t 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WILLIAM SOWARDS, 

Petitioner, 

v. 

ATTORNEY GENERAL OF THE 

STATE OF OHIO, 

Respondent. 

Case No. 2:11-cv-954 

JUDGE MICHAEL H. WATSON 

Magistrate Judge Kemp 

OPINION AND ORDER 

This matter is before the Court on Plaintiff William S. Sowards' objections to a 

Report and Recommendation issued by the Magistrate Judge on April19, 2012. The 

Court, having reviewed the record de novo, finds for the reasons set out below that the 

objections to the Report and Recommendation are without merit. For the following 

reasons, Mr. Sowards' objections will be OVERRULED and the Report and 

Recommendation will be ADOPTED in its entirety. 

I. STANDARD OF REVIEW 

When objections are received to a Magistrate Judge's Report and 

Recommendation on a dispositive matter, the assigned District Judge "shall make a de 

novo determination ... of any portion of the magistrate judge's disposition to which 

specific written objection has been made .... " Fed. R. Civ. P. 72(b). After review, the 

District Judge "may accept, reject, or modify the recommended decision, receive further 

evidence, or recommit the matter to the magistrate judge with instructions." /d.; see 

also 28 U.S.C. § 636(b)(1 )(8). General objections are insufficient to preserve any 

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issues for review; "[a] general objection to the entirety of the magistrate's report has the 

same effects as would a failure to object." Howard v. Secretary of Health and Human 

Servs., 932 F.2d 505, 509 (6th Cir. 1991). 

II. THE REPORT AND RECOMMENDATION 

In the Report and Recommendation, the Magistrate Judge recommended that 

petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be 

dismissed on the ground of procedural default. The Magistrate Judge also 

recommended that Mr. Sowards' motion for summary judgment, request for an 

evidentiary hearing, and request for a stay be denied. Based on the narrative 

discussion it contained and the procedural history of Mr. Sowards' state court 

proceedings, the Magistrate Judge construed the petition as raising two claims - that 

Mr. Sowards received an "illegal" sentence and that his trial counsel was ineffective. 

The Magistrate Judge also construed the petition as asserting an ineffective assistance 

of appellate counsel claim. 

Based upon the procedural history set forth in the record, the Magistrate Judge 

concluded that the claims Mr. Sowards is asserting in this action had not been raised on 

direct appeal in the state court, that the state courts specifically had applied the doctrine 

of res judicata to these claims, and that the ineffective assistance of appellate counsel 

could not be relied upon to excuse such procedural default because that claim itself 

was procedurally defaulted. Mr. Sowards does not disagree with the procedural history 

as recited by the Magistrate Judge. Consequently, the Court adopts the procedural 

history as set forth at great length in the Report and Recommendation for purposes of 

ruling on Mr. Sowards' objections. 

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By way of some background, however, the Court finds a summary of the 

procedural history to be in order. Following a jury trial, Mr. Sowards was found guilty of 

one count of possession of drugs in violation of R.C. § 2925.11 (A). The verdict form did 

not state the amount of drugs at issue but the indictment had stated the amount 

relevant to that count as exceeding twenty thousand grams. Mr. Sowards was 

sentenced to eight years in prison. At the time of his sentencing, R.C. § 2945.75 

contained a provision requiring that a guilty verdict state the degree of the offense or 

guilt of only the least degree of the offense charged could be found. The district of Mr. 

Sowards' conviction, however, Ohio's Fourth Appellate District, required only 

substantial, not strict, compliance with R.C. § 2945.75. 

At his sentencing, Mr. Sowards' trial counsel did not raise lack of compliance 

with R.C. §2945.75 as an issue. While Mr. Sowards' direct appeal was pending, the 

Ohio Supreme Court issued its decision in State v. Pelfrey, 112 Ohio St.3d 442 (2007). 

Pelfrey held that where a verdict form does not set out the greater degree of the 

offense or any aggravating factors, a defendant can be convicted only of the least 

degree of the offense charged. The Pelfrey issue was never raised during Mr. 

Sowards' direct appeal process, which included an appeal to the Ohio Supreme Court 

and a petition for a writ of certiorari to the United States Supreme Court. 

