IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK A. HILL, 

Petitioner, CASE NO. 2:11-CV-755

JUDGE GRAHAM

v. MAGISTRATE JUDGE KING

ROBIN KNAB, WARDEN, 

Chillicothe Correctional Institution, 

Respondent.

 ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 3, Respondent’s Return of

Writ, Doc. No. 12, Petitioner’s Traverse, Doc. No. 18, and the exhibits of the parties. For the

reasons that follow, Petitioner’s Motion to Expand the Record, Doc. No. 17, is GRANTED in part

and DENIED in part. The Magistrate Judge RECOMMENDS that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

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

this case as follows: 

On the evening of March 4, 2008, Hill and his friend, Rondale

Massey (“Rondale”), arrived at Brew-Stirs shortly after 8:00 p.m. and

began drinking pitchers of beer. Hill had consumed approximately

seven alcoholic beverages that day before arriving at Brew-Stirs.

Sometime after 11:00 p.m., Michael [Newman] and his girlfriend,

Angela Theado (“Angela”), Kyle [Smith] and his girlfriend, Emily

Boyle (“Emily”), and several of Angela's co-workers arrived at

Brew-Stirs to sing karaoke. Hill testified that, during the course of the

evening, he flirted with the girls in that group. Toward the end of the

evening, Hill bought Emily a shot, which she accepted. There was no

conflict in the bar throughout the evening.

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After last call, Hill followed Emily outside, where Emily immediately

joined Michael and Angela who were standing to the left of the front

door. There was testimony that Kyle was also outside, leaning against

the building, although Hill did not see him. Sensing that Emily

wanted someone to intervene between her and Hill, Michael stepped

in front of Hill, and a struggle ensued. Michael testified that the two

began to struggle after Hill grabbed Michael's jacket. Hill described

the struggle as “a shoving match,” but did not know who started it.

(Tr. 449, 493.) Hill testified that, during the shoving match, he was

“suckerpunched from the left side of [his] body in the face” by an

unknown person and grabbed Michael to keep his balance, but he was

being forced toward the ground. (Tr. 449.) At that moment, Hill

grabbed the box cutter that he routinely carried in a sheath on his belt

and, with his right hand, threw a punch with it. Michael initially

thought he had simply been punched, but, when Hill raised his arm

again, he saw the box cutter and began to taste blood. Michael was

cut from the apple of his left cheek down through his upper lip.

Michael denied that anyone else was involved in the struggle before

Hill cut him.

After being cut, Michael grabbed Hill's wrist and tried to pin him to

the wall, at which time Kyle intervened and tried to tackle Hill and

Michael from the left. In the fall, Michael lost his grip on Hill's right

hand, which held the box cutter, and he suffered a cut on his hand.

With his right hand free, Hill began slashing with the weapon. Hill

testified, “I had been forced physically to the ground by two

individuals, so I guess I'm swinging both hands, basically trying, I

guess, to punch fight” with the box cutter. (Tr. 455.) Michael testified

that Hill slashed at Kyle's head, that “Kyle was retreating and holding

his arms with his elbows bent around his head,” and that Kyle

exclaimed, “ ‘I'm cut.’” (Tr. 53-54.) Kyle testified that he felt the left

side of his face become “really hot” and, looking down, noticed his

coat was “soaked with blood.” (Tr. 192.) Kyle sustained two

approximately two-inch cuts above his right ear, under the hairline,

and the cuts required staples.

As Hill was slashing at Kyle, Michael flipped Hill face down onto the

ground, elbowed him in the back of the head three to four times,

knocked the box cutter from his hand, and hit him three to four more

times in the back of the head to ensure “that he was unconscious and

not going to continue the fight.” (Tr. 55.) After Michael backed away

from Hill, taking Angela with him, Rondale picked Hill up, and the

two walked southbound on the sidewalk, leaving footprints in the

snow. After the police arrived and spoke with witnesses, Officer

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Todd Aiello followed the footprints in the snow to a parked white van

several streets away. One set of footprints went toward the driver's

side of the van, and the other went toward the passenger side. Officer

Aiello observed two men asleep in the van and called for backup,

after which both Hill and Rondale were arrested. Despite initially

lying to detectives about his involvement in the fight, at trial Hill

admitted his involvement, but argued that he acted in self-defense.1

State v. Hill, No. 09AP-398, 2010 WL 1510199, at *1-2 (Ohio App. 10th Dist. April 15, 2010). 

Petitioner filed a timely appeal, in which he raised the following assignments of error:

1. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL[.]

2. APPELLANT'S CONVICTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE[.]

3. APPELLANT'S GUILTY VERDICT WAS STATUTORILY

DEFECTIVE AND VOID[.]

Id. at *2. On April 15, 2010, the appellate court affirmed the judgment of the trial court. Id. On

August 25, 2010, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Hill,

126 Ohio St.3d 1549 (2010).

On May 17, 2010, Petitioner filed an application for reconsideration of the appellate court’s

1

 Petitioner objects to the factual findings of the state appellate court. Petitioner states

that evidence indicated that he exited the bar with Emily and Angela, and that Michael followed

Kyle outside to calm Kyle down. Petitioner complains that the state appellate court excluded

material facts from its factual summary, including evidence indicating that Petitioner was

severely intoxicated, that Michael “freak[ed] out on him” as he exited the bar, that Kyle was

“really upset” that his girlfriend had accepted a drink from Petitioner, that Angela assaulted

Petitioner with the front door of the bar, and that Michael and Kyle stomped Petitioner on the

ground. Petitioner again argues, as he did in the state courts, that he acted in self defense. See

Petitioner’s Reply, Doc. 18. Upon review of the record, however, this Court is not persuaded

that Petitioner has met his burden of rebutting the presumption of correctness of the factual

findings of the state appellate court. See 28 U.S.C. § 2254(e). The Court also notes that, later in

its decision, the appellate court refers to additional facts, including Petitioner’s intoxicated state. 

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April 15, 2010, decision denying his appeal and request for enlargement of time to file his request. 

Exhibit 24 to Return of Writ. On June 29, 2010, the appellate court denied his application for

reconsideration and request for enlargement of time. Exhibit 27 to Return of Writ. Petitioner filed

a motion to certify conflict. Exhibit 28 to Return of Writ. On August 19, 2010, the appellate court

denied Petitioner’s motion. Exhibit 29 to Return of Writ. Petitioner did not timely appeal. On

October 27, 2010, the Ohio Supreme Court denied his motion for delayed appeal. Exhibit 40 to

Return of Writ. 

On July 13, 2010, Petitioner filed an application to reopen the appeal pursuant to Ohio

Appellate Rule 26(B). Petitioner asserted that he had been denied the effective assistance of counsel

because his attorney failed to raise the following assignments of error on direct appeal: 

1. Prosecutorial misconduct deprived the Appellant of due process,

equal protection of the laws and a fair trial. 

2. Appellant was deprived of equal protection of the laws and a fair

trial where evidence presented supported affirmative defenses. 

3. The trial court’s abuses of discretion denied Appellant of due

process, equal protection of the laws and a fair trial. 

4. Plain errors and structural errors deprived the Appellant of his

constitutional rights to due process, equal protection of the laws and

a fair trial. 

Exhibit 30 to Return of Writ. On October 14, 2010, the appellate court denied Petitioner’s Rule

26(B) application. Exhibit 31 to Return of Writ. On February 2, 2011, the Ohio Supreme Court

dismissed Petitioner’s subsequent appeal. Exhibit 43 to Return of Writ. 

On August 22, 2011, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of Respondent in violation of the

Constitution of the United States based upon the following grounds:

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1. The trial court prejudiced Petitioner when denying

him the Sixth Amendment to the U.S. Constitution

right to a speedy trial. 

2. Petitioner was prejudiced and denied equal protection

of the laws when not afforded a speedy trial in

violation of the Sixth, Ninth & Fourteenth

Amendments to the U.S. Constitution. 

3. The trial court fraudulently misrepresented a material

fact to intentionally deny Petitioner of the right to a

speedy trial as established by the Sixth Amendment to

the U.S. Constitution. 

4. The trial court denied Petitioner the Ninth &

Fourteenth Amendments to the U.S. Constitution right

to equal protection of the laws when permitting

deficient defense counsel, by fraudulent

misrepresentation of material facts, to waive his

speedy trial right without his knowledge, outrageous

government conduct. 

5. Petitioner was denied his Batson protections to a fair

and impartial jury of his peers and due process when

ineffective defense counsel waived the preservation of

voir dire on the record, in violation of the Fifth, Sixth

and Fourteenth Amendments to the U.S. Constitution.

6. Petitioner was prejudiced and denied the Ninth and

Fourteenth Amendment to the U.S. Constitution right

to equal protection of the laws when the trial court

permitted use of a motion for continuance form that

fraudulently waived Petitioner’s Sixth Amendment to

the U.S. Constitution speedy trial right automatically,

without consent. 

7. Prosecutorial misconduct denied Petitioner a fair and

speedy trial, effective assistance of defense counsel,

due process and equal protection of the laws, in

violation of the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution, through the

intentional delay in providing discovery material as

required by rule, demonstrating outrageous

government conduct.

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8. The trial court demonstrated bias and prejudice by

refusing to rule upon Petitioner’s pre-trial motion to

dismiss for violation of the speedy trial provision as

afforded by the Sixth and Fourteenth Amendments to

the U.S. Constitution, the non-performance

demonstrating outrageous government conduct. 

9. Petitioner was denied effective assistance of counsel,

a fair trial, due process and equal protection of the

laws from defense counsel’s failure to perform the

constitutionally impose[d] duty to conduct pre-trial

investigations and preparations necessary to the

compulsory process, in violation of the Fifth, Sixth,

Ninth and Fourteenth Amendments to the U.S.

Constitution. 

10. Excessive bail deprived Petitioner the guarantee of a

fair trial, equal protection of the laws, due process and

effective assistance of counsel, in violation of the

Fifth, Sixth, Eighth, Ninth and Fourteenth

Amendments to the U.S. Constitution.

11. The trial court abused its discretion and prejudiced

Petitioner by requiring Petitioner to attend trial in

shackles, denying him the due process and effective

assistance of counsel guarantees provided in the fifth,

Sixth, and Fou8rteenth Amendments to the U.S.

Constitution. 

12. Prosecutorial misconduct deprived Petitioner of a fair

trial, effective assistance of defense counsel, the

Confrontation Clause protections, due process and

equal protection of the laws by the fraudulent

concealment and nondisclosure of exculpatory

material evidence, violating the Fifth, Sixth, Ninth

and Fourteenth Amendments to the U.S. Constitution.

