IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM SOWARDS, 

Petitioner, 

v. Case No. 2:11-cv-954

 JUDGE MICHAEL H. WATSON

ATTORNEY GENERAL OF THE Magistrate Judge Kemp

STATE OF OHIO, 

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 the instant petition,

respondent’s return of writ, petitioner’s reply and the exhibits of the parties. Also

before the Court is petitioner’s motion for summary judgment and an evidentiary

hearing, and petitioner’s motion for a stay of sentence. These motions have been fully

briefed. For the following reasons, it will be recommended that the petition be

DISMISSED and that the remaining motions be DENIED. 

FACTS and PROCEDURAL HISTORY

On April 12, 2006, a Gallia County Grand Jury indicted petitioner on two counts

of possession of drugs and one count of having a weapon while under a disability. The

language of the indictment, relevant to Count 1, read as follows:

THE JURORS OF THE GRAND JURY of the State of Ohio,

within and for the body of the County aforesaid, on their oaths, in the

name and by the authority of the State of Ohio, do find and present that

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on or about the 24th day of January, 2006, at Gallia County, Ohio,

WILLIAM S. SOWARDS, did

Count One:

knowingly obtain, possess, or use Marijuana, a schedule I

controlled substance, in an amount exceeding twenty thousand

grams, to-wit: 23,160.96 grams, in violation of Section 2925.11(A) of

the Ohio Revised Code.

A felony of the second degree.

In violation of the Ohio Revised Code, Title 29, Section 2925.11(A), and

against the peace and dignity of the State of Ohio.

Exhibit 1 to Return of Writ. 

 On October 24, 2006, a jury returned a verdict finding petitioner guilty of one

count of possession of drugs and not guilty of the remaining two counts in the

indictment. See Exhibits 2 and 3 to Return of Writ. As to Count One, the verdict form

read as follows:

VERDICT - GUILTY OR NOT GUILTY

INDICTMENT FOR COUNT ONE POSSESSION OF DRUGS

O.R.C. Section 2925.11(A)

We, the jury in this case, duly impaneled, sworn and affirmed, find the 

Defendant, William S. Sowards, Guilty of Possession of Drugs in a manner and form as

he stands charged in the Indictment.

On November 29, 2006, petitioner was sentenced to eight years in prison. See

Exhibit 3 to Return of Writ. At trial, petitioner was represented by James A. Jenkins.

At the time of petitioner’s sentencing, Ohio Revised Code §2945.75 provided, in

relevant part:

(A) When the presence of one or more additional elements makes an

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offense one of more serious degree:

(1) The affidavit, complaint, indictment, or information either

shall state the degree of the offense which the accused is

alleged to have committed, or shall allege such additional

element or elements. Otherwise such affidavit, complaint,

indictment, or information is effective to charge only the least

degree of the offense.

(2) A guilty verdict shall state either the degree of the offense of

which the offender is found guilty, or that such additional

element or elements are present. Otherwise, a guilty verdict

constitutes a finding of guilty of the least degree of the

offense charged.

Further, the statutory section under which petitioner was convicted, R.C.

2925.11, provided in relevant part:

Possession of Drugs

(A) No person shall knowingly obtain, possess, or use a

controlled substance.

...

(C) Whoever violates division (A) of this section is guilty of one

of the following:

...

(3) If the drug involved in the violation is marihuana or a

compound mixture, preparation, or substance containing

marihuana other than hashish, whoever violates division (A)

of this section is guilty of possession of marihuana. The

penalty for the offense shall be determined as follows:

(a) Except as otherwise provided in division (C)(3)(b), (c), (d),

(e), or (f) of this section, possession of marihuana is a minor

misdemeanor.

...

(f) If the amount of the drug involved equals or exceeds twenty

thousand grams but is less than forty thousand grams,

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possession of marihuana is a felony of the second degree, and

the court shall impose a mandatory prison term of five, six,

seven or eight years.

On December 14, 2006, petitioner, filed a notice of appeal to the Gallia County

Court of Appeals. He raised the following assignments of error:

1. The trial court erred in denying appellant’s motion to suppress the

evidence where defendant was questioned after arrest, but without being

given his Miranda warnings.

2. The trial court erred in denying appellant’s motion to suppress evidence

discovered during the warrantless search of appellant’s premises.

