IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES A. BRENSON, JR. 

CASE NO. 2:11-CV-1146

Petitioner, JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kemp

v. 

WARDEN, TOLEDO 

CORRECTIONAL INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition and

Corrected Memorandum Support (Doc. Nos. 1, 4); Respondent’s Return of Writ and

Supplemental Return of Writ (Doc. Nos. 11, 28); Petitioner’s Reply, Supplement to the Reply

and Supplemental Traverse (Doc. Nos. 19, 24, 38); Respondent’s Sur Reply (Doc. No. 43);

and the exhibits of the parties. For the reasons that follow, the Magistrate Judge

RECOMMENDS that Petitioner’s request to strike Respondent’s Supplemental Return of

Writ be DENIED and that the habeas corpus petition be DISMISSED. 

I. FACTS AND PROCEDURAL HISTORY

On June 11, 2000, Norman “Duck” Herrell was found murdered inside his home

as a result of multiple stab wounds. Petitioner and co-defendant William T. Allen were

charged by indictment with Herrell’s murder on July 28, 2000; however, on January 16,

2001, the indictment was dismissed pending further investigation. Seven years and

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three months later, on April 16, 2008, an indictment issued charging Petitioner and

Allen as the perpetrators of the offense. After a jury trial in the Delaware Court of

Common Please, Petitioner was found guilty, as charged. 

The Ohio Fifth District Court of Appeals set forth the following facts: 

Defendant-appellant, James Brenson, appeals his convictions

for one count of aggravated murder, in violation of R.C.

2903.01(A), one count of aggravated murder, in violation of

R.C. 2903.01(B), murder with repeat violent offender

specification in violation of R.C. 2903.02(B), kidnapping with

repeat violent offender specification in violation of R.C.

2905.01(A)(2), kidnapping with repeat violent offender

specification in violation of R.C. 2905.01(A)(3), aggravated

robbery with repeat violent offender specification in

violation of R.C. 2911.01(A)(1), and one count of aggravated

robbery with repeat violent offender specification in

violation of R.C. 2911.01(A)(3). Plaintiff-appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE

On June 11, 2000, at approximately 10:00 p.m., Norman

“Duck” Herrell was at his home talking on the telephone

with his ex-wife, Phyllis Gaskins. A knock on the door at

Herrell's house interrupted the conversation. Herrell told

Gaskins that he would call her back, but he never called.

The next morning, Herrell did not report to work at his

furniture store, J & D furniture. His son, Michael Herrell,

became concerned, and tried repeatedly to call his father

throughout the day. When he still could not reach Herrell by

the afternoon, Michael went to Herrell's house to check on

him.

Michael testified at trial that when he arrived at Herrell's

house, the door was unlocked and there were blankets

hanging over the windows in the living room. Michael

stated that his father was an immaculate housekeeper and

that when he entered the home on June 12th, the house was

a mess, it appeared to have been ransacked, and Herrell's

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gun cabinet was open and his guns were missing. Michael

found his father lying face down on the floor in a pool of

blood in the basement. He called 911.

The arriving officers searched the house for additional

victims or suspects. No one else was found to be in the

residence. They also checked for, but did not find, evidence

of a forced entry.

After determining that Herrell's death was a homicide, the

Delaware Police Department contacted the Ohio Bureau of

Criminal Investigation (B.C.I.) for assistance in processing

the crime scene.

While processing the scene, officers recovered several pieces

of evidence. They recovered two knives, including a small

brown knife from the love seat in the basement, which

appeared to have blood on it. After DNA tests were run on

the knife, it was determined that, the blood present on the

knife was that of Herrell.

Officers also recovered a pair of brown cloth gloves, which

were saturated with blood. DNA recovered from those

gloves matched both Herrell's DNA and subsequently that

of Brenson's co-defendant William Allen. Additionally,

authorities recovered a long-sleeved, blue shirt that later was

determined to possess the DNA of Allen, as well as his wife,

Silvy Allen FN1.

FN1. The record reflects that the Allens were married in

2005.

Officers also recovered a guest receipt from a Meijer store in

Oregon, Ohio, which is near Toledo. They were able to

determine that a person who identified himself as K.W.

Yowpp made the purchase and a return on June 9, 2000 FN2.

K.W. Yowpp is a known alias of Brenson. Brenson's

fingerprint was retrieved from the receipt.

FN2. 15T. at 2233

Brenson's fingerprint was also recovered from an envelope

at Herrell's house containing a dog tag.

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While searching Herrell's home, authorities observed that

many items in the house had been disturbed, including

pictures taken off walls, chairs moved from the kitchen to

rooms that had blankets over the windows, rooms that had

been ransacked, as if the intruder(s) were looking for

something. They also observed a large quantity of illegal

fireworks in the basement of the house.

Several days following the initial search of Herrell's house,

authorities returned to the house after learning that Herrell

had a safe hidden in the house. Herrell's family had not

disclosed to the authorities that the safe existed, but after

authorities asked about the safe, Herrell's daughter, who

was the only person besides Herrell with the combination to

the safe, opened it for them. Contained within the safe were

silver coins, old stopwatches, a deed to rental property

owned by Herrell, and some jewelry.

Franklin County Deputy Coroner, Dorothy Dean, testified

that Herrell had been stabbed fifty-one times. Three of the

stab wounds were potentially fatal.

During the investigation of Herrell's murder, officers

discovered that Herrell and Brenson spent several months in

prison together at Marion Correctional Institution in 1981.

Herrell's children were also familiar with Brenson, having

seen him with Herrell before. Herrell's children identified

Brenson as “Muhammad.”

Sometime in 2001, officers learned that Ohio Highway Patrol

Trooper Brandon Spaulding stopped Brenson during the

evening hours of June 11, 2000, on U.S. 23 South in the area

of Bucyrus, Ohio. Trooper Spaulding testified at trial that he

was running license plates on vehicles at a rest area, when he

ran the license plate on Brenson's red Ford F–150 at

approximately 8:51 p.m. The truck was registered to Mustafa

Muhammad, which is Brenson's son. At that time, Trooper

Spaulding believed that the license plate on the truck

actually belonged on a different vehicle. The trooper pulled

his cruiser up behind Brenson's vehicle and got out of his

cruiser to approach Brenson. Upon approaching Brenson,

Trooper Spaulding noted that Brenson was sitting in the

vehicle alone.

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Trooper Spaulding determined that he had conveyed one of

the letters on the license plate incorrectly to the dispatcher,

and started to explain the mistake to Brenson. Brenson

became angry and began swearing at the trooper, claiming

that the trooper was harassing him because of his race.

Trooper Spaulding noticed that Brenson's front license plate

was in the dashboard. He warned Brenson to attach the

license plate to the front of the vehicle. Eight minutes after

he initiated the stop, Trooper Spaulding cleared the call and

left the rest stop.

According to Brenson FN3, he then went to the next exit to

obtain materials to attach the license plate to the front of the

truck. Brenson testified in 2002 and 2008 before the Delaware

County grand jury that he was on his way to Delaware,

Ohio, to purchase fireworks from Herrell. He also stated in

his 2008 grand jury testimony that he purchased zip ties to

secure the license plate to the front of the truck FN4.

FN3. Brenson did not testify at trial. He did, however, testify

twice before the Delaware County Grand Jury. He first

testified on April 18, 2002. He testified a second time on

April 15, 2008. Additionally, he agreed to meet with police

detectives for an interview on January 14, 2003. It is from a

combination of these three occasions that the prosecution

introduced various statements made by Defendant Brenson

at trial.

FN4. The prosecution attempted to demonstrate that a

search of Brenson's vehicle in October 1999 yielded similar

plastic zip ties in order to show that he did not purchase the

plastic ties because of the June 11, 2000 traffic encounter with

Trooper Spaulding. (12T. at 1390; 1395).

In March 2001, the police recovered Brenson's truck, and

found no blood in the truck. They did find that his front

license plate was attached to the front of the truck with a

coat hanger.FN5

FN5. See note four, supra.

At trial, Phyllis Gaskins testified that when she was speaking

on the phone with Herrell on the night of June 11, 2000, he

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told her that two “white guys” were at the door. She later

retracted her statement, claiming that Herrell would not

have called the men “white guys.” Brenson later told

authorities that he saw a van with “two white guys” come

up to Herrell's house as he was leaving. He claimed they

were in a white van with Cuyahoga County license plates on

it.

Brenson told the grand jury that he left Herrell's house that

night and returned to Toledo, arriving home around 11:00 or

12:00 that night FN6.

FN6. Brenson did not testify at trial. He did, however, testify

twice before the Delaware County Grand Jury. He first

testified on April 18, 2002. He testified a second time on

April 15, 2008. Additionally, he agreed to meet with police

detectives for an interview on January 14, 2003. It is from a

combination of these three occasions that the prosecution

introduced various statements made by Defendant Brenson

at trial.

Brenson also testified before the grand jury that he and Allen

had been friends since 1979, that they both lived in Toledo,

and that they had taken numerous trips together over the

years. At trial, the prosecution called numerous friends and

family members of Brenson to testify that they had seen

Brenson with Allen multiple times throughout the years.

In October 2005, Allen became linked to Brenson through an

informant. Allen reported being the victim of a felonious

assault. As a result, the police obtained a blood sample from

Allen. Subsequently, police were able to link Allen's DNA to

the shirt found in Herrell's kitchen. Allen was also found to

have a 1–in–30 chance of being a contributor to the DNA

found on the blood soaked cloth gloves in Herrell's kitchen.

Prior to being informed that his DNA was found at the scene

of a crime, during an interview with the police in 2005 when

he was the victim of a felonious assault, Allen informed the

police that he was good friends with Brenson, whom he

identified as “Muhammad.” When the police showed Allen

a photograph of Herrell, his demeanor changed and he

looked at the picture and stated that he did not know him.

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A car dealer in Toledo testified at trial that in April 2000,

Allen purchased a car for $600 and then sold it back in July

2000 for $200. Shanica Masadeh, Silvy Allen's daughter,

testified at trial that Silvy and Allen suddenly moved to

Florida in July 2000, and that Silvy gave custody of her to

Silvy's grandmother because Silvy could not support her.

The police obtained records from Florida that Allen and

Silvy both worked for a temporary agency from August 8,

2000, to December 20, 2000.

Brenson's first defense attorney, Thomas Beal, testified at

trial that he had a conversation with the Delaware County

Prosecutor on December 3, 2000, that the indictment against

Brenson would be dismissed, most likely by December 15,

2000. Allen then returned to Ohio in late December, 2000.

***

Following their convictions, both defendants were sentenced

to an aggregate of thirty years to life in prison.

State v. Brenson, (“Brenson I”) No. 09-CA-18, 2010 WL 3784890, at *1-4 (Ohio App.

5th Dist. Sept. 28, 2010). 

Petitioner filed a timely appeal. Exhibit 37 to Return of Writ. He asserted that he

had been denied his right to a speedy trial; denied a fair trial due to the eight-year delay

in bringing charges; denied the right to counsel in regard to his 2008 testimony to the

grand jury; denied due process because the prosecutor failed to advise him, prior to his

testimony before the grand jury that charges had been filed against him; denied the

right to an impartial jury because the trial court refused to dismiss jurors exposed to

pre-trial publicity; denied his right to a fair trial because the trial court twice refused to

grant a mistrial; denied a fair trial in view of testimony from his prior attorney; denied a

fair trial due to admission of his grand jury testimony; denied effective assistance of

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counsel; denied a fair trial based on cumulative error; that his convictions were against

the manifest weight of the evidence; and that his convictions should have been merged

into one count of aggravated murder and kidnapping or aggravated robbery. See

Petition; Reply to Supplemental Return of Writ, Doc Nos. 1, 38. 

On September 28, 2010, the appellate court sustained Petitioner’s claim that his

convictions on aggravated murder, aggravated robbery and kidnapping should have

been merged and remanded the case to the trial court for re-sentencing, but otherwise

affirmed the judgment of the trial court. Brenson I at *57.1

 On November 3, 2010, the 

1

 Judge Delaney issued the following dissenting opinion: 

I respectfully dissent from the majority opinion. I would sustain Appellant's third, tenth and

twelfth assignments of error for the reasons set forth herein and in my dissenting opinion

in State v. Allen, 5th Dist. No. 09–CA–13, ––– Ohio ––––. The majority holds today that

Appellant has not shown prejudice sufficient to amount to cumulative error requiring a

reversal and a new trial. In so doing, the majority summarily dismisses the numerous errors

that pervaded the jury proceedings, prohibiting Appellant from receiving a fair trial that

justice requires.

The cumulative error doctrine requires a conviction to be reversed “where the cumulative

effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even

though each of numerous instances of trial court error does not individually constitute cause

for reversal.” State v. Garner (1995), 74 Ohio St.3d 49, 64, 656 N.E.2d 623, 637.

In the present case, I find that there have been multiple instances of harmless error triggering

the cumulative error doctrine. First, the majority summarily dismisses as nonprejudicial and

cumulative that Appellant used multiple aliases other than K.W. Yowpp. Evidence was

admitted that Appellant used the additional aliases of M.A. Muhammad, Muhammad

Mustafa FN16, Jonquail Kirkland, and Robin Shabazz. Admission of these aliases had

nothing to do with Appellant's motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake regarding the charges in the instant case. Rather, they were

used to show Brenson's bad character.FN17 Evidence introduced of use of an alias where the

alias is not an integral part of the commission of the crime is a violation of Evid. R. 404. See

State v. Petty (May 21, 1987), 8th Dist. No. 52069.FN18

FN16. The evidence that Appellant used his son's name to check into the hospital is in no

way relevant to the guilt or innocence of Appellant or Allen, nor does it show consciousness

of guilt as the majority now suggests. See majority opinion, ¶ 322. This was not argued as

“consciousness of guilt” at trial or on appeal. More conceivably, the prosecution introduced

this evidence to taint Appellant's credibility and imply that he was attempting to not pay his

hospital bill by giving faulty information to the hospital.

FN17. References to Appellant's various aliases were discussed at the following pages in the

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transcript: 554, 1055, 1326, 1347, 1361, 1362, 1365, 1389, 1822, 1834, 1857–1858, 1971, 1972,

1977–1979, 1980, 1981, 1984, 2033, 2062, 2212, 2361, 2364, 2366, 2370, 2371, 2373, 2375, 2379,

2382, 2383, 2409, 2416, 2526, 2555; references were also found in the Grand Jury transcript

sent back to the jury at pages 17 and 46–47.

FN18. The majority also mentions that indictment listed out various aliases of Brenson. See

majority opinion, ¶ 319. An indictment serves only to put a defendant on notice of the crimes

with which he is charged. Crim. R. 7(B). It does not serve as a discovery mechanism, nor

does it serve to put a defendant on notice that the State would seek to improperly introduce

evidence of multiple aliases at trial.

\The majority summarily dismisses the prejudice from the admission of evidence that

Brenson used multiple social security numbers. Again, admission of such evidence is not

relevant to either the prosecution of Appellant or Allen. The admission of these social

security numbers had nothing to do with Appellant motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake with regard to the charges in the instant

case.FN19 The majority fails to adequately explain how these aliases, social security

numbers, and references to Appellant's illegitimate children were relevant; rather the

majority sidesteps the issue that such character evidence was not only inadmissible, but was

also highly prejudicial against both defendants.

FN19. References to various social security numbers used by Brenson can be found at the

following pages in the transcript: 1152, 1972, 1976–1977, 1977–1979, 2383, 2422, and 2526.

The majority also rejects the prejudice created by the admission of evidence that Appellant

was having an affair with one woman while married to another. Such evidence is highly

inflammatory as it relates to Appellant and certainly has no bearing on Appellant's guilt.