13. Petitioner was prejudiced and denied a fair trial, due

process and equal protection of the laws from

deficient defense counsel’s failure to preserve the

Confrontation Clause protections by permitting the

prosecutor to waive his Criminal Rule 16 protections,

in violation of the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution.

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14. Petitioner was biased and prejudiced by the trial

court’s failure to present an impartial tribunal and

assure his confrontation clause right by allowing the

prosecution to waive Petitioner’s Crim.R. 16

protections, depriving him of a fair trial, due process

and equal protection of the laws, violating the fifth,

Sixth, Ninth and Fourteenth Amendments to the U.S.

Constitution, a demonstration of outrageous

government conduct. 

15. Petitioner was denied a fair trial, due process and

equal protection of the laws due to the trial court’s

failure to request in camera inspection of detective

and prosecution witnesses’ testimony and statements,

in violation of the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

16. Petitioner was denied the opportunity to present an

adequate defense due to deficient defense counsel’s

failure to provide an expert witness, depriving

Petitioner of the compulsory process and a fair trial in

violation of the Fifth, Sixth and Fourteenth

Amendments to the U.S. Constitution.

17. Defense counsel’s performance was deficient and

below professional norms and standards due to the

fraudulent non-disclosure of, and inadequate

argument to, the Crim.R. 29 motion for acquittal

raised following the prosecution’s case presentation,

depriving Petitioner of effective assistance of counsel

and equal protection of the laws, violating the Sixth,

Ninth and Fourteenth Amendments to the U.S.

Constitution. 

18. Petitioner was denied a fair trial before an impartial

tribunal and jury, due process and equal protection of

the laws due to the prosecution’s knowing use of

perjured testimony, in violation of the Fifth, Sixth,

Ninth and Fourteenth Amendments to the U.S.

Constitution. 

19. Petitioner was biasedly [sic] and prejudicially denied

a fair trial before an impartial tribunal and jury, due

process and equal protection of the laws by the trial

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court’s presentation of a jury verdict form that

contained a fraudulent misrepresentation of the law

respective to the ‘inferior degree of offense’ to be

considered, in violation of the Fifth, Sixth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

20. Petitioner was prejudiced and denied equal protection

of the laws, due process and a fair trial by the trial

court’s failure to properly respond to the deliberating

juries’ question regarding ‘mitigating circumstances’

relative to the evidence presented, in conflict with the

rights afforded by the fifth, Sixth, Ninth and

Fourteenth Amendments to the U.S. Constitution,

demonstrating outrageous government conduct. 

21. The trial court fraudulently misrepresented the

method of deliberations and proper application of the

law to the facts to the jury, biasedly [sic] and

prejudicially eliminating Petitioner’s affirmative

defenses and depriving him of a fair trial before an

impartial tribunal and jury, due process and equal

protection of the laws, as afforded by the Fifth, Sixth,

Ninth and Fourteenth Amendments to the U.S.

Constitution, creating a manifest miscarriage of

justice and presenting outrageous government

conduct. 

22. Petitioner was biased and prejudiced by the trial

court’s refusal to provide the deliberating jury the

requested clarification of the applicable law, denying

him due process, equal protection of the laws and the

right to a fair trial before an impartial tribunal and

jury, in violation of the Fifth, Sixth, Ninth and

Fourteenth Amendments to the U.S. Constitution, a

clear demonstration of outrageous government

conduct. 

23. Petitioner was provided deficient and incomplete

defense counsel based upon counsel’s failure to object

to the jury verdict form that fraudulently

misrepresented the manner of determining guilt or

innocence of the aggravated assault, denying

Petitioner equal protection of the laws, due process

and a fair trial, as afforded by the Fifth, Sixth, Ninth

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and fourteenth Amendments to the U.S. Constitution. 

24. Plain error and outrageous government conduct was

committed by the trial court’s failures to properly

instruct the jury in a manner to clarify the applicable

law and the intentional elimination of the affirmative

defenses presented in Petitioner’s criminal matter, by

instructing a prejudicial and illegal method of

deliberations, violating the Fifth, Sixth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

25. Petitioner was prejudiced and denied the rights to a

fair trial by an impartial jury, due process, equal

protection of the laws and freedom from cruel and

unusual punishment when the jury clearly lost its way

and failed to adhere to the reasonable doubt doctrine

before presenting a finding of guilt without properly

understanding the applicable laws, creating a manifest

miscarriage of justice, in violation of the Fifth, Sixth,

Eighth, Ninth and Fourteenth Amendments to the

U.S. Constitution.

26. Structural errors permeated the entire trial process,

establishing the resulting trial procedure as unreliable

to serve its function as a guilt or innocence

determining vehicle, demonstrating extreme bias,

prejudice and fundamental deprivations towards

Petitioner, violating the protections set forth in the

First, Fifth, Sixth, Eighth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

27. Prosecutor’s outrageous conduct prejudicial to

Petitioner was committed in the misrepresentation of

material facts and expressions of personal beliefs and

opinions during the presentation of closing arguments

to the jury, denying Petitioner of a fair trial before an

impartial jury, due process and equal protection of the

laws in violation of the Fifth, Sixth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

28. Petitioner was denied a fair trial before an impartial

jury and equal protection of the laws due to the jury’s

use of insufficient evidence in the finding of guilt to

felonious assault beyond a reasonable doubt,

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prejudicially exposing Petitioner to cruel and unusual

punishment in violation of the Fifth, Sixth, Eighth,

Ninth and Fourteenth Amendments to the U.S.

Constitution, creating a manifest injustice. 

29. Petitioner was prejudiced and denied a fair trial before

an impartial jury, due process and equal protection of

the laws by defense counsel’s deficient performance

when failing to object to the improper, unclarifying

and misleading supplemental jury instructions given

by the biased trial court, in violation of the Fifth,

Sixth, Ninth and Fourteenth Amendments to the U.S.

Constitution. 

30. The cumulative effect of the numerous trial errors

presented contributed to the illegal conviction and

sentencing of Petitioner, are not harmless beyond a

reasonable doubt, and deprived Petitioner of fair trial

before an impartial tribunal and jury, effective

assistance of defense counsel, due process and equal

protection of the laws rights as afforded by the Fifth,

Sixth, Eighth, Ninth and Fourteenth Amendments to

the U.S. Constitution. 

31. The manifest weight of the evidence presented was

improperly applied by the trial jury and not

impartially reviewed by the appellate court respective

to the consideration of the facts relative to the law,

when determining self-defense and serious

provocation and is non-supportive of the guilty

verdict rendered, prejudicing Petitioner and denying

him a fair trial, due process and equal protection of

the laws in violation of the Fifth, Sixth, Eighth, Ninth

and Fourteenth Amendments to the U.S. Constitution. 

32. The trial court abused its discretion, committed plain

error and demonstrated outrageous government

conduct when imposing an excessive sentence upon

Petitioner by expressing its personal, unsolicited

comments at the sentencing hearing, establishing a

predetermined opinion after prosecution witness’

testimony, allowing the presentation of injury

information of an acquitted count by prosecution,

failure to consider the required statutory sentencing

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analysis, and imposing statutory financial sanctions in

its sentencing entry outside of Petitioner’s presence in

violation of the Fifth, Sixth, Eighth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

33. Petitioner was denied his First Amendment to the

U.S. Constitution right of freedom to access the court

by the appellate court’s fraudulent misrepresentation

of a material fact when misconstruing supporting

documents to the Evid.R. 201 Motion, to effectively

deprive Petitioner the constitutionally afforded direct

appeal review opportunity of meritable issues that

were prejudicial to Petitioner at the trial court level, in

violation of the Ninth and Fourteenth Amendments to

the U.S. Constitution’s equal protection of the laws

clauses. 

34. Petitioner was prejudiced and deprived of the equal

protection of the laws right provided in the Ninth and

Fourteenth Amendments to the U.S. Constitution by

the appellate court’s fraudulent concealment of

material facts when conducting its biased direct

appeal review, demonstrating the knowledge of a

predetermined outcome, in violation of the Fifth,

Sixth and Eighth Amendments to the U.S.

Constitution. 

35. Petitioner was prejudiced by the trial court’s failure to

correct the deficient and incomplete trial transcript

prepared and transmitted to appellate court, depriving

Petitioner of a fair and meaningful direct appeal

review in violation of the Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

36. Petitioner was prejudiced by the court of appeals’

fraudulent nondisclosure of material facts by denying

the request for correction and modification of the

incomplete trial transcript transmitted for direct

appeal review, denying Petitioner effective assistance

of appellate counsel and equal protection of the laws

as afforded by the Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

37. Petitioner was denied the Sixth Amendment to the

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U.S. Constitution guarantee of effective assistance of

appellate counsel as a result of counsel’s incomplete

and inaccurate arguments to the weakest issues raised

for review by the appellate court, depriving Petitioner

of a fair and meaningful direct appeal review, in

violation of the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

38. Petitioner was deprived of the Sixth Amendment to

the U.S. Constitution right to effective assistance of

appellate counsel and prejudiced due to counsel’s

failure to raise the claim of the prosecutor’s knowing

use of perjured testimony, denying Petitioner the

freedom to access the court for a redress of

grievances, due process and equal protection of the

laws, in violation of the First, Fifth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

39. Petitioner was prejudiced by the deficient

performance and representation of court appointed

appellate counsel’s failure to present as error the trial

court’s insufficient, misleading and unresponsive

supplemental instructions to the deliberating jury

upon request, which denied Petitioner the right of a

fair, full and meaningful direct appeal review,

regarding the denial of Petitioner’s right to a fair and

impartial jury trial, effective assistance of counsel,

due process and equal protection of the laws as

provided by the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

40. Petitioner was denied the Sixth Amendment to the

U.S. Constitution guarantee of effective assistance of

appellate counsel due to the failure of counsel to

present the argument of erroneous jury verdict forms

that improperly and prejudicially defined the law and

manner of deliberations regarding aggravated assault,

depriving Petitioner o0f a fair and impartial jury trial,

due process and equal protection of the laws, as

afforded by the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution. 

41. Deficient and prejudicial performance of appellate

counsel deprived Petitioner of the right to a full and

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meaningful direct appeal review when failing to

present and demonstrate the arguments of plain errors

and structural errors that denied Petitioner the rights

to a fair trial, effective assistance of counsel, due

process and equal protection of the laws, set forth in

the Fifth, Sixth, Ninth and Fourteenth Amendments to

the U.S. Constitution. 

