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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION AT COLUMBUS

TIMOTHY L. SNYDER, 

 Petitioner, : Case No. 2:11-cv-800 

 - vs - District Judge Algenon L. Marbley 

 Magistrate Judge Michael R. Merz 

 Warden, Marion Correctional 

 Instutition, 

 Respondent. : 

REPORT AND RECOMMENDATIONS 

 This habeas corpus case was brought by Petitioner Timothy L. Snyder to obtain relief 

from his conviction in the Licking County Common Pleas Court and the consequent twelve-year 

sentence he is serving in Respondent’s custody. Snyder avers that he was convicted of four 

counts of theft in amounts greater than $25,000 but less than $100,000 with elderly specifications 

and one count of misuse of a credit card (Petition, Doc. No. 1, PageID 1, ¶ 5).1 

 On Judge Deavers’ Order (Doc. No. 7), the Respondent has filed a Return of Writ (Doc. 

No. 12). On her further Order (Doc. No. 15), Petitioner filed a Traverse (Doc. No. 16), making 

the case ripe for decision. In order to balance the judicial workload in the District, the reference 

was recently transferred to the undersigned (Doc. No. 17). 

 Snyder pleads the following Grounds for Relief: 

Ground One: Insufficient Evidence for Theft Conviction – James 

Bauer 

 

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 Contrary to Rule 2(c)(5) of the Rules Governing § 2254 Cases, the Petition is not signed under penalty of perjury 

by Snyder, who is represented by counsel in these proceedings. 

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Ground Two: Insufficient Evidence for Theft Conviction – 

Mildred Stahl 

Ground Three: Insufficient Evidence for Theft Conviction – 

Stephen McClellan 

Ground Four: Prosecutorial Misconduct 

Ground Five: Ineffective Assistance of Trial Counsel 

Ground Six: Denial of the Right to Present a Defense. 

Procedural History 

 Snyder was indicted by the Licking County Grand Jury in three separate cases which 

were consolidated for trial. He was convicted by a jury on all counts and sentenced to one year 

each in 2006 CR 553 and 2007 CR 363 and ten years in 2006 CR 494, all to be served 

consecutively. The judgment was affirmed on direct appeal by the Fifth District Court of 

Appeals, State v. Snyder, 2008 Ohio 6709, 2008 Ohio App. LEXIS 5623 (Ohio App. 5th Dist. 

Dec. 18, 2008)(“Snyder 1”). The Ohio Supreme Court declined to exercise jurisdiction over a 

subsequent appeal. State v. Snyder, 121 Ohio St. 3d 1501 (2009). 

 Snyder filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 

which he amended twice. The trial court denied relief and the court of appeals affirmed, State v. 

Snyder, 2010 Ohio 1643, 2010 Ohio App. LEXIS 1363 (Ohio App. 5th Dist. Apr. 13, 2010). The 

Ohio Supreme Court again declined jurisdiction. State v. Snyder, 2010 Ohio 3855, 126 Ohio St. 

3d 1546 (2010). Snyder’s subsequent application to reopen the direct appeal under Ohio R. App. 

P. 26(B) was rejected, State v. Snyder, 2009 Ohio 2473, 2009 Ohio App. LEXIS 2096 (Ohio 

App. 5th Dist. Apr. 22, 2009), and the Ohio Supreme Court again declined jurisdiction, State v. 

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Snyder, 122 Ohio St. 3d 1506 (2009). Snyder’s delayed motion for a new trial was also rejected 

by the Common Pleas Court, the court of appeals, and the Ohio Supreme Court. State v. Snyder, 

2010 Ohio 3588, 2010 Ohio App. LEXIS 3056 (Ohio App. 5th Dist. July 16, 2010); State v. 

Snyder, 127 Ohio St. 3d 1461 (2010). The instant Petition timely followed. 

Analysis 

Ground One: Insufficient Evidence as to Victim James Bauer 

 In his First Ground for Relief, Snyder asserts there was insufficient evidence to convict 

him on the charges of theft by deception from an elderly person in excess of $25,000 and misuse 

of a credit card of an elderly person in an amount exceeding $5,000 (Petition, Doc. No. 1, 

PageID 19.) 

