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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TROY LUMPKIN, 

 CASE NO. 2:11-CV-962 

 Petitioner, JUDGE FROST 

 MAGISTRATE JUDGE ABEL 

 v. 

JASON BUNTING, WARDEN, 

 Respondent. 

REPORT AND RECOMMENDATION 

Petitioner Troy Lumpkin, a state prisoner, brings this action for a writ of habeas corpus 

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

Respondent’s Return of Writ, Petitioner’s Traverse, and the exhibits of the parties. 

This case involves Lumpkin's convictions after a jury trial in the Licking County Court of 

Common Pleas for trafficking in crack cocaine in the vicinity of a juvenile, trafficking in crack 

cocaine, possession of crack cocaine, possession of marijuana, possession of drug paraphernalia, 

and having weapons under disability, with two firearm specifications and a forfeiture 

specification for the money.1

 The Ohio Court of Appeals affirmed the judgment of the trial court 

on direct appeal; however, Petitioner did not timely appeal to the Ohio Supreme Court, and the 

Ohio Supreme Court denied his motion for delayed appeal. Additionally, Petitioner raised solely 

one claim for relief in the state appellate court. He also filed a motion for reconsideration in the 

state appellate court, a petition for post conviction relief, and a request for a hearing on the 

merger of sentences, all without success. For the reasons that follow, the Magistrate Judge 

 

1 The charges on having a weapon while under disability, possession of marijuana, and the forfeiture specification 

were tried to the court. 

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concludes that all of Petitioner Lumpkin’s claims are procedurally defaulted, and therefore 

RECOMMENDS that this action be DISMISSED. Petitioner’s request for a stay of 

proceedings, or, alternatively, for a dismissal without prejudice, is DENIED. 

Facts and Procedural History: 

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of 

this case as follows: 

On March 18, 2009, officers from the Central Ohio Drug Task 

Force sent a confidential informant to purchase crack cocaine from 

appellant in a controlled buy at 8 West Postal Avenue in Newark, 

Ohio. The informant called appellant and an agreement was made 

for the purchase of two $100.00 rocks of crack cocaine. The 

informant was wired with a recorder and given $200.00 in 

recorded buy money in order to make the purchase. 

The informant went to 8 West Postal Avenue, where he purchased 

crack cocaine from appellant. At the time of the purchase, the 

police detective monitoring the transaction saw a juvenile on the 

porch next door, approximately 30 feet from the scene of the drug 

transaction. 

Officers obtained a search warrant for 8 West Postal Avenue. The 

informant then made a second call to appellant to arrange to buy 

more crack cocaine. The purpose of the call was to ensure that 

someone was present in the residence when the warrant was 

executed. The informant arranged to buy $150.00 of crack from 

appellant. Officers then searched the residence, where they found 

crack cocaine, a loaded .45 caliber semiautomatic handgun and a 

loaded 9 mm revolver under the couch, a scale and razor blade, a 

jar full of cash and marijuana. Officers found $1,344.00 in cash in 

appellant's pockets, including the $200.00 of recorded buy money 

from the earlier transaction with the confidential informant. 

Appellant was indicted by the Licking County Grand Jury with 

trafficking in crack cocaine in the vicinity of a juvenile, trafficking 

in crack cocaine, possession of crack cocaine, possession of 

marijuana, possession of drug paraphernalia, and having weapons 

under disability, with two firearm specifications and a forfeiture 

specification for the money. 

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Appellant entered a plea of not guilty to the charges on April 7, 

2009. His original trial counsel filed a motion to withdraw on July 

16, 2009, which was granted the same day, and new counsel was 

appointed on July 20, 2009. On August 17, 2009, the day before 

trial, counsel filed a motion to continue. The motion alleged in 

pertinent part: 

“In recent weeks, Defense Counsel has been to see the Defendant 

several times at the Licking County Jail to review discovery and 

trial strategy. 

“The Defendant claims to have additional information related to 

witnesses in this case that he has requested Counsel investigate.”

The court overruled the motion, finding that the case had been 

scheduled for trial for the third time, the most recent date with 

more than a month's notice while appellant was represented by his 

current counsel. 

Appellant waived jury trial on the weapons under disability charge 

and the forfeiture specification. Those charges, along with the 

possession of marijuana charge which is a minor misdemeanor, 

were tried to the court, while the remaining charges were tried to a 

jury. He was convicted on all charges and sentenced to a total term 

of incarceration of 14 1/2 years. He assigns a single error on 

appeal: 

“THE TRIAL COURT COMMITTED HARMFUL ERROR AND 

ABUSED ITS DISCRETION IN DENYING THE APPELLANT'S 

REQUEST FOR A CONTINUANCE OF THE JURY TRIAL 

HEREIN.”

State v. Lumpkin, No. 2009 CA 00109, 2010 WL 2643303, at *1-2 (Ohio App. 5th Dist. June 28, 

2010). On June 28, 2010, the appellate court affirmed the judgment of the trial court.2

 Id. 

