IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN F. SMITH, 

Petitioner, CASE NO. 2:11-CV-844

JUDGE WATSON

MAGISTRATE JUDGE ABEL

ROBIN KNAB, WARDEN, 

Respondent.

REPORT AND RECOMMENDATION

Petitioner John F. Smith, a state prisoner, brings this action for a writ of habeas corpus

under 28 U.S.C. §2254. This matter is before the Magistrate Judge on the petition, Respondent’s

Return of Writ, Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow,

the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

Following a jury trial, Smith was convicted of felonious assault and involuntary murder.

During a playground confrontation, Smith punched the victim, Bryan Biser, in the head with his

closed fist. Biser suffered a concussion and was taken to the emergency room. Against medical

advice, he refused further treatment. Biser died four days later. The coroner ruled the cause of

death was homicide due to blunt force craniocerebral injuries. A forensic neuropathologist

testified at trial that the cause of death was diabetic ketoacidosis. The damage to Biser's frontal

lobes affected his cognitive ability and caused him to become apathetic, uninhibited and

disinterested. The head injuries contributed to his death by adversely affecting his ability to look

after himself.

Although defense counsel effectively cross-examined the forensic neuropathologist, he

offered no expert evidence regarding the cause of death. Smith filed a postconviction petition

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alleging that his attorney's failure to investigate the cause of death and offer expert testimony

about it denied him the effective assistance of counsel at trial. He supported the petition with the

expert opinion of Dr. Elena Christofides that Biser's poor control of his diabetes caused his death

and that the assault was medically unrelated to that cause of death. Dr. Christofides specifically

concluded that Biser was taking non-prescription insulin that was inappropriate to treat his

diabetes; that medical evidence indicated his diabetes was uncontrolled at the time of the assault;

that he overdosed on insulin; that if his head injuries had been the cause of his overdose of

insulin, he would have been in a diabetic coma within 24-48 hours after the assault; and that

Biser's activities following the assault were inconsistent with the head trauma being the cause of

his death. 

The postconviction petition was also supported by an affidavit from Smith's

postconviction counsel that she had talked with his trial attorneys, who said they consulted an

expert regarding the victim's head injury but did not investigate the victim's diabetes or consult

an endocrinologist.

The Ohio Court of Appeals held that the claim was based on facts of record and,

therefore, barred by res judicata because ineffective assistance of trial counsel could have been

raised on direct appeal. That decision would appear to be wholly contrary to the State v. Perry

rule because the claim of ineffective assistance of counsel is based on facts not of record--trial

counsel's alleged failure to adequately investigate the cause of death and Dr. Christofides' expert

opinion on the cause of death. See, State v. Cole, 2 Ohio State 3d 112, 114 (1982)(H: Defendant

represented by new counsel on direct appeal must assert all his claims of ineffective assistance of

trial counsel that “could fairly be determined without examining evidence outside the record;”

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and such claims not presented on direct appeal are barred by res judicata from being considered

in postconviction relief).

The question presented is whether a federal habeas corpus court must enforce the state

court procedural default when that ruling is unsupported in fact and in law. See, Greer v.

Mitchell, 264 F.3d 663, 675 (6th Cir. 2001).

FACTS and PROCEDURAL HISTORY

The Ohio Fourth District Court of Appeals summarized the facts supporting Smith’s

conviction as follows:

On April 15, 2005, Bryan Biser spent the afternoon socializing with

neighbors at the Hokolesqua Apartments just outside Frankfort, Ohio.

Biser sat outside with his neighbor, Shanna Knapp, and split a sixpack of beer with her while watching the children playing in a

playground just across the parking lot. As they watched the children,

two of the kids around the age of five got into a fight. One of the

children was a distant relative of Smith's.

When Smith learned that his nephew's child had been in a fight, he

walked over to the playground and screamed obscenities at the

children. Smith encouraged his five-year-old relative to beat up the

other child. Ms. Knapp overheard Smith and approached him near the

playground. Ms. Knapp told Smith to stop yelling obscenities and

encouraging the children to fight. Ms. Knapp then got into an

argument with Smith's nephew, John Rawlings.

Biser approached Ms. Knapp and Rawlings in the parking lot and

attempted to stop the arguing by asking everyone to calm down.

Smith then walked around a car towards Biser, yelled an obscenity at

him, and hit him with a closed fist on the left side of his head while

Biser stood with one hand to his side and one hand holding a

beverage cup. Biser never raised his arms, squared to fight, or said a

threatening word.

As Biser crumpled to the ground, the right side of his face hit a

parked car, and then his head hit the pavement. Smith “danced” over

Biser, as he lay unconscious, taunting him to get up and fight and

challenging everyone else to fight him. Biser remained on the ground

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while a neighbor, Twila Jones, called 911. One of the children alerted

Amy Preston, the apartment complex manager, who was also a

nursing assistant, to attend to Biser.

Approximately fifteen minutes after receiving the call, emergency

medical technicians (EMTs) Todd Smith and Sharon Flannery arrived

on the scene, along with EMT trainee Marilyn Chaffin. Biser

regained consciousness, and the EMT's began treating his wounds

and transported him to Adena hospital. Biser stated to the EMT's that

he was diabetic and had taken his insulin that day. However, the

EMT's were not able to take his blood-glucose level because the

Accu-check machine malfunctioned. Chaffin testified that she noticed

one of Biser's pupils was bigger than the other, but she failed to note

this in her report.