42. Petitioner was prejudiced and denied of [sic] a fair

and meaningful direct appeal review by deficient

appellate counsel’s failure to demonstrate the injury

caused by the trial court’s requirement that Petitioner

attend trial in shackles, denying Petitioner the

guarantees of a fair and impartial jury trial, effective

assistance of counsel, due process and equal

protection of the laws found in the Fifth, Sixth, Ninth

and Fourteenth Amendments to the U.S. Constitution. 

43. Petitioner was deprived of the Sixth Amendment to

the U.S. Constitution guarantee of effective assistance

of appellate counsel due to the failure of counsel to

raise and demonstrate the claim that the trial jury

failed to legally and properly determine guilt beyond

a reasonable doubt, depriving Petitioner of a fair trial,

due process and equal protection of the laws in

violation of the Fifth, Sixth, Ninth and Fourteenth

Amendments to the U.S. Constitution.

44. Petitioner was prejudiced and denied due process and

equal protection of the laws due to the grand jury

being misled by prosecutor’s fraudulent concealment

and misrepresentation of material facts in violation of

the Fifth, Ninth and Fourteenth Amendments to the

U.S. Constitution. 

45. Petitioner was deprived of the due process and equal

protection of the laws guarantees by the grand jury’s

failure to fully and impartially conduct its sworn duty

to investigate the allegations prior to delivering an

indictment, in violation of the Fifth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

46. Petitioner was prejudiced and deprived of the equal

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protection of the laws guarantees in the Ninth and

Fourteenth Amendments to the U.S. Constitution by

the appellate court’s fraudulent concealment and

misrepresentation of material facts when failing to

impartially and meaningfully review Petitioner’s

claim of the prosecutor’s knowing use of perjured

testimony, subjecting upon Petitioner cruel and

unusual punishment and a denial of due process in

violation of the Fifth and Eighth Amendments to the

U.S. Constitution. 

47. Petitioner was deprived the rights to due process and

equal protection of the laws provided by the Fifth,

Ninth and Fourteenth Amendments to the U.S.

Constitution by the vindictive and racially motivated

prosecution of Petitioner. 

48. Petitioner was prejudiced and deprived of the equal

protection of the laws guarantees by the prosecutor’s

fraudulent misrepresentation of material facts in its

opposition to Petitioner’s knowing use of perjured

testimony claim, in violation of the Ninth and

Fourteenth Amendments to the U.S. Constitution. 

49. Petitioner was prejudiced and deprived the equal

protection of the laws guarantees in the Ninth and

Fourteenth Amendments to the U.S. Constitution by

the prosecutor’s fraudulent misrepresentation of

material facts in its opposition to the prejudicial injury

Petitioner suffered by the illegal withholding and

untimely disclosure of discovery, in violation of the

due process clauses of the Fifth and Fourteenth

Amendments to the U.S. Constitution. 

50. Petitioner was prejudiced and deprived the equal

protection of the laws guarantees of the Ninth and

Fourteenth Amendments to the U.S. Constitution by

the prosecutor’s fraudulent concealment and

misrepresentation of material facts when opposing

Petitioner’s claim that the evidence presented

supported the affirmative defenses of self-defense and

serious provocation. 

51. Petitioner was denied a fair, impartial and meaningful

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review of the claims of ineffective assistance of

appellate counsel by the appellate court’s failure to

adhere to the invoked doctrine of stare decisis,

depriving Petitioner o0f the rights to due process and

equal protection of the laws afforded by the Fifth,

Sixth, Ninth and Fourteenth Amendments to the U.S.

Constitution. 

52. Petitioner was deprived the due process and equal

protection of the laws guarantees of the Fifth, Ninth

and Fourteenth Amendments to the U.S. Constitution

by the appellate court’s fraudulent misrepresentation

of material facts and prejudicial implementation of

immaterial facts when reviewing Petitioner’s claim

that the evidence presented supported the affirmative

defenses provided in the unfair trial proceedings

resulting in an illegal guilty verdict. 

53. Petitioner was prejudiced and deprived the due

process and equal protection of the laws guarantees of

the Fifth, Ninth and Fourteenth Amendments to the

U.S. Constitution by the appellate court’s fraudulent

misrepresentation of material facts when reviewing

Petitioner’s claim respective to the prejudice shown

by the required attendance at trial in shackles, to

sustain a conviction resulting from an unfair trial in

violation of the Sixth Amendment to the U.S.

Constitution.

54. Petitioner was prejudiced and deprived the due

process and equal protection of the laws guarantees of

the Fifth, Ninth and Fourteenth Amendments to the

U.S. Constitution by the appellate court’s fraudulent

concealment and misrepresentation of material facts

when overruling Petitioner’s claim that the jury was

presented an erroneous verdict forms for

consideration of aggravated assault.

55. Petitioner was prejudiced and deprived the due

process and equal protection of the laws guarantees of

the Fifth, Ninth and Fourteenth Amendments to the

U.S. Constitution when the appellate court failed to

conduct a full review of Petitioner’s claim that the

supplemental instructions provided to the deliberating

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jury were incorrect statements of law. 

56. Petitioner was deprived of the freedom to redress of

grievances, the rights to a fair and meaningful direct

appeal review, effective assistance of appellate

counsel, due process and equal protection of the laws

found in the First, Fifth, Sixth, Eighth, Ninth and

Fourteenth Amendments to the U.S. Constitution,

from the appellate court’s abuse of discretion, bias

and prejudice when acting in complicity with the state

and trial court by affirming a conviction and sentence

that is contrary to law. 

57. Petitioner was prejudiced and denied a fair and

meaningful direct appeal of right review due to the

cumulative deficiencies of court appointed appellate

counsel when failing to raise numerous stronger,

meritable errors, depriving Petitioner the rights to

access the court, due process and equal protection of

the laws provided by the First, Fifth, Sixth, Ninth and

Fourteenth Amendments to the U.S. Constitution. 

58. Petitioner was prejudiced and deprived of the freedom

to access the courts and from cruel and unusual

punishment, due process and equal protection of the

laws by the Ohio Supreme Court’s fraudulent

misrepresentation of material facts when refusing to

[ac]cept jurisdiction of Petitioner’s discretionary

appeal presenting substantial constitutional questions

of great public interests, in violation of the First,

Fifth, Eighth, Ninth and Fourteenth Amendments to

the U.S. Constitution, demonstrating outrageous

government conduct, bias, prejudice and an abuse of

discretion, incomplicity and conspiracy to enforce a

conviction and sentence that is contrary to law. 

59. Petitioner was deprived access to the court, effective

assistance of counsel, due process, equal protection of

the laws, a fair and meaningful direct appeal review

and exposed to cruel and unusual punishment by the

Ohio Supreme Court’s abuse of discretion, bias and

prejudice when failing to accept jurisdiction of

Petitioner’s claimed appeal of right, in violation of the

First, Fifth, Sixth, Eighth, Ninth and Fourteenth

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Amendments to the U.S. Constitution, creating a

manifest injustice. 

60. Petitioner was prejudiced and deprived of the freedom

from cruel and unusual punishment and access to the

courts, the rights to a fair trial before an impartial jury

and tribunal, indictment by impartial grand jury,

effective assistance of trial counsel, effective

assistance of appellate counsel, due process, equal

protection of the laws and a fair, impartial and

meaningful review of legal and procedural errors

committed during the State of Ohio’s complicit,

discriminatory, vindictive and racially motivated

prosecution, trial, conviction and sentencing of

Petitioner, in violation of the First, Fifth, Sixth,

Eighth, Ninth and Fourteenth Amendments to the

U.S. Constitution, demonstrating outrageous

government conduct and creating a manifest injustice. 

It is the position of the Respondent that Petitioner’s claims are procedurally defaulted or without

merit. 

 MOTION TO EXPAND THE RECORD

Petitioner filed a Motion to Expand the Record pursuant to Rule 7 of the Rules Governing

Section 2254 Cases in the United States District Courts. Doc. No. 17. Rule 7 provides as follows: 

 

Expanding the Record 

(a) In General. If the petition is not dismissed, the judge may direct

the parties to expand the record by submitting additional materials

relating to the petition. The judge may require that these materials be

authenticated.

(b) Types of Materials. The materials that may be required include

letters predating the filing of the petition, documents, exhibits, and

answers under oath to written interrogatories propounded by the

judge. Affidavits may also be submitted and considered as part of the

record.

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© Review by the Opposing Party. The judge must give the party

against whom the additional materials are offered an opportunity to

admit or deny their correctness.

 Petitioner asks that the record be expanded to include: 1) visitor’s log from the Franklin

County Correction Center indicating the dates and times that individuals visited Petitioner at the jail

between March 5, 2008, and March 6, 2009; 2) a Columbus Police Department criminal

investigation summary provided to defense counsel 1 1⁄2 weeks prior to trial and purportedly used

to obtain the indictment against Petitioner; 3) the docket sheet from Petitioner’s criminal case. 

Petitioner has attached these documents to his Motion to Expand the Record. Petitioner contends

that the visitor’s log supports habeas corpus claims one, four, six and nine, in which Petitioner

challenges his trial counsel’s performance; Petitioner appears to offer the visitor’s log to support

his allegation that defense counsel failed to visit him during the time period at issue. Petitioner

contends that the Columbus Police Department report supports habeas corpus claims forty-five,

forty-seven, and fifty-eight, in which Petitioner challenges the foundations of the prosecution;

according to Petitioner, prosecution witnesses testified that their statements, as summarized in the

police report, are the actual statements made by them to police. As noted supra, Petitioner also

asks that the state court docket be made part of the record before this Court; Respondent does not

oppose expansion of the record to include the criminal docket. See Response in Opposition, Doc.

No.19. As it relates to that request, therefore, Petitioner’s motion to expand the record is

GRANTED. 

Respondent opposes Petitioner’s motion as it relates to the visitor’s log and the police report.

Respondent specifically argues that Petitioner has failed to explain how the requested documents

will assist him in establishing the merits of the claims identified by him and that, in any event, those

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claims have been procedurally defaulted.

Federal law limits the circumstances under which a federal habeas court may receive

evidence not presented to the state courts and may properly conduct an evidentiary hearing. See 28

U.S.C. § 2254(d), (e). Review of a claim adjudicated by the state courts on the merits is “backwardlooking,” requiring examination of the state court decision at the time it was made in view of the

record then before it. Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398 (2011)(federal

habeas review is limited to the record before the state court that adjudicated the claim on the merits). 

Federal habeas courts do not function as an alternative forum for trying those facts and issues that

a prisoner should have pursued in state proceedings. Id.

[R]eview under § 2254(d)(1) focuses on what a state court knew and

did. State-court decisions are measured against this Court's

precedents as of “the time the state court renders its decision.”

Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155

L.Ed.2d 144 (2003). To determine whether a particular decision is

“contrary to” then-established law, a federal court must consider

whether the decision “applies a rule that contradicts [such] law” and

how the decision “confronts [the] set of facts” that were before the

state court. Williams v. Taylor, 529 U.S. 362, 405, 406, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000). If the state-court decision “identifies

the correct governing legal principle” in existence at the time, a

federal court must assess whether the decision “unreasonably applies

that principle to the facts of the prisoner's case.” Id., at 413, 120 S.Ct.

1495. It would be strange to ask federal courts to analyze whether a

state court's adjudication resulted in a decision that unreasonably

applied federal law to facts not before the state court.

Id. at 1399 (footnote omitted). 

Although state prisoners may sometimes submit new evidence in

federal court, AEDPA's statutory scheme is designed to strongly

discourage them from doing so. Provisions like §§ 2254(d)(1) and

(e)(2) ensure that “[f]ederal courts sitting in habeas are not an

alternative forum for trying facts and issues which a prisoner made

insufficient effort to pursue in state proceedings.” Id., at 437, 529

U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435; see also Richter, 562

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U.S., at ––––, 131 S.Ct., at 787 (“Section 2254(d) is part of the basic

structure of federal habeas jurisdiction, designed to confirm that state

courts are the principal forum for asserting constitutional challenges

to state convictions”); Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct.

2497, 53 L.Ed.2d 594 (1977) (“[T]he state trial on the merits [should

be] the ‘main event,’ so to speak, rather than a ‘tryout on the road’ for

what will later be the determinative federal habeas hearing”).

Id. 

Here, Petitioner never properly presented to the state courts his allegations in habeas corpus

claims one, four and six, which relate to speedy trial claims, or in habeas corpus claim nine, which

complains that his attorney failed to conduct discovery, investigate or present witnesses. Likewise,

Petitioner failed to present to the state courts his allegations in habeas corpus claims forty-five and

forty-seven, which relate to the grand jury’s return of the indictment and to the allegedly vindictive

nature of the prosecution. His allegation in claim fifty-eight, in which he contends that the Ohio

Supreme Court unconstitutionally refused to accept his appeal, fails to present an issue of a federal

constitutional law. Thus, neither the visitor log or the police summary report offered by Petitioner

will assist him in establishing whether habeas corpus relief is warranted on these claims. Moreover,

Petitioner has failed to justify, under 28 U.S.C. § 2254(e), the expansion of the record in connection

with claims that were neither presented to nor adjudicated by the state courts. 

As it relates to the visitor log and the police summary report, Petitioner’s motion to expand

the record is therefore DENIED. 

 PROCEDURAL DEFAULT

Respondent contends that most of Petitioner’s claims have been procedurally defaulted. In

recognition of the equal obligation of the state courts to protect the constitutional rights of criminal

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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), ©. 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

Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the fourpart 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)

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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. Isacc, 456 U.S. 107, 135 (1892)). A

petitioner who fails to show cause and prejudice for procedural default may nonetheless receive a

review of his claims if he 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

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).

Claims one, two, three, six and eight all relate to Petitioner’s allegation that he was denied

his right to a speedy trial. In claim seven, Petitioner asserts that he was denied a fair trial and the

effective assistance of counsel because the prosecutor failed to provide timely discovery. In claim

ten, Petitioner asserts that he was unconstitutionally denied reasonable bail. In claim eleven,

Petitioner asserts that he was denied a fair trial because the trial court required him to wear shackles

during trial. In claim fourteen, Petitioner asserts that he was denied a fair trial and was convicted

in violation of the Confrontation Clause because the trial court failed to comply with Ohio Criminal

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Rule 16. In claim fifteen, Petitioner asserts that he was denied a fair trial and equal protection

because the trial court failed to conduct an in camera inspection of statements of Detective Rousch

and prosecution witnesses in regard to alleged differences between police report summaries and

witness statements to police.2

 In claim eighteen, Petitioner asserts that the prosecutor knowingly

presented perjured testimony by Angela Theado. In claim nineteen, Petitioner asserts that he was

convicted by the use of a defective verdict form that improperly required the jury to find him not

guilty of felonious assault before it could find him guilty of aggravated assault. In claim twenty,

Petitioner asserts that he was denied a fair trial because the trial court improperly responded to the

jury’s question regarding mitigating circumstances. In claim twenty-one, Petitioner asserts that the

trial court misrepresented the law and improperly responded to the jury’s second question during

deliberations. In claim twenty-two, Petitioner asserts that he was denied a fair trial because the trial

court refused to clarify, in response to a question from the jury, the definition of “affray.” Petition,

PageID#144. In claim twenty-three, Petitioner asserts that he was denied the effective assistance

of trial counsel because his attorney failed to object to a defective indictment. In claim twenty-four,

Petitioner asserts that he was denied a fair trial because the trial court advised the jury, in

supplemental instructions, to disregard Petitioner’s testimony and his defenses of serious

provocation and self defense. In claim twenty-five, Petitioner asserts that he was denied a fair trial

because the jury “rendered a verdict that is contrary to law,” clearly lost its way and failed to adhere

to the “reasonable doubt doctrine.” Petition, PageID#147. In claim twenty-six, Petitioner asserts

that structural errors deprived him of a fair trial. In claim twenty-seven, Petitioner asserts that he

was denied a fair trial based on outrageous and improper conduct by the prosecutor during closing

2

 Petitioner alleges that Detective Rousch removed witness statements indicating that the

victims were the aggressors. 

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argument. In claim twenty-nine, Petitioner asserts that he was denied a fair trial because his attorney

failed to object to “improper, unclarifying and misleading supplemental jury instructions given by

the biased trial court.” Petition, PageID#149. In claim thirty-two, Petitioner asserts that the trial

court improperly imposed an excessive sentence.3

 

All of these claims are readily apparent from the face of the record, and should have been

raised on direct appeal, but were not.4

 Moreover, Petitioner may now no longer present these claims

to 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). Furthermore,

the state courts were never given an opportunity to enforce the procedural rule at issue due to the

nature of Petitioner's procedural default.

3

 Respondent correctly notes that, to the extent Petitioner raises an issue regarding the

alleged violation of state law, such claim fails to present a claim appropriate for federal habeas

corpus relief. 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984)(a federal court may

not issue a writ of habeas corpus “on the basis of a perceived error of state law.”). 

4

 Petitioner did raise on appeal a claim regarding an allegedly defective indictment;

however, the claim actually raised on appeal differed from that presented in claim nineteen. The

state appellate court summarized his claim as follows: 

Hill argues that his guilty verdict was void because it violated R.C.

2945.75(A)(2), which states that, when an additional element enhances the degree

of an offense, the “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.” Where the guilty verdict does not state the degree of the offense or that

an additional element is present, the verdict constitutes a finding of guilt to the

least degree of the offense charged. Hill maintains that his verdict is defective

because it did not include the degree of the offense of which he was found guilty

or state that degree-enhancing elements were found. Hill, thus, argues that he

could only be convicted of aggravated assault, a felony of the fourth degree. Hill's

argument is unpersuasive.

State v. Hill, 2010 WL 1510199, at *10. 

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 To the extent that any of these claims, or claim forty-seven (in which Petitioner asserts that

the prosecution was vindictive and racially motivated), may rely on evidence not made a part of the

record, such claims should have been raised in a petition for post conviction relief under O.R.C. §

2953.21. Petitioner did not pursue a petition for post conviction relief and it does not appear that

Petitioner could now satisfy the requirements for filing a delayed post conviction proceeding. See

O.R.C. § 2953.23. Thus, the Court deems the first and second parts of the Maupin test to have been

met. 

Petitioner did raise claim seven, alleging untimely discovery by the prosecution, for the first

time in his appeal to the Ohio Supreme Court. However, the Ohio Supreme Court does not

ordinarily consider claims not raised in the appellate court below. Evans v. Mitchell, 344 Fed.

Appx. 234, 244 (6th Cir. August 28, 2009)(citing Fornash v. Marshall, 686 F.2d 1179, 1185 n. 7 (6th

Cir.1982); State v. Phillips, 27 Ohio St.2d 294, 302, 272 N.E.2d 347 (1971)). Therefore, Petitioner

did not preserve this claim for review by this Court. 

Petitioner also briefly referred to habeas corpus claim ten, which alleges the imposition of

excessive bail, in his supplemental appellate brief and in his brief to the Ohio Supreme Court. Those

untimely references did not preserve this claim for federal habeas corpus review. In any event,

conviction renders moot any constitutional claims regarding bail. United States v. Manthey, 92

Fed. Appx. 291, 297 (6th Cir.2004) (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982)). 

 Likewise, Petitioner’s reference to many of his claims, in his motion for “judicial notice”

or in his supplemental pro se brief to the Ohio Court of Appeals, did not preserve those claims for

review. There is no constitutional right to make pro se filings while at the same time proceed with

the assistance of counsel. McKaskle v. Wiggins, 465 U.S. 168 (1984). Moreover, the state appellate

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court explicitly declined to consider any claims not raised by Petitioner’s appellate attorney: 

[W]e briefly address a pro se judicial notice of various documents

attached to the motion. Those documents include a new, pro se

appellate brief and other documents, including letters addressed from

Hill to his attorney and to the Director of the Correctional Institution

Inspection Committee. First, the attachments to Hill's motion do not

qualify for judicial notice under Evid.R. 201(B), which permits

judicial notice only of a fact “not subject to reasonable dispute in that

it is either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.”

Moreover, while a criminal defendant has a right to act pro se or to

have counsel, he has no right to “hybrid representation,” and, where

appointed counsel files a merit brief on behalf of a defendantappellant, the appellant is not entitled to file an additional brief pro

se. See State v. Saaty (Mar. 4, 1997), 10th Dist. No. 96APA06-777,

citing State v. Thompson (1987), 33 Ohio St.3d 1, 6-7, 514 N.E.2d

407. Finally, because an appellate court's review is limited to the

certified record, the court cannot add matter that was not part of the

trial court proceedings, and then decide the appeal based on the new

matter. State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500,

paragraph one of the syllabus. Accordingly, we may not consider the

submitted documents that were not part of the certified record from

the trial court. For these reasons, we deny Hill's motion and proceed

to our discussion of his assignments of error.

State v. Hill, 2010 WL 1510199, at *2.5

 

In claims thirty-three and thirty-four, Petitioner asserts that he was denied access to the

courts because the appellate court refused to consider claims raised by Petitioner in his pro se

Motion to Take Judicial Notice. In claims thirty-five and thirty-six, Petitioner asserts that he was

denied a meaningful appeal because the trial court refused to correct a deficient and incomplete trial

transcript and the appellate court refused to consider his motion for correction of the record. 