Exhibit 4 to Return of Writ. On direct appeal, petitioner continued to be represented by

Mr. Jenkins. Exhibit 5 to Return of Writ. While petitioner’s direct appeal was pending,

the Ohio Supreme Court issued its decision in State v. Pelfrey, 112 Ohio St.3d 442 (2007). 

See Exhibit 20 to Return of Writ. Pelfrey held that where a verdict form does not set out the

greater degree of the offense or any aggravating factors, a defendant can be convicted

only of the least degree of the offense charged. Id. At no time during petitioner’s direct

appeal process did Mr. Jenkins raise the Pelfrey issue. See Affidavit of Attorney James A.

Jenkins attached to Petition. On September 17, 2007, the Court of Appeals issued a

decision affirming the judgment of the trial court. Exhibit 7 to Return of Writ. 

On November 1, 2007, petitioner, still represented by Mr. Jenkins, filed a timely

appeal to the Ohio Supreme Court. Exhibit 8 to Return of Writ. He asserted the following

propositions of law:

I. Defendant-Appellant’s constitutional rights under the Fourth

Amendment of the United States Constitution, the Fifth

Amendment of the United States Constitution and Article I, Section

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of the Ohio Constitution were violated where inculpatory

statements and physical evidence seized from the Appellant’s

person were the fruits of an illegal arrest.

II. Defendant-Appellant’s constitutional rights under the Fourth

Amendment of the United States Constitution were violated where

physical evidence seized from the Appellant’s residence were the

fruits of an illegal probationary search.

III. Defendant-Appellant’s constitutional rights under the Fourth

Amendment of the United States Constitution were violated where

physical evidence seized from the Appellant’s residence were

obtained from an illegal warrantless search.

Exhibit 9 to Return of Writ. On February 6, 2008, the Ohio Supreme Court denied leave

to appeal and dismissed the appeal as not involving any substantial constitutional

question. Exhibit 11 to Return of Writ. According to the parties’ briefs, on May 6, 2008,

petitioner, through Mr. Jenkins, filed a petition for a writ of certiorari with the United

States Supreme Court. On October 6, 2008, the United States Supreme Court denied the

petition.

On November 12, 2008, petitioner, through Mr. Jenkins, filed a motion to vacate

sentence with the Court of Common Pleas for Gallia County, Ohio. Exhibit 12 to Return

of Writ. The common pleas court treated the motion as one for post-conviction relief,

overruled the motion, and allowed another stay of sentence pending appeal. Exhibit 15

to Return of Writ. In overruling the motion, the trial court stated: 

In his motion, Defendant relies on the case of State v. Pelfrey, 112

Ohio St.3d 442, 2007 - Ohio - 256 which held that a verdict form must

include the degree of the offense of which a defendant is convicted or

statement that an aggravating element has been found by the jury to

justify conviction of a greater degree of a criminal offense. It should be

pointed out that Pelfrey was decided by the Ohio Supreme Court on

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February 7, 2007, after this Defendant’s conviction and sentencing but

while his direct appeal was pending. The verdict form signed by the jury

in Defendant’s trial did not contain the degree of the offense charged nor

did it contain a statement that an aggravating element had been found. 

This fact was not objected to by Defendant prior to the jury rendering its

verdict and the Court’s acceptance thereof. It should also be pointed out

that Defendant did not raise this issue in his direct appeal to the Fourth

Appellate District of Ohio, nor to the Ohio Supreme Court or the United

States Supreme Court. He raises the issue for the first time in his current

motion to vacate sentence filed November 12, 2008.

At the time of Defendant’s conviction and sentencing, Pelfrey, had

not yet been decided by the Ohio Supreme Court. This Appellate District,

in State vs. Wireman, 2002 Ohio 1526; 2002 Ohio App. LEXIS 7295 (decided

April 2, 2002) held:

Although the verdict form did not state the degree of the

offense as required under Ohio Rev. Code Ann. Section

2945.75(A)(2), the verdict form substantially complied with the

statute. The verdict form stated that defendant was convicted in

the manner and form in which he was charged. This sufficiently

referred to the degree of offense as stated in the indictment.

