JOHN F. SMITH, 

Petitioner, 

v. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CASE NO. 2:11-CV-00844 

JUDGE WATSON 

MAGISTRATE JUDGE ABEL 

ROBIN KNAB, WARDEN, 

Respondent. 

OPINION AND ORDER 

On June 28, 2013, the Magistrate Judge issued a Report and 

Recommendation recommending that the instant petition for a writ of habeas 

corpus be dismissed. Petitioner has filed objections to the Magistrate Judge's 

Report and Recommendation. For the reasons that follow, Petitioner's Objection, 

Doc. No. 12, is OVERRULED. The Report and Recommendation is ADOPTED 

and AFFIRMED. This action is hereby DISMISSED. 

This case involves Petitioner's convictions after a jury trial on felonious 

assault and involuntary manslaughter. The charges arose when Petitioner 

assaulted Bryan Biser, hitting him in the head with a closed fist. Biser, who was 

diabetic, died four days later. Petitioner asserts in these proceedings that he was 

denied effective assistance of counsel because his attorney failed to investigate, 

present evidence, and rebut testimony of the State's witnesses by showing that 

he did not cause the victim's death and that Biser died because he failed to 

properly care for his diabetes. 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 1 of 8 PAGEID #: <pageID>
The state courts rejected Petitioner's claim, presented in post conviction 

proceedings, as barred under Ohio's doctrine of res judicata based on 

Petitioner's failure to raise the claim on direct appeal. The Magistrate Judge 

nonetheless addressed the merits of Petitioner's claim, because Petitioner 

supported his claim with evidence outside the record, but concluded that 

Petitioner's claim lacked merit. Petitioner objects to this recommendation. 

Petitioner asserts that his attorney performed in an inadequate manner 

under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). He 

argues that the state courts unreasonably applied federal law in denying his 

claim, as "no reasonable trial attorney would have failed to investigate and failed 

to present an expert witness to testify at Smith's trial regarding the victim's 

metabolic state and mismanaged diabetes." Objection, PageiD #1218. In 

support of this claim, Petitioner submits an affidavit from Dr. Elena Christofides, 

who concluded that Biser's death was the result of his poor management of his 

diabetes. She testified his blood glucose level at the time of the assault would 

have interfered with his brain function, regardless of the head injury caused by 

the assault, and he overdosed on his insulin. Objection, PageiD# 1222. Further, 

Dr. Christofides concluded that the timing of Biser's death was inconsistent with a 

finding that his head injury was the proximate cause of his death. Petitioner 

asserts that he was prejudiced by his attorney's failure to call such an expert 

witness to testify regarding the cause of death and argues Christofides testimony 

would have exonerated him. 

Case No. 2:11-cv-844 Page 2 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 2 of 8 PAGEID #: <pageID>
Additionally, Petitioner objects to certain factual findings of the state 

appellate court. Specifically, Petitioner refers to the following language of the 

state appellate court's decision, indicating "[t]he defense expert was handicapped 

in making her analysis due to a lack of medical records and history of the victims 

case .... [S]he could not testify as an expert with any degree of medical certainty 

or probability as to the cause of death. Also, defense counsel reasonably would 

not want to risk a failure to qualify this witness to testify as an expert. That could 

greatly prejudice his case before the jury." Exhibit 27 to Return of Writ. 

Petitioner contends that these findings are unreasonable in view of the record 

presented, Objection, PageiD #1225-26, as Christofides reviewed the same or 

additional evidence as Dr. Cox and concluded as to Biser's cause of death to a 

reasonable degree of medical certainty. See Petitioner's Reply, Doc. No. 10, 

Exhibits 2-3. Finally, Petitioner argues that the Court should not give deference 

to defense counsel's failure to present expert testimony because defense 

counsel failed to investigate. In short, Petitioner again asserts that, had his 

attorney presented such expert testimony regarding the cause of death, there is 

a reasonable probability that he would have been acquitted. 

Pursuant to 28 U.S.C. § 636(b}, this Court has conducted a de novo 

review. Upon review of the entire record, and for the reasons already well 

detailed in the Magistrate Judge's Report and Recommendation, this Court is not 

persuaded that Petitioner is entitled to relief. The standard of review in federal 

habeas corpus proceedings provides that this Court cannot grant relief unless the 

Case No. 2:11-cv-844 Page 3 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 3 of 8 PAGEID #: <pageID>
state court's decision contravened or unreasonably applied federal law, or its 

decision was based on an unreasonable determination of the facts in light of the 

evidence presented. 28 U.S.C. § 2254(d), (e). Under this standard of review, 

"[a] state court's determination that a claim lacks merit precludes federal habeas 

relief so long as '"fairminded jurists could disagree' on the correctness of the 

state court's decision." Harrington v. Richter, -U.S.--, 131 S.Ct. 770, 786 

(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004 )). Such are 

the circumstances here. 

As discussed by the Magistrate Judge, evidence indicated Biser had been 

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

time, and he appeared to be healthy and functioning normally until the time of the 

assault. Dr. Trent, the deputy coroner, found that the cause of death was 

homicide due to blunt force craniocerebral injuries. Dr. Glenn Roush, a 

radiologiest, testified that Biser's April 19, 2005 CAT scan showed a skull fracture 

and recent brain injury. He had "never seen anyone with this sort of injury be 

able to function." Dr. William Cox, a forensic neuropathologist, testified that the 

cause of death was diabetic ketoacidosis and that the contusions to the frontal 

lobes of Biser's brain affected his cognitive ability and substantially contributed to 

his death because it clearly would have affected his ability to take care of himself. 

