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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION AT COLUMBUS

RODNEY CONLEY, 

 Petitioner, : Case No. 2:11-cv-1142 

 - vs - District Judge James L. Graham 

 Magistrate Judge Michael R. Merz 

 Warden, Ross Correctional 

 Instutition, 

 Respondent. : 

REPORT AND RECOMMENDATIONS 

 This habeas corpus case was brought by Petitioner Rodney Conley to obtain relief from 

his conviction in the Franklin County Common Pleas Court and the consequent sentence he is 

serving in Respondent’s custody (Petition, Doc. No. 1). 

 On Judge Deavers’ Order (Doc. No. 2), the Respondent has filed a Return of Writ (Doc. 

No. 6). On her further Order (Doc. No. 9), Petitioner filed a Traverse (Doc. No. 14) and 

Respondent has filed a Reply Brief (Doc. No. 15), 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. 19). 

 Conley has not filed his Petition on the standard form for habeas corpus petitions under 

28 U.S.C. § 2254, but has instead set forth separate claims as follows: 

Ground One: Petitioner was denied his Sixth Amendment right to 

confront witnesses against him. 

Ground Two: Petitioner was denied protection against Double 

Jeopardy as guaranteed by the Fifth and Fourteenth Amendments 

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when he was sentenced to separate terms of imprisonment for 

allied offenses of similar import. 

Ground Three: Petitioner was denied his right to Due Process as 

guaranteed by the Fifth and Fourteenth Amendments when it [the 

trial court] changed Petitioner’s sentence after the sentence was 

final and without him being present. 

Ground Four: Petitioner was denied effective assistance of 

counsel as guaranteed by the Sixth Amendment. 

(Petition, Doc. No. 1, PageID 9-19.) 

Procedural History 

 On March 27, 2009, Conley was indicted by the Franklin County Grand Jury on one 

count each of aggravated murder, aggravated robbery, kidnapping, tampering with evidence, and 

having a weapon while under disability. Conley waived a jury trial on the repeat violent 

offender specifications and the weapons under disability charge. He was convicted on all counts 

and specifications. He then appealed to the Ohio Court of Appeals for the Tenth District, raising 

the following assignments of error: 

1. BY ADMITTING VARIOUS STATEMENTS ALLEGEDLY 

MADE BY JESSE LANIER TO VARIOUS PERSONS AFTER 

HE WAS SHOT, THE COURT VIOLATED OHIO’S HEARSAY 

RULES AND APPELLANT’S RIGHT TO CONFRONT HIS 

ACCUSERS UNDER THE 6TH AMENDMENT TO THE U.S. 

CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE 

OHIO CONSTITUTION (Transcript of Proceedings (“Tr.”) at 25-

40, 58, 64, 80, 103, 113, 140, 158, 77-80, 126, and 180-81); 

2. APPELLANT’S CONVICTIONS WERE BOTH AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE AND WERE 

NOT SUPPORTED BY THE SUFFICIENCY OF THE 

EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE 

OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION, 

AND ARTICLE I, SECTIONS 1 & 16 OF THE OHIO 

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CONSTITUTION. (Tr. at 610-17; February 11, 2010 Judgment 

Entry (“Entry”), Appendix (“Appx.”), Ex. 1); 

3. THE TRIAL COURT ERRED IN CONVICTING AND 

SENTENCING THE APPELLANT ON AGGRAVATED 

ROBBERY AND KIDNAPPING COUNTS IN VIOLATION OF 

THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH 

AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 

1, SECTION 10 OF THE OHIO CONSTITUTION AND OHIO’S 

MULTIPLE-COUNT STATUTE. (Tr. at 615-30; Entry, Appx.1); 

4. AFTER THE APPELLANT FILED HIS NOTICE OF APPEAL, 

THE COURT ISSUED AN AMENDED ENTRY THAT 

UNLAWFULLY ADDED A LIFE-TAIL TO THE 

APPELLANT’S SENTENCE. (March 22, 2010 Amended 

Judgment Entry (“Amended Entry”), Appx., Ex 2) 

5. TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH 

AMENDMENT TO THE U.S. CONSTITUTION, AND 

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO 

CONSTITUTION. (Tr. at 39-40, 58, 64, 80, 103, 113, 140, 158, 

472, 478, and 585); 

6. THE COURT SHOULD HAVE EXCLUDED AN ALLEGED 

DYING DECLARATION MADE TO A FAMILY MEMBER IN 

A LEVEL ONE TRAUMA CENTER BASED ON PUBLIC 

POLICY AND STATUTORY GROUNDS. (Tr. at 157-58). 