Dr. Kashubeck examined Biser at the emergency room of Adena

Hospital. In his report, he noted that Biser's pupils were round and

equal in size, and that Biser denied any pain anywhere. The report

also noted that Biser complained of a laceration to his right eye and

a bump to the back of the head, and that he answered questions and

followed commands appropriately. Biser refused emergency room

treatment for his head injuries and his diabetes, despite an elevated

blood-glucose level of 465. Biser stated that he had insulin to treat

the diabetes at home and did not want to purchase more at the

hospital. He also refused a CAT Scan, which the doctor had

recommended. The doctor discharged Biser from the hospital, but

ordered him to return immediately if he experienced any vomiting,

confusion or vision problems.

Ms. Preston and Ms. Jones went to check on Biser following his

return from the hospital that same day, April 15, 2005. Ms. Preston

testified that Biser seemed confused and did not remember being

involved in a fight, but, instead, told her he had been singing karaoke

that night. He acknowledged being at the emergency room and gave

Ms. Preston his paperwork from that visit. The next day, April 16,

2005, Ms. Preston and Ms. Jones went again to check on Biser. Ms.

Jones testified that Biser did not invite them in, but cracked the door

and told them he felt sick to his stomach and asked them to leave him

alone.

Biser's cousin, Beth Spangler testified that she visited Biser on three

separate occasions on April 16, 2005. She first stopped by in the

morning and gave him Advil for his headache. She stopped by again

at 1:00 pm, and he continued to complain that his head hurt, and he

wanted everyone to go away. Finally, she returned at 5:00 pm and

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brought him food. She testified that Biser told her he had taken his

insulin that day. She also testified that there were two bottles of

insulin in the refrigerator.

Ms. Preston testified that on Tuesday, April 19, 2005, she received

a voicemail from one of Biser's family members, who had been

unable to contact him. Ms. Preston knocked on Biser's door, but

received no response. She opened his door with her master key and

found Biser lying on the floor, unconscious. She testified that Biser

struggled to breathe, and his feet and left arm had turned black. Ms.

Preston instructed a neighbor to call 911, and an ambulance arrived

within seven to eight minutes to transport Biser to the hospital.

At the emergency room, Biser underwent a CAT scan of his head,

which indicated that he had a possible skull fracture, a small subdural

hematoma, and subarachnoid hemorrhage. Additionally, Biser's

blood-glucose level was 1,169, and he was in severe diabetic

ketoacidosis, a lethal condition resulting from a diabetic's failure to

take prescribed insulin. Doctors transported Biser to Grant Medical

Center in Columbus, Ohio, where he underwent exploratory surgery

in his abdomen. The surgeons discovered that his right bowel and a

portion of his right colon were necrotic, a condition from which no

one could survive. Biser died several hours later. After performing an

autopsy, Deputy Coroner Trent ruled the cause of death to be

homicide due to blunt force craniocerebral injuries.

Dr. Glenn Roush, a radiologist, testified that he reviewed Biser's

CAT Scan from Biser's emergency room visit on April 19, 2005. He

testified that Biser's CAT Scan indicated he had a skull fracture and

brain injury that had occurred recently. Dr. Roush also testified that

he has “never seen anyone with this sort of injury be able to function.”

Dr. William Cox, a forensic neuropathologist serving for the Franklin

County Coroner, testified that he reviewed Biser's autopsy protocol,

toxicology report, and medical records and determined that the cause

of death listed by Dr. Trent on the death certificate was incorrect. Dr.

Cox opined that Biser's death resulted from diabetic ketoacidosis. He

testified that the punch Biser received and subsequent fall to the

ground caused him to suffer contusions to his brain that damaged his

frontal lobes. Dr. Cox testified that the damage to Biser's frontal

lobes affected his cognitive ability and caused him to become

apathetic, uninhibited and disinterested. He further testified that

Biser's head injury substantially contributed to his death, and the

damage to his frontal lobes “clearly would have adversely affected

[Biser's] ability to look after himself.”

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A jury found Smith guilty on both counts of felonious assault and

involuntary manslaughter. After merging the two counts, the trial

court sentenced Smith to eight years in prison and ordered him to pay

$49,018.33 in restitution, plus court costs on the charge of

involuntary manslaughter.

State v. Smith, No. 06CA2893, 2007 WL 1165822, at *1-4 (Ohio App. 4th Dist. April 17, 2007). 

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

I. THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE

TO PROVE THAT MR. SMITH WAS GUILTY OF

INVOLUNTARY MANSLAUGHTER AS ALLEGED IN THE

INDICTMENT. THAT DEPRIVED MR. SMITH OF HIS RIGHT

TO DUE PROCESS, AS GUARANTEED BY THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, AND SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION.

II. THE JURY'S VERDICT, FINDING MR. SMITH GUILTY OF

INVOLUNTARY MANSLAUGHTER, WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT ERRED BY IMPOSING RESTITUTION

WITHOUT CONSIDERING MR. SMITH'S ABILITY TO PAY.