 Respondent asserts this Ground for Relief is barred by Petitioner’s failure to fairly 

present it to the Ohio courts (Answer/Return of Writ, Doc. No. 12, PageID 88 et seq.) Petitioner 

replies that the claim was fairly presented (Traverse, Doc. No. 16, PageID 1632, et seq.) 

To preserve a federal constitutional claim for presentation in habeas corpus, the claim 

must be "fairly presented" to the state courts in a way which provides them with an opportunity 

to remedy the asserted constitutional violation, including presenting both the legal and factual 

basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 

986 F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other 

grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 

(6th Cir. 1991). The claim must be fairly presented at every stage of the state appellate process. 

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Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009). 

 If a petitioner’s claims in federal habeas rest on different theories than those presented to 

the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th

Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d 

313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)(“relatedness” of a 

claim will not save it). An Ohio App. Rule 26(B) application preserves for habeas review only 

the ineffective assistance of appellate counsel arguments made in that application, not the 

underlying substantive arguments. Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), 

citing Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001). “The Lott court explained that permitting 

an Ohio prisoner to raise a substantive claim in a Rule 26(B) motion "would eviscerate the 

continued vitality of the procedural default rule; every procedural default could be avoided, and 

federal court merits review guaranteed, by claims that every act giving rise to every procedural 

default was the result of constitutionally ineffective counsel." Id. 

 A state prisoner ordinarily does not ‘fairly present’ a federal claim to a state court if that 

court must read beyond a petition, a brief, or similar papers to find material that will alert it to 

the presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004). 

 A petitioner fairly presents a federal habeas claim to the state courts only if he “asserted 

both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6th Cir. 2004), 

citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); and Picard v. Connor, 404 U.S. 

270, 276, 277-78 (1971). 

 Petitioner’s First Ground for Relief is an insufficient evidence claim. Respondent asserts 

the claim is barred because Petitioner presented only a manifest weight claim and not an 

insufficiency of the evidence claim to the Ohio courts. On direct appeal to the Ohio Court of 

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Appeals for Licking County, Snyder’s first assignment of error was “[t]he jury erroneously 

concluded that Appellant Timothy L. Snyder (Snyrder) was guilty of the offenses charged.” 

Snyder 1, ¶ 14. That court expressly found that “Appellant does not argue that the evidence was 

insufficient to sustain his conviction. See, e.g. State v. Thompkins (1997), 78 Ohio St. 3d 380, 

1997 Ohio 52, 678 N.E. 2d 541.” Id. at note 1. 

 This reading by the court of appeals is consistent with the way Snyder argued the 

assignment of error in his Brief on Appeal (Doc. No. 12-1, PageID 199 et seq.). At the outset of 

his argument, he set forth what he understood to be the distinction between review for 

sufficiency of the evidence and review for manifest weight of the evidence. Id. at PageID 205-

206, citing Thompkins, supra, for the distinction. Then he proceeded to argue the Assignment of 

Error under the heading “The weight of the evidence does not produce a belief of guilt.” 

Id.(emphasis added) As the argument progressed, he asserted the State had failed on the element 

of intent to steal. Id. at PageID 208. He concluded his argument “[g]iven the holes in the 

evidence presented, the verdict must be set aside for lack of weight.” Id. at PageID 210 

(emphasis added). 

 In attempting to show that the claim was “fairly presented” to the court of appeals, 

Snyder now states: 

By requiring that the habeas petitioner provide the state courts with 

both the same legal theory and the same factual predicate 

underlying the constitutional argument, the federal court ensures 

that the same method of legal analysis that is used by the federal 

court in resolving the petitioner's claim was also readily available 

to the state court when it adjudicated the claim. Zicarelli v. Gray, 

543 F.2d 466, 472 (3d Cir. 1976) (en banc) [citations omitted]. 

The ability to make this argument in federal court demonstrates 

that the same "method of analysis" considered by the state court is 

the same analysis the Petitioner is making the identical claim in 

federal court that he had made in the Ohio courts. Thus the state 

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judicial system has been given a fair opportunity required to 

constitute exhaustion of state remedies. See Ross v. Petsock, 868 

F.2d 639, 641 (3d Cir. 1989). 