(Appellant’s Brief, Return of Writ, Doc. No. 6, Ex. 8.) The court of appeals affirmed the 

convictions and sentence. State v. Conley, 2010 Ohio 5715, 2010 Ohio App. LEXIS 4807 (Nov. 

23, 2010). The Ohio Supreme Court declined jurisdiction of a further appeal. State v. Conley, 

128 Ohio St. 3d 1428 (2011). The instant Petition was then filed on December 22, 2011 (Doc. 

No. 1). 

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Analysis 

Ground One: Violation of the Confrontation Clause 

 In Ground One Conley asserts his rights under the Confrontation Clause were violated by 

admission of statements made by Jesse Lanier, the victim, to various persons prior to Lanier’s 

death. In particular, he argues that he could not have been convicted of aggravated murder but 

for the testimony by Jesse Lanier’s father that Lanier had said Conley robbed him. Respondent 

concedes this claim is preserved for consideration on the merits in habeas corpus. 

As noted above, this claim was part of Conley First Assignment of Error on direct appeal. 

The court of appeals decided that assignment of error in full as follows: 

[*P18] In his first assignment of error, appellant argues that the 

trial court erred by admitting into evidence statements made to five 

different people after he had been shot, in each of which he 

implicated appellant as the person who shot him. The people to 

whom Lanier made the statements were Rupe and Bridges, the two 

employees at Performance Paving who were present when Lanier 

was left in the company parking lot; Letki, the paramedic who rode 

in the ambulance to the hospital with Lanier; Johnson, Lanier's 

girlfriend; and Price, Lanier's father. 

[*P19] Appellant argues that the trial court erred when it 

concluded that the statements made were dying declarations, and in 

concluding that the statements did not violate his right to confront 

witnesses against him as guaranteed by the United States and Ohio 

Constitutions. 

[*P20] We review a trial court's decision regarding the admission 

of evidence for an abuse of discretion. State v. Conway, 109 Ohio 

St.3d 412, 2006 Ohio 2815, 848 N.E.2d 810, citing State v. Issa, 93 

Ohio St.3d 49, 2001 Ohio 1290, 752 N.E.2d 904. Thus, our inquiry 

is limited to determining whether the trial court acted 

unreasonably, arbitrarily or unconscionably in deciding the 

evidentiary issues. Conway, citing State v. Barnes, 94 Ohio St.3d 

21, 2002 Ohio 68, 759 N.E.2d 1240. 

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[*P21] Evid.R. 804(B)(2) establishes that dying declarations are an 

exception to the general rule prohibiting hearsay testimony, 

providing that, "[i]n a prosecution for homicide or in a civil action 

or proceeding, a statement made by a declarant, while believing 

that his or her death was imminent, concerning the cause or 

circumstances of what the declarant believed to be his or her 

impending death" are not excluded as hearsay if the declarant is 

unavailable as a witness. In order to be admissible as dying 

declarations, the evidence must show that the deceased person's 

statements were made under circumstances showing that the 

deceased had a sense of impending death, excluding from the 

person's mind any hope or expectation of recovery. State v. Ray, 

8th Dist. No. 93435, 189 Ohio App. 3d 292, 2010 Ohio 2348, P40, 

938 N.E.2d 378. The declarant's mental state at the time the 

statements are made is decisive, even though courts have 

recognized that it can be difficult to determine whether the 

declarant sensed that death was approaching. State v. Washington, 

1st Dist. No. C-090561, 2010 Ohio 3175. 

[*P22] In this case, the evidence supports the conclusion that 

Lanier made the statements implicating appellant as the person 

who shot him under a sense of impending death. Lanier had been 

shot three or four times, including twice in the chest. His first 

request to the Performance Paving employees was to allow him to 

call his loved ones, and he specifically told his girlfriend he "might 

not make it." Appellant argues that the number of people to whom 

Lanier made statements establishes that he could not have believed 

death was imminent. However, the evidence showed that the 

statements were all made in a relatively short time frame between 

the time Lanier was shot and the time in which he was placed into 

the medically-induced coma from which he never recovered. Thus, 

we cannot say the trial court abused its discretion when it 

concluded that the statements were dying declarations excepted 

from application of the hearsay rule. 

[*P23] Appellant further argues that admission of Lanier's 

statements violated appellant's right to confront the witnesses 

against him. The United States Supreme Court has concluded that 

in some cases, admission of out-of-court declarations that are 

admissible under some exception to the hearsay rule can violate a 

defendant's Sixth Amendment right to confront his or her accusers 

where the out-of-court statements are testimonial in nature. 

Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 

L. Ed. 2d 177. However, since Crawford, the United States 

Supreme Court has clarified that the Crawford confrontation 

analysis does not apply to testimonial hearsay that was admissible 

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under common law, and has identified two types of statements that 

can be admitted without confrontation: dying declarations and 

statements where the lack of ability to confront the speaker was 

created by the defendant's own action (also known as "forfeiture by 

wrongdoing"). Giles v. California (2008), 554 U.S. 353, 128 S.Ct. 

2678, 171 L. Ed. 2d 488. 

[*P24] Because Lanier's statements were found to be dying 

declarations, the Confrontation Clause is not implicated in their 

admission into evidence. State v. Washington, supra. Thus, the trial 

court did not violate appellant's right to confront the witnesses 

against him by admitting Lanier's statements. 

[*P25] Appellant also argues that the trial court erred by admitting 

into evidence that part of Lanier's statement to his father, Price, in 

which Lanier stated that appellant had robbed him. Appellant 

argues that this portion of the statement is not covered by the 

Evid.R. 804(B)(2) exception for dying declarations because it did 

not involve "the cause or circumstances of what the declarant 

believed to be his or her impending death." We disagree. Lanier's 

statement that appellant had robbed him, while not relating to the 

cause of his death, certainly related to the circumstances of his 

death. 

[*P26] Consequently, appellant's first assignment of error is 

overruled. 

State v. Conley, supra, ¶¶ 18-25. 

 In arguing his First Ground for Relief, Conley raises claims that the Ohio courts erred in 

finding that the objectionable statements come within the dying declaration exception to the 

hearsay rule as codified in Ohio Evid. R. 804(B)(2). However, Federal habeas corpus is 

available only to correct federal constitutional violations. 28 U.S.C. §2254(a); Wilson v. 

Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S. 764, 

780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). 

"[I]t is not the province of a federal habeas court to reexamine state court determinations on state 

law questions. In conducting habeas review, a federal court is limited to deciding whether a 

conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 

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502 U.S. 62, 67-68 (1991). 

Evidentiary questions generally do not rise to the constitutional level unless the error was 

so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6th

Cir. 1988); Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); Bell v. Arn, 536 F.2d 123 (6th

Cir. 1976); Burks v. Egeler, 512 F.2d 221, 223 (6th Cir. 1975). Where an evidentiary error is so 

egregious that it results in a denial of fundamental fairness, it may violate due process and thus 

warrant habeas relief. Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007); Bugh v. Mitchell, 329 

F.3d 496 (6th Cir. 2003), citing Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2000). Courts 

have, however, defined the category of infractions that violate fundamental fairness very 

narrowly. Bugh, quoting Wright v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993)quoting Dowling 

v. United States, 493 U.S. 342, 352 (1990). “Generally, state-court evidentiary rulings cannot 

rise to the level of due process violations unless they ‘offend[] some principle of justice so rooted 

in the traditions and conscience of our people as to be ranked as fundamental.’” Seymour v. 

Walker, 224 F. 3d 542, 552 (6th Cir. 2000)quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996). 

The Supreme Court has defined very narrowly the category of infractions that violate 

fundamental fairness. Bey v. Bagley, 500 F.3d 514 (6th Cir. 2007), citing Dowling v. United 

States, 493 U.S. 342, 352 (1990)(Identification from a trial which resulted in an acquittal could 

be introduced at second trial for similarities.) 

Whether or not the objectionable statements constitute dying declarations within Ohio 

evidence law is not a question which this Court can review or upon which it can grant habeas 

relief even if it found the state courts were in error. We are limited solely to the question 

whether the admission of these statements violated the Confrontation Clause. 

 The Tenth District Court of Appeals decided there was no Confrontation Clause violation 

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at Conley’s trial. 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 Tenth District Court of Appeals understood that the Supreme Court had held that the 

Confrontation Clause does not bar testimony given under the forfeiture by wrongdoing and dying 

declarations exceptions. State v. Conley, supra, at ¶ 23, citing Giles v. California, 554 U.S. 353 

(2008). Giles was principally concerned with declining to allow a California exception to the 

hearsay rule for forfeiture by wrongdoing. However, the Supreme Court did state 

We have previously acknowledged that two forms of testimonial 

statements were admitted at common law even though they were 

unconfronted. See [Crawford v. Washington, 541 U.S. 36 (2004)]

at 56, n. 6, 62, 124 S. Ct. 1354, 158 L. Ed. 2d 177. The first of 

these were declarations made by a speaker who was both on the 

brink of death and aware that he was dying. See, e.g., King v. 