Id. at *4. On April 17, 2007, the appellate court affirmed the trial court’s judgment. Id. Petitioner

timely appealed, raising the following sole proposition of law: 

Felonious assault cannot serve as the predicate offense for

involuntary manslaughter, when the decedent’s mistreated disease

was an unforseeable and abnormal cause of death. R.C. 2903.01;

Crim. R. 29.

On October 3, 2007, the Ohio Supreme Court dismissed Petitioner’s motion for leave to appeal. 

State v. Smith, 115 Ohio St.3d 1421 (2007). 

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Petitioner also timely sought post conviction relief in the trial court 

While his direct appeal was pending, Smith petitioned the trial court

for post-conviction relief under R.C. 2953.21. The basis of the

petition was ineffective assistance of counsel during trial. The trial

court granted his request for an evidentiary hearing on the issue.

After additional motions and appeals concerning the motion, an

evidentiary hearing was finally held on April 9, 2009. After the

hearing, the trial court issued its decision denying Smith's motion for

post-conviction relief. In its entry, the trial court stated that Smith's

claim of ineffective assistance of counsel was barred by res judicata.

State v. Smith, No. 09CA3128, 2011 WL 497472, at *2 (Ohio App. 4th Dist. February. 8, 2011). 

Petitioner timely appealed, raising the following assignments of error: 

1. THE TRIAL COURT ERRED IN FINDING THAT

APPELLANT'S PETITION FOR POST-CONVICTION RELIEF

WAS BARRED BY RES JUDICATA.

2. THE TRIAL COURT ERRED IN FINDING THAT

APPELLANT HAD NOT DEMONSTRATED GROUNDS FOR

POST-CONVICTION RELIEF.

Id. at *2. On February 8, 2011, the appellate court affirmed the trial court’s dismissal of Petitioner’s

claims as barred under Ohio’s doctrine of res judicata. Id. On June 22, 2011, the Ohio Supreme

Court dismissed Petitioner’s subsequent appeal. State v. Smith, 128 Ohio St.3d 1557 (2011).

Represented by the public defender, on September 20, 2011, Petitioner filed this action for

a writ of habeas corpus under 28 U.S.C. § 2254. He raises the following sole ground for relief: 

Petitioner was denied his Sixth Amendment right to the effective

assistance of counsel when counsel failed to investigate and present

evidence that the victim’s death was not caused by behavior that

resulted from his head injury; and by failing to present evidence to

rebut the testimony of the State’s witnesses. United States

Constitution, Sixth and Fourteenth Amendments; Strickland v.

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

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The decedent, Bryan Biser, was diabetic, and developed diabetic

ketoacidosis. The ketoacidosis led to necrotic bowel, and caused his

death. Five days before he died, Mr. Biser received a head injury as

a result of a single punch from Petitioner, but the injury was not

significant enough to cause his death. After Petitioner punched Mr.

Biser, he refused treatment at the emergency room for his head

injury. He also refused treatment for his Type 1 diabetes, and went

home. Mr. Biser died four days later from complications related to

his untreated diabetes. 

Petitioner was charged with, and convicted of, felonious assault, and

involuntary manslaughter, and sentenced to an eight-year prison term. 

At trial, forensic neuropathologist Dr. Cox testified for the State that

Mr. Biser died from diabetic ketoacidosis, but that the head injury

from the assault by Petitioner caused his death in an indirect fashion. 

Although Dr. Cox did not examine Mr. Biser before he died, Dr. Cox

opined that Mr. Biser’s head injury caused him to become apathetic

and disinterested, and he thus neglected his diabetes. In Dr. Cox’s

opinion, Mr. Biser’s head injury played a role in his death in an

indirect fashion, in that it caused him to mistreat his diabetes, and he

died from the subsequent ketoacidosis. Petitioner did not present any

evidence or witnesses at trial. 

Petitioner filed a petition for postconviction relief, presenting an

affidavit, report, and curriculum vitae of Dr. Elena Christofides,

M.D., F.A.C.E., as well as an affidavit from appellate counsel. Dr.

Christofides’ report included medical and technical information

regarding the type of non-prescription insulin that Mr. Biser took, and

why it was inappropriate to treat his disease; that she could tell from

his GlycoHemoglobin and blood glucose levels that Mr. Biser’s

diabetes was uncontrolled at the time of the initial assault, and that he

overdosed on insulin. Dr. Christofides further explained that medical

personnel administered medication to Mr. Biser in order to acutely

elevate his blood glucose level, and in her opinion that occurred

because he had taken too much insulin. Also, Dr. Christofides

testified at the evidentiary hearing that if Mr. Biser’s head injury had

been the cause of his overdose on insulin, he would have been

unconscious and in a diabetic coma within twenty-four to forty-eight

hours from the time of the assault. However, Mr. Biser was up and

talking to his family and neighbors over the next several days, and

was not found unconscious until four days after the assault. 

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Appellate counsel’s affidavit related to her investigation of trial

counsel’s strategy – that trial counsel did not investigate whether Mr.

Biser’s diabetes was properly treated or controlled, the way in which

his diabetes was mismanaged, or the time frame of the onset of

ketoacidosis in relation to the assault. 

Petition. 

It is the position of the Respondent that Petitioner’s claim is procedurally defaulted. 

Alternatively, Respondent contends that Petitioner’s claim, in any event, is without merit. 