5

 Petitioner did raise on direct appeal a claim regarding allegedly defective jury

instructions. However, that claim differed from the claim presented in habeas corpus claim

nineteen. Petitioner argued on direct appeal that his guilty verdict was void because it violated

R.C. § 2945.75(A)(2) in that it failed to specify the degree of the offense charged or degreeenhancing elements. See State v. Hill, 2010 WL 1510199, at *10. 

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Petitioner failed, however, to raise these issues on appeal to the Ohio Supreme Court and Ohio’s

doctrine of res judicata now prohibits him from doing so now. Petitioner has therefore waived these

claims for review in these proceedings. 

In claim four, Petitioner asserts that he was denied the effective assistance of counsel because

his attorney waived his right to a speedy trial without Petitioner’s consent. In claim seventeen,

Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed

to properly pursue a motion for judgment of acquittal. Petitioner raised these claims on direct

appeal; however, he failed to present the claims to the Ohio Supreme Court. Petitioner cannot

pursue these claims in this Court.

In claim thirty-nine, Petitioner asserts that he was denied the effective assistance of appellate

counsel because his attorney failed to raise on appeal the trial court’s response to three questions

from the jury.6

 In claim forty, Petitioner complains that his appellate counsel failed to raise a claim

6

 Petitioner generally argued, in Rule 26(B) proceedings, that he was denied effective

assistance of counsel because his attorney failed to raise an issue regarding erroneous and

prejudicial jury instructions. See Exhibit 30 to Return of Writ. The state appellate court rejected

this claim: 

[T]his court finds that the trial court did properly address the jury regarding

felonious assault and aggravated assault. Specifically, the court charged the jury

as follows: 

If you find that the State proved beyond a reasonable doubt that the

Defendant knowingly caused serious physical harm to Michael

Newman and/or caused or attempted to cause physical harm to

Michael Newman by means of a deadly weapon, and you find that the

Defendant proved the mitigating circumstance by a preponderance of

the evidence, then you must find the Defendant guilty of aggravated

assault.

If you find that the State failed to prove that the Defendant knowingly

caused serious physical harm to Michael Newman and/or caused or

attempted to cause physical harm to Michael Newman by means of

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of defective verdict forms. In claim forty-one, Petitioner complains that his appellate counsel failed

to raise a claim regarding structural error. In claim forty-three, Petitioner challenges his appellate

counsel’s failure to raise on appeal a claim that the jury failed to determine his guilt beyond a

reasonable doubt. Petitioner failed to raise these claims in Rule 26(B) proceedings. See Exhibit 30

to Return of Writ. He may now no longer do so by virtue of Ohio’s doctrine of res judicata. 

Petitioner has therefore waived his right to review of these claims by this Court. 

In claim nine, Petitioner asserts that he was denied the effective assistance of counsel

because his attorney failed to conduct adequate pre-trial preparation, including discovery,

investigation of the case and location of defense witnesses. In claim twelve, Petitioner asserts that

he was convicted in violation of Brady v. Maryland, 373 U.S. 83 (1963), and of the Confrontation

Clause and was denied the effective assistance of counsel, all in connection with a video of

Petitioner made following his arrest. To the extent that these claims rely on matters that are readily

apparent from the face of the record, Petitioner failed to present the claims to the Ohio Court of

Appeals. As noted supra, the fact that Petitioner may have presented claims nine and twelve to the

Ohio Supreme Court in the first instance will not serve to avoid the procedural default of those

claims. To the extent that these claims rely on matters that are not readily apparent from the face

a deadly weapon, you must find the Defendant not guilty of felonious

assault and not guilty of aggravated assault. 

This same jury instruction was given regarding the counts involving both Michael

and Kyle. . . . [T]he jury found appellant not guilty of felonious or aggravated assault

with regard to Kyle. To the extent that appellant argues that the jury’s questions

indicate that they did not understand the charge, the fact that appellate was found not

guilty of the count involving Kyle indicates otherwise. Appellant has not

demonstrated that appellate counsel was deficient for not raising this argument. 

Exhibit 31 to Return of Writ. 

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of the record, they should have been raised in a petition for post conviction relief under O.R.C. §

2953.21. Petitioner did not pursue such action, and the time for doing so has long since expired. 

Because it does not appear that Petitioner can meet the strict requirements for consideration of an

untimely post conviction petition, see O.R.C. § 2953.23,7

 Petitioner has waived this Court’s

consideration of those claims. 

Ohio's res judicata rule is adequate and independent under the third part of the Maupin test.

To be “independent,” the procedural rule at issue, as well as the state court's reliance thereon, must

rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732–33 (1991). To be

7

 O.R.C. § 2953.23 provides: 

(A) Whether a hearing is or is not held on a petition filed pursuant to section

2953.21 of the Revised Code, a court may not entertain a petition filed after the

expiration of the period prescribed in division (A) of that section or a second

petition or successive petitions for similar relief on behalf of a petitioner unless

both of the following apply:

(1) Either of the following applies:

(a) The petitioner shows that the petitioner was unavoidably prevented from

discovery of the facts upon which the petitioner must rely to present the claim for relief.

(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of

the Revised Code or to the filing of an earlier petition, the United States Supreme

Court recognized a new federal or state right that applies retroactively to persons

in the petitioner's situation, and the petition asserts a claim based on that right.

(2) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense of which the petitioner was convicted or, if the

claim challenges a sentence of death that, but for constitutional error at the

sentencing hearing, no reasonable factfinder would have found the petitioner

eligible for the death sentence.

(B) An order awarding or denying relief sought in a petition filed pursuant to

section 2953.21 of the Revised Code is a final judgment and may be appealed

pursuant to Chapter 2953. of the Revised Code.

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“adequate,” the state procedural rule must be firmly established and regularly followed by the state

courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established and regularly followed

state practice’ may be interposed by a State to prevent subsequent review by this Court of a federal

constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348–351 (1984)); see

also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377

U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).

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). Ohio courts have consistently refused, in reliance on

the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See

State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, 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. Accordingly, the Court is satisfied from

its own review of relevant case law that the Perry rule is an adequate and independent ground for

denying relief.

In sum, this Court concludes that Petitioner has waived this Court’s consideration of habeas

corpus claims one through four, six through twelve, fourteen, fifteen, seventeen through twentyseven, twenty-nine, thirty-two through thirty-six, thirty-nine through forty-one, forty-three and fortyseven for federal habeas corpus review. 

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 CAUSE

Petitioner may still obtain review of the merits of these claims if he establishes cause for his

procedural default, as well as actual prejudice from the alleged constitutional violations.

“ ‘[C]ause’ under the cause and prejudice test must be something

external to the petitioner, something that cannot fairly be attributed

to him[;] ... some objective factor external to the defense [that]

impeded ... efforts to comply with the State's procedural rule.”

Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991).

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). The constitutionally ineffective assistance of

counsel may constitute cause for a procedural default so long as the claim of ineffective assistance

of counsel has itself been presented to the state courts and is not, itself, procedurally defaulted.

Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (citing Murray v. Carrier, 477 U.S. 478,

488–89 (1986)). 

As cause for the procedural default of claims eleven and eighteen, the Court presumes that

Petitioner intends to rely on a claim of ineffective assistance of appellate counsel, as raised in

habeas corpus claims thirty-eight and forty-two. The state appellate court rejected these claims in

relevant part as follows:

Appellant claims. . . that appellate counsel should have raised the

issue of prosecutorial misconduct. Appellant claims that the

prosecutor knowingly presented perjured testimony from Angela

Theado. Without providing any specifics, appellant claims that

Angela’s testimony at this trial was inconsistent with the statements

she made to the police. Further, appellant argues that Angela’s

testimony was a “verbatim recollection” of the testimony presented

by her boyfriend, Michael Newman. 

***

Both Michael and Angela testified that, when appellant exited the

bar, Angela essentially told appellant to leave Emily alone. (Tr. 42,

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123.) Thereafter, both Michael and Angela testified that Michael

tried to diffuse [sic] any hostilities that existed between appellant and

the others. (Tr. 43, 124.) Michael testified further that he was struck

in the face by appellant and that the two began struggling. (Tr. 43-

44.) By comparison, Angela testified that she did not realize that

Michael had been hit. She saw Michael grab appellant’s wrists and

that is when Angela testified that she saw the box cutter. (Tr. 124-

25.) Thereafter, Angela entered the bar to ask for help. When she

exited, appellant was on the ground, and Michael was on top of him. 

While there are obvious similarities between Michael’s and Angela’s

testimony, it is not a verbatim account. Further, Angela never even

saw appellant strike Michael. 

To the extent that appellant argues that Angela’s statement to the

police differs from her testimony, those statements are not part of the

record. In our earlier decision in this case, this court noted that

materials outside the trial court record cannot appropriately be

considered by this court on direct appeal. . . . The record does not

support appellant’s contention that the prosecutor knowingly used

perjured testimony. As such, appellate counsel was not deficient for

failing to raise this assignment of error. 

***

[A]ppellant argues that he suffered prejudice when he was forced to

attend the trial in shackles and had to testify outside the presence of

the jury. Appellant argues that this caused the jury to perceive him

as a violent man. . . . 

At pages 13 and 14 of the transcript, defense counsel noted that

counsel’s table had been closed off so that the leg shackles were not

visible, but asked that appellant’s handcuffs be removed. The court

agreed. Therefore, there was no prejudice in this regard. Further,

appellant’s argument that he testified outside the presence of the jury

is not supported by the record. Instead, at page 402, because

appellant was wearing leg shackles, the court had appellant take the

witness stand out of the presence of the jurors so that his leg shackles

would not be visible. Nothing in the record supports appellant’s

contention that the jury was not able to see him as he testified. 

Appellant has not presented any genuine issue of appellate

effectiveness in these regards. 

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Exhibit 31 to Return of Writ. 

The factual findings of the state appellate court are presumed to be correct:

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

corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.

 28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state court's

decision was contrary to or an unreasonable application of clearly established federal law, or based

on an unreasonable determination of the facts in light of the evidence that was presented.

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.

 28 U.S.C. § 2254(d). The United States Supreme Court has explained: 

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

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

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

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or

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

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

distinction creates "a substantially higher threshold" for obtaining

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

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

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

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

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

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

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

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

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

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

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

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

erroneous or incorrect decision, but an objectively unreasonable one.

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

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

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

could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, – U.S. –, 131

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

failed to meet this standard here. 

The 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

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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. 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 a petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective

assistance of counsel, should a court determine that the petitioner has failed to satisfy one prong, the

court need not consider the other. Id. at 697.

The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781–82

(1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v.