As can be seen, at the time of Defendant’s conviction and

sentencing, the State of Ohio and this Court were in full compliance with

the requirements of said section pursuant to the controlling authority, to

wit: the Fourth Appellate District of Ohio. However, as a result of a

conflict with its judgment on this issue and the judgments of various other

Appellate Courts including this Fourth District Court of Appeals, the

Second District Court of Appeals certified this issue to the Ohio Supreme

Court which resulted in the Pelfrey decision holding as hereinbefore

mentioned. Since then, the Fourth Appellate District has followed Pelfrey

starting with State v. Huckleberry, 2008 Ohio1007; 2008 Ohio App. LEXIS

881 (Decided March 4, 2008).

Defendant argues that the Court should vacate his sentence based

on Pelfrey. The State argues that Defendant’s motion to vacate sentence is

a petition for post-conviction relief and since it was not timely filed under

Crim. R. 35 and 2953.21 R.C., it should be overruled and Defendant’s

sentence should stand.

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This matter presents the Court with a number of issues which must

be addressed, the first of which is the fact that Defendant failed to raise

this issue in the trial court and object to the verdict form. This fact is not

pivotal. ... However, as pointed out earlier and should be further pointed

out as a reminder now, Defendant did not raise this issue in his direct

appeal to the Fourth Appellate District of Ohio nor to the Supreme Court

of Ohio or the United States Supreme Court but is raising it for the first

time now with his motion to vacate sentence. As such, it appears that

even though Defendant failed to raise this issue in the trial court, and even

though Pelfrey had not yet been decided at the time of his conviction and

sentencing, it could have been raised on direct appeal for the first time

since Pelfrey was decided while his appeal was pending. To this limited

extent, applying Pelfrey to this case could be considered to be a retroactive

application. ...

The question thus becomes: “To what extent, if any, is Pelfrey to be

applied retroactively to [a] situation such as the one before us where the

conviction and sentencing occurred prior to the decision in Pelfrey? 

Naturally, this question only applies to cases in Appellate Districts not

previously following the holding as announced in Pelfrey prior thereto.

A new judicial ruling may be applied only to cases that are pending

on the announcement date. See State v. Evans (1972), 32 Ohio St.2d 185. 

The new judicial ruling may not be applied retroactively to a conviction

that has become final, i.e., where the accused has exhausted all his

appellate remedies. See, State vs. Lynn (1966), 5 Ohio St.2d 106. Here, even

though Pelfrey was decided after Defendant’s conviction and sentencing

and during his direct appeal, and although he had the right to raise the

issue during the appellate process, he failed to do so in the Fourth

Appellate District of Ohio, the Supreme Court of Ohio, and the United

States Supreme Court and now he has exhausted his appellate remedies. 

“It is an established rule of long standing in this state that a constitutional

question, either in a civil or criminal action, cannot be raised in the

Supreme Court unless it was presented and urged in the courts below.” 

Lynn, supra.

The State argues that Defendant’s motion to vacate sentence should

be treated as a motion for post-conviction relief and that said motion was

filed untimely. This Court agrees. ...

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...

... This Court finds that Defendant’s motion to vacate sentence is a

motion for postconviction relief and that same has been filed

untimely/out of rule. Post-conviction review is not a constitutional right

but, rather is a narrow remedy which affords a petitioner no rights beyond

those granted by statute. State v. Calhoun (1999), 86 Ohio St.3d 279. A

post-conviction relief petition does not provide a petitioner a second

opportunity to litigate his or her conviction. (Citation omitted).

Defendant argues that this Court’s sentence is void. This Court

does not agree.... It should be remembered at this juncture, at the time of

Defendant’s conviction and sentencing this Court did follow the

controlling authority as it relates to the issue of the verdict form. As such,

this court did not substitute a different sentence for which is required by

law. This was a lawful sentence at the time. This Court does not find

Defendant’s sentence to be void. Res judicata applies to a voidable

sentence .... Even assuming the sentence in this case was void, ... [t]he fact

remains in this case that Defendant’s motion for vacation of sentence

which has been considered by this court to be a motion for postconviction

relief was filed out of rule which deprives this Court of jurisdiction as it

relates to a petition for postconviction relief. 

Even assuming that this Court’s sentence was voidable, the

Supreme Court in State v. Payne, 114 Oho St.3d 502, 2007-Ohio-4642 stated:

 “Therefore, in those cases in which a trial court has jurisdiction but

erroneously exercises jurisdiction, the sentence is not void, and the

sentence can be set aside only if successfully challenged on direct appeal”. 

Later, the Payne court went on to say: “Therefore, Defendants with a

voidable sentence are entitled to resentencing only upon successful

challenge on direct appeal”.