(Traverse, Doc. No. 16, PageID 1633-1634.) With respect, this statement is pure ipse dixit. As 

the court of appeals recognized by citing State v. Thompkins, the legal theory underlying a 

manifest weight of the evidence claim is different from that underlying a sufficiency of the 

evidence claim. In Thompkins, the Ohio Supreme Court reaffirmed the important distinction 

between appellate review for insufficiency of the evidence and review on the claim that the 

conviction is against the manifest weight of the evidence. It held: 

In essence, sufficiency is a test of adequacy. Whether the evidence 

is legally sufficient to sustain a verdict is a question of law. State v. 

Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. 

In addition, a conviction based on legally insufficient evidence 

constitutes a denial of due process. Tibbs v. Florida (1982), 457 

U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, 

citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 

L.Ed.2d 560. Although a court of appeals may determine that a 

judgment of a trial court is sustained by sufficient evidence, that 

court may nevertheless conclude that the judgment is against the 

weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 

O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence 

concerns "the inclination of the greater amount of credible 

evidence, offered in a trial, to support one side of the issue rather 

than the other. It indicates clearly to the jury that the party having 

the burden of proof will be entitled to their verdict, if, on weighing 

the evidence in their minds, they shall find the greater amount of 

credible evidence sustains the issue which is to be established 

before them. Weight is not a question of mathematics, but depends 

on its effect in inducing belief." (Emphasis added.) 

When a court of appeals reverses a judgment of a trial court on the 

basis that the verdict is against the weight of the evidence, the 

appellate court sits as a " 'thirteenth juror' " and disagrees with the 

factfinder's resolution of the conflicting testimony. Tibbs, 457 

U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. 

Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 

N.E.2d 717, 720-721 ("The court, reviewing the entire record, 

weighs the evidence and all reasonable inferences, considers the 

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credibility of witnesses and determines whether in resolving 

conflicts in the evidence, the jury clearly lost its way and created 

such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered. The discretionary power to grant 

a new trial should be exercised only in the exceptional case in 

which the evidence weighs heavily against the conviction."). 

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited 

approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest 

weight of the evidence claim: 

In considering the claim that the conviction was against the 

manifest weight of the evidence, the test is much broader. The 

court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of the witnesses 

and determines whether in resolving conflicts in the evidence, the 

jury clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial 

ordered. ... 

Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus. The consequences of the distinction are 

important for a criminal defendant. The State may retry a case reversed on the manifest weight 

of the evidence; retrial of a conviction reversed for insufficiency of the evidence is barred by the 

Double Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31, 41 (1982). 

 Petitioner’s discussion of the exhaustion doctrine in his Traverse (Doc. No. 16, PageID 

1634-1635) is besides the point; it is not lack of exhaustion of state court remedies which 

Respondent has raised, but procedural default. If the difficulty were lack of exhaustion, this 

Court could stay the proceedings while Petitioner completed exhaustion. Swanson v. DeSantis,

606 F.3d 829 (6th Cir. 2010), citing Harris v. Lafler, 553 F.3d 1028, 1031-32 (6th Cir. 2009). 

Procedural default, however, is a complete defense and requires dismissal on the merits. 

 The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a 

habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 

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2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.), cert. denied sub nom, Eley v. Hauk,

__ U.S. __, 131 S.Ct. 822 (2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 

(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001). 

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, citing County Court of 

Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 

L.Ed.2d 777 (1979). 

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. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

there was "cause" for him to not follow the procedural rule and that 

he was actually prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). 

 There is an applicable state procedural rule involved here. Under Ohio law, a criminal 

defendant is only entitled to one direct appeal and issues which could have been raised on that 

appeal but were not are barred from later consideration by res judicata. State v. Perry, 10 Ohio 

St. 2d 175 (1967). While the Ohio courts have not yet enforced the Perry doctrine as to an 

insufficient evidence claim by Snyder, there is no doubt they would do so if Snyder attempted to 

present this issue to them now. The Ohio courts have consistently enforced the rule. State v. 

Cole, 2 Ohio St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981). Moreover, the Sixth 

Circuit has held the res judicata rule is an adequate and independent state ground of decision. 

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Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 

2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 

(6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. 

Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). 