PROCEDURAL DEFAULT

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

of criminal defendants, and in order to prevent needless friction between the state and federal courts,

a state criminal defendant with federal constitutional claims is required fairly to present those claims

to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but

still has an avenue open to him by which he may present the claims, his petition is subject to

dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) ( per

curiam ); Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a procedural default, the

petitioner can no longer present his claims to a state court, he has also waived them for purposes of

federal habeas review unless he can demonstrate cause for the procedural default and actual

prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 

(1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

 In the Sixth Circuit, a Court must undertake a four-part analysis when the state argues that

a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court must determine that there is a

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state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to

comply with the rule.” Id. Second, the court must determine whether the state courts actually

enforced the state procedural sanction. Id. Third, 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. Id. Finally, if the court determines that the petitioner failed

to comply with an adequate and independent state procedural rule, then the petitioner must

demonstrate good cause for his failure to follow the procedural rule as well as actual prejudice from

the alleged constitutional error. Id. This “cause and prejudice” analysis also applies to failure to raise

or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).

 The state appellate court affirmed the trial court’s dismissal of Petitioner’s post conviction

petition as barred under Ohio’s doctrine of res judicata: 

John F. Smith, Defendant-Appellant, appeals the decision of the Ross

County Court of Common Pleas, denying his petition for postconviction relief based on ineffective assistance of counsel. Smith

argues the court erred in finding that his petition was barred by res

judicata and in finding that he failed to establish adequate grounds for

his petition. However, the evidence Smith relied on in his

postconviction petition was in the trial court record and available

during his direct appeal. Further, ineffective assistance is not

demonstrated merely because a postconviction petition presents new

expert opinion that is different from a theory used at trial. As such,

we find the trial court properly determined that Smith's

postconviction petition was barred by the doctrine of res judicata.

***

Smith argues that the trial court incorrectly determined that his

petition for postconviction relief was barred by the doctrine of res

judicata. In his petition, Smith argues that he was denied effective

assistance of counsel during trial. In denying the petition, the trial

court reasoned that Smith could have brought a claim of ineffective

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assistance during his direct appeal and, thus, he was precluded from

raising the issue in postconviction proceedings.

“Under the doctrine of res judicata, a final judgment of conviction

bars a convicted defendant who was represented by counsel from

raising and litigating in any proceeding except an appeal from that

judgment, any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that

judgment.” State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104,

paragraph 9 of the syllabus. Additionally, res judicata applies to

proceedings involving postconviction relief. State v. Szefcyk (1996),

77 Ohio St.3d 93, 95. But the application of res judicata in

postconviction proceedings is not absolute.

The doctrine of res judicata may be overcome in a postconviction

proceeding if the petitioner presents competent, relevant, and material

evidence outside the record. See, e.g., State v. Lawson (1995), 103

Ohio App.3d 307, 315, citing State v. Smith (1985), 17 Ohio St.3d 98,

101, 477 N.E.2d 1128, fn. 1. “However, the evidence presented

outside the record must meet some threshold standard of cogency;

otherwise, it would be too easy to defeat the res judicata doctrine by

simply attaching as exhibits evidence which is only marginally

significant and does not advance the petitioner's claim beyond mere

hypothesis and a desire for further discovery.” In re J.B., 12th Dist.

Nos. CA2005-06-176, CA2005-07-193, CA2005-08-377, 2006-Ohio2715, at ¶ 16. “Moreover, claims that could have been raised based

on evidence in the record are also barred by res judicata even though

the petitioner may have presented some additional evidence outside

the record.” State v. Turner, 10th Dist. No. 04AP-1143, 2006-Ohio761, citing State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169,

at the syllabus, and State v. Combs (1994), 100 Ohio App.3d 90, 97,

652 N.E.2d 205.

As previously stated, Smith bases his petition for post-conviction

relief on a claim of ineffective assistance of counsel during trial.

Smith argues that his trial counsel's representation was deficient

because counsel failed to present expert testimony concerning the

proximate cause of Biser's death. During the postconviction

evidentiary hearing, Smith presented the testimony of Dr.

Christofides, an endocrinologist, on that issue. Smith's postconviction petition relies almost entirely upon Dr. Christofides'

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testimony during the post-conviction evidentiary hearing of April 9,

2009.

During Smith's trial, Dr. William Cox testified that Biser's death

ultimately was a result of diabetic ketoacidosis. But he also stated

that Biser's death was causally related to Smith's assault. Cox stated

that the assault caused injury to the frontal lobes of Biser's brain

which affected his cognitive ability and made him apathetic and

disinterested. As a result, Biser failed to take insulin for his diabetes

and he went into diabetic ketoacidosis. During the post-conviction

evidentiary hearing, Dr. Christofides presented an alternate theory

regarding the cause of Bryan Biser's death. Dr. Christofides testified

that, in her opinion, the head injury resulting from Smith's assault did

not result in Biser's death. Instead, it was Dr. Christofides opinion

that Biser's death was simply the result of his longstanding

mismanagement of his diabetes.

During cross-examination, the State questioned Dr. Christofides as

to the source of the evidence she used in formulating her theory:

Q.: “You talked about the type one diabetes which obviously that was

something everybody was aware of at the time of trial, correct?”

A.: “Correct.”