Here, at no time did Defendant challenge the verdict form on direct

appeal to the Fourth Appellate District, the Ohio Supreme Court, or the

United States Supreme Court but raises this issue for the first time in what

this Court finds to be a petition for postconviction relief.

Exhibit 15 to Return of Writ, p. 2-10.

On September 18, 2009, through new counsel Jeffery L. Finley, petitioner

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appealed the denial of his motion to vacate sentence to the Fourth District Court of

Appeals. Exhibit 17 to Return of Writ. He raised the following assignments of error:

1. The trial court erred to the prejudice of the defendant-appellant by

denying his motion to vacate sentence whereas the verdict form

signed by the jury failed to include the degree of the offense for

which the defendant was convicted nor did it contain a statement

that an aggravating element had been found. As a result the

defendant-appellant was unlawfully sentenced.

2. The defendant-appellant was denied his constitutional right to

effective assistance of counsel as guaranteed to him under the Sixth

and Fourteenth Amendments to the United States Constitution and

the Ohio Constitution.

On March 31, 2011, the Court of Appeals affirmed the judgment of the trial court. 

Exhibit 20 to Return of Writ. In affirming the trial court, the Fourth District stated as

follows:

{¶ 4} On November 12, 2008, appellant filed the instant motion to

“vacate” his sentence. The basis for his motion is the recent Ohio Supreme

Court decision in State v. Pelfrey, 112 Ohio St.3d 422, 860 N.E.2d 735,

2007–Ohio–256, wherein the Court vacated a conviction on a greater

degree of an offense because the verdict form failed to comply with R.C.

2945.75.FN2 Because the Pelfrey verdict form did not set out the greater

degree of the offense or any aggravating factors, the Court held that the

defendant could only be convicted of the least degree of the offense

charged. Id. at ¶¶ 12, 14–15.

FN2. R.C. 2945.75(A)(2) states “[a] guilty verdict shall state either

the degree of the offense of which the offender is found guilty, or

that such additional element or elements are present. Otherwise, a

guilty verdict constitutes a finding of guilty of the least degree of

the offense charged.”

{¶ 5} Appellee argued that appellant's motion is procedurally

defective and is based on case law decided after his conviction. Appellant

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countered that any conviction or sentence that did not comply with R.C.

2945.72 (a statute which, in fact, pre-dated his conviction) is void ab initio

and a void sentence can be vacated at any time.

{¶ 6} On February 18, 2009, the trial court denied appellant's

motion. In its detailed decision, the court explained that appellant's

conviction occurred before Pelfrey and that the verdict form complied with

the law as it existed at that time. Although Pelfrey was decided before

Sowards I was resolved on appeal, the court noted that appellate counsel

could have, but did not, raise the matter in appellant's first appeal of right.

Finally, the court construed appellant's motion as a petition for

postconviction relief and held that his claim is barred under the doctrine

of res judicata. This appeal followed.

I.

 {¶ 7} In his first assignment of error, appellant asserts that the trial

court erred by not applying Pelfrey to his case. We disagree.

{¶ 8} Our analysis begins with a precise chronology of cases. The

trial court filed appellant's judgment of conviction and sentence on

November 30, 2006. Pelfrey was decided on February 7, 2007. Our decision

in Sowards I was journalized on September 17, 2007. Appellant did not

raise the Pelfrey issue during his direct appeal. Thus, as the trial court

correctly noted, Pelfrey was decided after appellant's conviction, but

before we entered final judgment on his direct appeal. Accordingly, (1) the

R .C. 2945.75 issue could have been, but was not, raised on direct appeal,

and (2) a final judgment has been rendered on this case.

{¶ 9} Generally, a final judgment issued by a court of competent

jurisdiction on the merits of a case is conclusive as to the rights of parties

and is an absolute bar to a subsequent action. State v. Davis, 119 Ohio St.3d

at 422, 894 N.E.2d 1221, 2008–Ohio–4608, ¶ 6; also see State ex rel. Rose v.

Ohio Dept. of Rehab. & Corr. (2001), 91 Ohio St.3d 453, 455, 746 N.E.2d 1103.

The Ohio Supreme Court has also rejected the claim that “res judicata has

no application where there is a change in the law due to a judicial decision

of [the] court.” State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233.

As the trial court aptly noted, appellant's claim is barred by the doctrine of

res judicata regardless of how appellant's motion is characterized.