 As held in Maupin, a habeas petitioner can excuse a procedural default if he can satisfy 

the so-called actual innocence gateway recognized by the Supreme Court in Schlup v. Delo, 513 

U.S. 298, 316 (1995). As an alternative to his claim that he satisfied the fair presentation 

requirement, Snyder raises a claim of actual innocence (Traverse, Doc. No. 16, PageID 1635-

1640). 

 The Sixth Circuit has summarized the Schlup gateway exception as follows: 

[I]f a habeas petitioner "presents evidence of innocence so strong 

that a court cannot have confidence in the outcome of the trial 

unless the court is also satisfied that the trial was free of 

nonharmless constitutional error, the petitioner should be allowed 

to pass through the gateway and argue the merits of his underlying 

claims." Schlup v. Delo, 513 U.S. 298, 316 (1995)." Thus, the 

threshold inquiry is whether "new facts raise[] sufficient doubt 

about [the petitioner's] guilt to undermine confidence in the result 

of the trial." Id. at 317. To establish actual innocence, "a petitioner 

must show that it is more likely than not that no reasonable juror 

would have found petitioner guilty beyond a reasonable doubt." Id. 

at 327. The Court has noted that "actual innocence means factual 

innocence, not mere legal insufficiency." Bousley v. United States, 

523 U.S. 614, 623, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). "To 

be credible, such a claim requires petitioner to support his 

allegations of constitutional error with new reliable evidence -- 

whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence -- that was not 

presented at trial." Schlup, 513 U.S. at 324. The Court counseled 

however, that the actual innocence exception should "remain rare" 

and "only be applied in the 'extraordinary case.'" Id. at 321. 

Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). 

 Petitioner cites Bousley, supra, for the same proposition for which Judge Moore cited it 

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in Souter, to wit, that “actual innocence means factual innocence,” (Traverse, Doc. No. 16, 

PageID 1638), but then, inexplicably, entitles the next section of the Traverse to read “Actual 

Innocence is not factual innocence, but legal innocence.” Id. The standard which Petitioner 

must meet is a demonstration of factual innocence of the crime charged in the case, not of all 

crimes which might have been charged. 

 As best the Court understands it, Snyder’s claim of excusing actual innocence is that he 

did not take more than $25,000 from James Bauer. However, he makes this claim by 

interspersing arguments about what the evidence was at trial with claims about new evidence. 

First he admits that the State proved Snyder got $36, 583.83 from Bauer (Traverse, Doc. No. 16, 

PageID 1642, 1643). Then he claims “[n]o evidence was presented as to the value of the work 

completed by Snyder.” That is a description of the evidence actually presented at trial, rather 

than a description of new evidence to satisfy the Schlup “actual innocence gateway”; even now, 

Snyder presents no new evidence on the value of the work he completed for Bauer. 

 As a matter of new evidence, Snyder adverts to “[a] receipt provided by Petitioner in 

post-conviction [that] established that $3, 950 was spent on a new roof, thereby bringing the total 

amount ‘taken’ down to only $31, 633.83. (Petitioner’s Exhibit AI – PageID 513” (Traverse, 

Doc. No. 16, PageID 1643). What appears at that page in the attachments to the Return of Writ 

is a contract dated October 3, 2006, between Southern Builders and James Bauer for installation 

of a roof with a notation “Paid in Full” with the date 10-18-06. These are attached to an 

Affidavit of James Bauer dated June 14, 2008 (PageID 505). This case was tried before Judge 

Spahr beginning on Tuesday, January 29, 2008 (Trial Tr., Doc. No. 12-15, PageID 1018 et seq.) 

Thus the relevant receipt pre-existed the trial and is in no sense “new” evidence. 

 Next Snyder focuses on trial testimony showing Bauer had been paid back $3,748 by 

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Snyder as of the time of trial (Traverse, Doc. No. 16, PageID 1643-1644). This also is not new 

evidence: it was before the jury which returned the verdicts. 

 Finally, Snyder argues that “Mr. Bauer did not testify to any specific amounts of money 

taken” (Traverse, Doc. No. 16, PageID 1644). This, again, is an argument on the merits of the 

insufficient evidence claim, not a submission of new evidence necessary to satisfy the Schlup 

actual innocence gateway. 

 In sum, Snyder has not presented new evidence of actual innocence. Even if his one 

“new” item of $3,950 were accepted a satisfying the requirements of Schlup, it would not reduce 

the amount he took from Bauer below $25,000. 