This is evidence admitted solely to tarnish the reputation of the accused. Moreover, evidence

that Appellant had extramarital affairs and that he fathered multiple children with different

women is both irrelevant and highly inflammatory.FN20 Again, there is no good faith basis

for the admission of such evidence against either codefendant. The prosecutor argued that

such information was relevant as it went to “financial situation and motive.” FN21 The

prosecution then proceeded to ask questions to Brenson's ex-wife, Robin Shabazz, such as

“Do you know if they [Brenson's children with Lalitre] were born in the course of your

marriage?” to which Shabazz responded, “yes.” The prosecution asked, “What about

Minimah?” and Shabazz responded, “yes.” The prosecutor then asked Shabazz, regarding

Brenson's children with other women, “I'm up to ten. Do you know how many children he

had in total?” to which Shabazz replied, “eleven.” The prosecutor, not satisfied with having

Shabazz merely state the answer repeated, “He has eleven children?” (Tr. 2380–2381).

FN20. References during trial to Brenson's illegitimate children and his extramarital affairs

can be found at the following pages in the transcript: 508, 1836–1837,1854, 1975, 1976–1977,

1977–1979, 1991, 1995, 2023, 2075, 2086, 2216, 2231, 2249, 2348, 2370, 2379, 2380, 2381, 2390,

2391, 2392; references were also found in the Grand Jury transcript sent back to the jury at

page 17, lines 1–13, page 20, and pages 23–24.

FN21. There was never argument by the prosecution, either at trial or before this Court, that

such evidence was elicited during the cross-examination of Shabazz to impeach or show her

bias as the majority now suggests. See majority opinion, ¶¶ 334–336. In fact the State

concedes in its brief that it sought to introduce “motive for the State's theory of the murder

* * * [e]vidence that Appellant had many children and the financial stresses that accompany

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many children, was extremely relevent to provide a motive for the crime.” Appellee's Brief,

p. 30.

The prosecutor proceeded to ask Shabazz about Brenson's whereabouts during the years of

1995 to 1999 and whether she was aware that he was living with a girlfriend, LaLitre, in

Florida during that time. (Tr. 2390). Then the prosecutor immediately turned to asking

Shabazz if she knew Holly Lewis. Shabazz responded “I think she used to work for a radio

station doing advertising.” The prosecutor then responded, “Did your husband ever tell you

that he and Holly had a long term relationship and he drove down to Columbus about five

times a year over a five year period to see her?” (Tr. 2392). I cannot comprehend, nor can the

majority defend, the relevance of this testimony as it relates to the witness's bias in favor of

Brenson.

Though the prosecutor claimed that this information was essential to establish Brenson's

motive (Tr. 2379), during their closing arguments, they did not one time mention that such

a motive existed. The majority has reconstructed the State's argument to one of bias, which

still fails to adequately defend the admission of such testimony. In fact, the prosecution made

clear to ask the court to instruct the jury that “they may find the defendants guilty without

knowing their motive, if they find every element proven beyond a reasonable doubt and the

state went between that purpose, which I think was somewhat confusing during Mr.

McVay's closing.” (Tr. 2557). The prosecution also stated, during rebuttal closing, that “I

want to be clear about this issue of motive also because Mr. McVay, I think, muddied the

waters on that. Motive, ladies and gentlemen, in this case and I think it's fairly clear, is

robbery. Whoever did this wanted to steal drugs or money or both and guns and fireworks.”

(Tr. 2516). Attorney McVay's comment that the prosecutor was referring to was that after

listening to nine days of testimony, “only today was it suggested that there was any reason

whatsoever why James Brenson would kill Norman Duck Herrell.” (Tr. 2467), in reference

to the cross examination of Robin Shabazz, who testified that day.

All in all, the references to Brenson's multiple aliases, use of different social security

numbers, and his illegitimate children and extramarital affairs totaled sixty-nine.

Initially, I find the admission of character evidence, specifically that of Appellant's previous

personal relationships with women and the children produced as a result of those various

relationships, to have been allowed in error. The admission of evidence that Appellant was

having an affair with one woman while married to another was highly prejudicial and

inflammatory as it relates to both Appellant and Allen and certainly has no bearing on

Appellant's or Allen's guilt. This is evidence admitted solely to tarnish the reputation of the

accused. Moreover, evidence that Appellant fathered multiple children with different

women is both irrelevant and highly inflammatory. Again, there is no good faith basis for

the admission of such evidence against either codefendant. This evidence, by itself, could be

considered harmless, but when coupled with the additional errors at trial, loses its harmless

nature.

Moreover, the multiple motions for mistrial provide a basis for an analysis of the harmless

errors that were committed in this trial. As the majority has noted, the grant or denial of an

order of mistrial lies within the sound discretion of the trial court. State v. Glover (1988), 35

Ohio St.3d 18, 517 N.E.2d 900; State v. Widner (1981), 68 Ohio St.2d 188, 190, 22 O.O.3d 430,

431, 429 N.E.2d 1065, 1066–1067. A jury is presumed to follow the instructions, including

curative instructions, given it by a trial judge. See State v. Loza (1994), 71 Ohio St.3d 61, 75,

641 N.E.2d 1082, 1100, quoting State v. Henderson (1988), 39 Ohio St.3d 24, 33, 528 N.E.2d

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1237, 1246. However, mistrials need be to declared when the ends of justice so require and

a fair trial is no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1,

9.

For instance, the testimony initially admitted regarding the October, 1999, search of

Appellant's vehicle, which resulted in the seizure of a shotgun, shotgun shells, masks,

knives, a D.E.A. hat, rubber gloves, and zip ties formed the basis for one of these “harmless”

errors. This search took place almost a year preceding the murder of Herrell and was only

marginally relevant to Appellant's case. Appellant made a motion for mistrial after the

introduction of this evidence. The trial court denied the motion and then trial counsel

requested that Lieutenant Gorney's entire testimony be struck from the record as being

violative of their clients' right to a fair trial.

The court granted the motion to strike the testimony of Lieutenant Gorney, finding that “had

the pictures of the gloves, duct tape, plastic ties being separated out ... that would have been

permitted under the 404(B) exception on identification. Unfortunately, it was all thrown in

together by pictures with testimony with evidence excluded by 404(A) and, therefore, that

was the reason that was excluded under 404.”

If this error were isolated, I would find that the trial court's curative instruction and the

striking of Lieutenant Gorney's testimony following the eliciting of the inadmissible evidence

was sufficiently curative and no mistrial was warranted. While the prosecution sought to

properly admit evidence found in Appellant's car, i.e., the zip ties, knives, and gloves, they

also admitted other irrelevant items found in the car. Those items included the D.E.A. hat,

a shotgun, and ski mask among other things. The court, after hearing Lieutenant Gorney's

testimony, determined that the prejudicial nature of the admission of such evidence far

outweighed the probative value of such evidence. At that time, the court decided to strike

the whole of Lieutenant Gorney's testimony. In so doing, the court instructed the jury as

follows:

 “Folks, we heard testimony this morning from Lieutenant Gorney from the Toledo Police

Department and at this point in time, I instruct you all to disregard his testimony in full,

completely, strike it from your memory, treat it as though you never heard it.”

The trial court did not abuse its discretion in failing to order a mistrial on these grounds. Cf.

State v. Glenn (1986), 28 Ohio St.3d 451, 455, 28 OBR 501, 504, 504 N.E.2d 701, 706; see State

v. Warren (1990), 67 Ohio App.3d 789, 799, 588 N.E.2d 905, 912. While the admission of the

evidence was error, I would find that error, by itself, would be harmless in light of the

curative instructions given by the trial court. Taken with the other errors at trial, though, this

error does not remain in the realm of harmless.

Additionally, the parading of Allen's wife in front of the jury was error, albeit error that by

itself may have been harmless.

Appellant argues that the trial court should have granted a mistrial after the prosecutor

called Allen's wife to the stand. These facts were discussed in the majority opinion, but bear

reiterating for purposes of this analysis. Specifically, the facts giving rise to the motion for

mistrial were as follows: The State had failed to successfully serve Silvy Allen with a

subpoena prior to trial. After the trial had commenced, the prosecutor served Mrs. Allen

with a subpoena when she accompanied her daughter to the courthouse to testify. Even

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though the prosecutor was able to serve Mrs. Allen with a subpoena at the courthouse, the

prosecutors neglected to speak with her prior to calling her to the stand to determine if

indeed she would cooperate and testify against her husband. Moreover, Mrs. Allen would

have been in need of Miranda warnings and an attorney, as her DNA was found at the

murder scene and she went to Florida with Appellant as well.

During trial, in front of the jury, the prosecutor proceeded to call Mrs. Allen to the stand to

testify. After she took the stand, prosecution asked the court if counsel could approach. At

a sidebar conference, the following exchange was held:

“[Prosecutor]: Your Honor, we are approaching prophylacticlly [sic], a thought had occurred

that the witness might say at some point that she wished not to testify. Your honor, perhaps

we should ask that question when the jury is not present. There is a privilege in this case

although they weren't married until 2005, well after the murder, but anything we're asking

her about was before they were married, not during covatures. [sic]”

“The Court: Well, I think we should probably address it before.

 “[Prosecutor]: There's a competency issue that I don't want to come up in front of the jury.

 “The Court: Okay. I'll excuse the jury and we can address it.* * * ”

The following then occurred after the jury was dismissed from the courtroom and the

witness was sworn:

“The Court: Be seated, folks.

“The Court: Do you want to inquire?

 “[Prosecutor]: Your honor, my understanding of the case law in this area, I think it

would be appropriate for the court to ask questions of the witness regarding Evidence

Rule 601.

 “The Court: Your name is Silvy Allen; is that right?

 “A: Silvy Sparks Allen.

“Q: Silvy Sparks Allen?

 “A: Right.

 “ * * *

“Q: And you're currently married to Mr. William T. Allen, who is one of the defendants

in this case?

“A: That's correct.

“Q: And when were you married?

 “A: I'm sorry. Under my stress I'm not going to be totally accurate. Maybe three years ago.

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 “Q: This is 2008. So 2005 sometime?

 “A: Yes.

 “Q: And it's my understanding that you're electing to testify today; is that right?

 “A: No. And I'm also going to plead the fifth because I wish not to testify against my

husband. This subpoena was just given to me momentarily ago.I accompanied my daughter

who was subpoenaed.

“Q: Okay. So you refuse to testify?

 “A: That's correct.

 “The Court: All right, what's your position on this, Mr. Rohrer?

 “[Prosecutor]: Your Honor, the strictures of Evidence Rule 601, I think, are pretty clear. I

don't know that there's much leeway in this. I guess the only argument I would

make—having reviewed the case law, there's really no good faith argument I can make

contrary to that, your honor. The competence issue applies at the time the witness is

testifying, which is now and we have no reason to believe they're not married.

“The Court: All right. Any statements for the regard on behalf of Mr. Allen?

“Mr. Heald: No, your Honor.

“The Court: All right, ma‘am. You can step down.

 “ * * *

“Mr. Meyers: * * * We would, in retrospect, lodge an objection to what just transpired here,

whereby if the government was aware, as obviously they were, that this witness was going

to exercise her right not to testify, they should have brought that to the court's attention

before parading her onto the stand. I'm sure I wasn't the only one in the room who watched

everybody carefully watching her and now, obviously, they've implied, improperly that for

some reason, I suppose not of their own making, they've sent the signal by just her physical

presence that she's refused to testify. It's inappropriate and we object and move for a

mistrial. It's no different than calling a witness you know who is going to take the Fifth and

playing that hand in front of the jury.

 “Mr. Heald: Your Honor, we would join in the objection in that motion.

“The Court: Does the State want to respond to the objection and motion?

“[Prosecutor]: Your Honor, that's the exact reason I approached the bench before we

asked the witness any questions, to address that issue because it popped up. We only

served her with her subpoena about five minutes ago.

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 “Mr. Meyers: Clearly, the State must have heard something out in that hallway that

caused them to approach the bench. Why they waited until after they had the little

parade or charade is inappropriate.

“The Court: I was kind of curious about that myself.

“[Prosecutor]: Your Honor, Mr. Mooney was in the hallway and had a conversation with the

witness prior to that, too, and it wasn't raised by anyone else in the room except myself

before the witnesses testified.

 “Mr. Meyers: We're certainly not privy to the conversations the government or its counsel

or it's [sic] chief law enforcement agency has had with her. * * * We have known generally

that they've been trying to serve Silvy Allen up in the Toledo area. If they've got a shot to

protrusely [sic] drop an immediate subpoena on her and were apparently one or all total, all

three together, state representative told by her, I'm not testifying, she most certainly has been

paraded in front of this jury.

“[Prosecutor]: She didn't say that, your honor. She told us she was refusing to accept a

subpoena. Until we found her person and got her served personally with the subpoena, we

couldn't force it. But we found her, we served her with a subpoena and she was in court. I

had no conversations with her, Miss O'Brien had no conversations with her, Sergeant

Leatherman had no conversations with her today.

“Now, the look on her face lead [sic] me to believe that we should approach the bench before

her answering any questions. I said something to her about our fair city, she said “I hate your

fair city”, or something to that effect. She did not tell me she did not want to testify.”

The court, in ruling on the motion for mistrial, stated as follows:

 “We have motions for mistrial pending on behalf of both defendants. I think it's the fourth

motion for mistrial in this case, feeling that the substantial rights of their clients have been

affected by the parading of Miss Allen in here in front of the jury. And then Miss Allen's

refusal to testify. Certainly, I agree with counsel that a simple question by Mr. Rohrer, do

you wish to testify or not, would have handled it and not brought her in, nor probably the

calling of her name in the courtroom, that he was calling her as a witness. And I'm not sure

that's akin to putting someone on the stand to plead the Fifth when the prosecutor knows

that the witness was going to do that, although it comes pretty close. In this case, the jury

was excused and outside the presence of the jury the witness said that she didn't want to

testify.

“You know, frankly the court should have anticipated that except I found myself in the same

position, wondering if she was coming in the courtroom, then she must be willing to testify.

But it's something that is required to do if the spouse is going to testify, to bring them in in

advance and say, do you wish to testify; you have a right not to testify. Has substantial

prejudice been shown? No, nor has counsel really stated what the substantial prejudiced this

would be [sic] except what inference the jury may or may not take from the fact that she was

called in in front of them and then she did not testify. The court is going to give an

instruction to the jury and the instruction would either be one that they are not to infer

anything from the fact that Mr. Allen's wife refused to testify, or did not testify because our

law says a spouse does not have to testify in a trial of her husband, if she so chooses, or the

instruction would be that they are not to infer anything from the fact the witness was called

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to the stand and did not testify. So I can advise them of the law that allows her not to testify,

or I can just tell them they're not to infer anything. With that instruction, first of all, I don't

think there's any substantial prejudice here to the defendants, but certain the jury may infer

something that they probably shouldn't and what the consequences of that is, no one

knows.”

I would find the parading of Mrs. Allen in front of the jury to be error. It is difficult to fathom

how the State could legitimately argue that they did not know that Silvy Allen would refuse

to testify when the prosecutor conceded that Mrs. Allen refused to accept a subpoena prior

to trial, particularly when they did not even seek to speak with her prior to calling her to the

stand at trial. Arguably, there is almost as much evidence that links Silvy Allen to the crime

scene as there is her husband. Silvy Allen's DNA was found on the shirt left at the murder

scene, and accordingly, she would have had a legitimate right to exercise her Fifth

Amendment right not to testify. Moreover, she moved to Florida with Allen shortly after the

crime was committed. If this were the sole motion for mistrial in the case, again, I would

agree that any substantial prejudice was promptly remedied by the trial court's curative

instruction to the jury, and therefore that error was harmless.

I am troubled, though, by the inaccuracy of the trial court's instruction. A trial court should

not have to misstate the law to the jury because the prosecutor committed an error.FN22

FN22. The majority fails to cite any case law in support its assertion that the trial court's

instruction was correct. There is no case law, as far as the dissent is aware, that supports the

contention that it is ever appropriate for a trial court to purposely give a legally incorrect

jury instruction.

The court instructed the jury, “When you left, we had a witness on the stand. That witness

was a Mrs. Allen, the spouse of Defendant Allen, and under the laws of our state, we have

rules, evidence rules, and there's [sic] rules of competency. For example, a person of

unsound mind can't testify; a child under the age of ten can't testify. Likewise, a spouse

cannot testify. So once I determined she was the spouse, she was not permitted to testify.”