Petitioner did not file a timely appeal to the Ohio Supreme Court. On September 13, 2010, he 

filed a motion for delayed appeal. Exhibit 9 to Return of Writ. On October 27, 2010, the Ohio 

 

2

 On May 20, 2011, the Ohio Court of Appeals denied Petitioner’s motion for reconsideration. Exhibits 11, 12 to 

Return of Writ. 

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Supreme Court denied Petitioner’s motion for delayed appeal. State v. Lumpkin, 126 Ohio St.3d 

1615 (2010). 

 On December 10, 2010, Petitioner filed a motion for re-sentencing, which the trial court 

denied on January 4, 2011. 

 Petitioner also pursued post conviction relief in the state trial court on December 10, 

2010. He asserted that he had newly discovered evidence, i.e., an eyewitness, establishing his 

actual innocence and that he had been denied effective assistance of counsel because his attorney 

failed to investigate and failed to subpoena a witness who would have established his innocence 

of the charges. See Exhibit 18 to Return of Writ. In a January 10, 2011judgment entry, the trial 

court ordered Petitioner’s post conviction petition to be stricken for failing to include a certificate 

of service as required by Ohio Criminal Rules. See Exhibit 19 to Return of Writ. 

Petitioner additionally filed an August 15, 2011 motion requesting a “merger hearing” to 

correct an illegal sentence. Exhibit 20 to Return of Writ. In a judgment entry filed February 9, 

2012, the trial court denied Petitioner’s motion, concluding that it no longer had jurisdiction over 

the case, since Petitioner’s conviction and sentence had already been affirmed on appeal. Exhibit 

23 to Return of Writ. 

On December 5, 2011, Petitioner filed this pro se federal petition for a writ of habeas 

corpus under 28 U.S.C. § 2254. He asserts that he is being held in violation of the Constitution 

of the United States as follows: 

1. Petitioner was denied due process when the trial court failed to 

allow Petitioner’s appellate counsel additional time to prepare 

for Petitioner’s case in violation of defendant’s due process 

right as guaranteed by the United States Constitution. 

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2. Petitioner was denied the right to a fair trial in this case, 

Petitioner was not allowed to call witnesses at trial. This 

constituted a violation of Petitioner’s right to a fair trial. 

Petitioner was denied right to equal protection in this case [] as 

the trial court failed to allow Petitioner’s counsel to call 

witnesses at trial. The witnesses that would have been called 

were witnesses that were in the house at the time Petitioner’s 

crime was committed and would have served as witnesses at 

Petitioner’s trial. 

3. Denial of effective assistance of counsel at trial. 

4. Conviction obtained by a violation of the protection against 

double jeopardy. 

It is the position of the Respondent that all of Petitioner’s claims are procedurally defaulted. 

Procedural Default: 

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

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

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

those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he 

fails to do so, but still has an avenue open to him by which he may present the claims, his 

petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 

U.S. 4, 6 (1982) (per curiam; Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a 

procedural default, the petitioner can no longer present his claims to a state court, he has also 

waived them for purposes of federal habeas review unless he can demonstrate cause for the 

procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. 

Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. 

Sykes, 433 U.S. 72, 87 (1977). 

In the Sixth Circuit, a 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 procedural rule. 

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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 is required to 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 failure to raise or preserve issues for review at 

the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985). 

Petitioner asserts he was denied a fair trial because the trial court denied defense 

counsel’s motion for a continuance (claim one); because he was unable to call defense witnesses 

based on the trial court’s refusal to grant a defense continuance (claim two); he was denied 

effective assistance of counsel based on his attorney’s failure to request a merger hearing, as his 

convictions constituted allied offenses of similar import (claim three); and that his convictions 

violate the Double Jeopardy Clause (claim four). The sole claim Petitioner raised on direct 

appeal, however, was that regarding the trial court’s denial of his request for a continuance. The 

remainder of Petitioner’s claims have never been presented to the state courts. Further, Petitioner 

did not timely appeal the Ohio Court of Appeal's decision denying his direct appeal to the Ohio 

Supreme Court; and the Ohio Supreme Court denied his later filed motion for a delayed appeal. 

The Ohio Supreme Court's denial of a motion for delayed appeal constitutes a procedural 

default of the claims raised therein. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). As to 

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those claims which should have been raised on direct appeal, but were not, Petitioner may now 

no longer present them to the state courts because they are barred by Ohio's doctrine of res 

judicata, that provides that claims that could have been raised on direct appeal, but were not, 

may not be considered in ponstconviction or other collateral proceedings. 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). 

Ohio's res judicata rule is adequate and independent under the third part of the Maupin

test. To be “independent,” the procedural rule at issue, as well as the state court's reliance thereon, 

must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732–33, (1991). 

To be “adequate,” the state procedural rule must be firmly established and regularly followed by 

the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established and 

regularly followed state practice’ may be interposed by a State to prevent subsequent review by 

this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 

341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. 

Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 

521, 561 (S.D. Ohio 1998). 

The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry 

rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 

754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. 

Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 

2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently 

refused, in reliance on the doctrine of res judicata, to review the merits of claims because they 

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are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 

16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring 

that claims are adjudicated at the earliest possible opportunity. With respect to the independence 

prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law. 

Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is 

an adequate and independent ground for denying relief. Accordingly, the Court concludes that 

Petitioner has waived all of the grounds he now presents for federal habeas corpus relief. 

As cause for his procedural defaults, Petitioner asserts denial of the effective assistance of 

appellate counsel. He complains that his appellate attorney improperly failed to raise these 

issues on appeal, even though trial counsel preserved the issue of the trial court’s refusal to 

merge the offenses for sentencing purposes. See Petitioner’s Reply, Doc. No. 15. Additionally, 

Petitioner asserts, as cause for his procedural defaults, his pro se incarcerated status. Id. He 

appears to contend that he has preserved his claim of ineffective assistance of counsel by raising 

the issue in his motion for reconsideration under Ohio Appellate Rule 26(A). Finally, Petitioner 

requests the Court to stay proceedings pending his exhaustion of state remedies on his claim that 

the trial court illegally imposed consecutive sentences and that his sentence violates the Double 

Jeopardy Clause in view of the Ohio Supreme Court’s December 29, 2010, decision in State v. 

Johnson, 128 Ohio St.3d 153 (2010).3

 

Petitioner’s arguments are not persuasive. 

“ ‘[C]ause’ under the cause and prejudice test must be something 

external to the petitioner, something that cannot fairly be attributed 

to him[;] ... some objective factor external to the defense [that] 

 

3

 In Johnson, the Ohio Supreme Court held that the conduct of an accused must be considered when determining 

whether two offenses are allied offenses of similar import subject to merger (for sentencing purposes) under O.R.C. 

§ 2941.25. At the time of Petitioner's original sentencing, controlling Ohio precedent interpreted O.R.C. § 2941.25 

to require only that the statutorily defined elements of offenses be compared “in the abstract” in order to determine 

whether they are allied, and therefore merged, for sentencing purposes. See State v. Rance, 85 Ohio St.3d 632, 710 

(Ohio 1999). 

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impeded ... efforts to comply with the State's procedural rule.” 

Coleman v. Thompson, 501 U.S. 722, 753 (1991). 

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Petitioner's pro se status or “ignorance of 

the law and procedural requirements for filing a[n] ... appeal is insufficient to establish cause to 

excuse his procedural default.” See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004)(citing 

Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995)). 

Moreover, while the constitutionally ineffective assistance of counsel may constitute 

cause for a procedural default, Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray 

v. Carrier, 477 U.S. 478, 488–89 (1986)), the ineffective assistance of counsel cannot constitute 

cause where, as here, the allegation of the ineffective assistance of appellate counsel likewise is 

procedurally defaulted. Petitioner did not preserve his claim of ineffective assistance of counsel 

for federal habeas review by attempting to raise the claim in his motion for reconsideration of the 

appellate court’s denial of his direct appeal. The appellate court denied the motion, which was 

filed more than nine months late, as untimely. Additionally, the appellate court noted that 

Petitioner’s claim of ineffective assistance of appellate counsel properly would be raised in an 

application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), but that such a motion 

also would be untimely, and Petitioner had “made no effort. . . to demonstrate good cause” for his 

late filing. See Exhibit 12 to Return of Writ. 

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). 

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 

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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, 590-91 (6th Cir. 2005)(footnote omitted). Petitioner has failed to 

meet this standard here. Consequently, Petitioner has procedurally defaulted all of the claims he 

now presents for relief. 

 Petitioner nonetheless requests a stay of proceedings or a dismissal of this action without 

prejudice so that he can file an appeal of the trial court’s February 9, 2012, denial of his request 

for a “merger hearing” to correct his allegedly illegal sentence and thereby exhaust state court 

remedies as to his claims. In support of this request, Petitioner has attached a “Notification of 

Filing of Record” in the Licking County Court of Appeals dated April 2, 2012 (indicating that the 

record had been transmitted to the Court of Appeals) and states that he is in the process of filing 

his appellate brief. See Exhibit to Petitioner’s Reply, PageID #692. 

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 Petitioner’s request for a stay, or alternatively, for a dismissal without prejudice to refiling is DENIED. As previously discussed, Petitioner’s claim that his sentence was illegally 

imposed or that it violates the Double Jeopardy Clause should have been raised on direct appeal, 

but was not, and therefore is now barred from review under Ohio’s doctrine of res judicata. See 

State v. Cole, 2 Ohio St.3d at 112, 443 N.E.2d 169; State v. Ishmail, 67 Ohio St.2d at 16. 

Further, Petitioner made his request for a stay in April 2012, approximately one and one half 

years ago. He has not submitted any update regarding the status of his appeal, and presumably 

his appeal of the trial court’s denial of his motion for a merger hearing has now concluded. In 

any event, the record fails to demonstrate that Petitioner can meet the requirements set forth in 

Rhines v. Weber, 544 U.S. 269, 277-78 (2005)( stay and abeyance only appropriate where 

Petitioner has “good cause” for failing to exhaust state remedies and his claims are potentially 

meritorious). 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. Petitioner’s request for a stay of proceedings or, alternatively, for a dismissal 

without prejudice, is DENIED. 

Procedure on Objections: 

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

(14) 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 

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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, 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 s/Mark R. Abel 

 United States Magistrate Judge 

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