Lucey, 469 U.S. 387, 396–97 (1985). “ ‘[W]innowing out weaker arguments on appeal and focusing

on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of

effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes,

463 U.S. 745, 751–52 (1983)). The Court of Appeals for the Sixth Circuit has identified the

following considerations that ought to be taken into account in determining whether counsel on

direct appeal performed in a reasonably competent manner:

1. Were the omitted issues “significant and obvious?”

2. Was there arguably contrary authority on the omitted issues?

3. Were the omitted issues clearly stronger than those presented?

4. Were the omitted issues objected to at trial?

5. Were the trial court's rulings subject to deference on appeal?

6. Did appellate counsel testify in a collateral proceeding as to his

appeal strategy and, if so, were the justifications reasonable?

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7. What was appellate counsel's level of experience and expertise?

8. Did the Petitioner and appellate counsel meet and go over possible

issues?

9. Is there evidence that counsel reviewed all the facts?

10. Were the omitted issues dealt with in other assignments of error?

11. Was the decision to omit an issue an unreasonable one which only

an incompetent attorney would adopt?

Mapes v. Coyle, 171 F.3d 408, 427–28 (6th Cir. 1999).

Petitioner claims that Angela Theada lied and the prosecutor knowingly presented her

perjured testimony. In support of this claim, Petitioner alleges that her eyewitness account differs

from the account she initially provided in police reports; Petitioner also alleges that Angela’s

testimony matched that of her boyfriend, Michael Newman, and that the prosecutor had reviewed

with Angela prior to trial her prior statements. Petitioner contends that the State has waived “all

defenses and denials” in connection with this claim because it failed to file a memorandum opposing

this claim in the Ohio Supreme Court. See Petitioner’s Reply, Doc. 18, PageID#1496-97. 

“The knowing use of false or perjured testimony constitutes a denial of due process if there

is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”

United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989). In order to warrant relief on the basis

of false testimony, the challenged statement must have been both false and material, and the

prosecutor must have known that the statement was false. United States v. Maga, No. 10–4008, 2012

WL 1109472, at *8 (6th Cir. April 4, 2012) (citing United States v. Farley, 2 F.3d 645, 655 (6th

Cir.1993)). It is the convicted party's burden to show that the testimony was actually false. “[M]ere

inconsistencies in testimony by government witnesses do not establish knowing use of false

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testimony.” Lochmondy, 890 F.2d at 822.

As discussed by the state appellate court, the record simply does not establish the

prosecution’s knowing presentation of false testimony. Therefore, Petitioner cannot establish that

his appellate counsel performed in a constitutionally ineffective manner by failing to raise this claim

on appeal. 

Petitioner also alleges that he was denied a fair trial due to the use of restraints at trial. As

a general rule, a trial court should not compel a criminal defendant to go to trial in prison or jail

clothing, or in handcuffs and shackles that are visible to the jury, because of the possible impairment

of the presumption of innocence guaranteed as part of a defendant's due process right to a fair trial.

Estelle v. Williams, 425 U.S. 501, 504 (1976); Deck v. Missouri, 544 U.S. 622 (2005)(Constitution

prohibits use of visible shackles unless use is justified by an essential state interest specific to the

defendant on trial); see also Ruimveld v. Birkett, 404 F.3d 1006 (6th Cir. 2005)(shackling of

defendant in view of jury at trial did not constitute harmless error). 

Exposure of the jury to a defendant in shackles requires a mistrial

only when the exposure is so “inherently prejudicial” as to deny the

defendant's constitutional right to a fair trial. United States v. Pina,

844 F.2d 1, 8 (1st Cir.1988). We have distinguished the inherent

prejudice to a defendant who is shackled while in the courtroom from

a defendant who has been observed in shackles for a brief period

elsewhere in the courthouse. Defendants are required to show actual

prejudice where “[t]he conditions under which defendants were seen

were routine security measures rather than situations of unusual

restraint such as shackling of defendants during trial.” 

United States v. Waldon, 206 F.3d 597, 607 (6th Cir. 2000). 

Here, however, and as noted by the state appellate court, the record does not establish that

the jury viewed Petitioner in shackles. The record establishes that handcuffs were removed prior

to trial. Trial Transcript, PageID#763-64. Petitioner apparently wore leg shackles during trial, but

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counsel table was closed so that the jury could not see Petitioner’s feet. Petitioner took the witness

stand outside the presence of the jury, and before his testimony, so that the jury could not see the

shackles on his legs. Id. PageId#1156. Therefore, Petitioner cannot establish that his appellate

counsel performed in a constitutionally ineffective manner, or that Petitioner was prejudiced thereby,

when counsel failed to raise this claim on appeal. 

In short, Petitioner’s claims of ineffective assistance of appellate counsel, as reflected in

claims thirty-eight and forty-two, are without merit. It follows that Petitioner has also failed to

establish cause and prejudice for his procedural default of claims eleven and eighteen.

Petitioner has failed to establish cause for his procedural defaults. 

Beyond the four-part Maupin analysis, a habeas court is required to consider whether 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. at 491; see also Sawyer v. Whitley,

505 U.S. 333 (1992). The Court concludes that this is not such a case.

 MERITS

Grand Jury Proceedings:

In claim forty-four, Petitioner complains that the prosecutor mislead the grand jury and

concealed or misrepresented the facts. In claim forty-five, Petitioner alleges that the grand jury

failed to independently investigate the facts. The constitutional guarantee of indictment by a grand

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jury in federal prosecutions, U.S. CONST. amend. V, does not apply to state prosecutions. 

Branzburg v. Hayes, 408 U.S. 665, 687-88 n. 25 (1972)(noting that “indictment by grand jury is not

part of the due process of law guaranteed to state criminal defendants by the Fourteenth

Amendment”); Hurtado v. California, 110 U.S. 516, 535 (1884)(Fourteenth Amendment does not

incorporate the Fifth Amendment right to a grand jury). Alleged deficiencies in grand jury

proceedings do not, therefore, warrant federal habeas corpus relief. Claims forty-four and forty-five

are without merit.

Ineffective Assistance of Trial Counsel: 

In claim five, Petitioner asserts that he was denied a fair and impartial jury and the effective

assistance of counsel because his attorney waived the transcription of the voir dire. In claim

thirteen, Petitioner asserts that he was denied the effective assistance of counsel because his attorney

agreed, prior to trial, that the prosecutor had provided him with discovery material in a timely

manner.8

 In claim sixteen, Petitioner asserts that he was denied the effective assistance of counsel

because his attorney failed to present or to secure funding for a defense expert on wounds. In claim

seventeen, Petitioner asserts that he was denied the effective assistance of counsel because his

attorney failed to present argument to support a motion for judgment of acquittal. The state

appellate court rejected these claims, reasoning as follows: 

Hill contends that he received ineffective assistance of trial counsel.

The United States Supreme Court has established a two-pronged test

for ineffective assistance of counsel. See Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, the

defendant must show that counsel's performance was outside the

range of professionally competent assistance and, therefore, deficient.

Id. at 687, 104 S.Ct. at 2064. In evaluating allegations of deficient

8

Petitioner indicates that this is the same claim that he raised on direct appeal. Petition,

PageID#139. This Court will therefore address that same issue here. 

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conduct by counsel, “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689, 104 S.Ct. at

2065, quoting Michel v. Louisiana (1955), 350 U.S. 91, 101, 76 S.Ct.

158, 164, 100 L.Ed. 83. Second, the defendant must show that

counsel's deficient performance prejudiced the defense and deprived

the defendant of a fair trial. Strickland at 687, 104 S.Ct. at 2064. A

defendant establishes prejudice if “there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

at 694, 104 S.Ct. at 2068. The Supreme Court of Ohio has adopted

the two-prong Strickland analysis for determining whether counsel's

assistance was so defective as to require reversal of a conviction. See

State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128; State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

***

Hill. . . argues that his counsel's waiver of the presence of a court

reporter to record voir dire proceedings constituted deficient

representation. Counsel does not, however, have a duty to record voir

dire proceedings. See State v. Barker (May 9, 1996), 10th Dist. No.

95APA09-1209, citing State v. Schwarzbach (Nov. 6, 1990), 10th

Dist. No. 89AP-1504 (noting the common practice in non-capital

cases to waive the presence of a court reporter for voir dire), and

State v. Robertson (July 31, 1979), 10th Dist. No. 78AP-584. As

such, the waiver of a record of voir dire does not rise to the level of

deficient performance. Even if counsel's waiver of a record of voir

dire could be considered deficient, however, Hill does not argue any

specific error in voir dire or any specific prejudice arising out of the

lack of a record. Moreover, establishing such prejudice would require

proof outside the trial court record. Because our review is confined

to the trial record, that claim would not appropriately be considered

on direct appeal. See State v. Morales, 10th Dist. No. 03AP-318,

2004-Ohio-3391, ¶ 29. Where a defendant claims ineffectiveness

based on facts outside the record, the General Assembly has provided

a procedure for post-conviction relief, under R.C. 2953.21, whereby

a defendant may present other evidence of counsel's ineffectiveness.

See State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448 N.E.2d

452.

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Hill's third allegation of deficient performance, that counsel waived

argument in support of his Crim.R. 29(A) motion for acquittal at the

conclusion of the state's case, is similarly unpersuasive. A Crim.R. 29

motion for acquittal tests the sufficiency of the evidence. State v.

Darrington, 10th Dist. No. 06AP-160, 2006-Ohio-5042, ¶ 15. Hill

does not specify what his counsel should have argued in support of

his Crim.R. 29 motion, nor does he articulate how he was prejudiced

by the lack of argument. Indeed, Hill proceeded to take the stand and

essentially admit to the felonious assault, subject to his claimed

justification of self-defense. Especially in light of our conclusion

below, that Hill's conviction was supported by the manifest weight of

the evidence, Hill cannot demonstrate that he was prejudiced as a

result of his counsel's strategic decision to make, but not offer

additional argument in support of, a Crim.R. 29(A) motion.FN1

FN1. A finding that a conviction is supported by the manifest weight

of the evidence necessarily includes a finding of sufficiency of the

evidence. State v. Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285,

¶ 89.

Hill next argues that his counsel's performance was deficient because

counsel did not request, pursuant to Crim.R. 16(B)(1)(g), in camera

inspections of prior statements by the state's witnesses to determine

the existence of inconsistencies. Accordingly, Hill maintains that any

inconsistencies were not fully explored and tested under crossexamination. Hill, however, does not identify any specific

inconsistencies or explain how he was prejudiced by the supposed

deficiency in his counsel's representation, where Hill's counsel crossexamined each of the state's witnesses and emphasized

inconsistencies between the witnesses in arguments to the court and

jury. Hill's vague claim provides no basis upon which we can

evaluate his counsel's performance in that regard or address the

question of resulting prejudice. See State v. Perez, 124 Ohio St.3d

122, 920 N.E.2d 104, 2009-Ohio-6179, ¶ 218. Thus, we conclude that

Hill has not demonstrated that his counsel's performance was

deficient.