It is simply not the law in Ohio that a spouse cannot ever testify in a court of law. While

there are privilege and competency issues, to be sure, surrounding when a spouse can

testify, the law is not, nor has it ever been, a blanket prohibition against a spouse testifying

in court. The fact that the court had to go to such lengths to give a “curative” instruction to

the jury, when the instruction was a misstatement of the law should signal to this Court that

perhaps the error was not harmless, but in fact was severe enough to warrant a new trial.

The prosecutor should have determined prior to calling Mrs. Allen to the stand whether or

not she would cooperate and testify. Again, were this the only error that the prosecution

committed that required a curative instruction following a motion for mistrial, I would find

that no prejudice occurred because the court promptly instructed the jury to disregard Mrs.

Allen as a witness and any error that occurred would be harmless. However, when coupled

with additional errors at trial, this “harmless” error, along with other errors, become too

much to ignore.

A bell can only be unrung so many times. The culmination of these multiple errors became

so overwhelming that a jury could not feasibly be expected to continue to disregard repeated

violations of the rules.

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Though curative measures can in some cases obviate the necessity of a mistrial, it cannot

always erase the taint of improper testimony. “The giving of a curative instruction will often

obviate the necessity of a mistrial. However, there are some instances in which the prejudice

is so great that it is impossible ‘to unring the bell.’ “ Tumblin v. State (2010), 29 So.3d 1093,

quoting Graham v. State, 479 So.2d 824, 825–26 (Fla. 2d DCA 1985) (citation omitted).

The prosecution's tactics in this trial were prejudicial and forced Appellant into a “no win”

situation. Appellant was forced to repeatedly object and make a motion for mistrial four

times in the trial below. While the court denied the motions, the court did indeed find fault

with the prosecution's tactics and gave curative instructions.

Based on the multiple errors in this trial, I cannot find that the Appellant received a fair trial.

I find it hard to fathom if Appellant has not shown prejudice in the instant case, what it

would take in order for any defendant to ever show prejudice. In the trial below, the jury

heard over a week's worth of testimony which amounted to approximately 2,000 pages of

transcript on review, received approximately 100 exhibits to review, and was charged with

determining the guilt of Appellant and his codefendant on multiple complex charges of

aggravated murder, murder, kidnapping, aggravated robbery and burglary.

If prejudice cannot be shown based on the short amount of time that the jury deliberated on

such a fact-intensive case with dozens of exhibits before convicting Appellant of everything

that he was charged with, then I am at a loss as to how a defendant would ever show

prejudice. I would reverse the conviction based on cumulative error and as I stated in State

v. Allen, 5th Dist. No. 09–CA–13, ––– Ohio ––––, I would order that Appellant and his

codefendant be retried separately so that justice could be fairly served.

Finally, I conclude by noting that the majority, as it did in State v. Allen, Delaware App. No.

09–CA–13, ––– Ohio ––––, continues to incorrectly follow federal law in determining the

appropriate test in ruling upon a motion to sever. See majority opinion, ¶¶ 102–112. The

majority repeatedly states that Appellant has failed to show “compelling, specific, and actual

prejudice” with respect to his severance argument. In so doing, the majority cites to the Sixth

Circuit cases of United State v. Saadey (6th Cir.1993), 393 F.3d 669 and United States v. Driver

(6th Cir.2008) 535 F.3d 424. Both of these cases deal with federal RICO charges and the

severance of charges, not the severance of co-defendants. The majority fails to note that Ohio

has not adopted this standard. See e.g., paragraph 203, infra.

The majority also cites United States v. Lloyd, (6th Cir.1993) 10 F.3d 1197, for the proposition

that the “appellant bears the burden of making a strong showing of factually specific and

compelling prejudice from a joint trial.” See majority opinion, ¶ 112. However, the majority

fails to point out that in Lloyd, the Sixth Circuit pointed out that “in reaching this conclusion,

we view as significant the fact that the evidence against these defendants was simply

overwhelming.” Id. at fn. 22. Such is not the case here.

Moreover, federal courts have held that state law severance claims are governed by State

law, not by federal law. U .S. v. Hutchinson (6th Cir.2002), 303 F.3d 720. Phillips v. Million (6th

Cir.2004), 374 F.3d 395, (wherein federal court pointed out that they must look to Kentucky

law to determine whether the motion to grant severance should be granted. In addition, they

stated that Zafiro involved the interpretation of Federal Rules of Criminal Procedure 8, 14,

an 18, not the United States Constitution, and thus Zafiro had no precedential weight in

reviewing state court proceedings on due process grounds.) Million, at 393; see also Perrou

v. Jones (E.D.Mich.2009), No. 06–14941, 2009 WL 2392971.

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Court of Appeals denied Petitioner’s motion for reconsideration. See Exhibit 46 to

Return of Writ. On March 30, 2011, the Ohio Supreme Court accepted Petitioner’s

appeal on Proposition of Law Nos. VI and VII, and vacated the appellate court’s

judgment on Petitioner’s 14th assignment of error in view of State v. Johnson, 128 Ohio

St.3d 153 (2010)(overruling State v. Rance, 85 Ohio St.3d 632 (1999)), remanding the case

for application of Johnson. State v. Brenson, 128 Ohio St.3d 396 (2011). Pursuant to the

remand from the Ohio Supreme Court, the state appellate court held that Petitioner’s

convictions on aggravated robbery should have been merged and remanded the case to

the trial court for re-sentencing. State v. Brenson (“Brenson II”), No. 09-CA-18, 2011 WL

1466458 (Ohio 5th Appellate Dist. April 15, 2011). 

On December 22, 2011, Petitioner filed the instant petition for a writ of habeas

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

Respondent in violation of the Constitution of the United States based upon the

following grounds, repeated here as set forth in Petitioner’s habeas corpus petition: 

The standard, as cited by the majority, is simply not the standard for establishing severance

in Ohio courts. That standard, as set forth in State v. Torres (1981), 66 Ohio St.2d 340, 343, 421

N.E.2d 1288, is as follows. “A defendant claiming error in the trial court's refusal to allow

separate trials of multiple charges has the burden of affirmatively showing that his rights

were prejudiced. State v. Roberts (1980), 62 Ohio St.2d 170, 175, 405, 405 N.E.2d 247, N.E.2d

247; * * *.; see also State v. Hand, 107 Ohio St.3d 378, 2006–Ohio–18, 840 N.E.2d 151; and State

v. McKnight, 107 Ohio St.3d 101, 2005–Ohio–6046, 837 N.E.2d 315. He must demonstrate that

the trial court abused its discretion in refusing to separate the charges for trial. Opper v.

United States (1954), 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101; Wright, Federal Practice

and Procedure 468, Section 227. More specifically, he has the burden of furnishing the trial

court with sufficient information so that it can weigh the considerations favoring joinder

against the defendant's right to a fair trial.” Other courts have held that “error is prejudicial

if there is a reasonable probability that the verdict might have been more favorable to the

defendant if the error had not been made.” Rolle v. State (Wyo.2010), 2010 WY 100, 236 P.3d

259, citing Vigil v. State (Wyo.2010), 2010 Wy 15, 224 P.3d 31.

For these reasons, I must dissent.

Brenson I, 2010 WL 3784890, at *58-66. 

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GROUND ONE: Brenson’s right to a speedy trial was

violated by the eight-year delay between his initial

indictment and eventual trial.

GROUND TWO: Brenson’s due process rights were violated

by the eight-year delay in bringing him to trial.

GROUND THREE: Brenson was prejudiced by the trial

court’s refusal to sever his trial from that of Allen.

GROUND FOUR: Brenson’s 2008 grand jury testimony was

obtained in violation of his right to counsel and should have

been suppressed.

GROUND FIVE: The prosecution abused the grand jury

process by failing to tell Brenson that charges had already

been filed against him (One) (1) hours before his 2008

testimony to the grand jury.

GROUND SIX: Brenson’s right to an impartial jury was

denied by the trial court’s refusal to dismiss jurors who had

been exposed to pre-trial publicity regarding this case.

GROUND SEVEN: The trial court abused its discretion and

denied Brenson his right to a fair trial by failing to grant

mistrials on two occasions after the jury was improperly

exposed to prejudicial information.

GROUND EIGHT: The trial court erred in permitting the

testimony of Brenson’s prior trial attorney, (Att. Beal),

because his testimony could be relevant if the jury used it to

impermissible stack inferences.

GROUND NINE: In a case where the defendant had given

three prior statements (over an eight (8) period) to the police

and his credibility in those statements was a key issue,

should the jury have been given transcripts of those

statement[s] to take back into the jury room during

deliberations, where they could pour over the statement[s]

for any minor inconsistenc[ies]?

GROUND TEN: The trial court erred by permitting

extensive evidence regarding prior crimes, wrongs and bad

acts by Brenson.

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GROUND ELEVEN: Brenson was denied his right to

effective assistance of trial counsel.

GROUND TWELVE: Brenson was denied a fair trial by the

cumulative effect of the numerous errors in his trial.

GROUND THIRTEEN: The verdict of guilty was against the

manifest weight of the evidence.

It is the position of the Respondent that Petitioner’s claims fail to present issues

appropriate for federal habeas corpus review, are procedurally defaulted, or otherwise

fail to provide a basis for relief. 

II. STANDARD OF REVIEW

The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.

104–132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.

Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d

682, 691 (6th Cir.2008). AEDPA imposes a “highly deferential standard for evaluating

state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d

481 (1997), and “demands that state-court decisions be given the benefit of the doubt,”

Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).

Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (footnote

omitted).

When the claims presented in a habeas corpus petition have been presented to

and decided by the state courts, a federal habeas court may not grant relief unless the

state court's decision was contrary to or an unreasonable application of clearly

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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

In applying this statute, the Supreme Court has held that “[t]he 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.” To

obtain habeas corpus relief, a 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, 181 L.Ed.2d 328 (2011), quoting Harrington v. Richter,

562 –––U.S. ––––, ––––, 131 S.Ct. 770, 786–87, 178 L.Ed.2d 624 (2011). This bar is

“difficult to meet” because “habeas corpus is a ‘guard against extreme malfunctions in

the state criminal justice systems,’ not a substitute for ordinary error correction through

appeal.” Harrington v. Richter, 131 S.Ct. at 786 ( quoting Jackson v. Virginia, 443 U.S. 307,

332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment)). In

short, “[a] state court's determination that a claim lacks merit precludes federal habeas

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relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's

decision.” Id., quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158

L.Ed.2d 938 (2004).

III. MOTION TO STRIKE SUPPLEMENTAL RETURN OF WRIT

On March 27, 2013, Respondent filed a Supplemental Return of Writ “as an aid to

the Court and recently appointed defense counsel,” including nine photographs which

are a part of the trial record. See Doc. No. 28, PageID# 3788-89. In that motion,

Respondent goes on to summarize evidence reflecting Petitioner’s guilt. 

Petitioner moves to strike Respondent’s Supplemental Return of Writ on the

grounds that the rules do not permit such a filing. Alternatively, Petitioner requests the

Court to reject Respondent’s Supplemental Return of Writ on the merits. See Supplemental

Traverse, Doc. No. 38, PageID# 3914. In responding to the supplemental filing,

Petitioner disputes the factual accuracy of Respondent’s summary of incriminating

evidence based upon citations to the trial transcript. Neither the Supplemental Return of

Writ nor Petitioner’s response, however, affect any of the Court’s conclusions or

recommendations in this matter. 

For the reasons set forth below, Petitioner’s claim that his convictions are against

the weight of the evidence (habeas corpus claim thirteen) is procedurally defaulted, and

this Court therefore need not address the evidence referred to in this context. Petitioner

has not raised an independent claim of actual innocence, nor would such a claim

provide him relief, so the evidence need not be considered in this context. Herrera v.

Collins, 506 U.S. 390, 401 (1993)(“Few rulings would be more disruptive of our federal

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system than to provide for federal habeas review of freestanding claims of actual

innocence”); see also House v. Bell, 547 U.S. 518, 554-55 (2006)(declining to resolve the

issue). Further, Petitioner sets forth no new evidence not previously available indicting

that this case is of the “extraordinary nature” to justify a merits review of his otherwise

procedurally defaulted claims, and his arguments therefore need not be considered in

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

Petitioner’s motion to strike is denied the Supplemental Return of Writ is denied. 

IV. CLAIMS ONE AND TWO

In claims one and two, Petitioner asserts that he was denied his right to a speedy

trial due to the eight-year delay between the filing of the initial Indictment and trial, and

that his convictions therefore violate the Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution. See Petitioner’s Supplemental Traverse, Doc. No. 38,

PageID# 3832. 

The state appellate court rejected Petitioner’s claims, reasoning as follows: 

Brenson argues that his right to a speedy trial was violated

by the eight-year delay between his initial indictment and

his eventual trial and that his due process rights were

violated by the pre-indictment delay between the dismissal

of his first indictment and the filing of his second

indictment.FN7

FN7. Brenson is not arguing that his statutory right pursuant

to R.C. 2945.71 was violated. Rather, appellant argues his

constitutional right to a speedy trial under the Sixth

Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution, and, although not

specifically cited in his brief, we believe appellant to be

arguing further that his right to due process under the Fifth

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Amendment to the United States Constitution and Article I,

Section 16 of the Ohio Constitution have been abrogated.

Brenson was first arrested and indicted in July 2000, but the

indictment was dismissed in January 2001. Brenson was

eventually re-indicted in April 2008 and brought to trial in

July 2008. Brenson filed a Motion to Dismiss the Indictment

on speedy trial grounds on May 23, 2008; the state

responded on June 11, 2008. The trial court denied the

motion by Judgment Entry filed June 13, 2008.

A speedy-trial claim involves a mixed question of law and

fact. State v. Larkin, Richland App. No.2004–CA–103,

2005–Ohio–3122. As an appellate court, we must accept as

true any facts found by the trial court and supported by

competent, credible evidence. With regard to the legal

issues, however, we apply a de novo standard of review and

thus freely review the trial court's application of the law to

the facts. Id.

When reviewing the legal issues presented in a speedy-trial

claim, we must strictly construe the relevant statutes against

the state. In Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57,

661 N.E.2d 706, 709, the court reiterated its prior admonition

“to strictly construe the speedy trial statutes against the

state.”

***

The Sixth Amendment to the United States Constitution

provides “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial * * *.” This

provision is applicable to state courts through the

Fourteenth Amendment. Klopfer v. North Carolina (1967), 386

U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The Ohio Constitution

provides similar protection.

“Section 10, Article I of the Ohio Constitution guarantees to

the party accused in any court ‘a speedy public trial by an

impartial jury.’ ‘Throughout the long history of litigation

involving application of the speedy trial statutes, this court

has repeatedly announced that the trial courts are to strictly

enforce the legislative mandates evident in these statutes.

This court's announced position of strict enforcement has

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been grounded in the conclusion that the speedy trial

statutes implement the constitutional guarantee of a public

speedy trial.’ “ (Citations omitted.). State v. Pachay (1980), 64

Ohio St.2d 218, 221, 416 N.E.2d 589, 591.

In State v. Meeker (1971), 26 Ohio St.2d 9, 268 N.E.2d 589,

paragraph three of the syllabus, the Ohio Supreme Court

held that “[t]he constitutional guarantees of a speedy trial

are applicable to unjustifiable delays in commencing

prosecution, as well as to unjustifiable delays after

indictment.” Subsequent to the Ohio Supreme Court's

decision in Meeker, the United States Supreme Court ruled

that the speedy trial guarantee under the Sixth Amendment

has no applicability to pre-indictment delays. United States v.

Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. In

light of the Marion decision and its progeny, the Ohio

Supreme Court held in State v. Luck (1984), 15 Ohio St.3d 150,

153, 472 N.E.2d 1097, that the Court's “holding in Meeker is

viable only insofar as its application is limited to cases that

are factually similar to it.”