Q.: “So, that wasn't new information to defense counsel at the time

of trial, correct?”

A.: “I don't think so.”

* * *

Q.: “And all the information that we've been talking about as far as

the overdoses and things of that nature, that was all available at the

time of the trial, correct?”

A.: “As far as I can see.”

Q.: “It was all stuff that's in 2005 records, correct?”

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A.: “As far as I can see.”

Q.: “Okay. Now, you say you observed Dr. Cox's testimony. You

went through the records on Dr. Cox's testimony, correct. Did you

note that defense counsel addressed the issues of increased blood

glucose levels during Dr. Cox's testimony?”

A.: “Yes.”

Q.: “And the affidavit that you prepared in and the conclusions that

you reached and the, when this petition was initially filed, this is

based, that was all originally based on information that was provided

to you that was available at trial, is that correct?”

A.: “Correct.”

Dr. Christofides' testimony clearly shows that her theory as to the

proximate cause of Biser's death was based on evidence which was

available at the time of Smith's trial. As such, a claim of ineffective

assistance of counsel based on that evidence should have been raised

in Smith's direct appeal. More importantly, as shown below, Ohio

courts have held that the presentation of alternate theories by expert

witnesses in postconviction proceedings will not defeat the

application of res judicata.

“A postconviction petition does not show ineffective assistance

merely because it presents a new expert opinion that is different from

the theory used at trial.” Combs at 103. “[T]o the extent that appellant

may now wish to expand upon the point, it is settled that a

postconviction petition does not demonstrate ineffective assistance

of counsel even when it presents a new expert opinion that is

different from the theory used at trial.” State v. Cornwell, 7th Dist.

No. 00-CA-217, 2002-Ohio-5177, at ¶ 46. See, also, State v.

Roseborough, 5th Dist. Nos. 09 COA 003, 09 COA 004, 2010-Ohio1832, at ¶ 17; State v. Tenace, 6th Dist. No. L-05-1041, 2006-Ohio1226, at ¶ 26; State v. Turner, 10th Dist. No. 04AP-1143, 2006-

Ohio-761, at ¶ 35; State v. White (August. 7, 1998), 5th Dist. No.

97COA01229, at *9.

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In State v. Tenace, the petitioner for post-conviction relief argued that

he had been given ineffective assistance of counsel during trial. In his

petition, he included the affidavit of an expert witness who stated that

the appellant suffered from low serotonin levels. The petitioner

argued that his trial counsel rendered ineffective assistance because

he failed to investigate and present evidence linking the appellant's

low levels of serotonin and his violent behavior. In finding that the

petitioner had failed to present evidence to substantiate his

postconviction petition, the court stated “this affidavit only proves

that there was another possible defense strategy available. The mere

existence of an alternative theory of defense, however, is insufficient

to establish ineffective assistance of counsel.” Tenace at ¶ 26.

The ruling in Tenace is analogous to the case sub judice. Here, Dr.

Christofides is simply presenting another theory as to the proximate

cause of Biser's death. Ohio case law clearly shows that alternate or

supplementary theories from expert witnesses, which are presented

in postconviction proceedings, are not sufficient to establish

ineffective assistance of counsel and overcome the application of res

judicata. Accordingly, we overrule Smith's first assignment of error.

The record clearly shows that the evidence Dr. Christofides relied on

was available at the time of trial. Because such information was in the

trial record, Smith could have and should have raised issues relating

to that evidence at the time of his direct appeal. Additionally,

alternate theories presented by an expert witness during

postconviction proceedings do not show that the petitioner had

ineffective assistance of counsel. As such, we find that Smith's

postconviction petition is barred by the doctrine of res judicata. As

Smiths' petition is barred by res judicata[.] 

State v. Smith, 2011 WL 497472, at *2-5. 

Petitioner contends that the state appellate court incorrectly concluded his claim of

ineffective assistance of counsel was barred under Ohio’s doctrine of res judicata in refusing to

consider his claim on the merits, and that this Court therefore should address the merits of his claim. 

 Ohio’s doctrine of res judicata precludes a criminal defendant from raising a claim in post

conviction proceedings that should have, or could have been raised, on direct appeal based on

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evidence already before the trial court. State v. Perry, 10 Ohio St.2d 175 (1967). The defendant

must demonstrate, for consideration of the merits of his claim in post conviction proceedings, that

his claim relies on off-the-record evidence that could not have been raised at trial or on direct appeal. 

State v. Tenace, No.L-05-1041, 2006 WL 664327 (Ohio App. 6th Dist. March 17, 2006)(citing State

v. Cole, 2 Ohio St.3d 112, 114 (1982); State v. Lawson, 103 Ohio App.3d 307 (1995). In Ohio, a

post conviction proceeding constitutes a civil collateral attack on a criminal judgment whereby a

criminal defendant may obtain review of “constitutional issues which would otherwise be impossible

to reach because the evidence supporting those issues is not contained in the trial record.” State v.

Turner, No. 04AP-1143, 2006 WL 391820, at *1 (Ohio App. 10th Dist. February. 21, 2006)(citation

omitted). 

The state courts declined to address the merits of Petitioner’s claim of ineffective assistance

of trial counsel, concluding that the information he relied on was available at trial and constituted

an alternative defense. 