Mr. Sowards did not raise the Pelfrey issue until he filed a motion to vacate with 

the Court of Common Pleas for Gallia County, Ohio. The common pleas court treated 

the motion as one for post-conviction relief and overruled the motion stating specifically, 

among other things, that Mr. Sowards had the right to raise the Pelfrey issue during the 

appellate process but had failed to do so. Mr. Sowards appealed the denial of his 

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motion to vacate to the Fourth District Court of Appeals. He raised the following 

assignments of error: 

1. The trial court erred to the prejudice of the defendant-appellant by 

denying his motion to vacate sentence whereas the verdict form signed by 

the jury failed to include the degree of the offense for which the defendant 

was convicted nor did it contain a statement that an aggravating element had 

been found. As a result the defendant-appellant was unlawfully sentenced. 

2. The defendant-appellant was denied his constitutional right to 

effective assistance of counsel as guaranteed to him under the Sixth and 

Fourteenth Amendments to the United States Constitution and the Ohio 

Constitution. 

The Fourth District affirmed the judgment of the trial court. With respect to the 

first assignment of error raising the Pelfrey issue, the appellate court stated "we 

conclude that he is barred by the doctrine of res judicata from raising the R.C. 2945.75 

issue at this late date." State v. Sowards, No.09CA8, 2011 WL 1279490 (Ohio App. 4 

Dist. March 31, 2011 ); Exhibit 20 to Return of Writ. With respect to the second 

assignment of error relating to the ineffectiveness of trial counsel for failing to raise the 

Pelfrey issue, the appellate court stated, "[w]e ... believe that res judicata bars this 

argument and furthermore, even if it were not barred, we would find no merit to this 

argument." /d. 

Mr. Sowards appealed the Fourth District's decision to the Ohio Supreme Court 

phrasing his propositions of law as follows. 

I. The Court cannot make illegal orders. 

II. Appellant was denied his Constitutional Right to effective assistance 

of Counsel on appeal when the same counsel as employed at the trial level 

did not present significant and serious error in the direct appeal and thus left 

unchallenged an 8 year sentence in a case for which the maximum allowable 

sentence is a fine and costs. 

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The Ohio Supreme Court declined jurisdiction and dismissed the case as not involving 

any substantial constitutional question. Mr. Sowards filed a motion for reconsideration 

which also was denied. At the time Mr. Sowards filed his petition, he had not begun 

serving his eight-year sentence. 

The Magistrate Judge explained the basis for Mr. Sowards' habeas petition, and 

his motion for summary judgment, in the following way. 

The impetus behind petitioner's habeas petition, as well as his motion 

for summary judgment, is his belief that the maximum sentence that could 

have been imposed on him under the correct interpretation of Ohio law was 

a $100 fine and court costs rather than the eight-year sentence he received. 

The basis for petitioner's position, as more fully set forth above, can be 

summarized as follows. Petitioner was found guilty by a jury on Count I of 

an indictment for the second degree felony of knowingly obtaining or 

possessing marijuana in an amount exceeding twenty-thousand grams. 

The verdict form signed by the jury, however, did not state either the degree 

of the offense or any aggravating element as required by R.C. 

§2945. 75(A)(2). As a result, petitioner contends, he only can be guilty of the 

least degree of the offense charged -which he asserts in the statute under 

which he was convicted, §2925.11, is a minor misdemeanor. See R.C. 

§2925.11 (C)(3)(a). 

It is with all of the above in mind, that the Court will consider the merits of Mr. 

Soward's objections to the Report and Recommendation. 

Ill. THE OBJECTIONS 

Mr. Sowards has raised several objections to the Magistrate Judge's finding of 

procedural default. The objections, as the claims in the petition, are simply discussed 

in sixteen pages of narrative without specific identification. Further, the objections, 

similar in tone to the petition, vigorously contend that Mr. Sowards has suffered grave 

injustice that simply cannot be permitted to continue. As the Court understands the gist 

of Mr. Sowards' objections, however, they appear to be based on a profound 

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misunderstanding of the procedural default doctrine specifically and the law governing 

habeas corpus cases generally. For ease of discussion, his arguments will be 

summarized individually but addressed as a whole as follows. 