In State v. Selvage (1997), 80 Ohio St.3d 465, 687 N.E.2d 433,

1997–Ohio–287, the Ohio Supreme Court revisited the issue

of whether an individual's constitutional right to a speedy

trial has been violated by a delay in prosecution. In Selvage,

the Ohio Supreme Court reaffirmed its holding in Meeker,

and noted that the speedy trial guarantee does not apply

prior to indictment when the defendant has not been the

subject of “official accusation.” Id. at 466, 687 N.E.2d 433.

In the case at bar, the trial court found that, “Brenson was

the subject of official accusation at least as early as July 28,

2000, the date on which the original indictment was filed.

Therefore, the Court must determine if this case is factually

similar to Meeker in order to determine whether Brenson

may assert a violation of his speedy trial right.” [Judgment

Entry Denying Defendant Brenson's Motion to Dismiss

Indictment (Motion # 31), filed June 13, 2008 at 3]. The trial

court found that the case at bar was factually distinguishable

from the Meeker case. We agree.

In United States v. MacDonald (1982), 456 U.S. 1, 102 S.Ct.

1497, 71 L.Ed.2d 696, the defendant was accused of

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committing a murder on a military base. The military

brought charges, which were eventually dropped, and the

defendant was honorably discharged. Four years later, the

government obtained an indictment in federal district court

charging the defendant with the crime. He claimed that the

delay violated his Sixth Amendment right to a speedy trial.

The Fourth Circuit agreed, applying the Barker [v. Wingo

(1972), 407 U.S. 514, 92 S.Ct. 2182] factors. 632 F.2d 258,

266–67 (4th Cir.1980). The Supreme Court reversed. 456 U.S.

at 11, 102 S.Ct. 1497, 71 L.Ed.2d 696. The Court stated that

the protections afforded by the speedy trial guarantee did

not apply to the period after the dismissal of the military

charges and before the civil indictment. During that time, the

Court reasoned, there was no pretrial incarceration, no

impairment of liberty associated with being released on bail,

and no “disruption of life caused by arrest and the presence

of unresolved criminal charges.” Id. at 8, 456 U.S. 1, 102 S.Ct.

1497, 71 L.Ed.2d 696. While the defendant perhaps suffered

stress or anxiety, it was no greater than any other person

under criminal investigation. Id. at 9, 456 U.S. 1, 102 S.Ct.

1497, 71 L.Ed.2d 696. Thus, the Due Process Clause, rather

than the Sixth Amendment, provided the appropriate

framework for analyzing the delay. “The Sixth Amendment

right to a speedy trial is ... not primarily intended to prevent

prejudice to the defense caused by passage of time; that

interest is protected primarily by the Due Process Clause....”

Id. at 8. Thus, “[a]ny undue delay” before and after the

period protected by the Sixth Amendment “must be

scrutinized under the Due Process Clause....” Id. at 7, 456

U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696; United States v. Sanders

(6th Cir. 2006), 452 F.3d 572, 579.

The Ohio Supreme Court has espoused a similar view, “in

State v. Broughton (1991), 62 Ohio St.3d 253, 581 N.E.2d 541,

we considered a case in which a defendant was indicted on

November 17, 1988, the indictment was dismissed as

defective on July 18, 1989, and the defendant was later

indicted on October 18, 1989. Id. at 254, 581 N.E.2d 541. This

court held, ‘For purposes of computing how much time has

run against the state under R.C. 2945.71 et seq., the time

period between the dismissal without prejudice of an

original indictment and the filing of a subsequent

indictment, premised upon the same facts as alleged in the

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original indictment, shall not be counted unless the

defendant is held in jail or released on bail pursuant to

Crim.R. 12(I).’ Id., paragraph one of the syllabus.” State v.

Azbell (2006), 112 Ohio St.3d 300, 859 N.E.2d 532,

2006–Ohio–6552 at ¶ 17. (Emphasis added).

In the case at bar, the trial court ordered Brenson released

upon the dismissal of the previous indictment in January

2001. Because no charge was outstanding and he was not

held pending the filing of new charges or released on bail or

recognizance while awaiting the re-filing of charges Brenson

did not become a “person against whom a charge of felony is

pending” until he was arrested on the indictment in April

2008. Azbell, supra at ¶ 20.

Thus, if a defendant is the subject of official accusation prior

to indictment, the four-part test applicable to alleged

constitutional speedy trial violations set forth in Barker v.

Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

governs. State v. Flickinger (Jan. 19, 1999), Athens App. No.

98 CA 09 at n. 1. When the defendant is not the subject of

official accusation, however, a delay in commencing

prosecution does not implicate the defendant's constitutional

speedy trial rights. United States v. Marion (1971), 404 U.S.

307, 92 S.Ct. 455, 30 L.Ed.2d 468; State v. Luck (1984), 15 Ohio

St.3d 150, 153, 472 N.E.2d 1097, 1102. Additionally, when the

government voluntarily dismisses charges, the Sixth

Amendment does not require counting the time between

indictments. Rather, in either case, the defendant may assert

that the delay in commencing prosecution violated his due

process rights under the Fifth Amendment and under

Section 16, Article I of the Ohio. United States v. Lovasco

(1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; United

States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d

468; State v. Luck (1984), 15 Ohio St.3d 150, 153–54, 472

N.E.2d 1097, 1102. As the trial court recognized in the case at

bar, the Sixth Amendment has no application to the case at

bar. However, as the second syllabus in Luck states, “[a]n

unjustified delay between the commission of an offense and

a defendant's indictment therefore, which results in actual

prejudice to the defendant, is a violation of the right to due

process of law under Section 16, Article I of the Ohio

Constitution and the Fifth and Fourteenth Amendment to

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the United States Constitution.” Luck, 15 Ohio St.3d at 154,

472 N.E.2d at 1102. See also, United States v. Lovasco (1977),

431 U.S. 783, 789–790, 97 S.Ct. 2044, 2049, 752; Marion, 404

U.S. at 324, 92 S.Ct. at 465, Furthermore, any claim of

prejudice, such as the death of a key witness, lost evidence,

or faded memories, must be balanced against the other

evidence in the case in order to determine whether the

defendant will suffer actual prejudice at trial. Luck, supra.

When a defendant asserts a pre-indictment delay violated

his due process rights, prejudice may not be presumed.

United States v. Crouch (C.A.5, 1996), 84 F.3d 1497, 1514–1515.

The notion that prejudice may be presumed from a lengthy

delay arises in the context of the four-part balancing test

used in determining whether a post-indictment or postaccusation delay has deprived a defendant of his Sixth

Amendment right to a speedy trial. Barker v. Wingo (1972),

407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The Barker fourpart test, and the concept of presumptive prejudice, applies

only to post-indictment or post-accusation delays that

implicate the Sixth Amendment right to a speedy trial, and

has no application to pre-indictment delays. See, State v. Metz

(1998), Washington App. No. 96CA48, (Citation omitted);

State v. Harrell (Dec. 29, 1998), Delaware App. No.

98CAA06029.

The Ohio Supreme Court held that a delay in the

commencement of prosecution by the state would be found

unjustified when it is done in an attempt to gain a tactical

advantage over the defendant, or when the state “through

negligence or error in judgment, effectively ceases the active

investigation of a case, but later decides to commence

prosecution upon the same evidence that was available to it

at the time that its active investigation was ceased.” Luck, 15

Ohio St.3d at 158, 472 N.E.2d 1097. The Court also held that

the length of delay would normally be a key factor in this

determination. Id.

In the case at bar, Brenson claims that the following

prejudice has resulted from the delay between the dismissal

of the original indictment and his re-indictment: (1)

memories of witnesses have undoubtedly faded; (2) key

evidence pertaining to the case is likely to have been lost

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and/or destroyed; (3) current addresses and/or other

contact information for key witnesses is not currently known

to Brenson which may prejudice his efforts to effectively

investigate this case and possible defenses available to him;

(4) key witnesses may have died; and (5) Brenson has been

taken away from his wife and family. Brenson argues that

the foregoing factors, when viewed in light of the state's

reason for the delay in prosecution of this case, warrants

dismissal of the indictment on due process grounds.

The trial court found, “The prejudice that Brenson alleges in

this case is potential prejudice and not actual prejudice.

Brenson knows of no evidence or witnesses that are no

longer available. Rather, Brenson merely speculates that

witnesses may have died or that their memories may have

faded.”

The defendant has the burden of demonstrating prejudice.

E.g., United States v. Lawson (6th Cir. 1985), 780 F.2d 535,

541–42. A lengthy delay in prosecuting the defendant, by

itself, does not constitute actual prejudice. The defendant

must demonstrate how the length of the delay has

prejudiced his ability to have a fair trial. United States v.

Norris (S.D .Oh.2007), 501 F.Supp.2d 1092, 1096. In United

States v. Wright (6th Cir. 2003), 343 F.3d 849, 860, the Court

held that loss of memory is insufficient to establish prejudice

as a matter of law.

In the case at bar, Brenson has failed to demonstrate how the

testimony of “key” witnesses would have provided him

with exculpatory evidence. Brenson has also failed to

identify and demonstrate that key physical evidence is no

longer available. Because Brenson has not provided the

Court with a sufficient explanation of how his defense has

been affected negatively by the pre-indictment delay, the

Court cannot find that Brenson has suffered substantial

prejudice.

As the court stated in State v. Glasper (Feb. 2, 1997),

Montgomery App. No. 15740, “The defendant will not

satisfy his or her burden of proof by merely generally

alleging the possible prejudice inherent in any delay, for

example, that memories have faded, witnesses may be

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inaccessible, and evidence may be lost. The defendant must

identify the specific prejudice suffered, and that prejudice

must be substantial, for instance, that important taped

witness interviews were destroyed or that key witnesses

have died.” In State v. Flickinger, supra the court noted, “a

defendant must provide concrete proof that he will suffer

actual prejudice at trial as a result of the government's delay

in indicting the defendant. See, e.g., Crouch, 84 F.3d at 1515

(stating that vague assertions of faded memories are

insufficient to establish actual prejudice; the defendant must

state which witness is unable to fully recount the details of

the crime and how the witness' lapsed memory will

prejudice the defense); United States v. Beszborn (C.A.5, 1994)

21 F.3d 62, 67, certiorari denied sub nom, Westmoreland v.

United States, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 288

(stating that vague assertions of faded memories are

insufficient to establish actual prejudice); United States v.

Stierwalt (C.A.8, 1994), 16 F.3d 282, 285 (stating that

assertions of faded memories are insufficient to establish

actual prejudice when the defendant fails to specify how

witness' lapsed memory will harm his defense); United States

v. Harrison (S.D.N.Y.1991), 764 F.Supp. 29, 32 (stating that

assertion of faded memories is insufficient to establish actual

prejudice); United States v. Greer (D.Vt.1997), 956 F.Supp. 525,

528 (stating that a defendant must present concrete proof of

actual prejudice and not mere speculation of actual

prejudice)”. State v. Flickinger (Jan. 19, 1999), Athens App.

No. 98 CA 09A.

In the case sub judice, we believe that Brenson's assertion that

witnesses' memories have faded, that key evidence

pertaining to the case is likely to have been lost and/or

destroyed, and that current addresses and/or other contact

information for key witnesses is not currently known to

Brenson which may prejudice his efforts to effectively

investigate this case and possible defenses available to him

are much too speculative and fail to rise to the level of

concrete proof.

We find, therefore, that Brenson has failed to establish that

the delay in bringing the indictment caused Brenson actual

prejudice.

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Brenson I, 2010WL 3784890, at *5-10. 

Petitioner asserts that the prosecutor acted in a grossly negligent and careless

manner in delaying the prosecution against him. He asserts that the prosecution

delayed the re-filing of the Indictment in an improper attempt to persuade co-defendant

Allen to testify against Petitioner, and in order to unfairly obtain Petitioner’s

inconsistent statements for use against him. Corrected Memorandum in Support, Doc. No.

4, PageID# 165. Petitioner asserts he suffered prejudice because numerous witnesses

indicated that their memories had faded, the prosecution exploited the use of his

inconsistent statements at trial, fireworks taken from the murder victim’s basement

were lost, and Darla and David Herron, potential defense witnesses, were no longer

available.2

 PageID# 166-67. Petitioner also refers to the loss of potential witness Floyd

Bell, who died prior to the re-indictment, and who purportedly would have testified

that Herrell was alive when Petitioner left Herrell’s home. Petitioner asserts that Floyd

Bell’s wife would have corroborated that Petitioner went to see Herrell to purchase

fireworks. Petitioner states that he was unable to locate Bell’s wife, but does not

indicate how the passage of time caused that to be so. Reply, Doc. No. 19, PageID#

3654-55. 

2

David Herron died prior to trial, and Darla Herron suffered from dementia. Trial Transcript, at 2315–20 Darla Herron

told police she saw two white males “messing around with their truck.” ECF No. 39–1, PageID # 3937. One of them

threw a beer bottle into her front yard, which upset her. She woke up her husband, David Herron, and they watched the

two males walk down Noble Street to London Road returning and carrying items into a pink house. David Herron

indicated the men were carrying a garbage bag and carrying it into the pink house on High Street. They said that Herrell's

security lights kept coming on and off. They suspected Herrell's son, Mike had something to do with the murder. Neither

David nor Darla could identify the men. 

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The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to a speedy and public trial. U.S. Const. Amend. VI. However, it is

the Due Process Clause of the Fifth Amendment, and not the Sixth Amendment, that

protects against excessive pre-indictment delay. Barawskas v. Caruso, 2006 WL 3104038,

at *2 (E.D. Mich. Oct. 31, 2006)(citing United States v. Lovasco, 431 U.S. 783, 789 (1977);

United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992)). “ The Speedy Trial Clause does

not apply to pre-indictment delay because ‘only ‘a formal indictment or information or

else the actual restraints imposed by arrest and holding to answer a criminal charge ...

engage the particular protections' of that provision.’” Id. (citing Lovasco, 431 U.S. at 788-

89 (quoting United States v. Marion, 404 U.S. 307, 320 (1971)). The Constitution does not

require prosecutors to 

file charges as soon as probable cause exists but before they

are satisfied they will be able to establish the suspect's guilt

beyond a reasonable doubt. To impose such a duty “would

have a deleterious effect both upon the rights of the accused

and upon the ability of society to protect itself,” United States

v. Ewell, [383 U.S. 116, 120 (1966) ].

Lovasco, 431 U.S. at 791. The Due Process Clause of the Fifth Amendment requires

dismissal of the charges only where pre-indictment delay caused “substantial

prejudice” to a criminal defendant’s right to a fair trial and was an “intentional device

to gain tactical advantage over the accused.” United States v. Marion, 404 U.S. 307, 322

(1971). To obtain relief, the Petitioner must establish both that the government had no

valid reason for the delay or that some tactical advantage was sought to be obtained by

the delay.” United States v. DeClue, 899 F.2d 1465, 1468 (6th Cir.1990)(citing Payne v.

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Rees, 738 F.2d 118, 122 (6th Cir. 1984); United States v. Greene, 737 F.2d 572, 574 (6th Cir. 

1984). Petitioner cannot meet this requirement here. The government has stated a valid

reason for delay in prosecution – to obtain further evidence. 

[I]nvestigative delay is fundamentally unlike delay

undertaken by the Government solely “to gain tactical

advantage over the accused”. . . . Rather than deviating from

elementary standards of “fair play and decency,” a prosecutor

abides by them if he refuses to seek indictments until he is

completely satisfied that he should prosecute and will be able

promptly to establish guilt beyond a reasonable doubt.

Penalizing prosecutors who defer action for these reasons

would subordinate the goal of “orderly expedition” to that of

“mere speed.” This the Due Process Clause does not require.

We therefore hold that to prosecute a defendant following

investigative delay does not deprive him of due process, even

if his defense might have been somewhat prejudiced by the

lapse of time.

Lovasco, 431 U.S. at 795-796 (footnotes and citations omitted). Thus, “to prosecute a

defendant following investigative delay does not deprive [Petitioner] of due process,

even if his defense might have been somewhat prejudiced by the lapse of time.” Id. at

796. The record does not support a conclusion that police were failing at all to pursue

investigation of the charges during the time period at issue, see Exhibits to Motion for

Discovery, PageID #3934-40, and in order to obtain relief under a claim involving preindictment delay, the petitioner must establish both improper reasons for the delay and

prejudice. United States v. Brown, 498 F.3d 523, 528 (6th Cir. 2007)(citations omitted). 