 As to Count III for misuse of a credit card, Snyder presents no new evidence at all. 

 Because Snyder has not provided new evidence of actual innocence of the theft from Mr. 

Bauer, he must suffer the consequences of his procedural default of his First Ground for Relief, 

which should be dismissed with prejudice. 

 Even if the District Judge should decide that Snyder has presented enough evidence to 

satisfy the Schlup gateway requirements, this Court must defer to the state court findings. When 

a state court determines that a verdict is not against the manifest weight of the evidence, a 

fortiori it has decided that there is sufficient evidence for conviction. Nash v. Eberlin, 258 Fed. 

Appx. 761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, 2011 U.S. 

Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden, 2011 U.S. Dist. 

LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.). When a sufficiency of the evidence 

argument is made, two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to 

groups who might view facts differently than we would. First, as in 

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all sufficiency-of-the-evidence challenges, we must determine 

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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the 

evidence, re-evaluate the credibility of witnesses, or substitute our 

judgment for that of the jury. See United States v. Hilliard, 11 F.3d 

618, 620 (6th Cir. 1993). Thus, even though we might have not 

voted to convict a defendant had we participated in jury 

deliberations, we must uphold the jury verdict if any rational trier 

of fact could have found the defendant guilty after resolving all 

disputes in favor of the prosecution. Second, even were we to 

conclude that a rational trier of fact could not have found a 

petitioner guilty beyond a reasonable doubt, on habeas review, we 

must still defer to the state appellate court's sufficiency 

determination as long as it is not unreasonable. See 28 U.S.C. § 

2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas 

corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and 

then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. 

Palmer, 541 F.3d 652 (6th Cir. 2008). 

 Given the required level of deference, this Court cannot say that the state court decision is 

an objectively unreasonable application of Jackson v. Virginia. Snyder admits the State proved 

the total amount of money transferred to him from Bauer. He complains that the State did not 

prove the value of the work he performed for Bauer or that the transfers were not “loans.” It 

was, however, for the jury to decide whether Snyder performed work worth what he took or 

whether the transfers were “loans” which he intended to pay back. 

Ground Two: Insufficient Evidence as to Victim Mildred Stahl 

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 In his Second Ground for Relief, Snyder claims there was insufficient evidence to convict 

him of theft of more than $25,000 but less than $100,000 from Mildred Stahl. 

 Respondent asserts the same procedural default as with the First Ground for Relief: 

failure to present this claim as an insufficiency of the evidence claim to the Ohio courts. 

Snyder’s claim on direct appeal as to Ms. Stahl was part of his First Assignment of Error, along 

with his claim as to James Bauer. For the reasons given above as to the First Ground for Relief, 

this claim is procedurally defaulted. 

 Snyder does not attempt to excuse his procedural default by showing actual innocence on 

this Ground for Relief. Instead, he merely argues the merits of the claim (Traverse, Doc. No. 16, 

PageID 1646-1651). Snyder admits that the State proved the amount he took from her which had 

not yet been repaid was either $47,340.37 or $50, 498.65 (Traverse, Doc. No. 16, PageID 1650). 

Testimony offered by the defense at trial purported to refute those amounts, but whether the jury 

believed that testimony was for the jury to decide. In any event, this Court cannot reach the 

merits of the Second Ground for Relief because of Snyder’s procedural default in presenting it to 

the state courts. Ground Two should be dismissed with prejudice. 

Ground Three: Insufficient Evidence as to Victim Stephen McClelland 

 In his Third Ground for Relief, Snyder claims there was insufficient evidence to convict 

him of theft of more than $25,000 but less than $100,000 from Stephen McClelland. As with 

Grounds One and Two, the State asserts this claim is procedurally defaulted for failure to fairly 

present it to the Ohio courts. This claim was included within Snyder’s First Assignment of Error 

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on direct appeal. The Magistrate Judge concludes it is procedurally defaulted on the same basis 

as the first two Grounds for Relief. As with Ground Two, Snyder makes no attempt to show 

actual innocence by new evidence so as to excuse the default. Instead, he merely argues the 

merits of the claim (Traverse, Doc. No. 16, PageID 1653-1654). But because the claim is 

procedurally defaulted, this Court cannot reach the merits. 