From the above, it is clear that the first two prongs of the Maupin test are satisfied here. First,

the state procedural rule prohibiting claim barred by res judicata from being raised in postconviction

relief is applicable to petitioner’s claim of ineffective assistance of counsel. That is, if his claim

could have been raised on direct appeal, then it is barred by res judicata. Second, 

the Ohio Court of Appeals did enforce the res judicata bar. 

The third prong requires the court to determine whether Ohio’s res judicata state procedural

ruling is adequate to preclude federal habeas corpus review. That is a question of federal law. Beard

v. Kindler, 130 S.Ct. 612, 617 (2009). Lee v. Kemna, 534 U.S. 362, 375 (2002). The United States

Court of Appeals for the Sixth Circuit has consistently held that Ohio’s res judicata rule is an

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adequate and independent state ground on which the state can rely to foreclose review of a federal

constitutional claim. 

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

“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 res judicata rule does not

rely on or otherwise implicate federal law. Although petitioner challenges the application of the rule

to the facts supporting his postconviction petition, there can be no question that the rule itself is a

firmly established state court rule that is independent of federal law and adequate to bar review of

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the procedurally defaulted claim in federal habeas corpus. 

Petitioner may still obtain review of this claim on the merits if he establishes cause for his

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

“ ‘[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 (1991).

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003).

Finally, having found that the Ohio courts relied on a state court procedural bar rule that is

independent of federal law and that the res judicata rule is enforceable in federal habeas corpus, the

court must determine whether petitioner has demonstrated cause for the procedural default enforced

by the Ohio courts and resulting prejudice. Cause is an "objective factor external to the defense

imped[ing] counsel's efforts to comply" with the state procedural rule. Murray v. Carrier, 477 U.S.

478, 488 (1986). The Magistrate Judge is not so persuaded. Moreover, review of the cases referred

to by the state appellate court in concluding his claim was barred by res judicata do not compel such

a conclusion. 

For example, State v. Tenace, involved a claim of ineffective assistance of counsel based on

defense counsel’s failure to investigate or procure an expert witness to testify that Tenace’s low

serotonin levels contributed to the violent behavior resulting in his criminal convictions. Tenance’s

proposed expert witness indicated it was possible that Tenace had suffered from low serotonin

levels. The appellate court held that such evidence indicated only that defense counsel may have

pursued an alternative defense and did not warrant an evidentiary hearing. 

Similarly, State v. Turner, No. 04AP-1143, 2006 WL 391820 (Ohio App. 10th Dist. February

6, 2006), involved a claim of ineffective assistance of counsel based on defense counsel’s failure to

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investigate and present psychological and physiological mitigation evidence regarding the effects

of low serotonin levels and alcoholism which, Turner argued, led to his inability to control his

violent behavior. Turner complained that his attorney failed to investigate the issue, and therefore

failed to test Turner to determine whether he suffered from low serotonin levels. The state appellate

court held this claim did not warrant an evidentiary hearing, because Tuner had presented only the

potential existence of a speculative mitigation theory. Moreover, Turner’s attorney already had

presented expert testimony regarding Turner’s history of substance abuse and his claim therefore

constituted an alternative defense that did not amount to ineffective assistance of counsel. Id. at *7.

In State v. Cornwell, No. 00-CA-217, 2002 WL 31160861 (Ohio App. 7th Dist. September.

24, 2002), and State v. Combs, 100 Ohio App.3d 90, 103 (Ohio App. 1st Dist. August. 24, 1994), also

involving claims of ineffective assistance of counsel, the new proposed expert testimony was merely

cumulative, or expanded, on evidence that had already been presented in the state trial courts. 

Here, on the other hand, Petitioner’s proposed expert testified that Biser’s improper treatment

of his diabetes, and not his head injury, caused Biser’s death. It was her opinion that Biser had been

taking the wrong medication to treat his diabetes and that the timing of Biser’s death indicated that

the head injury “was medically unrelated to his ultimate cause of death.” Petitioner’s February 28,

2011 Traverse, Ex. 2, December 26, 2006 Affidavit of Dr. Elena A. Christofides, ¶ 5, PageID 1181. 

This was a critical issue for the defense. Moreover, Petitioner could not have presented such a

defense at trial or supported such a claim on direct appeal, since the State’s expert had reached a

contrary conclusion, i.e., that the head injury caused by Petitioner made Biser unable to treat his

diabetes properly, thereby constituting a proximate cause of Biser’s death. Under these

circumstances, the Magistrate Judge is unable to conclude that the state court properly rejected

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Petitioner’s claim, which could not have been supported by evidence already available from the

record, as barred under Ohio’s doctrine of res judicata. This Report and Recommendation therefore

will address the merits of this claim. See Raglin v. Mitchell, No. 00-cv-767, 2012 WL 70570, at *5

(S.D. Ohio Jan. 10, 2012); White v. Mitchell, 431 F.3d 517, 527 (6th Cir. 2005); Hill v. Mitchell, 400

F.3d 308 (6th Cir. 2005); Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001)((“[W]hen a state

court's reliance on its own rule of procedural default is misplaced, federal habeas review is not be

precluded”). 

MERITS

Petitioner contends that this Court should conduct a de novo review, because the state

appellate court refused to address his claim on the merits. Additionally, he contends this Court need

not presume any dispositive factual findings of the state courts to be correct. Traverse, at 5. 