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{¶ 10} Because the Ohio Supreme Court has held that the doctrine

of res judicata applies to voidable judgments, but not void judgments,

appellant's only avenue of relief is to show that his 2006 judgment of

conviction and sentence was void ab initio. See State v. Simpkins, 117 Ohio

St.3d 420, 884 N.E.2d 568, 2008–Ohio–1197, at ¶ 30. We do not find in

Pelfrey any indication that a failure to strictly comply with R.C. 2945.75

renders a judgment void. Appellant cites to us no case law that so holds,

nor have we found any such authority.

{¶ 11} Appellant cites State v. Payne, 114 Ohio St.3d 502, 873 N.E.2d

306, 2007–Ohio–4642, in which the Court remarked that “[i]t is axiomatic

that imposing a sentence outside the statutory range, contrary to the

statute, is outside a court's jurisdiction, thereby rendering the sentence

void ab initio.” Id. at ¶ 29, fn. 3. We, however, are not persuaded that Payne

supports appellant's argument.

{¶ 12} First, that particular remark is included in a footnote in

Justice O'Connor's opinion and is, technically, obiter dicta. Second, we

believe that passage involved prison sentences wholly outside those

enumerated and permitted by statute, irrespective of the operation of R.C.

2945.75. Third, the context of the case appears to run counter to the

proposition for which appellant cites it.

{¶ 13} By way of background, the Ohio Supreme Court decided

State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006–Ohio–856, on

February 27, 2006. FN3 The next month, our Tenth District colleagues

remanded a case to the trial court for re-sentencing in light of Foster. See

State v. Payne, Franklin App. No. 05AP–517. Less than a week later, the

State filed an App.R. 26(A) application for reconsideration and argued

that, although the defendant could not have raised the Foster issue in the

trial court, and his appellate case had already been submitted by the time

the Ohio Supreme Court had ruled, the defendant could have nevertheless

objected to his sentencing based on the United States Supreme Court cases

on which Foster was grounded. See State v. Payne, Franklin App. No.

05AP–517, 2006–Ohio–2552, at ¶¶ 1 & 6. The Ohio Supreme Court

affirmed. Although Payne is arguably distinguishable from this case on the

basis that no “ Pelfrey-like” case law exists at the federal level as it exists

with the Foster case, the point to be gleaned from Payne is the fact that

although the United States Supreme Court's decisions rendered Ohio's

felony sentencing framework unconstitutional prior to Foster, sentences

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imposed on the basis of those unconstitutional laws are voidable rather

than void. Indeed, the Ohio Supreme Court observed a “void sentence is

one that a [trial] court imposes despite lacking subject-matter jurisdiction

or the authority to act * * * [whereas] a voidable sentence is one that a

court has jurisdiction to impose, but was imposed irregularly or

erroneously.” (Citations omitted.) 2007–Ohio–4642, at ¶ 27.

FN3. That case held that based on the United States Supreme

Court's decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435, as well as Blakely v. Washington (2004),

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. See 2006–Ohio–856, at

paragraphs one, three and five of the syllabus, a number of Ohio's

felony sentencing statutes violated the United States Constitution.

{¶ 14} After our review in the case sub judice, we are not convinced

that the trial court acted erroneously because the law at the time of

appellant's conviction only required “substantial compliance” with R.C.

2945.75, rather than strict compliance that Pelfrey later mandated.

Additionally, no question exists that the Gallia County Common Pleas

Court possessed both subject matter and in personam jurisdiction over

appellant at the time of his trial and conviction. Appellant has not

persuaded us that the trial court lost jurisdiction simply because R.C.

2945.75 was not strictly enforced. Absent a loss of jurisdiction, we fail to

see how appellant's judgment of conviction and sentence was rendered

void as opposed to voidable.

{¶ 15} Appellant also relies on several decisions from this Court

that have enforced Pelfrey against defective verdicts. However, those cases

were decided on direct appeal. In the case sub judice, we previously

affirmed appellant's final judgment of conviction and sentence and both

the Ohio and United States Supreme Court have passed on jurisdictional

motions.

{¶ 16} Accordingly, because appellant's judgment of conviction and

sentence is voidable, rather than void, we conclude that he is barred by

the doctrine of res judicata from raising the R .C. 2945.75 issue at this late

date. Thus, we hereby overrule appellant's first assignment of error.