 Ground Three for Relief should be dismissed with prejudice. 

Ground Four:: Prosecutorial Misconduct 

 In his Fourth Ground for Relief, Snyder asserts the prosecutor engaged in misconduct at 

trial. However, in light of the exhibits attached to the Return of Writ, Snyder concedes “this 

issue is moot.” (Traverse, Doc. No. 16, PageID 1655.) Ground Four should therefore also be 

dismissed with prejudice. 

Ground Five: Ineffective Assistance of Trial Counsel 

 In the Fifth Ground for Relief in the Petition, Snyder claimed he received ineffective 

assistance of trial counsel in that (1) counsel failed to interview James Bauer before trial 

(Petition, Doc. No. 1-1, PageID 25, ¶ 30); failed to object to improper “profiling” testimony by 

Davis Kessler (Id. at ¶ 31); and (3) failed to provide evidence that Snyder had helped Mildred 

Stahl sign up for Medicaid and deplete their assets so they would qualify (Id. at ¶ 34).2

 In the 

 

2

 In the Traverse, Snyder purportedly quotes his Fifth Ground for Relief as follows: “Counsel’s failure to press for 

involvement in the interview of the offending juror, to request the interview of the spectator contacted, and to press 

the Appellant’s right to be present during the in-camera interview constitute the denial of the petitioner’s right to the 

effective assistance of counsel.” This purported claim bears no relation whatever to the Petition or to any of the 

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Traverse, Snyder argues only the first of these sub-claims and the Magistrate Judge therefore 

deems the remaining two to be abandoned. 

 Snyder asserts he raised this claim in post-conviction and the Warden does not dispute 

this assertion. When a state court decides on the merits a federal constitutional claim later 

presented to a federal habeas court, the federal court must defer to the state court decision unless 

that decision is contrary to or an objectively unreasonable application of clearly established 

precedent of the United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 

562 U.S. ___, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. 

Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

 The court of appeals’ decision on appeal from denial of post-conviction relief on the 

claim of ineffective assistance of trial counsel reads: 

[*P41] B. INEFFECTIVE ASSISTANCE 

[*P42] In his post-conviction petition, Appellant argues various 

reasons that trial counsel was ineffective. The basis for his claims 

revolve around trial counsel's alleged failure to fully cross-examine 

State witnesses at trial, for failing to object to the admission of 

evidence, and for failing to call witnesses to testify on his behalf. 

[*P43] To succeed on a claim of ineffectiveness, a defendant must 

satisfy a two-prong test. Initially, a defendant must show that his 

trial counsel acted incompetently. Strickland v. Washington (1984), 

466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674. In assessing such 

claims, "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, quoting Michel v. 

Louisiana (1955), 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L. Ed. 

83. 

[*P44] "There are countless ways to provide effective assistance in 

any given case. Even the best criminal defense attorneys would not 

 

issues in this case. The Court can only assume it was cut and pasted from a document in another case. No analysis 

is offered of the claim as purportedly quoted in the Traverse. 

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defend a particular client in the same way." Strickland, 466 U.S. at 

689. The question is whether counsel acted "outside the wide range 

of professionally competent assistance." Id. at 690. 

[*P45] Even if a defendant shows that his counsel was 

incompetent, the defendant must then satisfy the second prong of 

the Strickland test. Under this "actual prejudice" prong, the 

defendant must show that "there is a reasonable probability that, 

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

would have been different." Strickland, 466 U.S. at 694. 

[*P46] The trial court, in denying Appellant's petition, found that 

Appellant failed to meet his initial burden of providing sufficient 

evidentiary documentation containing sufficient operative facts to 

demonstrate the lack of competent counsel or that he was 

prejudiced by the alleged ineffectiveness of counsel. The court 

found that Appellant made only broad assertions that failed to 

demonstrate prejudice and that were inadequate to require an 

evidentiary hearing. 

[*P47] Specifically, the court found that Appellant failed to 

overcome the presumption that trial counsel's decision not to call 

witnesses was a sound trial strategy. Appellant asserted that several 

witnesses would have provided favorable testimony for the 

defense. However, Appellant failed to provide affidavits or 

supporting evidence from the majority of those witnesses. He did 

present affidavits from Kenneth Snyder and Ruth Winters 

concerning investigator Angel Bowers. Those affidavits only stated 

that Bowers harassed Mr. Snyder and Ms. Winters about the 

money used to pay Appellant's bond. The court further found that 

Appellant failed to provide any evidence to support his contention 

that Mrs. Stahl was not competent to testify at trial. 