Petitioner has failed to do so here. 

The Sixth Circuit has repeatedly held that where the preindictment delay is caused merely by negligence on the part

of prosecutors or police, no due process violation exists. U.S.

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v. Rogers. 118 F.3d 466, 476 (6th Cir. 1997) (rejecting the

argument that “reckless or negligent disregard of a

potentially prejudicial circumstance violates the Fifth

Amendment guarantee of due process”); See also U.S. v.

Banks, 27 Fed. Appx. 354, 357 (6th Cir. 2001) (“Our Circuit

has recognized that where delay is due to simple negligence

and not a concerted effort by the government to gain an

advantage, no due process violation exists”). Finally, where

a habeas petitioner fails to show that the prosecutor delayed

the prosecution for illegitimate reasons, it is unnecessary for

a court to determine whether the petitioner satisfies the

“substantial prejudice” requirement. See Wolfe v. Bock, 253

Fed. Appx. 526, 532 (6th Cir. 2007) (petitioner failed to

establish that 15–year delay between murder and his arrest

was for illegitimate reasons, as was required to support

claim that delay violated petitioner's due process right to a

fair trial). 

McGuire v. Ludwick, No. 2:07-cv-15399, 2009 WL 2476452, at *6 (E.D. Mich. Aug. 11,

2009). “It is well-established that a delay resulting from investigative efforts ‘does not

deprive [a defendant] of due process, even if his defense may have been somewhat

prejudiced by the lapse of time.’” United States v. Rogers, 118 F.3d 466, 475-76 (6th Cir.

1977)(citing United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986) (citations omitted),

cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987); United States v. Lovasco,

431 U.S. at 796 (1977) (holding that “to prosecute a defendant following investigative

delay does not deprive him of due process, even if his defense might have been

somewhat prejudiced by the lapse of time”)). The Supreme Court in Marion explained:

Appellees rely solely on the real possibility of prejudice

inherent in any extended delay: that memories will dim,

witnesses become inaccessible, and evidence be lost. In light

of the applicable statute of limitations, however, these

possibilities are not in themselves enough to demonstrate

that appellees cannot receive a fair trial and to therefore

justify the dismissal of the indictment.

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Marion, 404 U.S. at 235-26. 

Claims one and two fail to warrant habeas corpus relief. 

V. CLAIM THREE

In claim three, Petitioner asserts that he was denied a fair trial because the trial court

refused to sever his trial from that of the co-defendant William T. Allen, and DNA

evidence establishing Allen’s identity as the murderer unfairly prejudiced him. 

Corrected Memorandum in Support, Doc. No. 4, PageID# 168-69. Petitioner additionally

asserts that the trial court’s denial of his motion to sever trials violated Ohio law. 

The state appellate court reviewed this claim as follows: 

Brenson asserts that the trial court erred in refusing to sever

his trial from that of his codefendant, William Allen. We

disagree.

Brenson and Allen were jointly indicted on seven counts

related to the murder of Norman Herrell. In count one, both

men were charged with the aggravated murder of Herrell

under R.C. 2903.01(A). In count two, they were charged with

the aggravated murder of Herrell under R.C. 2903.01(B). In

count three, they were charged with Herrell's murder under

R.C. 2903.02(B). In count four, they were charged with

kidnapping under R.C. 2905.01(A)(2). In count five, they

were charged with kidnapping under R.C. 2905.01(A)(3). In

counts six and seven, the men were charged with aggravated

robbery, in violation of R.C. 2911.01(A)(3) and R.C. 2911

.01(A)(1), respectively.

Defendants may be charged in the same indictment,

pursuant to Ohio Crim. R. 8(B) as follows:

“Two or more defendants may be charged in the same

indictment, information or complaint if they are alleged to

have participated in the same act or transaction or in the

same series of acts or transactions constituting an offense or

offenses, or in the same course of criminal conduct. Such

defendants may be charged in one or more counts together

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or separately, and all of the defendants need not be charged

in each count.”

The law favors the joinder of defendants and the avoidance

of multiple trials because joinder conserves judicial and

prosecutorial time, lessens the expenses of multiple trials,

diminishes the inconvenience to witnesses, and minimizes

the possibility of incongruous results from successive trials

before different juries. State v. Thomas (1980), 61 Ohio St.2d

223, 400 N.E.2d 401.

In order to obtain a severance, a defendant needed to

affirmatively demonstrate prejudice by the joinder. Crim.R.

14. Crim R. 14 provides, in pertinent part:

“If it appears that a defendant or the state is prejudiced by a

joinder of offenses or of defendants in an indictment,

information, or complaint, or by such joinder for trial

together of indictments, information or complaints, the court

shall order an election or separate trial of counts, grant a

severance of defendants, or provide such other relief as

justice requires. In ruling on a motion by a defendant for

severance, the court shall order the prosecuting attorney to

deliver to the court for inspection pursuant to Rule

16(B)(1)(a) any statements or confessions made by the

defendants which the state intends to introduce in evidence

at the trial.”

The United States Supreme Court has stated, “a district court

should grant a severance under Rule 14 only if there is a

serious risk that a joint trial would compromise a specific

trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” Zafiro

v. United States (1993), 506 U.S. 534, 539, 113 S.Ct. 933, 122

L.Ed.2d 317. Even where the risk of prejudice is high, “less

drastic measures, such as limiting instructions, often will

suffice to cure any risk of prejudice.” Id. Indeed, “[a] request

for severance should be denied if a jury can properly

compartmentalize the evidence as it relates to the

appropriate defendants.” United States v. Causey (6th

Cir.1987), 834 F.2d 1277, 1287. Thus, to prevail on his

severance argument, an appellant must show “compelling,

specific, and actual prejudice from [the] court's refusal to

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grant the motion to sever.” United States v. Saadey (6th Cir.

2005), 393 F.3d 669, 678; United States v. Driver (6th Cir. 2008),

535 F.3d 424, 427.

In this assignment of error, Brenson argues that the error at

issue in this case, i.e. failure to conduct separate trials,

created a risk that the jury would convict Brenson based on

evidence that was attributable to his co-defendant, Allen.

Brenson's Pre–Trial Motion to Sever

In the case at bar, Allen filed a Motion for Relief from

Prejudicial Joinder (Motion # 30), filed on April 21, 2008, and

Brenson's filed a Motion to Sever Trial (Motion # 29), filed

on April 25, 2008. The State of Ohio filed responses on April

24, 2008 and April 28, 2008, respectively. On April 30, 2008,

the trial court ordered that any statements of Allen and

Brenson be provided to the Court under Crim.R. 14. The

State filed a Summary of Statements on May 8, 2008, and

filed a Supplemental Summary of Statements for Virgil

McClendon's Anticipated Testimony on May 14, 2008.

Brenson filed a supplemental memorandum in support of

his motion to sever on May 12, 2008. Allen filed a response

to the State's Summary of Statements on May 15, 2008. The

State filed a response to Allen's Response on May 16, 2008.

Allen filed a reply thereto on May 19, 2008. The State also

filed a response to Brenson's supplemental memorandum on

May 19, 2008.

The burden is upon the defendant to show good cause why

a separate trial should be granted. In order to determine

whether the trial court correctly ruled upon Brenson's pretrial motion to sever filed May 23, 2008, we must review the

evidence Brenson and Allen presented to the trial court in

support of each motion. Further, we must examine the trial

court's review of that evidence when it denied the pre-trial

motion to sever to determine whether Brenson and/or Allen

affirmatively demonstrate prejudice by the joinder thereby

demonstrating the trial court abused its discretion by

overruling either or both pre-trial motions to sever.

In determining whether to sever the trials of Allen and

Brenson, the trial court reviewed the summary of statements

filed by the State, in addition to the following: (1) interview

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with Allen on February 13, 2006; (2) interview with Allen on

June 15, 2006; (3) interview with Allen on August 9, 2007; (4)

interview with Brenson on January 14, 2003; (5) grand jury

testimony of Brenson on April 18, 2002; (6) grand jury

testimony of Brenson on April 15, 2008; (7) summary of

statements of Allen to Virgil McClendon; and (8) statements

of Brenson to Allen contained in letters. Judgment Entry

Denying Defendant Allen's Motion for Relief From

Prejudicial Joinder (Motion # 30) and Defendant Brenson's

Motion to Sever Trial (Motion # 29), filed May 23, 2008 at 2.

In reviewing the grounds submitted in support of the

motions, the trial court noted, “Both Defendants maintain

that certain statements made by the codefendant may tend

to incriminate the other defendant without the opportunity

to cross-examine the co-defendant about the statement.”

Judgment Entry Denying Defendant Allen's Motion for

Relief From Prejudicial Joinder (Motion # 30) and Defendant

Brenson's Motion to Sever Trial (Motion # 29), filed May 23,

2008 at 4.

The trial court addressed the statements made by Allen. Law

enforcement officers interviewed Allen on February 13, 2006,

June 15, 2006, and August 9, 2007. During these interviews,

Allen admitted that he knew Brenson and that he met him at

the Ohio Penitentiary. Allen further stated that he had never

been to Delaware, Ohio. None of the statements made by

Allen during these interviews are inculpatory of Brenson.

Judgment Entry Denying Defendant Allen's Motion for

Relief From Prejudicial Joinder (Motion # 30) and Defendant

Brenson's Motion to Sever Trial (Motion # 29), filed May 23,

2008. The trial court found, “The statements made by Allen

do not implicate Brenson in any wrongdoing; thus, the

statements are not made “against” Brenson and the Sixth

Amendment right to confrontation is not triggered. Thus, the

statements made by Allen during his interviews are

admissible. Judgment Entry denying Defendant Allen's

Motion for Relief From prejudicial Joinder (Motion # 30) and

Defendant Brenson's Motion to Sever Trial (Motion # 29),

filed May 23, 2008 at 6–7.

The State also sought to admit statements that Allen made to

a cellmate, Virgil McClendon. The summary of McClendon's

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statement was presented to the Court in a supplemental

summary filed on May 14, 2008. Brenson argued, “that

McClendon will likely testify as to statements allegedly

made by Allen in which he confessed to his involvement in

the crimes charged. Specifically, Allen allegedly stated to

McClendon that he committed the crimes with a friend who

had previously been charged with the crimes, but the

charges had been dismissed. Brenson argues that there is no

question that the “friend” referred to by Allen could only be

Brenson, as Brenson is the only other person previously

charged with these crimes. Brenson contends that the State's

attempt to elicit these extra judicial statements by Allen will

deny Brenson his right to cross-examination.” Judgment

Entry Denying Defendant Allen's Motion for Relief From

Prejudicial Joinder (Motion # 30) and Defendant Brenson's

Motion to Sever Trial (Motion # 29), filed May 23, 2008 at 7.

The State countered that “the majority of Allen's statements

were not made against Brenson; therefore, the statements do

not trigger the Confrontation Clause. The State suggests that

any of Allen's statements, which do implicate Brenson, can

be redacted prior to their admission at trial without violating

Bruton. Brenson similarly argues that if the Court permits

joinder, it should apply the ruling of Marsh by redacting

from Allen's statements to McClendon any mention of the

involvement of another individual in the death of the victim.

The trial court ruled, “After reviewing the summary of

McClendon's anticipated testimony, the Court determines

that it will permit the testimony of McClendon regarding the

statements made to him by Allen, except for the statements

Allen made that ‘they had let one guy go for the same

murder.’ “ Judgment Entry Denying Defendant Allen's

Motion for Relief From Prejudicial Joinder (Motion # 30) and

Defendant Brenson's Motion to Sever Trial (Motion # 29),

filed May 23, 2008 at 7–8.

The trial court next reviewed the argument that both Allen

and Brenson raised that they will be presenting mutually

antagonistic defenses, and thus a joint trial will violate their

constitutional rights. The trial court noted, “Brenson

generally argues that the Defendants will present mutually

antagonistic and hostile defenses.” Judgment Entry Denying

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Defendant Allen's Motion for Relief From Prejudicial Joinder

(Motion # 30) and Defendant Brenson's Motion to Sever Trial

(Motion # 29), filed May 23, 2008 at 9.

The trial court found that “Brenson fails to set forth any facts

to establish any risk of prejudice.” Judgment Entry Denying

Defendant Allen's Motion for Relief From Prejudicial Joinder

(Motion # 30) and Defendant Brenson's Motion to Sever Trial

(Motion # 29), filed May 23, 2008 at 9. The trial court ruled,

“Allen fails to demonstrate how Brenson's statements

regarding his relationship with the victim or his purchase of

illegal fireworks from the victim results in the presentation

of antagonistic defenses by the defendants ... Moreover, the

trial court can give instructions to the jury relating to

multiple defendants—that the jury must separately decide

the question of guilt or innocence of each of the

defendants—thereby curing any risk of prejudice in this

case.” Id. at 9.

Mutually Antagonistic Defenses

A defendant is not entitled to severance based upon

mutually antagonistic defenses unless “there is a serious risk

that a joint trial could compromise a specific trial right of one

of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro v. United States

(1993), 506 U.S. 534, 539, 113 S.Ct. 933, 937, 122 L.Ed.2d 317.

“A defendant reaches a level of antagonism (with respect to

the defense of a co-defendant) that compels severance of that

defendant, if the jury, in order to believe the core of

testimony offered on behalf of that defendant, must

necessarily disbelieve the testimony offered on behalf of his

co-defendant. In such a situation, the codefendants do

indeed become the government's best witnesses against each

other. Where two defendants present defenses that are

antagonistic at their core, a substantial possibility exists that

the jury will unjustifiably infer that this conflict alone

demonstrates that both are guilty.” United States v. Berkowitz

(C.A.5, 1981), 662 F.2d 1127, 1133. (Internal quotation marks

omitted). (Citations Omitted). Accord, State v. Walters,

Franklin App. No. 06AP–693, 2007–Ohio–5554, at ¶ 23; State

v. Evans, Scioto App. No. 08CA3268, 2010–Ohio–2554 at ¶ 43.

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“Notwithstanding such assertions, the courts have reversed

relatively few convictions for failure to grant a severance on

grounds of mutually antagonistic or irreconcilable defenses.

See, e.g., United States v. Tootick, 952 F.2d 1078 (C.A.9 1991);

United States v. Rucker, 915 F.2d 1511, 1512–1513 (C.A.11

1990); United States v. Romanello, 726 F.2d 173 (C.A.5 1984).

The low rate of reversal may reflect the inability of

defendants to prove a risk of prejudice in most cases.” Zafiro

v. U.S. (1993), 506 U.S. 534, 538, 113 S.Ct. 933, 937, 122

L.Ed.2d 317.

After a thorough review of the record, we find no evidence

suggesting that Brenson and Allen intended to present, or

did present antagonistic defenses at trial. Rather it is clear in

the case at bar that both Brenson and Allen maintained that

he had nothing to do with the murder. Neither party

presented testimony or evidence to incriminate the other

person. Further, the state did not introduce the fact that

Allen had made statements to a cellmate confessing his

involvement in the crime and inculpating himself and

Brenson.

Accordingly, based on the record before the trial court when

Brenson filed his written pretrial motion to sever the trial,

and based upon the evidence presented at trial, we conclude

that the trial court did not abuse its discretion in granting the

motion in part, and denying that motion in part.

Our inquiry, however, does not end there. Brenson also

claims that, as the trial developed, he was substantially

prejudiced by the joint trial. In the case at bar, Brenson

renewed his objection to the trial court's overruling his pretrial motion to sever prior to the close of the evidence. (13T.

at 1810–1812).

Spill Over Doctrine

Brenson argues, in essence, that the evidence against Allen is

more damaging than the evidence against him.

In a case involving several defendants, the court must take

care that evidence against one defendant is not

misinterpreted by the jury and used as the basis for

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convicting another defendant not connected to the evidence.