Woodcock, 1 Leach 500, 501-504, 168 Eng. Rep. 352, 353-354 

(1789); State v. Moody, 3 N. C. 31 (Super. L. & Eq. 1798); United 

States v. Veitch, 28 F. Cas. 367, 367-368, 1 Cranch C.C. 115, F. 

Cas. No. 16614 (No. 16,614) (CC DC 1803); King v. 

Commonwealth, 4 Va. 78, 80-81 (Gen. Ct. 1817). 

Giles, 554 U.S. at 358. The Tenth District concluded, based on Giles, that “[b]ecause Lanier’s 

statements were found to be dying declarations, the Confrontation Clause is not implicated in 

their admission into evidence.” State v. Conley, supra, at ¶ 24. It specifically considered the 

evidence on which the trial court concluded these were dying declarations and found the 

evidence supported that conclusion. Id. at ¶ 22. 

 In attempting to show that the court of appeals’ decision is not an objectively reasonable 

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application of Giles, Conley relies on Shepard v. United States, 290 U.S. 96 (1933)(Petition, 

Doc. No. 1, PageID 11). There the Supreme Court held the admitted statement was not a dying 

declaration because the declarant was not in fear of impending death when she made the 

statement and in fact greatly improved and was moving toward recovery before she had a relapse 

and died. Id. at 99. Essentially, the Supreme Court made a factual determination. Moreover, the 

case did not discuss the Confrontation Clause. The facts on which the Common Pleas Court and 

the Tenth District relied for finding that Lanier’s statements were dying declarations are 

materially different from the facts the Supreme Court found in Shepard. 

Petitioner also relies on Davis v. Washington, 547 U.S. 813 (2006), for the proposition 

that a dying declaration made to a family member is not admissible under the Confrontation 

Clause (Petition, Doc. No.1, PageID 11). The case does not stand for that proposition at all. 

Rather, it was an occasion for the Court to elaborate on the requirement that statements sought to 

be excluded under the Confrontation Clause had to be testimonial in nature. The case did not 

involve a dying declaration. 

Finally, Conley relies on Mattox v. United States, 146 U.S. 140 (1892). While Mattox

does contain the language quoted by Conley as to general application of the dying declaration 

exception, there the Supreme Court reversed a conviction for failure to admit a dying declaration. 

In other words, it read the dying declaration exception more generously than the district court 

had. Furthermore, there is no discussion of the Confrontation Clause in the opinion. 

Other than these Supreme Court cases, Conley cites United States v. Mayhew, 380 F. 

Supp. 2d 961 (S.D. Ohio 2055), for the proposition that dying declarations must be made to law 

enforcement personnel instead of a family member. That is a misreading of Judge Marbley’s 

decision. In fact, he found that dying declarations were not at all admissible under Crawford

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because not reliable. That decision was made in the context of an original criminal prosecution 

in federal court and did not purport to be an interpretation of Crawford or Giles. The task of a 

district court when applying the Federal Rules of Evidence in the first place is different from our 

task when reviewing the application of state rules of evidence in a habeas corpus case. Judge 

Marbley’s decision that the proffered dying declaration in Mayhew was not reliable is far 

different from a conclusion that all such dying declarations are unconstitutionally unreliable, a 

result the United States Supreme Court has never reached. 

Conley has failed to show that the Tenth District’s decision is an objectively 

unreasonable application of Crawford and its progeny. The First Ground for Relief should 

therefore be denied on the merits. 

Ground Two: Double Jeopardy 

 In his Second Ground for Relief, Conley claims that his rights under the Double Jeopardy 

Clause were violated by his convictions and sentences for both kidnapping and aggravated 

robbery. Conley raised this claim as his third assignment of error on direct appeal which the 

Tenth District decided as follows: 

[*P39] In his third assignment of error, appellant argues that the 

trial court erred in convicting and sentencing him on the charges of 

aggravated robbery and kidnapping because those two offenses 

should have merged. Merger of offenses is governed by R.C. 

2941.25, which provides that when charges constitute allied 

offenses of similar import, the defendant can only be convicted on 

one charge. The test to be applied in such cases requires the court 

to first consider whether the two offenses are allied offenses of 

similar import, and then, if the offenses are allied offenses, to 

consider whether they were committed with a separate animus. 

State v. Rance, 85 Ohio St.3d 632, 1999 Ohio 291, 710 N.E.2d 

699. 