[*P48] The trial court found that the affidavits submitted by 

Appellant failed to contradict evidence presented at trial and that 

Appellant failed to substantiate his claims of prosecutorial 

misconduct. 

[*P49] Appellant has not provided any evidence to this court to 

show that the trial court abused its discretion in so finding. 

[*P50] Moreover, as we previously stated in denying Appellant's 

application for reopening, "a decision regarding which defense to 

pursue at trial is a matter of trial strategy 'within the exclusive 

province of defense counsel to make after consultation with his 

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client.' State v. Murphy, 91 Ohio St. 3d 516, 524, 2001 Ohio 112, 

747 N.E.2d 765. This court can only find that counsel's 

performance regarding matters of trial strategy is deficient if 

counsel's strategy was so "outside the realm of legitimate trial 

strategy so as 'to make ordinary counsel scoff." ' State v. Woullard, 

158 Ohio App.3d 31, 813 N.E.2d 964, 2004 Ohio 3395, P 39, 

quoting State v. Yarber (1995), 102 Ohio App.3d 185, 188, 656 

N.E.2d 1322. Further, the Ohio Supreme Court has recognized that 

if counsel, for strategic reasons, decides not to pursue every 

possible trial strategy, defendant is not denied effective assistance 

of counsel. State v. Brown (1988), 38 Ohio St.3d 305, 319, 528 

N.E.2d 523. When there is no demonstration that counsel failed to 

research the facts or the law or that counsel was ignorant of a 

crucial defense, a reviewing court defers to counsel's judgment in 

the matter. State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402 

N.E.2d 1189, citing People v. Miller (1972), 7 Cal.3d 562, 573-

574, 102 Cal.Rptr. 841, 498 P.2d 1089; State v. Wiley, 10th Dist. 

No. 03AP-340, 2004 Ohio 1008 at P 21." Snyder, supra, at P31. 

[*P51] Given that the trial court heard the initial jury trial in this 

matter and the evidence presented at that trial, and was in the best 

position to evaluate the performance of trial counsel during the 

trial, we do not find that the trial court abused its discretion in 

refusing to grant an evidentiary hearing on the basis of the claims 

set forth in Appellant's post-conviction petition. 

State v. Snyder, 2010 Ohio 1643 ¶¶ 41-51, 2010 Ohio App. LEXIS 1363 (Ohio App. 5th Dist. 

Apr. 13, 2010). 

 Upon examining this portion of the opinion, it is evident that the court of appeals 

understood the two-pronged analysis of ineffective assistance of trial counsel claims required by 

Strickland v. Washington, supra. Thus the decision is not contrary to clearly established 

Supreme Court precedent. The question this Court must decide is whether the state court’s 

application of Strickland was objectively reasonable.

 On the first sub-claim, Snyder entire argument is: 

Counsel failed to interview state witness James Bauer prior to trial. 

Had he done so, he would have known that Bauer did not want to 

bring charges. Bauer did not believe that the Petitioner had stolen 

anything from him. This should have been brought to the jury’s 

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attention during cross-examination. (Affidavit if [sic] James Bauer, 

Postconviction Exhibit AA). 

The failure to do so violated counsel’s duty under Strickland v. 

Washington, 466 U.S. 668, 673 (1984). 

(Traverse, Doc. No. 16, PageID 1656.) The referenced Affidavit appears at PageID 504 and was 

signed by Bauer on June 14, 2008. It confirms that Snyder’s trial lawyer did not speak to Bauer 

(¶ 11) and that Bauer did not want Snyder prosecuted (¶ 10). It confirms also that he had hired 

Snyder “to perform various home repairs, several of which were completed. Id. ¶¶ 1, 3. Bauer 

loaned Snyder several amounts of money “which I said Tim have agreed in terems [sic] how and 

when to repay, which was for time family needs.” Id., ¶ 2. 