***

Hill also argues that his attorney's performance was deficient because

he did not retain an expert witness to testify about the effect of Hill's

pre-existing leg injury and about the extent of injury a box cutter

could inflict. Hill does not explain what evidence an expert would

offer or how expert evidence would have affected his self-defense

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claim. Where “[n]othing in the record indicates what kind of

testimony an [expert witness] could have provided,” resolving the

issue of whether counsel was deficient in failing to employ an expert

is “purely speculative.” State v. Madrigal, 87 Ohio St.3d 378, 390-

91, 721 N.E.2d 52, 2000-Ohio-448. See also State v. Hillman, 10th

Dist. No. 06AP-1230, 2008-Ohio-2341, ¶ 55, citing Madrigal; State

v. Hale, 119 Ohio St.3d 118, 892 N.E.2d 864, 2008-Ohio-3426, ¶ 221

(rejecting as conjectural an ineffective assistance claim based on

defense counsel's failure to request funds for an expert). Additionally,

establishing what an expert would have testified to would require

proof outside the record. Thus, Hill's claim of ineffective assistance

based on the failure to retain and call an expert witness is not

appropriately considered on direct appeal. See Madrigal at 391, 721

N.E.2d 52.

State v. Hill, 2010 WL 1510199, at *5-6. 

Petitioner has failed to establish that the state appellate court’s decision is unreasonable so

as to justify federal habeas corpus relief. Defense counsel’s decision to waive transcription of voir

dire proceedings appears to have been a strategic decision. Nothing in the record suggests that

counsel’s decision was an unreasonable one under the circumstances, or that Petitioner was

prejudiced by that decision. “Strickland, does not require that defense counsel be perfect.” United

States ex rel. Lewis v. Lane, 656 F.Supp. 181, 190 (C.D.Ill. 1987). Moreover, as was noted by the

state appellate court, any off-the-record evidence pertaining to the failure to transcribe voir dire (or

the failure to obtain the assistance of an expert witness) is waived, because those claims should have

been, but were not, raised in a petition for post conviction relief. Similarly, Petitioner cannot

establish prejudice by reason of defense counsel’s failure to argue in support of the motion for

judgment of acquittal, in view of the state appellate court’s conclusion that the prosecution had

presented sufficient evidence to sustain the charges against Petitioner. Petitioner cannot establish

prejudice by reason of his attorney’s failure to request an in camera review by the trial judge of prior

inconsistent statements of the witnesses, or by reason of defense counsel’s failure to obtain funding

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for an expert witness. Nothing in the record reflects that any expert witness would have been helpful

to the defense. 

Similarly, the record does not suggest that the prosecutor failed to comply with Ohio’s rules

governing discovery in criminal cases. Prior to trial, the following exchange took place: 

MR. LETSON: [A]bout a week and a half ago, I gave a copy of my

entire felony packet to Mr. Mayer. That includes all the summaries,

witness interviews, any audio recordings of any witness interviews. 

He’s had that for about a week and a half.

. . . [A] few weeks ago, he came to my office and he and I sat down. 

I gave him complete access to my file. I don’t think there should be

any 16(B)(1)(g) issues during the course of this trial.

MR. MAYER: I would acknowledge that he’s been more than

cooperative with respect to providing information and I think we do

have everything.

Trial Transcript, PageID762-63. Nothing in the record supports Petitioner’s claim that the

prosecutor violated Ohio’s discovery rules or Brady v. Maryland, 373 U.S. at 83. 

The Court likewise rejects Petitioner’s claim that the trial court should have reviewed

witness statements for inconsistencies. During cross-examination, defense counsel addressed any

such inconsistencies between the witnesses’ testimony and police report summaries. See, e.g., Trial

Transcript, PageID#903-905; 910-911;1220-22. 

Claims five, thirteen, sixteen and seventeen are without merit. 

Sufficiency of the Evidence: 

In claims twenty-eight and thirty-one, Petitioner asserts that the evidence was

constitutionally insufficient to sustain his conviction on felonious assault and that his conviction was

against the manifest weight of the evidence. Petitioner specifically argues that the evidence against

him was perjured and indicated, at most, that he had been seriously provoked into committing

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aggravated assault. Petitioner complains that the jury ignored significant evidence of self defense. 

He also contends the State failed to introduce any evidence supporting his conviction. Petition,

PageID149. According to Respondent, this claim has been waived because Petitioner argued on

direct appeal only that the State had failed, in light of Petitioner’s intoxicated state at the time, to

introduce evidence sufficient to establish the required mental element and that the evidence failed

to establish that Petitioner’s box cutter was a deadly weapon. The Court concludes, however, that

Petitioner adequately preserved these claims in his Rule 26(B) proceedings. Exhibits 30, 31 to

Return of Writ. The Court will therefore address both of these claims.

To the extent that Petitioner asserts that his conviction is against the manifest weight of the

evidence, Petitioner’s claim fails to present an issue appropriate for federal habeas corpus relief. 

The Due Process Clause does not provide relief for defendants whose convictions are against the

manifest weight of the evidence, but only for those who have been convicted without sufficient proof

to allow a rational trier of fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 F.2d

959, 969 (6th Cir.1983). In the context of a claim alleging a violation of due process, “sufficiency

of the evidence” refers to the due process requirement that there be enough evidence for a rational

trier of fact to find each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307 (1979). 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. Id. at 319; Walker, 703 F.2d at 969.

Ohio law recognizes a claim that a verdict was against the manifest weight of the evidence. 

That claim requires that the appellate court act as a “thirteenth juror” and review the entire record,

weigh the evidence and consider the credibility of witnesses to determine whether “the jury clearly

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lost its way and created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457

U.S. 31 (1982). However, because a federal habeas court does not function as an additional state

appellate court, vested with the authority to conduct such an exhaustive review, Petitioner’s claim

that his conviction was against the manifest weight of the evidence cannot be considered by this

Court. 

On direct appeal, the state appellate court rejected Petitioner’s claim that his conviction was

against the manifest weight of the evidence in relevant part as follows: 

Hill maintains that his conviction was against the manifest weight of

the evidence. . . . 

Defining felonious assault, R.C. 2903.11(A) states that no person

shall knowingly “[c]ause serious physical harm to another” or

“[c]ause or attempt to cause physical harm to another * * * by means

of a deadly weapon or dangerous ordnance.” Hill maintains that his

conviction was against the manifest weight of the evidence in two

respects. Specifically, he argues that the manifest weight of the

evidence did not support a finding that he knowingly committed the

offense or the use of a deadly weapon. Neither argument is

persuasive.

Hill first argues that the state failed to prove that he had the requisite

mental state for felonious assault. To prove felonious assault, the

state was required to demonstrate either that Hill knowingly caused

serious physical harm or that he knowingly caused or attempted to

cause physical harm by means of a deadly weapon. R.C. 2903.11(A).

One “acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C.

2901.22(B). When determining whether a defendant acted

knowingly, his state of mind must be determined from the totality of

the circumstances surrounding the alleged crime. State v. Inman, 9th

Dist. No. 03CA0099-M, 2004-Ohio-1420.

Hill's only argument regarding mental state is that his intoxication at

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the time of the offense prevented him from acting knowingly, the

mental state required to commit felonious assault. R.C. 2901.21©,

however, states, in part, as follows:

Voluntary intoxication may not be taken into consideration in

determining the existence of a mental state that is an element of a

criminal offense. * * * Evidence that a person was voluntarily

intoxicated may be admissible to show whether or not the person was

physically capable of performing the act with which the person is charged.

This court has held that, since the General Assembly amended R.C.

2901.21 in 2000, “voluntary intoxication may no longer be taken into

account in determining the existence of a mental state that is an

element of a criminal offense.” State v. Melhado, 10th Dist. No.

02AP-458, 2003-Ohio-4763, ¶ 48. See also Inman at ¶ 7 (holding that

a voluntary intoxication defense is not applicable to a charge of

felonious assault).

Hill directs this court to the Fourth District Court of Appeals' opinion

in State v. Goad, 4th Dist. No. 08CA25, 2009-Ohio-580, in which the

court suggested that, despite the language of R.C. 2901.21©,

intoxication may, in fact, preclude the existence of a knowing mental

state, as required for felonious assault. We reject Hill's reliance on

Goad. Not only has this court held that courts may no longer take

voluntary intoxication into account when determining the existence

of a mental state that is an element of a criminal offense, see Melhado

at ¶ 48, but the cases upon which the Fourth District relied predate

the 2000 amendments to R.C. 2901.21, which added the controlling

statutory language.

Hill does not argue that his voluntary intoxication rendered him

physically incapable of performing the act with which he was

charged. To the contrary, he admitted the physical acts underlying his

conviction, but argued that he acted in self-defense. Here, Hill argues

only that his voluntary intoxication prevented him from maintaining

the requisite mental state for felonious assault, the exact argument

precluded by R.C. 2901.21©. Thus, Hill has not demonstrated that

the jury's finding of the requisite mental state for felonious assault

was against the manifest weight of the evidence.

Hill also contends that the state failed to prove that he utilized a

deadly weapon. For purposes of felonious assault, “deadly weapon”

has the same meaning as set forth in R.C. 2923.11, which defines a

“deadly weapon” as “any instrument, device, or thing capable of

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inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon.” R.C.

2923.11(A); R.C. 2903.11(E)(1). A knife is not presumed to be a

deadly weapon. Columbus v. Dawson (1986), 28 Ohio App.3d 45, 46,

501 N.E.2d 677. Rather, the prosecution must prove that the knife

was designed or specially adapted for use as a weapon or,

alternatively, that the defendant possessed, carried or used the knife

as a weapon. Id.

A box cutter may constitute a deadly weapon. State v. Carter, 8th

Dist. No. 84036, 2004-Ohio-6861, ¶ 14, quoting State v. Tucker, 8th

Dist. No. 81885, 2003-Ohio-3022. Here, on cross-examination, Hill

not only agreed that the box cutter he carried was “capable of causing

death,” but also agreed that, during the altercation giving rise to the

indictment, he “used it as a weapon” to cut the victims. (Tr. 473.)

Other witnesses also testified to Hill's use of the box cutter to cut the

two victims during the altercation. Therefore, we reject Hill's

argument that the state failed to prove use of a deadly weapon.