The existence of ... a “spill-over” or “guilt transference”

effect turns in part on whether the numbers of conspiracies

and conspirators involved were too great for the jury to give

each defendant the separate and individual consideration of

the evidence against him to which he was entitled. United

States v. Gallo (6th Cir. 1985), 763 F.2d 1504, 1526. (Citing

United States v. Tolliver (2nd Cir. 1976), 541 F.2d 958, 962).

The primary concern is whether the jury will be able to

segregate the evidence applicable to each defendant and

follow the limiting instructions of the court as they apply to

each defendant. Opper v. United States (1954), 348 U.S. 84, 95,

75 S.Ct. 158, 165, 99 L.Ed. 101; See, e.g., Kotteakos v. United

States (1946), 328 U.S. 750, 766–74, 66 S.Ct. 1239, 1248–52, 90

L.Ed. 1557,(number of defendants); Blumenthal v. United

States (1947), 332 U.S. 539, 560, 68 S.Ct. 248, 257, 92 L.Ed.

154,(trial judge's instructions). United States v. Flaherty (1st

Cir. 1981), 668 F.2d 566, 582; United States v. Causey (6th Cir.

1987), 834 F.2d 1277.

The phrase “prejudicial to the rights of the accused” means

something more than that a joint trial will probably be less

advantageous to the accused than separate trials. Such a

party must show more than that a separate trial would have

given him a better chance for acquittal. United States v. Gallo,

supra at 1526. The United States Supreme Court has stated,

“a district court should grant a severance under Rule 14 only

if there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or

innocence.” Zafiro v. United States (1993), 506 U.S. 534, 539,

113 S.Ct. 933, 122 L.Ed.2d 317.

The violation of one of his substantive rights by reason of the

joint trial include: unavailability of full cross-examination,

lack of opportunity to present an individual defense, denial

of Sixth Amendment confrontation rights, lack of separate

counsel among defendants with conflicting interests, or

failure properly to instruct the jury on the admissibility of

evidence as to each defendant. See United States v. Camacho

(9th Cir.) 528 F.2d 464, 470, cert. denied, 429 U.S. 995, 96 S.Ct.

2208, 48 L.Ed.2d 819 (1976); United States v. Fernandez (9th

Cir.2004), 388 F.3d 1199, 1241.

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It is difficult to meet this burden by claiming that the jury

probably considered evidence against one defendant that

was introduced only against another: “juries are presumed

to be capable of following instructions regarding the sorting

of evidence and the separate consideration of multiple

defendants.” United States v. Franklin (6th Cir. 2005), 415 F.3d

537, 556 (citations omitted).

Even where the risk of prejudice is high, “less drastic

measures, such as limiting instructions, often will suffice to

cure any risk of prejudice.” Zafiro v. United States, supra.

Indeed, “[a] request for severance should be denied if a jury

can properly compartmentalize the evidence as it relates to

the appropriate defendants.” United States v. Causey (6th Cir.

1987), 834 F.2d 1277, 1287. Thus, to prevail on his severance

argument, an appellant must show “compelling, specific,

and actual prejudice from [the] court's refusal to grant the

motion to sever.” United States v. Saadey (6th Cir. 2005), 393

F.3d 669, 678; United States v. Driver (6th Cir. 2008), 535 F.3d

424, 427; Crim.R. 14.

In the case at bar Brenson failed to establish specific and

actual prejudice.

In the case at bar, before deliberations, the trial court

specifically admonished the jury that “Evidence may be

admitted against one defendant, even though it must not be

considered as evidence against the other defendant. You

must carefully separate such evidence and consider it only

as to the defendant to whom it applies. A statement by one

defendant made outside the presence of the other defendant

is admissible as to the defendant making such statement and

must not be considered for any purpose as evidence against

the other defendant.

“You must decide separately the question of whether one or

both defendants are guilty or not guilty. If you cannot agree

on a verdict as to both defendants, but do agree as to one,

you must render a verdict as to the one upon whose guilty

or not guilty finding you agree.” (17T. at 2588).(See also

Judgment Entry Denying Defendant Allen's Motion for

Relief From Prejudicial Joinder (Motion # 30) and Defendant

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Brenson's Motion to Sever Trial (Motion # 29), filed May 23,

2008 at 9).

Brenson does not challenge the clarity of these instructions.

These instructions sufficed to cure any possibility of

prejudice. Zafiro, supra 506 U.S. at 450, 113 S.Ct. at 939.

In Bruton v. United States (1968), 391 U.S. 123, 135–136, 88

S.Ct. 1620, 20 L.Ed.2d 476, the United States Supreme Court

noted:

“ * * * Not every admission of inadmissible hearsay or other

evidence can be considered to be reversible error

unavoidable through limiting instructions; instances occur in

almost every trial where inadmissible evidence creeps in,

usually inadvertently. “A defendant is entitled to a fair trial

but not a perfect one.” * * * It is not unreasonable to conclude

that in many such cases the jury can and will follow the trial

judge's instructions to disregard such information.”

“A presumption always exists that the jury has followed the

instructions given to it by the trial court,” Pang v. Minch

(1990), 53 Ohio St.3d 186, 187, 559 N.E.2d 1313, at paragraph

four of the syllabus, rehearing denied, 54 Ohio St.3d 716, 562

N.E.2d 163, approving and following State v. Fox (1938), 133

Ohio St. 154, 12 N.E.2d 413; Browning v. State (1929), 120

Ohio St. 62, 165 N.E. 566. Brenson has not cited any evidence

in the record that the jury failed to follow the trial court's

instruction.

“[A] defendant is not entitled to a severance simply because

the evidence against a co-defendant is far more damaging

than the evidence against him. As we noted in United States

v. Warner, 690 F.2d 545, 553 (6th Cir. 1982): ‘We recognize

that, in a joint trial, there is always a danger that the jury will

convict on the basis of the cumulative evidence rather than

on the basis of the evidence relating to each defendant.

However, we adhere to the view, as previously stated by our

court, that ‘[t]he jury must be presumed capable of sorting

out the evidence and considering the case of each defendant

separately.’ Id. (citations omitted). The presentation of

evidence applicable to more than one defendant is simply a

fact of life in multiple defendant cases.” Driver, supra 535

F.3d at 427. (Quoting Causey, supra 834 F.2d at 1288).

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Brenson concedes “the vast majority of the evidence focused

on Brenson and his activities”; however he claims that, “the

most incriminating piece of evidence was exclusively related

to Allen [, i.e.] the DNA on the bloody glove, which was the

only evidence that directly tied either defendant to the

murder”. [Appellant's Brief at 39].

In this case, we find that Brenson did not meet his burden of

demonstrating specific and actual prejudice because of the

admission of this evidence in a joint trial with Allen. There

was no evidence that the jury was not able to heed the trial

court's instruction to consider separately the evidence

against each defendant, and Brenson failed to establish that a

specific trial right was compromised because of this

evidence. The appellant bears the burden of making a strong

showing of factually specific and compelling prejudice

resulting from a joint trial. United States v. Lloyd, (6th Cir.

1993), 10 F.3d 1197, 1215–1216; United States v. Warner, supra

971 F.2d at 1196. Brenson makes only a generalized

argument with no factually specific and compelling

prejudice argued or demonstrated by the record.

In addition, the DNA evidence cited by Brenson was

relevant and admissible against him in a separate trial FN8.

Brenson overlooks the fact that the jury was instructed on

complicity. (17T. at 2587). R.C. 2923.03 provides: “(A) No

person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

FN8. Evidence that Brenson and Herrell met while in prison

was not objected to at trial. (14T. at 1983–1984). Accordingly,

Brenson has waived all but plain error. State v. Grubb (1986),

28 Ohio St.3d 199, 203,503 N.E.2d 142; Puckett v. United States

(2009), ––– U.S. ––––, ––––, 129 S.Ct. 1423, 1428, 173 L.Ed.2d

266. omitted).

“ * * *

“(2) Aid or abet another in committing the offense .”

R.C. 2923.03(F) states, “A charge of complicity may be stated

in terms of this section, or in terms of the principal offense.”

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“The Supreme Court of Ohio clarified Ohio's position on the

issue of complicity in State v. Perryman (1976), 49 Ohio St.2d

14, 358 N.E.2d 1040, vacated in part on other grounds sub

nom, Perryman v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3136, 57

L.Ed.2d 1156. The court unequivocally approved of the

practice of charging a jury regarding aiding and abetting

even if the defendant was charged in the indictment as a

principal. Id. The court held that the indictment as principal

performed the function of giving legal notice of the charge to

the defendant. Id. Therefore, if the facts at trial reasonably

supported the jury instruction on aiding and abetting, it is

proper for the trial judge to give that charge. Perryman, supra

at 27, 28.” State v. Payton (April 19, 1990), 8th Dist. Nos.

58292, 58346.

R.C. 2923.03(F) adequately notifies defendants that the jury

may be instructed on complicity, even when the charge is

drawn in terms of the principal offense. See State v. Keenan

(1998), 81 Ohio St.3d 133, 151, 689 N.E.2d 929, 946, citing Hill

v. Perini (C.A.6, 1986), 788 F.2d 406, 407–408. State v. Herring

(2002), 94 Ohio St.3d 246, 251 762 N.E.2d 940, 949.

“[To] support a conviction for complicity by aiding and

abetting pursuant to R.C. 2923.03(A)(2), the evidence must

show that the defendant supported, assisted, encouraged,

cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the

criminal intent of the principal.” State v. Johnson (2001), 93

Ohio St.3d 240, 754 N.E.2d 796, syllabus.

Although the state need not establish the principal's identity,

it must, at the very least, prove that a principal committed

the offense. State v. Perryman (1976), 49 Ohio St.2d 14, 358

N.E.2d 1040, paragraph four of the syllabus; State v. Hill

(1994), 70 Ohio St.3d 25, 28, 635 N.E.2d 1248, 1251. However,

the state does not need to prove that the accomplice and

principal had a specific plan to commit a crime. Johnson, 93

Ohio St.3d at 245, 754 N.E.2d 796. The fact that the defendant

shares the criminal intent of the principal may be inferred

from the circumstances surrounding the crime, which may

include the defendant's presence, companionship, and

conduct before and after the offense is committed. Id. at

245–246, 754 N.E.2d 796. This is a situation where

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“[c]ircumstantial evidence and direct evidence inherently

possess the same probative value,” State v. Jenks (1991), 61

Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the

syllabus, because “[t]he intent of an accused person dwells

in his mind. Not being ascertainable by the exercise of any or

all of the senses, it can never be proved by the direct

testimony of a third person, and it need not be.” In re

Washington, 81 Ohio St.3d 337, 340, 1998–Ohio–627, quoting

State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313,

paragraph four of the syllabus.

Accordingly, because Brenson could be found guilty of

aiding and abetting Allen in the commission of the crimes

with which he was charged, and vice versa, evidence

relating to Allen is relevant to Brenson's trial and would be

admissible in a separate trial. Evidence that Allen's DNA

was found at the scene would be non-testimonial and

admissible.

DNA samples have been held to be non-testimonial evidence

with respect to the Fifth Amendment privilege against selfincrimination. State v. Bruce, Fairfield App. No.2006–CA–45,

2008–Ohio–5709 at ¶ 48. A DNA sample obtained from a

state prisoner, pursuant to Ohio statute requiring the

collection of DNA specimens from convicted felons, was

physical, rather than testimonial evidence, and thus did not

implicate the prisoner's Fifth Amendment privilege against

self-incrimination. Wilson v. Collins (C.A.6, 2008), 517 F.3d

421, 431. The Court reasoned that a DNA sample was

analogous to a photograph or fingerprint identifying an

individual. Id. (Citing United States v. Zimmerman, 514 F.3d

851, 853 (9th Cir. 2007) (citing Schmerber v. California, 384 U.S.

757, 765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (holding that

“blood test evidence, although an incriminating product of

compulsion, [is] neither [ ] testimony nor evidence relating

to some communicative act or writing” and is therefore not

protected by the Fifth Amendment)).

Evidence that an accomplice and principal were acting

together can be shown by evidence the accomplice

accompanied the principal to the scene of the crime. State v.

Johnson, supra 93 Ohio St.3d at 244, 754 N.E.2d 800; State v.

Jones (Sept. 20, 2001), 8th Dist. No. 78545; State v. Rodriguez

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(May 17, 2000), 9th Dist. No. 98CA007255; In re Moore (Feb. 3,

2000), 8th Dist. No. 75673. Finding Allen's DNA in the

general vicinity of Brenson's fingerprints and a blood soaked

glove in the home of the victim could support an inference

that Brenson supported, assisted, encouraged, and

cooperated with Allen in the commission of the crimes FN9.

FN9. Evidence concerning the search and inventory of

Brenson's vehicle was stricken by the court and the jury was

instructed to disregard such evidence. This evidence is more

fully addressed in relation to appellant's seventh assignment

of error, infra.

In the case at bar, the evidence against Allen was easily

identifiable and capable of being separately identified and

compartmentalized by the jury. We find that Brenson did

not meet his burden of demonstrating compelling, specific,

and actual prejudice because of the admission of Allen's

DNA evidence in Brenson's joint trial with Allen. The mere

fact that there “is a substantial difference in the amount of

evidence adduced against each defendant ... is not grounds

to overturn a denial of severance unless there is a substantial

risk that the jury could not compartmentalize or distinguish

between the evidence against each defendant.” Clark v.

O'Dea, 257 F.3d 498, 504 (6th Cir. 2001) ( quoting United

States v. Lloyd, 10 F.3d 1197, 1215 (6th Cir. 1993)). Moreover,

this case, while lengthy, was not a case of such complexity

that the jury could not compartmentalize the evidence.

United States v. Lloyd, supra 10 F.3d at 1216. We do not think

there was any significant danger of jury confusion, let alone

such a danger as would warrant a severance.

We decline to hold that a separate trial is necessary

whenever any potentially incriminating evidence against

one codefendant is introduced during a joint trial. See

Richardson v. Marsh, supra, 481 U.S. at 209–10, 107 S.Ct. 1702,

95 L.Ed.2d 176. In the absence of a showing to the contrary,

the jury is presumed to have followed the instructions of the

court. State v. Negron, supra, 221 Conn. at 331, 603 A.2d 1138;

see also Richardson v. Marsh, supra, at 206, 481 U.S. 200, 107

S.Ct. 1702, 95 L.Ed.2d 176. The mere fact that there “is a

substantial difference in the amount of evidence adduced

against each defendant ... is not grounds to overturn a denial

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of severance unless there is a substantial risk that the jury

could not compartmentalize or distinguish between the

evidence against each defendant.” Clark v. O'Dea, 257 F.3d

498, 504 (6th Cir. 2001) ( quoting United States v. Lloyd, 10

F.3d 1197, 1215 (6th Cir. 1993)). Moreover, this case, while

lengthy, was not a case of such complexity that the jury

could not compartmentalize the evidence. United States v.

Lloyd, supra 10 F.3d at 1216. We do not think there was any

significant danger of jury confusion, let alone such a danger

as would warrant a severance.

As such, we conclude that the danger of prejudice due to the

“spillover” of evidence is insufficient to justify severance for

Brenson.

Because Brenson has not shown that his joint trial subjected

him to any legally cognizable prejudice, we conclude that

the trial court did not abuse its discretion in denying

Brenson's motion for severance. Zafiro, supra 506 U.S. at 450,

113 S.Ct. at 939.

Accordingly, Brenson's third assignment of error is

overruled.

Brenson I, 2010 WL 3784890, at *11-20. 

Petitioner refers to the dissenting opinion in Brenson I, in support of his claim,

Traverse, Doc. No. 19, PageID# 3655, which indicates in relevant part as follows:

I conclude by noting that the majority, as it did in State v.

Allen, Delaware App. No. 09–CA–13, ––– Ohio ––––,

continues to incorrectly follow federal law in determining

the appropriate test in ruling upon a motion to sever. See

majority opinion, ¶¶ 102–112. The majority repeatedly states

that Appellant has failed to show “compelling, specific, and

actual prejudice” with respect to his severance argument. In

so doing, the majority cites to the Sixth Circuit cases of

United State v. Saadey (6th Cir. 1993), 393 F.3d 669 and United

States v. Driver (6th Cir. 2008) 535 F.3d 424. Both of these

cases deal with federal RICO charges and the severance of

charges, not the severance of co-defendants. The majority

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fails to note that Ohio has not adopted this standard. See

e.g., paragraph 203, infra.