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[*P40] The first step of the analysis requires consideration of the 

elements of the two offenses, to determine whether the elements 

correspond to such a degree that commission of one will result in 

commission of the other. State v. Cabrales, 118 Ohio St.3d 54, 

2008 Ohio 1625, 886 N.E.2d 181. The Supreme Court of Ohio has 

concluded that kidnapping, as defined in R.C. 2905.01(A)(2), and 

aggravated robbery, as defined in R.C. 2911.01(A)(1), are allied 

offenses of similar import. State v. Winn, 121 Ohio St.3d 413, 2009 

Ohio 1059, 905 N.E.2d 154. 

[*P41] Appellant's indictment for kidnapping charged appellant 

with violating both R.C 2905.01(A)(2) (acting with purpose to 

facilitate the commission of any felony or flight thereafter) and 

2905.01(A)(3) (acting with purpose to terrorize or inflict physical 

harm on the victim or another). The state argues that we need not 

determine whether the Supreme Court's decision in Winn applies to 

the R.C. 2905.01(A)(3) form of kidnapping because the evidence 

in this case shows that appellant acted with a separate animus. 

[*P42] When considering whether kidnapping was committed with 

an animus separate from some other crime, " 'where the restraint or 

movement of the victim is merely incidental to a separate 

underlying crime, there exists no separate animus sufficient to 

sustain separate convictions; however, where the restraint is 

prolonged, the confinement is secretive, or the movement is 

substantial so as to demonstrate a significance independent of the 

other offense, there exists a separate animus as to each offense 

sufficient to support separate convictions.'" State v. Garrett, 1st 

Dist. No. C-090592, 2010 Ohio 5431, P51, quoting State v. Logan

(1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, syllabus. 

[*P43] Appellant argues that the shooting occurred on the same 

street on which Lanier was subsequently left, and was therefore 

part of the same continuous action. However, the evidence showed 

that after Lanier had been shot, appellant drove some distance 

before pulling Lanier from the SUV and leaving him on the 

Performance Paving parking lot. This action was substantial 

enough to show some significance independent of the aggravated 

robbery, and thus the two offenses were committed with a separate 

animus. 

[*P44] Accordingly, appellant's third assignment of error is 

overruled. 

State v. Conley, supra, ¶¶ 39-44. 

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 The Double Jeopardy Clause of the United States Constitution affords a defendant three 

basic protections: 

It protects against a second prosecution for the same offense after 

acquittal. It protects against a second prosecution for the same 

offense after conviction. And it protects against multiple 

punishments for the same offense. 

Brown v. Ohio, 432 U.S. 161, 165(1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717 

(1969). The Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the 

States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969). 

 The test for whether two offenses constitute the same offense for Double Jeopardy 

purposes is “whether each offense contains an element not contained in the other.” United States 

v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). 

Where two offenses are the same for Blockburger purposes, multiple punishments can be 

imposed if the legislature clearly intended to do so. Albernaz v. United States, 450 U.S. 333, 344 

(1981); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 

(1984); and Garrett v. United States, 471 U.S. 773, 779 (1985). White v. Howes, 586 F.3d 1025, 

1035 (6th Cir. 2009)(“The current jurisprudence allows for multiple punishment for the same 

offense provided the legislature has clearly indicated its intent to so provide, and recognizes no 

exception for necessarily include, or overlapping offenses.”) The Blockburger test is a rule of 

statutory construction, not a constitutional test in itself. Volpe v. Trim, 708 F.3d 688 (6th Cir. 

2013), citing Albernaz, supra. “When assessing the intent of a state legislature, a federal court is 

bound by a state court’s construction of that state’s own statutes.” Volpe at 697, citing Banner v. 

Davis, 886 F.2d 777, 780 (6th Cir. 1989). 

 The two statutes in question here, aggravated robbery as proscribed by Ohio Revised 

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Code § 2911.01(A)(1) and kidnapping as proscribed by Ohio Revised Code § 2905.01(A)(2), 

obviously satisfy the Blockburger test because each has an element not contained in the other. 

2911.01(A)(1) requires a theft offense plus the use of a deadly weapon. Section 2905.01(A)(2) 

requires removing a person from one place to another by force, threat, or deception. 

 Because the two statutes satisfy the Blockburger test, a violation of each may be 

separately punished if the enacting legislature intended separate punishment. To decide that 

question, the Tenth District applied the allied offenses statute, Ohio Revised Code § 2941.25, 

and found that separate punishment was permissible because Conley acted with a separate 

animus as to each offense. The appellate court found that after Conley shot Lanier, he drove 

some distance from the place where the shooting occurred, then pulled Lanier from his vehicle 

and abandoned him in a parking lot. Those findings are a reasonable determination of the facts 

based on the evidence presented at trial. The Tenth District’s determination that those facts are 

sufficient to satisfy the Ohio Revised Code § 2941.25 requirement of “separate animus” is a 

determination of state law binding on this Court. 