 This Affidavit did not exist at the time of trial. As Judge Spahr, the judge who presided 

at trial, determined in denying post-conviction relief, Bauer gave contradictory statements at 

different times (Judgment Entry, Doc. No. 12-2, PageID 647). None of his post-conviction 

affidavits contradicted his trial testimony. Id. Some of his post-conviction descriptions of 

Snyder (“fraud, liar, cheat” Id.) would have been decidedly unfavorable if elicited in front of a 

jury. 

 As Judge Spahr also found, much of Bauer’s reluctance to have Snyder prosecuted was 

because Snyder’s incarceration interfered with his promises and duty to repay Bauer. Bauer’s 

Affidavit does not say, as Snyder now asserts, that Snyder had not stolen anything from Bauer. 

 It is a cardinal rule of cross-examination not to ask a question if you do not know what 

answer the witness will give. Bauer represents a classic example of such a witness. The court of 

appeals determination that it was not deficient performance to fail to cross-examine Bauer more 

aggressively is not an objectively unreasonable application of Strickland. Moreover, Snyder has 

failed to produce any unequivocal proof that what Bauer might have said if cross-examined more 

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aggressively would have been helpful, much less have had a likely impact on the outcome. 

 In sum, this Court should defer to the decision of the state court of appeals and dismiss 

the Fifth Ground for Relief with prejudice. 

Ground Six: Denial of a Right to Present a Defense 

 In his Sixth Ground for Relief, Snyder asserts the trial court committed constitutional 

error in denying him the right to present a defense, to wit, that he was helping the Mildred Stahl 

apply for and receive Medicaid benefits and by denying funds to hire a handwriting expert. In 

the Petition, Snyder asserted that “[t]his issue is not fully developed. Discovery and an 

evidentiary hearing are necessary to establish the record denied in state court proceedings.” 

(Petition, Doc. No. 1-1, PageID 31.) However, in the Traverse he stated “Snyder rests on the 

arguments set forth in his petition.” (Traverse, Doc. No. 16, PageID 1659.) No request for 

discovery or an evidentiary hearing has been made in the case. 

 Snyder argues this claim in the Petition as if Judge Spahr had excluded witnesses on the 

Medicaid paydown matter and had refused funds to hire a handwriting expert at trial. However, 

he provides no record references to show any such denials as trial. All of the Supreme Court law 

cited about the right to present a defense relates to presenting a defense at trial. 

 It appears from the record that the first time Snyder raised any of the Medicaid claim was 

in one of his petitions for post-conviction relief under Ohio Revised Code § 2953.21. In 

affirming denial of post-conviction relief, the court of appeals noted that Snyder had submitted 

no affidavits to prove what proposed additional witness Kay Watson would have testified to had 

she been called at trial. State v. Snyder, 2010 Ohio 1643 ¶ 47, 2010 Ohio App. LEXIS 1363 

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(Ohio App. 5th Dist. Apr. 13, 2010). 

The handwriting expert claim was first made in Snyder’s Application for Reopening his 

direct appeal under Ohio R. App. P. 26(B) as a claim that his appellate counsel was ineffective 

for failing to claim that his trial attorney was ineffective for failing to present a handwriting 

expert. The court of appeals held he had failed to demonstrate any deficiency in failing to raise 

this claim or any reasonable probability of success on the claim had it been raised. State v. 

Snyder, 2009 Ohio 2473 ¶ 34 (Ohio App. 5th Dist, 2009). 

A habeas petitioner cannot preserve a claim of denial of the right to present a defense by 

making part of that claim for the first time on post-conviction as an ineffective assistance of trial 

counsel claim and part of it for the first time on application for reopening as an ineffective 

assistance of appellate counsel. To put it another way, a denial of funds for a handwriting expert 

or refusal to permit testimony from certain witnesses would be matters which could be raised on 

direct appeal if they had been objected to at trial. If not objected to at trial, they would be 

procedurally defaulted by virtue of Ohio’s contemporaneous objection rule. If objected to at trial 

but not raised on direct appeal, they would be barred by res judicata. Neither could be raised for 

the first time in the manner Snyder attempted. 

Ground Six should be dismissed with prejudice as procedurally defaulted. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein 

be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

Circuit that any appeal would not be taken in objective good faith. 

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April 24, 2013. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. 

P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

 

 

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