The majority also cites United States v. Lloyd, (6th Cir. 1993)

10 F.3d 1197, for the proposition that the “appellant bears the

burden of making a strong showing of factually specific and

compelling prejudice from a joint trial.” See majority

opinion, ¶ 112. However, the majority fails to point out that

in Lloyd, the Sixth Circuit pointed out that “in reaching this

conclusion, we view as significant the fact that the evidence

against these defendants was simply overwhelming.” Id. at

fn. 22. Such is not the case here.

Moreover, federal courts have held that state law severance

claims are governed by State law, not by federal law. U .S. v.

Hutchinson (6th Cir. 2002), 303 F.3d 720. Phillips v. Million

(6th Cir.2004), 374 F.3d 395, (wherein federal court pointed

out that they must look to Kentucky law to determine

whether the motion to grant severance should be granted. In

addition, they stated that Zafiro involved the interpretation

of Federal Rules of Criminal Procedure 8, 14, an 18, not the

United States Constitution, and thus Zafiro had no

precedential weight in reviewing state court proceedings on

due process grounds.) Million, at 393; see also Perrou v. Jones

(E.D.Mich. 2009), No. 06–14941, 2009 WL 2392971.

The standard, as cited by the majority, is simply not the

standard for establishing severance in Ohio courts. That

standard, as set forth in State v. Torres (1981), 66 Ohio St.2d

340, 343, 421 N.E.2d 1288, is as follows. “A defendant

claiming error in the trial court's refusal to allow separate

trials of multiple charges has the burden of affirmatively

showing that his rights were prejudiced. State v. Roberts

(1980), 62 Ohio St.2d 170, 175, 405, 405 N.E.2d 247, N.E.2d

247; * * *.; see also State v. Hand, 107 Ohio St.3d 378,

2006–Ohio–18, 840 N.E.2d 151; and State v. McKnight, 107

Ohio St.3d 101, 2005–Ohio–6046, 837 N.E.2d 315. He must

demonstrate that the trial court abused its discretion in

refusing to separate the charges for trial. Opper v. United

States (1954), 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101;

Wright, Federal Practice and Procedure 468, Section 227.

More specifically, he has the burden of furnishing the trial

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court with sufficient information so that it can weigh the

considerations favoring joinder against the defendant's right

to a fair trial.” Other courts have held that “error is

prejudicial if there is a reasonable probability that the verdict

might have been more favorable to the defendant if the error

had not been made.” Rolle v. State (Wyo. 2010), 2010 WY 100,

236 P.3d 259, citing Vigil v. State (Wyo. 2010), 2010 Wy 15,

224 P.3d 31.

For these reasons, I must dissent.

Brenson I, at 65-66

Petitioner asserts that the trial court’s refusal to grant his motion for a severance

contravened or unreasonably applied Zafiro v. United States, 506 U.S. 534, 539 (1993). 

Supplemental Reply, Doc. No. 38, PageID# 3854. He argues that evidence indicating that

police found Allen’s DNA on a bloody glove inside of the house unfairly prejudiced

him, causing the jury to convict him on the basis of cumulative evidence rather than just

the evidence that directly implicated him in the crime. Petitioner’s Supplemental

Traverse, Doc. No. 38, PageID# 3854-56. 

A trial court's refusal to grant a request for a severance of trials generally

constitutes a matter of state law. See Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002);

Brinkley v. Houk, 866 F.Supp.2d 747, 2011 WL 6029941, at *23 (N.D. Ohio Dec.5, 2011).

Federal habeas corpus relief may be granted in connection with the claim only if

Petitioner establishes that he was so prejudiced by error that he was denied a

fundamentally fair trial in contravention of his right to due process. Cooper v. Sowders,

837 F.2d 284, 286 (6th Cir. 1988); Sutton v. Bell, 683 F.Supp.2d 640 (E.D.Tenn. 2010)

(citing Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007)). In this regard, Petitioner must

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show more than potential prejudice; he must establish actual prejudice by reason of the

joint trial, see Dowell v. Eckman, 2006 WL 228933, at *2 (W.D.Ky. Jan. 25, 2006) (citing

Opper v. United States, 348 U.S. 84 (1954)), as alleged errors in the management of state

criminal trials do not deny a defendant due process unless they are “so harmful to the

cause of truth that ... they make the defendant's conviction fundamentally unfair.”

Walters v. Sheets, 2010 WL 7697542, at * 13 (quoting Lewis v. Hutch, 964 F.2d 670, 676 (7th

Cir. 1992)). “Such prejudice may arise when there is a great disparity in the amount of

evidence supporting the charges or when the jury is likely to confuse the evidence or

infer a criminal disposition on the part of the defendant.” Payne v. Bobby, No.

2:05–CV–050, 2006 WL 508784, at *9 (S.D. Ohio Feb.27, 2006) (citing Webber v. Scott, 390

F.3d 1169, 1177–78 (10th Cir. 2004)).

In Zafiro v. United States, 506 U.S. at 538 (1993), which addresses the issue in

terms of the Federal Rules of Criminal Procedure, the United States Supreme Court held

that relief is not warranted on a claim of improper joinder merely because the

defendants present mutually antagonistic defenses. See also Stanford v. Parker, 266 F.3d

442, 458 (6th Cir. 2001) (same). The United States Court of Appeals for the Sixth Circuit

has discussed the issue as it relates to Rule 14 of the Federal Rules of Criminal

Procedure:

For the sake of promoting efficiency and avoiding the

potential for inconsistent verdicts, joint trials of defendants

who are indicted together are actually encouraged rather

than discouraged. Zafiro v. United States, 506 U.S. 534, 537,

113 S.Ct. 933, 122 L.Ed.2d 317 (1993); see also Fed . R.Crim.P.

8(b) (stating that “[t]wo or more defendants may be charged

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in the same indictment ... if they are alleged to have

participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or

offenses”). This is especially true when two defendants are

accused of participating in a conspiracy or joint scheme.

United States v. Weiner, 988 F.2d 629, 634 (6th Cir.1992).

... Severance is required “only if there is a serious risk that a

joint trial would compromise a specific trial right of one of

the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Walls, 293 F.3d at 966

(quoting Zafiro, 506 U.S. at 539). A joint trial of co-defendants

who present mutually antagonistic defenses is not

prejudicial per se. Zafiro, 506 U.S. at 538. Moreover, a trial

court's limiting instructions may “cure” such prejudice. Id. at

539.

United States v. Cope, 3312 F.3d 757, 780 (6th Cir. 2002).

The record fails to reflect that Petitioner and his co-defendant presented

mutually antagonistic defenses or that, because of the joint trial, Petitioner was unable

to cross-examine witnesses against him. The state appellate court concluded that the

DNA evidence relating to Allen would have been admissible under Ohio law against

Petitioner regardless of whether his trial was severed from that of the co-defendant, and

this Court is bound by that ruling. See Leonard v. Warden, Ohio State Penitentiary, No.

1:09-cv-056, 2014 WL 2207195, at *6 (S.D. Ohio May 28, 2014)(citing Railey v. Webb, 540

F.3d 393 (6th Cir. 2008)(quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have

repeatedly held that a state court's interpretation of state law, including one announced

on direct appeal of the challenged conviction, binds a federal court sitting in habeas

corpus.”); Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d

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598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735–36 (6th Cir. 1999); Duffel v.

Dutton, 785 F.2d 131, 133 (6th Cir. 1986). The trial court properly instructed the jury on

the law to be applied in consideration of the charges against Petitioner. The record fails

to reflect that the jury disregarded those instructions, or that the issues in the case were

so complex that the jury was unable to render a reliable verdict. The prosecution

presented probative evidence of Petitioner's guilt, including Petitioner’s fingerprints

supporting the prosecution's contention that Petitioner was at the scene of the crime. In

short, this Court is not persuaded that Petitioner has met his burden of establishing that

the state appellate court's decision denying this claim was unreasonable so as to

warrant federal habeas corpus relief.

Claim three is without merit. 

VI. CLAIMS FOUR AND FIVE

In claim four, Petitioner asserts that his testimony to the grand jury was obtained

and used against him in violation of his right to counsel. In claim five, Petitioner asserts

that the prosecution “abused the grand jury process” by failing to advise him, prior to

obtaining statements from him, that charges already had been filed against him. 

Petition, Doc. No. 2, PageID# 16-17. 

 The Supreme Court has addressed issues similar to the one Petitioner presents here. 

In United States v. Mandujano, 425 U.S. 564 (1976), a plurality decision, the Supreme

Court reached the following conclusions: 

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[o]ne opinion concluded only that the now familiar Miranda

warnings need not be given to a grand jury witness

subpoenaed to testify as to criminal activity in which he may

have been involved. United States v. Mandujano, supra, at

571–584, 96 S.Ct. at 1773–1780 (opinion of Burger, C.J.). The

second opinion concluded that on the particular facts of

Mandujano, the defendant could be prosecuted for perjury

consistent with the Fifth Amendment, but that absent “an

intentional and intelligent waiver” of his “known” privilege

against compulsory self-incrimination, the prosecution could

not use a putative defendant's grand jury testimony against

him at trial. United States v. Mandujano, supra, at 584–609, 96

S.Ct. at 1780–1792 (opinion of Brennan, J., concurring in the

judgment).

State v. Cook, 469 N.E. 2d 577, 580 (1983). In Mandujano, the defendant was subpoenaed

to testify before the grand jury regarding the investigation of illegal drug sales in which

he was involved. Prior to questioning, the prosecutor advised him that he did not have

to answer any questions that he thought might incriminate him. In affirming

Mandujano’s convictions, the Supreme Court held in relevant part: 

[T]he witness, though possibly engaged in some criminal

enterprise, can be required to answer before a grand jury, so

long as there is no compulsion to answer questions that are

self-incriminating; the witness can, of course, stand on the

privilege, assured that its protection “is as broad as the

mischief against which it seeks to guard.” Counselman v.

Hitchcock, 142 U.S., at 562, 12 S.Ct., at 198, 35 L.Ed., at 1114.

The witness must invoke the privilege, however, as the

“Constitution does not forbid the asking of criminative

questions.” United States v. Monia, 317 U.S., at 433, 63 S.Ct.,

at 413, 87 L.Ed., at 383 (Frankfurter, J., dissenting).

“The (Fifth) Amendment speaks of compulsion. It does not

preclude a witness from testifying voluntarily in matters

which may incriminate him. If, therefore, he desires the

protection of the privilege, he must claim it or he will not be

considered to have been ‘compelled’ within the meaning of

the Amendment.” Id., at 427, 63 S.Ct., at 411, 87 L.Ed., at 380.

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Absent a claim of the privilege, the duty to give testimony remains absolute. 

Mandujano, 425 U.S. at 574. 

Similarly, in United States v. Wong, 431 U.S. 174, the defendant was subpoenaed

to testify before the grand jury regarding illegal gambling activities. Prior to testifying,

she was given Miranda-type warnings, which she did not understand due to her limited

understanding of English. Id. at 176 n.2. The Supreme Court nonetheless affirmed her

conviction on perjury. 

The Supreme Court also has rejected the argument that a petitioner has a

constitutional right to a target letter informing him of his target status prior to

testifying. United States v. Myers, 123 F.3d 350, 355 (6th Cir. 1997)(citing United States v. 

Washington, 431 U.S. 181, 189 (1977). See also United States v. Gillespie, 974 F.2d 796, 800

(7th Cir.1992) (“[The defendant] concedes—as he must—that target warnings are not

constitutionally mandated.”)(citing Washington, 431 U.S. at 189); United States v.

Goodwin, 57 F.3d 815, 818 (9th Cir. 1995) (same); United States v. Pacheco–Ortiz, 889 F.2d

301, 307 (1st Cir. 1989) (same). 

The Ohio Court of Appeals concluded that Petitioner’s claim had no merit, as

follows: 

On April 15, 2008 at 8:01 a.m., a complaint was filed in the

Delaware Municipal Court charging James A. Brenson with

the crime of aggravated murder with a repeat violent

offender specification. The complaint specifically alleged

that: “On or about June 12, 2000, James A. Brenson, Jr. did in

conjunction with another person(s), purposely, and with

prior calculation and design, cause the death of Norman E.

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Herrell. Norman E. Herrell was bound and stabbed multiple

times.” [Joint Stipulations, Ex. A]. The complaint was sworn

to by Sergeant Mark Leatherman. Also on April 15, 2008 at

8:01 a.m., a precipe for service was filed for the issuance of a

warrant against James A. Brenson in the Delaware

Municipal Court. Both Sergeant Mark Leatherman and Kyle

Rohrer, Assistant Prosecuting Attorney signed the precipe.

Joint Stipulations [Ex. B.]. On April 15, 2008 at 8:10 a.m., a

warrant was issued by the Delaware Municipal Court. The

warrant was signed by Judge David Gormley and ordered

the arrest of James A. Brenson without unnecessary delay.

The return on the warrant indicates that Sergeant Mark

Leatherman received it on April 15, 2008 at 8:15 a.m. [Joint

Stipulations, Ex. C].

The parties further stipulate that on April 15, 2008,

commencing at approximately 9:12 a.m., Brenson appeared

before the Delaware County Grand Jury and provided

testimony. A copy of the transcript of Brenson's testimony

has been provided to the trial court, in its entirety. State's Ex.

1. Brenson was neither served with the warrant, nor advised

of the charges in the complaint prior to testifying before the

Grand Jury on April 15, 2008.

It is firmly established that a defendant has the right to

counsel, pursuant to the Sixth and Fourteenth Amendments,

at or after the time that adversary judicial proceedings have

been initiated against him, whether by way of formal charge,

preliminary hearing, indictment, information, or

arraignment. Kirby v. Illinois (1972), 406 U.S. 682, 689. The

defendant is afforded this right to counsel regardless of

whether he is in custody. Brewer v. Williams (1977), 430 U.S.

387. In the case at bar, the trial court determined that

Brenson had the right to have the assistance of counsel when

the formal complaint and arrest warrant were issued against

him in this case.

The trial court noted that Brenson was not subpoenaed to

appear before the grand jury; rather he appeared at the

grand jury in response to a letter inviting him to testify.

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The trial court further found that the grand jury transcript

established that Brenson was given Miranda warnings at the

outset of his questioning. Brenson “was advised by the

prosecuting attorney that he had a right not to give

testimony before the Grand Jury and that if he chose to

testify he was waiving his right against self-incrimination.

(Brenson Grand Jury Tr. 3, April 15, 2008.) Brenson was also

advised that he had a right to consult with an attorney and

that if he could not afford an attorney, the Court may

appoint him one. Id. Brenson affirmatively waived his right

to an attorney for the purpose of Grand Jury. Id. The

prosecuting attorney also advised Brenson that anything

discussed during the Grand Jury proceedings could be used

against him “in a court of law some day.” Id.” [Judgment

Entry Denying Defendant Brenson's Motion to Dismiss

Indictment or Suppress Statements (Motion # 36), filed July

2, 2008 at 5]. [Hereinafter cited as “J.E. Motion # 36”].

Brenson affirmatively indicated that he understood this

consequence of testifying before the Grand Jury. Id.

The question of an effective waiver of a Federal

Constitutional right in a State criminal proceeding is

governed by Federal standards. Boykin v. Alabama (1969),

395, U.S. 238. (Citing Douglas v. Alabama (1965) 380 U.S. 415,

85 S.Ct. 1074, 13 L.Ed.2d 934). For a waiver to be valid under

the Due Process clause of the United States Constitution, it

must be: “[a]n intentional relinquishment or abandonment

of a known right or privilege.” Boykin, supra, 395 U.S. at 243

n. 5 (Quoting Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct.

1019, 82 L.Ed. 1461).