 Conley disagrees with this conclusion of the Tenth District and cites State v. Johnson, 

128 Ohio St. 3d 153 (2010), and State v. Wilson, 129 Ohio St. 3d 214 (2011). In Johnson the 

defendant beat a child to death and was convicted of both child endangering and felony murder 

for the same act. Johnson at ¶ 3. The Ohio Supreme Court expressly held that the same conduct 

had resulted in both the child endangering and felony murder results. Id. at ¶¶ 54-56. In Wilson

the Ohio Supreme Court affirmed a finding by the Eighth District Court of Appeals that the 

defendant did not act with a separate animus as to the aggravated robbery and kidnapping 

offenses of which he was convicted. This was based upon a finding that “the facts developed at 

trial indicated that Wilson did not have a separate animus for committing the kidnapping.” Id. at 

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¶ 5. 

 Neither Johnson nor Wilson is inconsistent with the Tenth District’s decision in this case. 

Both require a focus on the actual conduct of a defendant to determine if the defendant acted 

with a single animus, precisely the analysis the Tenth District employed in this case. 

 Conley’s Second Ground for Relief is without merit and should be dismissed with 

prejudice. 

Ground Three: Denial of Due Process by Change of Sentence in the 

Absence of the Defendant 

 In his Third Ground for Relief, Conley asserts that he was sentenced on February 11, 

2010, to 39.5 years in prison and thereupon transported to the Department of Corrections to 

begin service of the sentence. He filed his notice of appeal on March 12, 2010. Then, on March 

22, 2010, he claims the Franklin County Common Pleas Court changed his sentence to 39.5 

years to life at a hearing at which he was not present. He asserts he was entitled to be present for 

any re-sentencing hearing and that the Common Pleas Court had lost jurisdiction when he filed 

his notice of appeal. 

 Conley presented this claim as his Fourh Assignment of Error on direct appeal which the 

Tenth District decided as follows: 

[*P45] In his fourth assignment of error, appellant argues that the 

trial court erred when it issued an amended entry imposing a life 

tail on appellant's sentence. Specifically, appellant argues that this 

action occurred after he had filed a notice of appeal with this court 

appealing the trial court's judgment, and that the trial court had 

therefore lost jurisdiction to take any further action in the case. 

Generally, after a notice of appeal has been filed, a lower court 

loses jurisdiction to issue any orders that would impair the ability 

of the appellate court to exercise jurisdiction over the issue that has 

been appealed. CM Newspapers, Inc. v. Dawson (Jan. 28, 1992), 

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10th Dist. No. 91AP-1067, 1992 Ohio App. LEXIS 344. The 

impairment "must be of a nature that actually interferes with the 

exercise of appellate jurisdiction by the appellate court." Olen 

Corp. v. Franklin Cty. Bd. of Elections (1988), 43 Ohio App.3d 

189, 200, 541 N.E.2d 80. 

[*P46] At the sentencing hearing, the trial court stated its intention 

to impose a sentence of 30 years to life. Thus, the trial court's 

amended entry was necessary to correct the error that occurred 

when the life tail was omitted from the sentencing entry. That 

correction does not interfere with our exercise of appellate 

jurisdiction to consider the issues before us on appeal. 

[*P47] Consequently, appellant's fourth assignment of error is 

overruled. 

State v. Conley, supra, ¶¶ 45-47. 

 The Tenth District determined as a matter of fact that there was no increase in sentence, 

but rather an amended judgment entry to reflect the sentence actually imposed orally in open 

court in Conley’s presence. Conley points to nothing in the record which contradicts the finding 

of fact. Upon examination of the transcript, the Tenth District’s finding is plainly accurate. The 

trial judge imposed “a sentence of 30 to life.” (Trial Tr. at 626, Doc. No. 7, PageID 1028.) The 

court then imposed an additional merged five years on the specification two on counts one and 

two. Id. at PageID 1029. The judge followed with a merged three year mandatory consecutive 

sentence on specification one on counts one, two, and three. Id. This was ordered to be served 

consecutively with the eighteen months imposed for the drug conviction in “case 6622.” Id.

Added together, that is 39.5 years to life, just as the Tenth District found. Conley points to 

nothing in the record which contradicts the finding of fact. 

The Tenth District also decided as a matter of Ohio law that the Common Pleas Court did 

not act outside its jurisdiction by filing the amended judgment after the notice of appeal was 

filed. This Court is bound by the Tenth District’s determination of Ohio law. The Sixth Circuit 

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has found this practice to be constitutional. Norris v. Schotten, 146 F.3d 314, 333 (6th Cir. 1998). 