Having rejected both of Hill's arguments regarding the manifest

weight of the evidence, we overrule Hill's second assignment of error.

State v. Hill, 2010 WL 1510199, at *8-10. 

In Rule 26(B) proceedings, the state appellate court concluded Petitioner had failed to

establish the ineffective assistance of appellate counsel in relevant part as follows: 

Appellant argues. . . that the evidence he presented clearly supported

the affirmative defenses that he raised. Appellant had argued that he

was provoked and that he acted in self-defense. 

Appellant does not point to any evidence in the record that would

support his claims. However, appellant testified that, when he exited

the bar, Michael stepped in front of him and started the argument,

which then became physical. Appellant testified that he was suckerpunched in the face and that he grabbed Michael’s jacket solely to

keep his balance. Appellant testified that he was hit again and fell to

the ground, at which time he grabbed his utility knife and began

swinging. (Tr. 459-62.) 

In his direct appeal. . . [a]ppellant had argued that the state failed to

prove that he had the requisite mental state for felonious assault,

asserting that he was intoxicated at the time. Appellant also argued

that the state failed to prove that he utilized a deadly weapon. This

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court rejected appellant’s arguments and concluded that his

convictions were not against the manifest weight of the evidence. 

Concerning appellant’s current arguments, it is apparent that the jury

found the testimony of the witnesses for the prosecution to be more

credible than they found appellant’s testimony, at least regarding the

count that involved Michael. Appellant had been charged with two

counts of felonious assault; one count involved Michael and the other

count involved Kyle Smith. While the jury found appellant guilty of

felonious assault involving Michael, the jury found appellant not

guilty of felonious assault involving Kyle.

Exhibit 31 to Return of Writ. 

 Under the AEDPA, a state court's determination regarding a sufficiency of evidence claim

is entitled a “double layer” of deference. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th

Cir.2009), deference is due the jury's finding of guilt because the standard, announced in Jackson

v. Virginia, 443 U.S. 307, is whether, “viewing the trial testimony and exhibits 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.” Even if a de novo review of the evidence leads to the conclusion

that no rational trier of fact could have so found, a federal habeas court “must still defer to the state

appellate court's sufficiency determination as long as it is not unreasonable.” Id.; see also White v.

Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle for a habeas petitioner to

overcome, and Petitioner has not done so here. 

In determining whether evidence is constitutionally sufficient to sustain a conviction, this

Court must consider the evidence presented in the light most favorable to the prosecution. Wright

v. West, 505 U.S. 277 (1992) (citing Jackson v. Virginia, 443 U.S. at 319). The prosecution is not

affirmatively required to “rule out every hypothesis except that of guilt.” Id. (quoting Jackson, at

326). “[A] reviewing court ‘faced with a record of historical facts that supports conflicting

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inferences must presume—even if it does not affirmatively appear in the record—that the trier of

fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’ ” Id.

(quoting Jackson, at 326). For example, the trier of fact is entitled to disbelieve a defendant's

uncorroborated testimony and to discount a defendant's credibility on account of a prior felony

conviction. Id.

For the reasons addressed by the state appellate court, this Court likewise concludes that,

when viewing all the evidence in the light most favorable to the prosecution, see Jackson v. Virginia,

443 U.S. at 319, the evidence was constitutionally sufficient to sustain Petitioner’s conviction on

felonious assault. 

Claims twenty-eight and thirty-one are without merit. 

Cumulative Error: 

In claim thirty, Petitioner asserts that he was denied a fair trial based on cumulative error. 

The United States Court of Appeals for the Sixth Circuit has held that such a claim will does warrant

habeas corpus relief. Scott v. Houk, No. 4:07-CV-0753, 2011 WL 5838195, at *43 (N.D. Ohio Nov.

18, 2011)(citing Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006)). Claim thirty is without

merit.

Ineffective Assistance of Appellate Counsel

In claims thirty-seven and fifty-seven, Petitioner asserts that he was denied the effective

assistance of appellate counsel because his appellate attorney raised weak issues on appeal in lieu

of stronger, arguably meritorious, claims. Petitioner does not identify any particular issues that his

attorney should have raised, but failed to raise, on appeal. Claims thirty-seven and fifty-seven,

therefore, fail to provide a basis for habeas corpus relief. 

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In claim forty-nine, Petitioner complains that his appellate attorney failed to raise on appeal

a claim regarding the withholding of discovery. To the extent that Petitioner raised this same claim

in Rule 26(B) proceedings, the state appellate court rejected the claim as follows: 

[A]ppellant. . . argue[s] that the state did not comply with Crim.R. 16. 

However, with regard to Crim.R. 16(B), appellant’s trial counsel

stated as follows regarding the prosecutor: “I would acknowledge

that he’s been more than cooperative with respect to providing

information and I think we do have everything.” (Tr. 13.) The

record simply does not support appellant’s contention, and he has not

demonstrated that appellate counsel was ineffective for failing to

raise this assignment of error. 

Exhibit 31 to Return of Writ. Again, these findings are presumed to be correct, 28 U.S.C. § 2254(e),

and Petitioner has failed to meet his burden of rebutting that presumption of correctness. Nothing

in the record supports his allegation that the prosecutor violated state discovery rules or that his

attorney performed in a constitutionally ineffective manner in failing to raise this claim on appeal. 

 Claim forty-nine is without merit. 

Rule 26(B) Proceedings: 

A number of Petitioner’s claims attack the sufficiency of his rule 26(B) proceedings. In

claim forty-six, Petitioner asserts that the state appellate court failed to meaningfully review his Rule

26(B) application in reference to his claim regarding prosecutorial misconduct based on the use of

allegedly perjured testimony. Petitioner specifically complains that the appellate court

“fraudulently misrepresented material facts”and that Ohio’s ten page limit for the filing of his

appellate brief prevented him from adequately addressing his claims. Petition, PageId#159. In

claim forty-eight, Petitioner complains that the prosecutor, in opposing Petitioner’s Rule 26(B)

application, fraudulently argued that police summaries were not a part of the record. In claim fifty,

Petitioner asserts that the prosecutor, in opposing Petitioner’s Rule 26(B) application, concealed the

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fact that the evidence supported Petitioner’s affirmative defenses. In claim fifty-one, Petitioner

asserts that the state appellate court refused to adhere to the principles of stare decisis in denying

his Rule 26(B) application. In claim fifty-two, Petitioner complains that the state appellate court,

in denying his Rule 26(B) application, misrepresented and ignored facts that tended to exonerate

him, including Petitioner’s contention that he was attacked by an angry mob. Petition, PageID162. 

In claim fifty-three, Petitioner asserts that the appellate court misconstrued his argument, presented

in his Rule 26(B) proceedings, relating to the shackles. In claim fifty-four, Petitioner complains that

the state appellate court failed to address his argument that the jury verdict forms relating to the

charge of aggravated assault constituted plain error. In claim fifty-five, Petitioner complains that

the state appellate court failed to review his claim that supplemental jury instructions amounted to

incorrect statements of law. Petitioner again complains that he was unable to fully address this issue

due to the page limitations in Rule 26(B) proceedings. In claim fifty-six, Petitioner asserts that

Ohio’s ten page limit on briefs in Rule 26(B) proceedings unconstitutionally denied him a

meaningful review of his ineffective assistance of appellate counsel claims. In claim fifty-eight,

Petitioner asserts that the Ohio Supreme Court unconstitutionally refused to accept his direct appeal

and, in claim fifty-nine, Petitioner asserts that the Ohio Supreme Court unconstitutionally refused

to accept his Rule 26(B) appeal.

None of these foregoing claims presents issues warranting federal habeas corpus relief. The

United States Court of Appeals for the Sixth Circuit has held that “habeas corpus is not the proper

means by which prisoners should challenge errors or deficiencies in state post-conviction

proceedings.” Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.2001) (rejecting as noncognizable in

habeas corpus proceedings that claim that Ohio's post-conviction scheme fails to provide defendants

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an adequate corrective process for reviewing claims of constitutional violations) (citing Kirby v.

Dutton, 794 F.2d 245 (6th Cir.1986)). Federal habeas review is not available to attack the

sufficiency of post-conviction proceedings, because those proceedings are not related to a

petitioner's detention. Kirby, 794 F.2d at 247; see also Cress v. Palmer, 484 F.3d 844, 853 (6th

Cir.2007); Alley v. Bell, 307 F.3d 380, 387 (6th Cir.2002). A proper habeas corpus claim “must

directly dispute the fact or duration of the confinement.” Kirby, 794 F.2d at 248 (citing Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973)). A ground for relief that merely challenges the correctness of

a state judicial proceeding and does not dispute the detention itself is not cognizable in habeas

corpus proceedings. See Kirby, 794 F.2d at 247-48.

A due process claim related to collateral post-conviction proceedings,

even if resolved in a petitioner's favor, would not “result [in] ...

release or a reduction in ... time to be served or in any other way

affect his detention because we would not be reviewing any matter

directly pertaining to his detention.” Kirby, 794 F.2d at 247. “Though

the ultimate goal in” a case alleging postconviction error “is release

from confinement, the result of habeas review of the specific issue [

] ... is not in any way related to the confinement.” Id. at 248.

Accordingly, we have held repeatedly that “the scope of the writ

[does not] reach this second tier of complaints about deficiencies in

state post-conviction proceedings,” noting that “the writ is not the

proper means” to challenge “collateral matters” as opposed to “the

underlying state conviction giving rise to the prisoner's

incarceration.” Id. at 248, 247; see also Alley v. Bell, 307 F.3d 380,

387 (6th Cir. 2002) (“error committed during state post-conviction

proceedings can not [ sic ] provide a basis for federal habeas relief”

(citing Kirby, 794 F.2d at 247)); Greer v. Mitchell, 264 F.3d 663, 681

(6th Cir. 2001) (“habeas corpus cannot be used to mount challenges

to a state's scheme of post-conviction relief”). 

Cress v. Palmer, 484 F.3d at 853. Claims forty-six, forty-eight, fifty through fifty-six, fifty-eight

and fifty-nine fail to provide a basis for habeas corpus relief.

Claim Sixty:

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In claim sixty, Petitioner appears to claim relief based on the summary of the errors alleged

in his other claims for relief. Because this Court concludes that none of Petitioner’s other claims

warrants habeas corpus relief, this claim likewise fails to provide the relief that petitioner seeks. 

Claim sixty is without merit. 

WHEREUPON, Petitioner’s Motion to Expand the Record, Doc. 17, is GRANTED, in part,

and DENIED, in part . 

 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,

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they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

 s/ Norah McCann King 

Norah McCann King

United States Magistrate Judge

November 1, 2012

 

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