The Sixth Amendment guarantees to criminal defendants the

right to counsel in post indictment interviews with law

enforcement authorities. Massiah v. United States (1964), 377

U.S. 201, 205–07, 84 S.Ct. 1199, 12 L.Ed.2d 246. Unlike the

right to counsel secured under the Fifth Amendment, the

Sixth Amendment right to counsel comes into existence

regardless of whether the defendant is in custody, so long as

adverse judicial proceedings have been initiated against him.

See Patterson v. Illinois (1988), 487 U.S. 285, 290, 298–99, 108

S.Ct. 2389, 101 L.Ed.2d 261.

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Once a suspect against whom such proceedings have begun

indicates his desire for the assistance of counsel, the

authorities must cease interrogation, and any further

questioning on the crime for which the defendant was

indicted is forbidden unless counsel is present. McNeil v.

Wisconsin (1991), 501 U.S. 171, 111 S.Ct. 2204, 2207–08, 115

L.Ed.2d 158 (1991). As clarified in Patterson, however, the

initiation of adverse judicial proceedings does not erect an

absolute bar to post indictment police interrogation in the

absence of counsel; rather, a defendant may be questioned

where he knowingly and intelligently waives his right to

counsel, thus establishing “ ‘an intentional relinquishment or

abandonment of a known right or privilege.’” Patterson, 487

U.S. at 292 (quoting Johnson v. Zerbst (1938), 304 U.S. 458,

464, 58 S.Ct. 1019, 82 L.Ed. 1461.). In Patterson, the Supreme

Court further held that advising a defendant of his right to

counsel by means of Miranda warnings establishes that the

ensuing waiver is knowing and intelligent, “As a general

matter, ... an accused who is admonished with the warnings

prescribed by this Court in Miranda has been sufficiently

apprised of the nature of his Sixth Amendment rights, and of

the consequences of abandoning those rights, so that his

waiver on this basis will be considered a knowing and

intelligent one.” Id. at 296 (citation omitted).

The Supreme Court has declined to resolve explicitly the

question of whether the Sixth Amendment requires a

defendant to be informed, before questioning, that he or she

has been indicted. Patterson, 487 U.S. at 295 n. 8. (“we do not

address the question whether or not an accused must be told

that he has been indicted before a post indictment Sixth

Amendment waiver will be valid. Nor do we even pass on

the desirability of so informing the accused—a matter that

can be reasonably debated.”)

In United States v. Washington (1977), 431 U.S. 181, 97 S.Ct.

1814, 52 L.Ed.2d 238 the United States Supreme Court ruled

that where a grand jury witness was advised of and waived

his right to remain silent, his incriminating testimony could

be used against him in a later criminal prosecution, even

though defendant was unaware that he was under

suspicion. The Court stated, “Because target witness status

neither enlarges nor diminishes the constitutional protection

against compelled self-incrimination, potential-defendant

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warnings add nothing of value to protection of Fifth

Amendment rights. 431 U.S. at 189, 97 S.Ct. 1819..” See also

United States v. Myers (6th Cir. 1997), 123 F.3d 350; United

States v. Gillespie (7th Cir. 1992), 974 F.2d 796, 800 (“[The

defendant] concedes—as he must—that target warnings are

not constitutionally mandated.”) (citing Washington, 431 U.S.

at 189, 97 S.Ct. at 1819); United States v. Goodwin (9th Cir.

1995), 57 F.3d 815, 818 (same); United States v. Pacheco–Ortiz

(1st Cir.1 989), 889 F.2d 301, 307 (1st Cir. 1989) (same).

In Moran v. Burbine (1986) 475 U.S. 412,475 U.S. 412, 106 S.Ct.

1135, 89 L.Ed.2d 410, a case arising under the Fifth

Amendment, the Court stated, “But we have never read the

Constitution to require that the police supply a suspect with

a flow of information to help him calibrate his self-interest in

deciding whether to speak or stand by his rights. See, e.g.,

Oregon v. Elstad, 470 U.S. 298, 316–317, 105 S.Ct. 1285,

1296–1297, 84 L.Ed.2d 222 (1985); United States v. Washington,

431 U.S. 181, 188, 97 S.Ct. 1814, 1819, 52 L.Ed.2d 238 (1977).

Cf. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985); McMann v. Richardson, 397 U.S. 759, 769, 90 S.Ct.

1441, 1448, 25 L.Ed.2d 763 (1970). Once it is determined that

a suspect's decision not to rely on his rights was uncoerced,

that he at all times knew he could stand mute and request a

lawyer, and that he was aware of the State's intention to use

his statements to secure a conviction, the analysis is

complete and the waiver is valid as a matter of law. The

Court of Appeals' conclusion to the contrary was in error.”

Id. at 422–423, 106 S.Ct. 1141. (Footnote omitted).

In the case at bar, the trial court found, “Brenson knew that

any statement that he made could be used against him in

subsequent criminal proceedings. Since Brenson knew what

could be done with any statement he might make, and

therefore, what benefit could be obtained by having the aid

of counsel while making such statements, Brenson was

essentially informed of the possible consequences of

forgoing the aid of counsel. In fact, the transcript of

Brenson's Grand Jury testimony reveals that Brenson had

consulted with counsel prior to appearing before the Grand

Jury. (Brenson Grand Jury Tr. 5.).” [J.E. Motion # 36 at 7].

 Additionally, Brenson was aware of the nature of the

charges and his suspected involvement in the offenses.

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Brenson had previously been indicted, arraigned, consulted

counsel, and engaged in discovery prior to the dismissal of

the previous indictment. Further, Brenson was not

compelled to appear before the grand jury; rather he did so

of his own free will.

On three separate occasions, once before the grand jury in

2002, once in a police interview in 2003, and again before the

grand jury in 2008, Brenson elected to waive representation

and speak with the police or the prosecutor regarding his

involvement in the murder of Norman Herrell. Because we

believe that Brenson's waiver of his right to counsel was

knowing, voluntary, and intelligent, we find no error in the

trial court's decision not to suppress his statements.

State v. Brenson, 2010 WL 3784890, at *20-23. 

Petitioner does not refer to, and this Court is unable to locate, any decisions of

the United States Supreme Court on this issue. That being the case, Petitioner cannot

obtain relief on these claims. See 28 U.S.C. § 2254(d). For the reasons discussed by the

state appellate court, and because the United States Supreme Court has not issued a

decision on the precise issue(s) Petitioner raises, claims four and five lack merit. 

VII. PROCEDURAL DEFAULT: CLAIMS SIX THROUGH ELEVEN AND

THIRTEEN

In claim six, Petitioner asserts that he was denied his right to an impartial jury

because the trial court refused to dismiss venire persons number 42 and 86 (“Sakich”

and “Ames”) as biased due to pre-trial publicity. In claim seven, Petitioner asserts that

the trial court abused its discretion and denied him a fair trial by refusing to grant

Petitioner’s requests for a mistrial. In claim eight, Petitioner asserts that he was denied

a fair trial by admission of testimony from Attorney Beal, Petitioner’s prior attorney. In

claim nine, Petitioner asserts that the trial court improperly provided transcripts of

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Petitioner’s prior statements to the jury during deliberations. In claim ten, Petitioner

asserts he was denied a fair trial due to admission of prior bad acts. In claim eleven,

Petitioner asserts that he was denied effective assistance of trial counsel. In claim

thirteen Petitioner asserts that his convictions are against the manifest weight of the

evidence. It is the position of the Respondent that Petitioner has waived all of the

foregoing claims for federal habeas corpus review. 

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 four-part analysis must be undertaken when the state argues

that a federal habeas claim is precluded by the petitioner's failure to observe a state

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procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court must

determine that there is a state procedural rule that is applicable to the petitioner's claim

and that the petitioner failed to comply with the rule.” Id. Second, the Court must

determine whether the state courts actually enforced the state procedural sanction. Id.

Third, it must be decided whether the state procedural forfeiture is an ‘adequate and

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

constitutional claim. Id. Finally, if the Court has determined that a state procedural rule

was not complied with and that the rule was an adequate and independent state

ground, then the petitioner must demonstrate that there was cause for him not to follow

the procedural rule and that he was actually prejudiced by the alleged constitutional

error. Id. This “cause and prejudice” analysis also applies to failures to raise or preserve

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

Petitioner properly raised claims six through eight on direct appeal; however, he

failed thereafter to raise these claims on appeal to the Ohio Supreme Court, where he

raised the following propositions of law: 

1. When a defendant raises a claim of cumulative error, the

defendant is not required to repeat the arguments as to why

each individual error was prejudicial; instead, the defendant

merely needs to explain that the errors worked together to

further impact the verdict.

2. Crim.R. 14 does not require a criminal defendant to show

“compelling, specific, and actual prejudice” in order to

justify severing his trial from that of a co-defendant. 

3. When the prosecution has already filed charges against a

defendant and obtained an arrest warrant, the defendant

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must be informed of the charges and warrant prior to

agreeing to testify before a grand jury that is considering

related charges. 

4. When a prosecutor dismisses an indictment against a

defendant for purposes of further investigation, spends the

next seven years investigating the defendant, then files the

same charges against the same defendant in a new

indictment, the time between the two indictments must be

counted for purposes of determining whether the delay

violated the defendant’s Sixth Amendment right to a speedy

trial. 

5. For purposes of assessing a due process speedy trial

challenge, a defendant has demonstrated actual prejudice

when the evidence at trial indicates that key defense

witnesses were lost to death and disability as a result of a

seven year delay in prosecution. 

6. Aggravated robbery. . . is an allied offense with

aggravated robbery[.]

7. Kidnapping under subdivision (A)(2) of R.C. 2905.01 is an

allied offense with Kidnapping under subdivision (A)(3).

Memorandum in Support of Jurisdiction, Doc. No. 11-2, PageID# 864-65. 

Petitioner nonetheless contends that he fairly presented claims six through

eleven and thirteen to the Ohio Supreme Court by raising a claim of cumulative error as

his first proposition of law. That claim, according to Petitioner, necessarily included all

of the errors alleged in the Ohio Court of Appeals. By raising a claim of cumulative

error and by referring to his state appellate brief, Petitioner contends, he thereby

complied with the Ohio Supreme Court’s rules on page limitations while preserving his

claims for federal habeas corpus review. 

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This Court is not persuaded by this argument. In his memorandum in support of

the jurisdiction in the Ohio Supreme Court Petitioner briefly argued that the state

appellate court had improperly denied his claim of cumulative error, and referred to the

dissenting opinion in support of this argument. PageID# 871. He did not refer to any

of the allegations he raises in habeas corpus claims six through eleven and thirteen, did

not include them as propositions of law, and did not indicate in any manner in his

memorandum in support of jurisdiction that he sought review of these claims by the

Ohio Supreme Court. 

Because Petitioner failed to raise claims six through eleven and thirteen in the

Ohio Supreme Court, he now can no longer do so under Ohio's doctrine of res judicata.

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

Perry, 10 Ohio St.2d 175(1967).

The Court must next decide whether the procedural rules at issue constitute

adequate and independent bases upon which to foreclose review of the petitioner's

federal constitutional claims. This task requires the Court to balance the state's interests

behind each procedural rule against the federal interest in reviewing federal claims. See

Maupin v. Smith, 785 F.2d at 138. Under this analysis, the procedural rules barring

petitioner's claims for relief constitute adequate and independent state grounds for

denying relief. The requirement that all available claims be asserted in the first appellate

proceeding serves the state's interest in finality and in ensuring that claims are

adjudicated at the earliest possible opportunity. Further, the doctrine of res judicata is

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stated in unmistakable terms in numerous Ohio decisions and Ohio courts have

consistently refused to review claims on the merits under that doctrine. See State v. Cole,

supra; State v. Ishmail, supra; State v. Perry, supra.

The Court concludes that petitioner has waived his right to present claims six

through eleven and thirteen for federal habeas corpus review. Petitioner can still secure

review of these claims on the merits if he demonstrates cause for his failure to follow

the state procedural rules, as well as actual prejudice from the constitutional violations

that he alleges. He has failed to do so here. The only cause for the procedural default

would appear to be a claim of petitioner's claim of ineffective assistance of trial counsel. 

Petitioner never raised this claim in the state courts. He thereby has also waived this

claim for review, and cannot establish cause for his default. Edwards v. Carpenter, 529

U.S. 446, 451-52, (2000) (an ineffective-assistance-of-counsel claim asserted as cause for

the procedural default of another claim cannot itself be procedurally defaulted).

Beyond the four-part Maupin analysis, this court is required to consider whether

this is “an extraordinary case, where a constitutional violation has probably resulted in

the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see

also Sawyer v. Whitley, 505 U.S. 333 (1992). “It is important to note in this regard that

‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.

United States, 523 U.S. 614, 623. 

Petitioner asserts that he is the victim of a manifest miscarriage of justice such

that this Court may address the merits of claims Petitioner otherwise has procedurally

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defaulted. Supplemental Traverse, Doc. No. 38, PageID# 3912-13. Petitioner states he has

always protested his innocence of the crimes charged. He argues, essentially, that the

evidence is insufficient to support his convictions. PageID# 3913-14. 

The United States Supreme Court has held that if a habeas

petitioner “presents evidence of innocence so strong that a

court cannot have confidence in the outcome of the trial

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

nonharmless constitutional error, the petitioner should be

allowed to pass through the gateway and argue the merits of

his underlying claims.” Schlup, 513 U.S. at 316, 115 S.Ct. 851.

Thus, the threshold inquiry is whether “new facts raise[ ]

sufficient doubt about [the petitioner's] guilt to undermine

confidence in the result of the trial.” Id. at 317, 115 S.Ct. 851.

To establish actual innocence, “a petitioner must show that it

is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt.” Id. at

327, 115 S.Ct. 851. The Court has noted that “actual

innocence means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118

S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To be credible, such a

claim requires petitioner to support his allegations of

constitutional error with new reliable evidence—whether it

be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not

presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. The

Court counseled however, that the actual innocence

exception should “remain rare” and “only be applied in the

‘extraordinary case.’ ” Id. at 321, 115 S.Ct. 851.

Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). 

The record fails to reflect that Petitioner is the victim of a manifest miscarriage of

justice. The state court of appeals recited evidence of petitioner's guilt, which was

apparently enough to persuade a jury beyond a reasonable doubt that he was guilty,

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and he has offered no proof of innocence. Denial of guilt is hardly an extraordinary

event in a criminal case, and that bare denial is not enough to satisfy the exacting

inquiry which is needed to excuse a procedural default. Cf. Schlup v. Delo, 513 U.S. 298,

324 (1995) (a finding of actual innocence requires the petitioner to present evidence

which undermines the Court's confidence in the jury's finding of guilt). There is no such

evidence here. 

VIII. CLAIM TWELVE

In claim twelve, Petitioner asserts that he was denied a fair trial based on cumulative

error. Petition, Doc. No. 2, PageID# 33. This claim fails to present an issue appropriate

for federal habeas corpus relief. “[T]he Supreme Court has not held that distinct

constitutional claims can be cumulated to grant habeas relief.” Gillard v. Mitchell, 445

F.3d 883, 898 (6th Cir. 2006)(quoting Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002).

To justify a grant of habeas relief, a federal court must find a

violation of law that has been clearly established by the

holdings of the United States Supreme Court decisions at the

time of the relevant state-court decision. King v. Bobby, 433

F.3d 483, 490 (6th Cir. 2006). Cumulative error” cannot form

the basis of habeas relief under § 2254.

Madyun v. Jackson, 2007 WL 2651997 (E.D. Mich. Sept. 7, 2007)(citing Campbell v. United

States, 364 F.3d 727, 736 (6th Cir. 2004); Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002);

Lorraine v. Coyle, 291 F.3d at 447)).

Claim twelve is without merit. 

 IX. RECOMMENDED DISPOSITION

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For the reasons set forth above, the Magistrate Judge RECOMMENDS that

Petitioner’s request to strike Respondent’s Supplemental Return of Writ be DENIED and

that the habeas corpus petition be DISMISSED. 

X. PROCEDURE ON OBJECTIONS

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

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall make

a de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper objections, a judge of this

Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

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

Recommendation will result in a waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a waiver of the right to appeal

the decision of the District Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d

947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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