It appears that at least initially, with respect to his claim that the trial court 

imposed an illegal sentence, Mr. Sowards continues to argue in terms of substance 

rather than address the Magistrate Judge's conclusion that the failure to raise this claim 

on direct appeal has resulted in its procedural default. In what can best be 

characterized as the conclusion to his argument directed to the merits of his sentence, 

Mr. Sowards states, 

This Court is reminded that this Petitioner set forth three proper ways 

that this petition could be decided and the case dealt with and proficiently 

and in detail briefed all of them. The Magistrate did not seemingly consider 

any of these arguments and therefore it is requested that the Court review 

those issues de novo (including the argument that no final appealable order 

has ever been properly made in this case). These fully briefed arguments 

were seemingly ignored by the Magistrate as they were not meaningfully 

addressed in his report. 

Objection, ECF No. 24, at 4. 

Mr. Sowards next appears to argue that the Magistrate Judge indicated that a 

motion to reopen appeal should have been filed in an effort to prevent procedural 

default of his "ineffective assistance of counsel claim." In this portion of his argument, 

Mr. Sowards makes no distinction between a claim of ineffective assistance of trial 

counsel and a claim of ineffective assistance of appellate counsel. He contends, 

however, that such a motion was never filed because it was rendered moot by the 

Fourth District Court of Appeals' ruling on the appeal of his motion to vacate through 

which he had attempted to raise an ineffective assistance of trial counsel claim. In 

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making this argument, he relies on the portion of the Fourth District opinion rejecting his 

ineffective assistance of trial counsel claim on its merits as an alternative holding to its 

ruling that such a claim was barred by the doctrine of res judicata. Mr. Sowards 

suggests that the Magistrate Judge's failure to cite to this portion of the state court 

decision demonstrates a misunderstanding of its significance in his failure to pursue a 

Rule 26(8) application. 

Mr. Sowards next argues, without any citation to authority, that because his 

sentence was void, his claims cannot be procedurally defaulted. As Mr. Sowards 

further explains, the Magistrate Judge did not need to reach the issue of procedural 

default because there were many available resolutions more favorable to Mr. Sowards. 

For example, Mr. Sowards contends that the Magistrate Judge could have concluded 

that 

"the sentence was void, or that the illegal sentence was never a final 

order and is thus still pending in state court, or that an illegal sentence can 

be corrected anytime or that this matter be stayed while the vain act of filing 

an Application to reopen Appeal on the basis of ineffective assistance of 

counsel is filed in the Fourth District Court of Appeals .... " 

Objection, supra, at 6. 

Further, Mr. Sowards contends, again without any citation, that "[r]es judicata 

does not apply if an actual conflict of interest enjoined original appellate counsel from 

raising ineffective assistance of trial counsel on direct appeal." In the next sentence he 

argues that "such an act would have been futile" because as he explains in the 

remainder of the paragraph, the Fourth District Court of Appeals determined that any 

ineffective assistance of counsel claim - either trial or appellate - failed because Mr. 

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Sowards could not demonstrate prejudice. 

The next seven pages of Mr. Sowards' objections are dedicated to a discussion 

of the exhaustion requirement applicable to habeas corpus cases. Part of his argument 

suggests (although it fails to recognize any distinction) that because courts have the 

discretion to consider unexhausted claims which are clearly meritless in an effort to 

preserve judicial resources, the Court should exercise its discretion to rule on the merits 

of his claims. The crux of the exhaustion argument, however, relies on the Fourth 

District's discussion rejecting any ineffectiveness of trial counsel claim. Basically, Mr. 

Sowards is contending that he did not need to "exhaust" his ineffective assistance of 

appellate counsel claim by filing a Rule 26(B) application because, in concluding that 

his ineffective assistance of trial counsel claim failed, the Fourth District simultaneously 

foreclosed such a claim. Mr. Sowards urges the Court to apply the "futility doctrine" 

which he contends excuses a habeas petitioner from exhausting state remedies when 

the state court has decided the same legal question adversely to the petitioner in a 

case involving similar facts. 

In conclusion, Mr. Sowards appears to argue that, because he believed that it 

was unlikely that he would prevail on his Rule 26(B) application, given the Fourth 

District's holding, there was no reason to file one. 

Before addressing Mr. Sowards' objections, the Court will set forth the standard 

for procedural default relied upon by the Magistrate Judge. 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 

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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. /d.; Anderson v. 

Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam; Picard v. 

Connor, 404 U.S. 270,275-76,92 S.Ct. 509, 30 L.Ed.2d 438 (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, 106 S.Ct. 2639, 91 

L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 

(1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (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. 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." /d. Second, the 

court must determine whether the state courts actually enforced the state procedural 

sanction. /d. 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. /d. Finally, if the court has determined that a state 

procedural rule was not complied with and that the rule was an adequate and 

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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. /d. 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). 

Applying the above standard to Mr. Sowards' claims, the Court finds all of his 

objections to be meritless. As discussed above and set forth at length in the Report 

and Recommendation, Mr. Sowards' procedural default is textbook in nature. There is 

absolutely no dispute that his claims that his sentence was "illegal" and that he received 

ineffective assistance from his trial counsel were not raised on direct appeal. Further, 

there is no question that when he attempted to raise the issues by way of a "motion to 

vacate" before the state courts, the Fourth District Court of Appeals specifically applied 

a state procedural sanction in holding that the claims were barred by the doctrine of res 

judicata. That is the very definition of the procedural default which prevents this Court 

from considering these claims on habeas review. See, e.g., Willis v. Smith, 351 F.3d 

741 (6th Cir. 2003); Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.), cert. denied, 

532 U.S. 989 (2001)("When a habeas petitioner fails to obtain consideration of a claim 

by a state court, either due to the petitioner's failure to raise that claim before the state 

courts while state-court remedies are still available or due to a state procedural rule that 

prevents the state courts from reaching the merits of the petitioner's claim, that claim is 

procedurally defaulted and may not be considered by the federal court on habeas 

review''). 

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Mr. Sowards does not argue that the Magistrate Judge applied an incorrect 

standard of procedural default. Rather, Mr. Sowards seems to be arguing that the 

Magistrate Judge indicated that the filing of a Rule 26(8) motion would have prevented 

any procedural default. In making this argument, Mr. Sowards appears to blur the 

distinction between his claims of an "illegal" sentence and the ineffectiveness of trial 

counsel (the underlying claims) and the ineffective assistance of appellate counsel 

claim which he articulated for the first time in any meaningful detail in his habeas 

petition. 

Stated simply, the filing of a Rule 26(8) motion would not have prevented a 

finding of procedural default of the underlying claims. Rather, the pursuit of a Rule 

26(8) motion may have allowed this habeas Court to consider whether the ineffective 

assistance of appellate counsel constituted cause to excuse that procedural default, 

thereby allowing this Court to consider those claims. Instead, as the Magistrate Judge 

found, there also is no question here that the ineffective assistance of appellate counsel 

claim was itself procedurally defaulted and, therefore, cannot establish cause to excuse 

the default of Mr. Sowards' other claims. See Edwards v. Carpenter, 529 U.S. 446 

(2000) (a defaulted ineffective assistance of counsel claim cannot be used to establish 

procedural default). 

Mr. Sowards openly acknowledges that he has never pursued a Rule 26(8) 

application-the procedural vehicle under Ohio law for raising an ineffective assistance 

of appellate counsel claim. Moreover, there is no indication in his objections or 

otherwise in the record that he attempted to pursue this claim in any way before the 

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Ohio state courts. Despite the clearly dispositive nature of this failure, Mr. Sowards 

devotes the bulk of his objections to asserting that it should not be fatal to his ineffective 

assistance of appellate counsel claim, or for that matter, as he understands the law, 

any of his claims. As repeatedly noted above, Mr. Sowards bases this argument on his 

interpretation of the Fourth District's discussion of the merits of his ineffective 

assistance of trial counsel claim. 

Mr. Sowards' interpretation of the impact of the Fourth District's alternative 

discussion on his ability to pursue a Rule 26(8) motion is simply incorrect. Mr. Sowards 

is correct that, in its alternative holding, the Fourth District stated that trial counsel could 

not be found constitutionally ineffective because raising lack of compliance with R.C. 

§ 2945.75 as an objection at the time of Mr. Sowards' sentencing would have been a 

"vain act." It does not follow from this, however, that the Fourth District intended to 

foreclose any claim regarding the failure of appellate counsel to raise the issue on 

appeal following the decision in Pelfrey. The Fourth District's decision does not 

address that issue in any way, instead suggesting to Mr. Sowards that such an issue 

was more appropriately raised in a Rule 26(8) motion to reopen appeal. See State v. 