II

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{¶ 17} In his second assignment of error, appellant asserts that his

trial counsel was constitutionally ineffective for not raising the Pelfrey

verdict defect. We, however, believe that res judicata bars this argument

and furthermore, even if it were not barred, we would find no merit to

this argument.

...

{¶ 21} Accordingly, based upon the foregoing, we hereby overrule

appellant's second assignment of error.FN4

FN4. To the extent that appellant raises an ineffective assistance of

appellate counsel claim (in the first sentence of his argument), we

note that the proper procedural vehicle to raise such issue is an

App.R. 26(B) motion to reopen appeal.

{¶ 22} Having reviewed all errors assigned and argued by appellant

in his brief, and after finding merit in none, we hereby affirm the trial

court's judgment.

State v. Sowards, 2011 WL 1279490 (Ohio App. 4 Dist. March 31, 2011); Exhibit 20 to Return

of Writ.

On May 11, 2011, petitioner, through his current counsel Kerry Donahue, filed an

appeal of this decision to the Ohio Supreme Court. Exhibit 21 to Return of Writ. He set

forth two propositions of law:

I. The Court cannot make illegal orders.

II. Appellant was denied his Constitutional Right to effective

assistance of Counsel on appeal when the same counsel as

employed at the trial level did not present significant and serious

error in the direct appeal and thus left unchallenged an 8 year

sentence in a case for which the maximum allowable sentence is a

fine and costs. 

Exhibit 22 to Return of Writ.

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On September 21, 2011, the Ohio Supreme Court declined jurisdiction and

dismissed the case as not involving any substantial constitutional question. Exhibit 23 to

Return of Writ. Petitioner filed a motion for reconsideration which the Ohio Supreme

Court denied. Exhibits 24 and 25 to the Return of Writ.

On October 24, 2011, petitioner, through Mr. Donahue, filed the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. §2254. At the time petitioner filed his

petition, he had not been incarcerated, although respondent does not dispute that

petitioner was in custody for purposes of habeas relief. As explained below, petitioner

set forth his claims in narrative form in both his petition and motion for summary

judgment. 

PETITIONER’S CLAIMS AS SET FORTH IN HIS HABEAS PETITION AND

MOTION FOR SUMMARY JUDGMENT

 The impetus behind petitioner’s habeas petition, as well as his motion for

summary judgment, is his belief that the maximum sentence that could have been

imposed on him under the correct interpretation of Ohio law was a $100 fine and court

costs rather than the eight-year sentence he received. The basis for petitioner’s position,

as more fully set forth above, can be summarized as follows. Petitioner was found

guilty by a jury on Count I of an indictment for the second degree felony of knowingly

obtaining or possessing marijuana in an amount exceeding twenty-thousand grams. 

The verdict form signed by the jury, however, did not state either the degree of the

offense or any aggravating element as required by R.C. §2945.75(A)(2). As a result,

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petitioner contends, he only can be guilty of the least degree of the offense charged -

which he asserts in the statute under which he was convicted, §2925.11, is a minor

misdemeanor. See R.C. §2925.11(C)(3)(a). 

In his filings in this Court, petitioner continues to assert, as he did in his motion

to vacate, that based on the trial court’s failure to follow clear Ohio law, his sentence is

void because the trial court imposed a sentence beyond the maximum allowed by law. 

According to petitioner, the “illegal” eight-year sentence he received violated his Due

Process and Sixth Amendment rights. As petitioner argues, because of the deficiencies

in the verdict form, the judge at sentencing, rather than the jury itself, determined the

quantity of marijuana involved. To support his position that the trial court’s actions

have resulted in his being in custody in violation of his constitutional rights, petitioner

draws heavily on federal case law including Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005). 

He also continues to maintain that his trial counsel was ineffective in violation of his

Sixth Amendment rights for failing to object to the verdict form.

Petitioner also appears to be asserting before this Court, much more

affirmatively than he had in his motion to vacate, an ineffective assistance of appellate

counsel claim based on counsel’s failure to raise the Pelfrey issue on appeal. Again, as

discussed in more detail above, in Pelfrey, decided while petitioner’s direct appeal was

pending, the Ohio Supreme Court clarified that strict compliance with R.C. §2945. 75,

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rather than substantial compliance, was required. Prior to the Pelfrey decision, the

Fourth District, the district of petitioner’s conviction, had required only substantial

compliance with R.C. §2945.75. To support his ineffective assistance of appellate

counsel claim, petitioner has submitted an affidavit from Mr. Jenkins. In this affidavit,

dated September 22, 2009, Mr. Jenkins accepts responsibility for failing to raise the

Pelfrey issue on direct appeal and acknowledges that he must demonstrate good cause

for filing an untimely Rule 26(B) application on petitioner’s behalf. 