The state court's conclusion rejecting Petitioner's claim is supported by 

substantial evidence. 

Petitioner's Objection, Doc. No. 12, therefore is OVERRULED. 

Case No. 2:11-cv-844 Page 4 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 4 of 8 PAGEID #: <pageID>
Petitioner also seeks a certificate of appealability and requests to proceed 

in forma pauperis on appeal. When a claim has been denied on the merits, a 

certificate of appealability may issue only if the petitioner "has made a substantial 

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This 

standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. 

McDaniel, 529 U.S. 473, 484. To make a substantial showing of the denial of a 

constitutional right, a petitioner must show 

that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been 

resolved in a different manner or that the issues 

presented were " 'adequate to deserve encouragement 

to proceed further.' " Barefoot, 463 U.S., at 893, and n. 

4 .... 

/d. Petitioner meets this standard here. Petitioner's request for a certificate of 

appealability is GRANTED. The following issue is certified for appeal: 

Was Petitioner denied effective assistance of counsel 

under the test set forth in Strickland? 

Because the filing fee assessment procedures prescribed by the Prison 

Litigation Reform Act are not applicable to appeals taken in habeas corpus 

matters, see Kincade v. Sparkman, 117 F .3d 949 (6th Cir.1997), the issue is 

simply whether petitioner can afford the $455.00 filing fee for an appeal. 

Federal Rule of Appellate Procedure 24(a) provides: 

(a) Leave to Proceed In Forma Pauperis. 

( 1) Motion in the District Court. Except as stated in Rule 

24(a)(3), a party to a district-court action who desires to 

Case No. 2:11-cv-844 Page 5 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 5 of 8 PAGEID #: <pageID>
appeal in forma pauperis must file a motion in the 

district court. The party must attach an affidavit that: 

(A) shows in the detail prescribed by Form 4 of the 

Appendix of Forms the party's inability to pay or to give 

security for fees and costs; 

(B) claims an entitlement to redress; and 

(C) states the issues that the party intends to present on 

appeal. 

(2) Action on the Motion. If the district court grants the 

motion, the party may proceed on appeal without 

prepaying or giving security for fees and costs, unless a 

statute provides otherwise. If the district court denies 

the motion, it must state its reasons in writing. 

(3) Prior Approval. A party who was permitted to 

proceed in forma pauperis in the district-court action, or 

who was determined to be financially unable to obtain 

an adequate defense in a criminal case, may proceed 

on appeal in forma pauperis without further 

authorization, unless: 

(A) the district court--before or after the notice of appeal 

is filed--certifies that the appeal is not taken in good 

faith or finds that the party is not otherwise entitled to 

proceed in forma pauperis and states in writing its 

reasons for the certification or finding; or 

(B) a statute provides otherwise. 

( 4) Notice of District Court's Denial. The district clerk 

must immediately notify the parties and the court of 

appeals when the district court does any of the 

following: 

(A) denies a motion to proceed on appeal in forma 

pauperis; 

(B) certifies that the appeal is not taken in good faith; or 

Case No. 2:11-cv-844 Page 6 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 6 of 8 PAGEID #: <pageID>
(C) finds that the party is not otherwise entitled to 

proceed in forma pauperis. 

(5) Motion in the Court of Appeals. A party may file a 

motion to proceed on appeal in forma pauperis in the 

court of appeals within 30 days after service of the 

notice prescribed in Rule 24(a)(4). The motion must 

include a copy of the affidavit filed in the district court 

and the district court's statement of reasons for its 

action. If no affidavit was filed in the district court, the 

party must include the affidavit prescribed by Rule 

24(a)(1 ). 

(b) Leave to Proceed In Forma Pauperis on Appeal or 

Review of an Administrative-Agency Proceeding. When 

an appeal or review of a proceeding before an 

administrative agency, board, commission, or officer 

(including for the purpose of this rule the United States 

Tax Court) proceeds directly in a court of appeals, a 

party may file in the court of appeals a motion for leave 

to proceed on appeal in forma pauperis with an affidavit 

prescribed by Rule 24(a)(1 ). 

(c) Leave to Use Original Record. A party allowed to 

proceed on appeal in forma pauperis may request that 

the appeal be heard on the original record without 

reproducing any part. 

Petitioner is incarcerated but was not previously in this case granted 

pauper status and has not submitted an affidavit of indigency in support of his 

request. Therefore, Petitioner's request to proceed in forma pauperis is DENIED 

without prejudice to renewal pending submission of an affidavit from the prison 

where Petitioner is incarcerated of his prison trust account statement. 

The Report and Recommendation is ADOPTED and AFFIRMED. This 

action is hereby DISMISSED. 

Case No. 2:11-cv-844 Page 7 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 7 of 8 PAGEID #: <pageID>
Petitioner's request for a certificate of appealability is GRANTED. 

IT IS SO ORDERED. 

Case No. 2:11-cv-844 

MfCHAEL H. WATSON, JUDGE 

UNITED STATES DISTRICT COURT 

Page 8 of 8 

Case: 2:11-cv-00844-MHW-MRA Doc #: 13 Filed: 09/30/13 Page: 8 of 8 PAGEID #: <pageID>