That argument fails to give weight to 28 U.S.C. § 2254(e). Under that statute, the state

appellate court’s findings of fact are presumed to be correct. Further, the state trial court here

alternatively dismissed Petitioner’s claim on the merits. Consequently, any factual findings it made

supporting that alternative holding are presumed correct under § 2254(e). That decision, therefore,

as well as the factual findings of the state appellate court, are entitled to deference under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”).

The trial court concluded Petitioner’s claim lacked merit in relevant part as follows: 

As background to this case, the defendant, John Smith, was indicted

by the Ross County Grand Jury on one count of felonious assault and

on a second count of involuntary manslaughter from an incident

occurring on April 15, 2005. The deceased victim, Bryan Biser, had

attempted to quiet down several people present at an altercation

between two five-year-olds and was struck by the defendant and

knocked to the ground. 

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At the emergency room the victim showed a relatively high level of

blood sugar and possible signs of skull fracture, something which was

confirmed four days later. He declined treatment, stating lack of

funds to pay for such. On April 19 he was found on his floor

struggling to breathe; and an arm and both feet had turned black. 

The immediate cause of death was determined to be diabetic

ketoacidosis, with an extremely high level of blood sugar noted. The

autopsy that was thereafter performed indicated contusions to Biser’s

brain with damaged frontal lobes. This had caused confusion and

apathy that were found to have substantially contributed to his death. 

His ability to care for himself was determined to have been clearly

adversely affected by the blow inflicted by defendant. 

At trial the defendant was found guilty on both counts and was

sentenced to eight years, the sentences being merged. The conviction

and sentence were affirmed on appeal. In its opinion the court of

appeals importantly noted that a tortfeasor or those accused take the

victim as they find him and the chain of causation is not thus broken

by a preexisting condition.

***

The primary argument advanced by the petitioner is that defense

counsel’s representation at trial was deficient in that he failed to call

an expert witness on the question of the proximate cause of death. 

***

There was an abundance of testimony showing that Bryan Biser had

a concussion as a result of the blow by the defendant. As a result, he

suffered loss of memory, confusion and apathy. He was afflicted

with Type I diabetes, had no doctor and apparently could afford no

medical attention, and he had been self-treating with insulin shots for

an unknown length of time without any known difficulties. 

He appeared to be healthy and functioning normally prior to the

incident and four days later he was dead. Afer the assault, he was

disoriented. Dr. Cox attributed the cause to the trauma. Dr.

Christofides blames Biser’s glucose level, but does not explain with

any specificity the level at any given time. 

Also, Dr. Christofides readily conceded that her specialized field was

endocrinology and as such she was not qualified to comment on or

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refute the testimony of Dr. Cox, a forensic pathologist who handles

the neuropathology cases for the Franklin County Coroner’s Office. 

The defense expert was handicapped in making her analysis due to a

lack of medical records and history of the victim’s case. The victim

had been diagnosed with diabetes and had refused to attend any

educational courses or learn exactly what treatment and testing was

required. He had been self-medicating with some kind of insulin

with no apparent problems prior to the April 15 incident with the

defendant. 

The expert described a honeymoon phase that a patient may have of

from six months to a year from diagnosis, after which a patient will

start to decompensate. However, she did not have any dates or

estimates as to where the victim may have been in this progression. 

Thus she could not testify as an expert with any degree of medical

certainty or probability as to the cause of death. Also, defense

counsel reasonably would not want to risk a failure to qualify this

witness to testify as an expert. That could greatly prejudice his case

before the jury. 

The defendant takes his victim as he finds him. This victim was a

diabetic and lived in poverty such that he could have no proper

medical treatment of the kind Dr. Christofides assumed fitting. There

is no evidence of what treatment the victim administered to himself. 

He lived four days and in his traumatized state apparently overdosed

sometime in that period. 

Based on the record before the court it cannot be reasonably argued

that the defendant was deprived of a fair trial. The issue in question

was aggressively pursued on cross-examination, the risk of not

having his expert qualify was avoided and counsel functioned

properly in affording the defendant a fair and adequate trial. 

Exhibit 27 to Return of Writ. 

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 

2254(e)(1) provides:

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

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rebutting the presumption of correctness by clear and convincing evidence.

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. 28 U.S.C. § 2254(d) provides:

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.

“The focus ... is on whether the state court's application of clearly established federal law is

objectively unreasonable ... an unreasonable application is different from an incorrect one.” Bell v.

Cone, 535 U.S. at 694. To obtain habeas corpus relief, Petitioner must show the state court's decision

was “so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, U.S. ,132

S.Ct. 26, 27 (2011) (quoting Harrington v. Richter, 562 U.S. , , 131 S.Ct. 770, 786–87 (2011). 

Petitioner has failed to meet this standard here. 

The right to counsel guaranteed by the Sixth Amendment is the right to effective assistance

of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

The standard for reviewing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was

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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 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.

Strickland v. Washington, 466 U.S. at 687; see also Blackburn v. Foltz, 828 F.2d 1177 (6th

Cir.1987). “Because of the difficulties inherent in making the evaluation, 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.” Strickland, 466 U.S. at 689.