 The primary defense raised by respondent is that petitioner’s claims are

procedurally defaulted. Alternatively, respondent contends that petitioner’s claims are

either unexhausted, not cognizable in habeas corpus, or without merit. For the reasons

that follow, the Court agrees that all of petitioner’s claims have been procedurally

defaulted.

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, 103 S.Ct. 276, 74

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L.Ed.2d 3 (1982) (per curiam; Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30

L.Ed.2d 438 (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. Murray v. Carrier, 477 U.S. 478,

485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558,

71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594

(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

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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).

There is no question that the Maupin test is satisfied here. Petitioner does not

dispute (and on the record before this Court clearly could not dispute) that the issues he

raises in his habeas petition were not raised on direct appeal. Further, when petitioner

attempted to raise the issues in his motion to vacate, both the state trial and appellate

courts enforced the state procedural rule that such claims were only appropriately

raised on direct appeal and were therefore barred by the doctrine of res judicata. The

United States Court of Appeals for the Sixth Circuit has consistently held that Ohio’s

doctrine of res judicata is an adequate ground for denying federal habeas relief. Norris v.

Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Further, the doctrine of res judicata is stated in

unmistakable terms in countless Ohio decisions, and Ohio courts have consistently

refused to review the merits of claims in reliance on that doctrine. See State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169

(1982); State v. Ishmail, 67 Ohio St.2d 16, 423 N.E.2d 1068 (1981). 

Despite petitioner’s strenuous efforts in arguing that he has suffered a serious

injustice which must be remedied under basic constitutional principles, the undisputed

fact of his procedural default is quickly dispositive of his petition. Simply put,

petitioner has waived his right to present his claims for federal habeas corpus review. 

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He may still obtain review of these claims on the merits, however, if he establishes

cause for his procedural default, as well as actual prejudice from the alleged

constitutional violations. To establish cause, petitioner must show that “some objective

factor external to the defense impeded counsel’s efforts to comply with the State’s

procedural rule.” Murray, 477 U.S. at 488. As explained below, he has not done so here.

Petitioner suggests that the cause for his procedural default is the ineffective

assistance of appellate counsel. Certainly, constitutionally ineffective counsel may

constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453

(2000). Here, however, there also is no dispute that petitioner has never pursued a Rule

26(B) application - the procedural vehicle under Ohio law for raising an ineffective

assistance of appellate counsel claim. As a result, he has not presented this claim to the

state courts and he is several years past the 90-day time frame for doing so. In fact, in

Mr. Jenkins’ affidavit dated September 22, 2009, he acknowledges that the 90- day

deadline for filing a Rule 26(B) application has passed and that good cause for a late

filing must be demonstrated. Further, although the caption of Mr. Jenkins’ affidavit

suggests that its purpose relates to a Rule 26(B) application, there is no evidence in the

record of such an application having been filed. This remains so despite the Fourth

District’s suggestion to petitioner in its opinion issued slightly more than a year ago that

any ineffective assistance of appellate counsel claim would be more appropriately

pursued through a Rule 26(B) application. Given this well-documented series of events,

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it is extremely unlikely that petitioner would be able to meet the good cause

requirement required to do so at this late date. Where a petitioner has failed to exhaust

his claims but would find those claims barred if later presented to the state courts,

“there is a procedural default for purposes of federal habeas....” Coleman v. Thompson,

501 U.S. 722, 735 n.1 (1991). 

While it is well-settled that an ineffective assistance of counsel claim can

constitute cause for the procedural default of another claim, the ineffective assistance

claim must not itself be procedurally defaulted. Edwards, 529 U.S. at 453. Here, there is

no question that petitioner has procedurally defaulted his ineffective assistance of

appellate counsel claim and has presented no cause to excuse that default. 

Consequently, petitioner cannot rely on the ineffective assistance of appellate counsel to

excuse his default of his Pelfrey and ineffective assistance of trial counsel claims. 