While the Court agrees that a defendant has the constitutional right to be present when 

sentence is pronounced, that happened here, as the record shows. The amended judgment entry 

merely corrected the original judgment entry which did not reflect the sentence imposed in open 

court. Conley has not shown that the Tenth District’s decision is contrary to or an unreasonable 

application of any United States Supreme Court precedent or based on an unreasonable 

determination of the facts in light of the evidence. His Third Ground for Relief should be 

dismissed with prejudice. 

Ground Four: Ineffective Assistance of Trial Counsel 

 In his Fourth Ground for Relief, Conley claims he received ineffective assistance of trial 

counsel when his trial attorney did not object at certain points to the admission of the victim’s 

statements to his father, did not argue that the dying declarations should be excluded as a matter 

of relevance or public policy, did not request a jury instruction that the dying declarations were 

to be considered on the homicide charge only, and never objected to the failure to merge the 

allied offenses of similar import (Petition, Doc. No. 1, PageID 19-21). 

 Respondent contends Conley had procedurally defaulted on this claim by failing to fairly 

present it to the Ohio Supreme Court on direct appeal. The record reflects that this claim was 

raised on direct appeal to the Tenth District and included in the pro se appeal Conley filed in the 

Ohio Supreme Court. However, the Ohio Public Defender was appointed to represent Conley 

before the Ohio Supreme Court and did not include an ineffective assistance of trial counsel 

claim in the amended jurisdictional memorandum it filed on his behalf (See Return of Writ, Doc. 

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No. 6, Exhibits 11-18.) Respondent argues that under Ohio law, an amended pleading 

completely replaces the prior pleading and therefore Ohio Supreme Court consideration of the 

ineffective assistance of trial counsel claim was waived by its omission from the amended 

jurisdictional memorandum (Return of Writ, Doc. No. 6, PageID 129-130). 

 Before a procedural default can be enforced against a habeas petitioner, it must first have 

been enforced against the petitioner in the state courts. Maupin v. Smith, 785 F.2d 135, 138 (6th

Cir. 1986), citing County Court of Ulster County v. Allen, 442 U.S. 140, 149 (1979). The Ohio 

Supreme Court’s decision declining jurisdiction in this case is the usual opaque Entry signed by 

the Chief Justice which states “[u]pon consideration of the jurisdictional memoranda filed in this 

case, the Court denies leave to appeal and dismisses the appeal as not involving any substantial 

constitutional question.” (Entry, Return of Writ, Ex. 17, Doc. No. 6, PageID 396.) It is not 

possible to determine from this Entry whether the Ohio Supreme Court considered the pro se

jurisdictional memorandum or not. Certainly the law relied on by Respondent for the 

proposition that an amended pleading completely replaces a prior pleading is not specific to this 

area of Ohio Supreme Court practice. On balance, the Court cannot tell whether the Ohio 

Supreme Court was enforcing a procedural bar. Therefore Respondent has not proven a 

procedural default and the Court will consider this claim on the merits. 

 Ineffective assistance of trial counsel was raised by Conley as his Fifth Assignment of 

Error on direct appeal and the Tenth District decided it as follows: 

[*P48] In his fifth assignment of error, appellant argues that he 

received ineffective assistance from trial counsel. In order to 

prevail on a claim of ineffective assistance of counsel, a defendant 

must show that trial counsel's performance fell below an objective 

level of reasonable representation and that the defendant suffered 

prejudice as a result. Strickland v. Washington (1984), 466 U.S. 

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

courts must "indulge a strong presumption that counsel's conduct 

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falls within the wide range of reasonable professional assistance." 

Id., 466 U.S. at 689, 104 S.Ct. at 2065. 

[*P49] Appellant argues that trial counsel's performance was 

deficient in a number of ways. First, appellant argues that trial 

counsel may not have adequately preserved objections to all of the 

statements made by Lanier that the trial court admitted as dying 

declarations. We believe trial counsel did adequately preserve all 

such objections. Furthermore, given our disposition of appellant's 

first assignment of error, in which we concluded that the trial court 

did not err in admitting those statements, we cannot say that 

appellant suffered any prejudice as a result of failing to more fully 

object to their admission. 

[*P50] Appellant also argues that trial counsel was ineffective for 

failing to object to the trial court's admission of Lanier's statements 

made to his father, Price, on either relevance or public policy 

grounds. Specifically, appellant argues that trial counsel should 

have objected based on public policy and statutory considerations 

regarding operation of Level One trauma centers. However, we 

cannot say that failure to object on those specific grounds plainly 

fell outside the wide range of reasonable professional assistance 

that we must presume was afforded. 