 To establish prejudice, it must be shown that there is a reasonable probability that, but for

counsel's errors, the result fo the proceedings would have been different. Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 697. Because

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

counsel, if the Magistrate Judge determines that petitioner has failed to satisfy one prong, it need not

consider the other. Id. at 697.

The standards imposed under Strickland, and that of 28 U.S.C. § 2254(d) are both “highly

deferential,” such that, when applying them together, this Court’s “review is ‘doubly’ so.”

Harrington, 131 S.Ct. at 788. The “question is not whether counsel's actions were reasonable” but

“ whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”

Id.

Here I cannot say that the Ohio courts erred when they held that Petitioner had failed to

demonstrate that his trial counsel’s performance was so deficient as to fail to function as the counsel

guaranteed by the Sixth Amendment. First, during the Ohio postconviction proceedings Petitioner

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offered no admissible evidence regarding his trial counsel’s decisions about whether to offer expert

testimony at trial. Their case files were not offered into evidence, and they did not provide affidavits

or testify at the April 9, 2009 hearing on the postconviction petition. December 15, 2011 Return of

Writ, Doc. 6-8, PageID 1087. Petitioner did file with the postconviction petition the December 26,

2006 affidavit of Sheryl Trzaska, which states, in relevant part:

4. I contacted trial counsel, Dan Silcott, and Gary McCleese, to inquire as to why

no evidence was presented on Mr. Smith’s behalf, regarding Mr. Biser’s

metabolic health.

5. Attorney McCleese could not recall what was investigated, and suggested I speak

with Mr. Silcott. Mr. Silcott stated that he contacted an expert witness regarding

Mr. Biser’s head injury, but did not conduct any investigation into the state of

Mr. Biser’s metabolic health.

Petitioner’s February 28, 2012 Traverse, Exh. 4, Doc. 10-1, PageID 1189.

Second, the trial court’s factual findings and legal conclusions regarding the testimony of

Dr. Christofides are binding on this court. 28 U.S.C. §§ 2254(d) and (e)(1). As the trial court pointed

out, Dr. Christofides surmised that Mr. Biser was not properly caring for his diabetes before and

after the assault, but she did not base that opinion on facts of record and there was evidence of

record that his diabetes was controlled before the assault, but not after. Before the assault, Biser had

been self-treating his diabetes for an unknown period of time without any known difficulties and

appeared to be health and functioning normally.

On April 15, 2005 Smith assaulted Biser, who lost consciousness and was taken to the

emergency room. There his pupils were round and equal in size. He denied pain anywhere. He

answered questions and followed commands appropriately. He complained of a bump on the back

of his head and had a laceration of the right eye. He had an elevated blood-glucose level of 465.

Biser refused treatment and refused a CAT scan. He said he had insulin and did not need to purchase

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any from the hospital. He was discharged with instructions to return immediately if he experienced

vomiting, confusion or vision problems. 

Later that day, Ms. Preston and Ms. Jones checked on Biser. Preston testified that Biser

seemed confused and did not remember being in a fight. He said he had been singing karaoke that

night. 

On April 16, 2005, Biser did not invite Preston and Jones in. He said he felt sick at his

stomach and asked them to leave him alone. His cousin Beth Spangler visited Biser three times that

day. In the morning, she gave him Advil for a headache. At 1:00 p.m., Biser continued to complain

that his head hurt, and he wanted everyone to go away. At 5:00 p.m., Spangler brought Biser food.

Biser said he had taken his insulin that day. There were two bottles of insulin in the refrigerator.

There is no evidence regarding Biser’s behavior or condition for the next two days. On April

19, 2005, Preston received a voicemail from one of Biser’s family members who had been unable

to contact him. She went to his door, entered, and found him unconscious. In the emergency room

a CAT scan showed a possible skull fracture. His blood glucose level was 1,169. The diagnosis was

severe diabetic ketoacidosis, a lethal condition resulting from a diabetic’s failure to take prescribed

insulin. 

Dr. Trent, the deputy coroner, found that the cause of death was homicide due to blunt force

craniocerebral injuries. At trial, Dr. Glenn Roush, a radiologist, testified that the April 19, 2005 CAT

scan showed a skull fracture and recent brain injury. He had “never seen anyone with this sort of

injury be able to function.” Dr. William Cox, a forensic neuropathologist, testified that the cause

of death was diabetic ketoacidosis. He said that contusions to the frontal lobes of the brain affected

Biser’s cognitive ability. He became apathetic, uninhibited and disabled. The head injury

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substantially contributed to his death because it “clearly would have adversely affected his ability

to look after himself.”

While reasonable jurists might disagree, the trial court’s finding that Dr. Christofides “could

not testify as an expert with any degree of medical certainty or probability as to the cause of death;” 

and, consequently, that her testimony did not demonstrate that trial counsel’s performance in failing

to offer comparable testimony at trial was so deficient as to deprive Petitioner of the effective

assistance of counsel at trial is supported by substantial evidence and I cannot say that the decision

is contrary to or involved an unreasonable application of clearly established federal law

Accordingly, the Magistrate Judge RECOMMENDS that the petition for writ of habeas

corpus be DENIED.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court,

specifically designating this Report and Recommendation, and the part thereof in question,

as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b), Fed. R. Civ.

P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge

and waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474

U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Small

v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

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