state appellate court plainly did not address or discuss the 

allegation that the evidence was constitutionally insufficient to sustain his convictions. The lines 

referred to by Petitioner in support of his argument to the contrary do not indicate that an 

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insufficiency of evidence claim was addressed, but that the appellate court noted in the context of 

addressing his claim that his convictions were against the manifest weight of the evidence, that 

there was sufficient evidence to support Petitioner’s convictions. Further, the Ohio Supreme 

Court does not ordinarily consider claims not first raised in the appellate court below, State v. 

Jester, 32 Ohio St.3d 147, 154 (1987), and Petitioner did not thereby preserve his claims for 

federal habeas corpus review. 

 Petitioner also again argues that he is actually innocent of the charges against him based 

on the lack of evidence establishing he stole $25,000.00, or more. He argues that evidence 

indicates Petitioner paid back to James Bauer certain amounts of money borrowed or taken and 

completed work on Bauer’s roof and cabinets such that evidence reflects that the total value 

taken was less than $25,000.00. Likewise, as to Mildred Stahl, Petitioner contends that 

evidenced reflects he paid back certain amounts of money and that Stahl owed Petitioner, 

pursuant to their agreement, $150.00 per week for his services. In view of the foregoing, 

Petitioner contends that evidence reflects, at most, he owed $13,823.37 to Stahl. Finally, 

Petitioner argues that he is actually innocent of the charges involving McClelland in view of 

evidence indicating he provided work and services to McClellan and paid back certain sums of 

money owed to McClellan. Objection, PageID #1695-1702. Petitioner objects to the Magistrate 

Judge’s rejecting of his claim of actual innocence. 

 Petitioner’s objections are not well taken. To establish a credible claim of actual 

innocence, petitioner must “support his allegations of constitutional error with new reliable 

evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or 

critical physical evidence - that was not presented at trial.” Lenoir v. Warden, Southern Ohio

Correctional Facility, 886 F.Supp.2d 718, 729 (S.D. Ohio 2012)(quoting Schlup v. Delo, 513 

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U.S. 298, 324 (1995)); see also Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 427 (6th Cir. 

2003). None of the evidence referred to by Petitioner constitutes new reliable evidence that 

previously was unavailable and shows that he is actually innocent of the crimes for which he was 

convicted. Rather, the “evidence” he presents is evidence which was either already presented at 

trial, or was available to him at that time. Moreover, as discussed by the Magistrate Judge, the 

state appellate court, in rejecting Petitioner’s claim that his convictions are against the manifest 

weight of the evidence, in so doing, has implicitly concluded that the evidence, including proof 

of the amount of money alleged to have been taken, was constitutionally sufficient to sustain his 

convictions. These findings are presumed to be correct and the decision of the state appellate 

court is entitled to deference in these proceedings. 28 U.S.C. § 2254(d), (e). The record fails to 

reflect that this Court should disturb those findings here. As discussed by the Magistrate Judge, 

it was for the jury to decide whether Petitioner performed work worth what he took or believed 

testimony refuting amounts taken or alleged to have been returned by Petitioner such that the 

State met its burden of proving the offenses charged. In short, this Court remains unpersuaded 

that Petitioner has established that this is an “extraordinary case where a constitutional violation 

has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 

U.S. 478, 496 (1986). 

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

Objection, Doc. 19, is OVERRULED. The Report and Recommendation is ADOPTED and 

AFFIRMED. This action is hereby DISMISSED. 

 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 United States District Judge 

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