Sowards, No. 09CA8, 2011 WL 1279490, fn. 4 (Ohio App. 4 Dist. March 31, 2011 ); 

Exhibit 20 to Return of Writ. 

Further, in addressing Mr. Sowards' failure to file a Rule 26(8) motion, the 

Magistrate Judge was not suggesting that this case somehow turns on the issue of 

exhaustion. Rather, as the Magistrate Judge noted, while Mr. Sowards did fail to 

exhaust the state remedy of seeking to reopen his appeal, because any such attempt to 

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file a Rule 26(8) motion at this point would be procedurally barred under Ohio law, he 

has procedurally defaulted his ineffective assistance of appellate counsel claim for 

purposes of habeas relief. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); 

see a/so Edwards v. Carpenter, 529 U.S. at 453 (addressing the interplay between 

exhaustion and procedural default). Moreover, as the Magistrate Judge explained, Mr. 

Sowards has not established any cause for this procedural default. Similarly, he does 

not assert any in his objections. 

In summary, the status of Mr. Sowards' claims can be characterized succinctly 

as follows. His underlying claims (i.e. the illegality of his sentence and ineffectiveness 

of trial counsel) were procedurally defaulted because Mr. Sowards did not raise them 

on direct appeal. He has not established cause for this procedural default because, to 

the extent that he suggests that the ineffective assistance of appellate counsel 

constitutes cause for this default, this claim also has been procedurally defaulted as a 

result of his failure to file a Rule 26(8) motion or to raise the claim in any other fashion 

in the state courts. He has asserted no cause which might excuse his procedural 

default of this claim. Because Mr. Sowards failed to establish cause to excuse the 

procedural defaults of both his underlying claims and his ineffective assistance of 

appellate counsel claim, the Magistrate Judge was correct in declining to consider the 

issue of prejudice. 

Further, to the extent that it would be available here, Mr. Sowards cannot rely on 

the "actual innocence exception" as grounds for excusing his procedural default. See 

Vanwinkle v. United States, 645 F.3d 365, 369-70 (6th Cir. 2011) ("actual innocence" 

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may excuse procedural default); see a/so Gibbs v. U.S., 655 F.3d 473 (6th Cir. 2011) 

(actual innocence exception may not apply in non-capital cases). As the Magistrate 

Judge concluded, Mr. Sowards does not argue his innocence, let alone provide any 

evidence of it. Instead, the sole focus of his habeas challenge is that as a result of trial 

court or attorney error, he failed to receive the benefit of a misdemeanor sentence. 

Because the Court agrees with the Magistrate Judge's conclusion that all of Mr. 

Sowards' claims are procedurally defaulted, the Court may not, despite Mr. Sowards' 

insistence to the contrary, reach his merits arguments. For all of these reasons, Mr. 

Sowards' objections will be overruled and the Report and Recommendation will be 

adopted in its entirety. 

IV. CERTIFICATE OF APPEALABILITY 

The Court also notes Mr. Sowards' request for a certificate of appealability. 

Where the Court dismisses a claim on procedural grounds, a certificate of appealability 

should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 

L.Ed.2d 542 (2000). Thus, there are two components to determining whether a 

certificate of appealability should issue when a claim is dismissed on procedural 

grounds: "one directed at the underlying constitutional claims and one directed at the 

district court's procedural holding." The Court may first "resolve the issue whose answer 

is more apparent from the record and arguments." /d. 

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Upon review of the record, the Court is unpersuaded that reasonable jurists 

would debate whether this Court was correct in its dismissal of petitioner's claims due to 

his failure to establish cause and prejudice for his procedural defaults. Therefore, 

petitioner's request for a certificate of appealability will be denied. 

V. DISPOSITION 

For the foregoing reasons, petitioner's objections are OVERRULED. The 

Magistrate Judge's Report and Recommendation (ECF No. 23) is ADOPTED and 

AFFIRMED. Petitioner's motion for summary judgment, for an evidentiary hearing and 

for a stay are DENIED. This action is hereby DISMISSED. Petitioner's request for a 

certificate of appealability is DENIED. 

IT IS SO ORDERED. 

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