[*P51] Finally, appellant argues that trial counsel was ineffective 

for failing to request a jury instruction that would have informed 

the jury that it could only consider Lanier's dying declarations for 

the charge of aggravated murder under Evid.R. 804(B)(2), and not 

for any of the other charges. However, given the other evidence 

relating to those charges, it appears that a limiting instruction 

regarding the statements made by Lanier would not have changed 

the outcome of the trial. Therefore, we cannot say that appellant 

suffered any prejudice as a result of counsel's failure to request 

such an instruction. 

[*P52] Consequently, appellant's fifth assignment of error is 

overruled. 

State v. Conley, supra, ¶¶ 48-52. 

 The governing standard for ineffective assistance of counsel is found in Strickland v. 

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

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence 

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has two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel 

was not functioning as the "counsel" guaranteed the defendant by 

the Sixth Amendment. Second, the defendant must show that the 

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. Unless a 

defendant makes both showings, it cannot be said that the 

conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable. 

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, ___ U.S. ___, ___, 130 S.Ct. 2250, 

2255 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009). 

 With respect to the first prong of the Strickland test, the Supreme Court has commanded: 

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that 

counsel's conduct falls within a 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." 

466 U.S. at 689. 

 

 As to the second prong, the Supreme Court held: 

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. A reasonable probability is 

a probability sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland, 

supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing, Strickland, supra; Blackburn v. 

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Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987) quoting, Strickland, 466 U.S. at 687. “The likelihood 

of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 

372, 379 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1760 (2012), quoting Harrington 

v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 792 (2011). 

 With respect to the first sub-claim about not objecting to the hearsay testimony of the 

victim’s father, the Tenth District found there was no deficient performance because all of the 

objections were preserved for appeal. 

 As to the second sub-claim about a relevance or public policy argument against the 

victim’s father’s testimony, the Tenth District found in summary fashion that this was not 

outside the realm of professional performance. This Court agrees. The testimony was certainly 

relevant to prove the identity of the shooter. The fact that the statements were made in the 

trauma center of the hospital would not have supported an exception to the dying declarations 

rule. The hospital’s general rule against visitors in the trauma center was obviously not intended 

to have any impact on the admissibility of evidence obtained in violation of that rule, but to 

enable the efficient operation of the hospital. Conley advances no cogent reason why this should 

have led the trial court to create an exception to the dying declarations rule. He offers no 

examples of any other court which has accepted such an argument, making it unlikely the 

Franklin County Common Pleas Court would have done so. The Ohio law he cites, Ohio 

Revised Code § 3727.09(B), prohibits providing care to persons in trauma centers without 

complying with law and protocols for operating those centers. Nothing about that statute 

suggests any purpose to exclude evidence which might have been obtained because a father, a 

hospital employee, visited his dying son in violation of the protocol. 

 Conley argues his counsel was ineffective for not requesting a jury instruction limiting 

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the jury’s consideration of the dying declarations to the aggravated murder charge, as opposed to 

the aggravated robbery and kidnapping charges. The Tenth District found no prejudice in the 

failure to request the instruction, given the evidence from other sources about the other charges. 

In addition, Conley has offered no authority for the proposition that such an instruction would 

have been warranted, since the dying declarations exception allows hearsay regarding the 

decedents statements about the “cause or circumstances” of the impending death, and Lanier’s 

comment to his father that Rodney robbed him, shot him, and left him for dead is relevant to the 

aggravated robbery and kidnapping charges, as well as the homicide. 

 Finally, Conley complains that his counsel never objected to the imposition of separate 

sentences for allied offenses of similar import (Petition, Doc. No. 1, PageID 21). This complaint 

about counsels’ conduct of the case does not appear to have been raised on direct appeal: it is 

not among the claims of ineffective assistance of trial counsel that the Tenth District adjudicated. 

Because it would have been evident on the face of the record, it would have been required to be 

raised on direct appeal or be barred by res judicata under State v. Perry, 10 Ohio St. 2d 175 

(1967). That doctrine is an adequate and independent state ground of decision. 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). Furthermore, if the Court were to reach the merits of this 

ineffective assistance of trial counsel sub-claim, it would find no merit because the underlying 

double jeopardy claim is without merit and the Tenth District found no bar to consideration on 

the merits by any omission in the trial court. Ground Four for Relief should be dismissed with 

prejudice. 

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Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the 

Petition 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 

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

April 26, 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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