Further, the Court notes that petitioner makes brief mention in his petition of

counsel’s failure to file a Rule 26(B) application. To the extent that petitioner is

suggesting that the default of his ineffective assistance of appellate counsel claim may

be excused by the ineffective assistance of failing to file a Rule 26(B) application, he is

mistaken. The Rule 26(B) application process is considered a collateral or postconviction process not direct review. Lopez v. Wilson, 426 F.3d 339, 341 (6th Cir. 2005)(en

banc). “There is no right to an attorney in state post-conviction proceedings,” Coleman,

501 U.S. at 752. As a result, petitioner did not have a right to counsel in pursuing a Rule

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26(B) application. Consequently, the ineffectiveness of petitioner’s counsel at that point

in the state court proceedings “does not present a constitutional violation sufficient to

establish cause and prejudice for a procedural default.” Taylor v. McKee, 649 F.3d 446,

452 (6th Cir. 2011). This remains so despite the Supreme Court’s recent holding in

Martinez v. Ryan, – U.S. –, 132 S.Ct. 1309 (2012). That case addressed only the right to

counsel in a state post-conviction proceeding which, under the relevant state law,

provided the first opportunity to present an ineffective assistance of trial counsel claim. 

As stated by the Court in Martinez:

The rule of Coleman governs in all but the limited circumstances

recognized here. The holding in this case does not concern attorney errors

in other kinds of proceedings, including appeals from initial-review

collateral proceedings, and petitions for discretionary review in a State’s

appellate courts. (Citations omitted). It does not extend to attorney errors

in any proceedings beyond the first occasion the State allows a prisoner to

raise a claim of ineffective assistance at trial, even though that initialreview collateral proceeding may be deficient for other reasons.

Id. at 1320.

Because petitioner has not established cause to excuse his procedural default, the

Court need not consider the issue of prejudice. 

Finally, petitioner is not entitled to have his claim reviewed under the actual

innocence exception. Petitioner does not argue his innocence, let alone present any

evidence of it, because he is not challenging the fact of his conviction. Rather, the sole

focus of petitioner’s argument is that, as a result of trial court or attorney error, he failed

to receive the benefit of a misdemeanor sentence of a fine and costs, instead receiving 

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an eight-year sentence for second degree felony possession of over twenty-thousand

grams of marijuana. 

Because the Court concludes that petitioner’s claims are procedurally defaulted,

there is no need to consider the merits arguments set forth at great length by petitioner. 

MOTION FOR SUMMARY JUDGMENT AND 

REQUEST FOR EVIDENTIARY HEARING

When not in conflict with the Rules Governing §2254 Cases, the Federal Rules of

Civil Procedure may be applied to habeas corpus proceedings. Habeas Rule 11. The

Supreme Court has approved the use of summary judgment procedure in appropriate

habeas corpus cases. Blackledge v. Allison, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 52 L.Ed.2d 136

(1977); Browder v. Director, 434 U.S. 257, 266, n. 10, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). 

However, motions for summary judgment in habeas corpus proceedings usually

require the same record-based review of the merits of the petitioner’s grounds for relief.

This was precisely the scenario presented here. The exhibits provided by petitioner in

support of his summary judgment motion were also part of the record reviewed by the

Court in considering the petition. Because, as set forth above, the petitioner’s claims

have been procedurally defaulted, the court will recommend that the motion for

summary judgment be denied.

Similarly, the Court will recommend that petitioner’s request for an evidentiary

hearing be denied. In determining whether to grant an evidentiary hearing, a habeas

court must “consider whether such a hearing could enable an applicant to prove the

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petition's factual allegations, which, if true, would entitle the applicant to federal habeas

relief.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). 

However, a district court is not required to hold an evidentiary hearing if the record

“precludes habeas relief.” Schriro, 550 U.S. at 474, 127 S.Ct. 1933; Muniz v. Smith, 647

F.3d 619, 625 (6th Cir. 2011). 

MOTION FOR STAY OF SENTENCE

Because, as set forth above, petitioner’s claims have been procedurally defaulted,

the Court will recommend that the motion for a stay of sentence be denied as moot. 

RECOMMENDED DISPOSITION

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

petitioner’s claims be DISMISSED. Further, the Magistrate Judge RECOMMENDS that

the motion for summary judgment and evidentiary hearing and the motion for a stay of

sentence be DENIED.

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

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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).

/s/ Terence P. Kemp 

United States Magistrate Judge

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