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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MICKEY DWAYNE SAMUEL, 

 

 Petitioner, 

 CASE NO. 2:13-CV-76 

v. JUDGE GEORGE C. SMITH 

MAGISTRATE JUDGE KING 

SOUTHERN OHIO 

CORRECTIONAL FACILITY, 

 Respondent. 

REPORT AND RECOMMENDATION 

 This is an action for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is 

before the Court on the Petition, Doc. No. 4, Respondent’s Return of Writ, Doc. No. 9, and the 

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

this action be DISMISSED. 

Facts and Procedural History 

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

this case as follows: 

Defendant-appellant, Mickey D. Samuel, appeals the judgment of 

the Franklin County Court of Common Pleas convicting him of 

two counts of aggravated robbery, two counts of robbery, two 

counts of kidnapping, as well as the firearm and repeat violent 

offender specifications attached to those counts, and one count of 

having a weapon while under disability. 

On February 3, 2010, appellant was indicted on two counts of 

aggravated robbery in violation of R.C. 2911.01, felonies of the 

first degree; two counts of robbery in violation of R.C. 2911 .02, 

felonies of the second degree; two counts of kidnapping in 

violation of R.C. 2905.01, felonies of the first degree; and one 

count of having a weapon while under disability in violation of 

R.C. 2923.13, a felony of the third degree. Each of the aggravated 

robbery, robbery, and kidnapping counts included firearm 

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specifications pursuant to R.C. 2941.145, and repeat violent 

offender specifications pursuant to R.C. 2941.149. These charges 

arose from the alleged robbery of Amanda Hair and Tara Shea on 

May 29, 2009.FN1 

FN1. The indictment also charged appellant with one count of 

aggravated robbery, one count of robbery, one count of 

kidnapping, all with firearm and repeat violent offender 

specifications, and one count of having a weapon while under 

disability, arising from the alleged robbery of Bruce Fleming on 

November 2, 2009. Prior to trial in the instant matter, the trial 

court, upon motion of appellant and, with agreement of the 

prosecution, severed these charges from the indictment. In its 

amended judgment entry filed following trial in the instant matter, 

the trial court, upon request of the prosecution, entered a nolle 

prosequi on these counts, subject to reinstatement upon reversal, 

vacation or nullification of the conviction in the instant case. 

Appellant waived his right to a jury on the weapons under 

disability charge. A jury trial was held on the remaining charges, at 

which the following evidence was adduced. 

At approximately 6:15 p.m. on May 29, 2009, Shea and her friend, 

Hair, were driving in Shea's car in the area of Sixth and Krumm in 

Columbus. Appellant, an acquaintance of both Shea and Hair who 

lived in the area, flagged Shea down and asked her to take him to a 

nearby store. Shea agreed on condition that appellant give her $10 

for gas money. Shea used the $10 for gas and then drove appellant 

to the store. 

After leaving the store a short time later, the three went to 

appellant's home to smoke a “blunt.” (Tr. 66.) Once inside the 

house, they walked downstairs and into appellant's bedroom. After 

Shea and Hair sat down, appellant pulled out a gun and demanded 

that the women turn over their belongings. When Shea began 

screaming, appellant stomped on her foot and ordered her to be 

quiet or he would shoot her. 

Appellant took $15 in cash and a small amount of marijuana Shea 

had hidden in her shirt. Appellant took a “[weed] grinder,” 

cigarettes, some marijuana, and a cell phone from Hair's purse, as 

well as $190 in cash and two Oxycontin pills she had hidden in her 

shirt. (Tr. 115.) When Hair asked appellant to return her cell 

phone, appellant threatened to kill her and asked her if she planned 

to call the police. Both she and Shea assured appellant they would 

not report the robbery. 

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Appellant then ordered the women to leave and continued pointing 

the gun at them as they walked up the stairs to the first floor. At 

trial, Shea testified that appellant stated, “I know where you both 

live and don't think I won't come * * * i[f] you guys tell on me.” 

Shea believed appellant meant “he was going to kill us or 

something if we told on him.” (Tr. 70.) Hair corroborated Shea's 

testimony, averring that appellant threatened to kill both women if 

they reported the incident to the police. 

The women ran out the front door and drove to the home of Hair's 

mother in Gahanna. Although Shea still had her cell phone, it had 

no minutes on it, so she could not call the police. The women 

reported the robbery to Hair's mother, who convinced Hair to call 

911. Because Hair's mother's home was outside the jurisdiction of 

the Columbus police department, Shea and Hair agreed to meet a 

Columbus police officer at a Columbus location to make a report. 

Columbus Police Officers Robert Shepherd and David Gardner 

met with Shea and Hair at approximately 7:15 p.m. on May 29, 

2009. The women reported they had been robbed at gunpoint 

inside appellant's residence. In particular, Hair reported only that 

appellant took her cash and cell phone. She did not tell the officers 

about the Oxycontin pills because she did not have a prescription 

for them and did not want to get in trouble. Shea reported only that 

she was present during the robbery. She did not tell the officers she 

had been robbed because she did not want to get in trouble for 

having marijuana and she was afraid appellant would retaliate 

against her. Both women described appellant as an African–

American male with short black hair, 5′10′′ tall, 220 pounds, and 

missing a tooth. According to Officer Shepherd, the women 

appeared to be “shaken” and were concerned for their safety; they 

did not want to return to the scene of the robbery because they 

were afraid appellant would hurt them. (Tr. 43.) 

In mid-January 2010, Shea met with a Columbus police detective 

and identified appellant from a photo array as the individual who 

had pointed a gun at her, robbed Hair, and threatened to physically 

harm both women if they reported the incident. Because she was 

still fearful of appellant, Shea once again did not report that 

appellant had stolen anything from her. Shea subsequently met 

with a Franklin County prosecutor and reported that appellant had 

stolen $15 and marijuana from her. 

Upon this evidence, the jury returned verdicts finding appellant 

guilty on the aggravated robbery, robbery, and kidnapping counts 

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and the attendant firearm specifications. The court subsequently 

found appellant guilty of the repeat violent offender specifications 

and having a weapon under disability. Based on the convictions 

and specifications, the trial court sentenced appellant to a 35–year 

prison term. 

On appeal, appellant sets forth the following five assignments of 

error for this court's review: 

ASSIGNMENT OF ERROR NO. 1: 

A TRIAL COURT ERRS AND VIOLATES THE RIGHTS OF A 

CRIMINAL DEFENDANT WHEN IT ALLOWS THE 

PROSECUTOR TO MODIFY AN INDICTMENT ON THE EVE 

OF TRIAL, ESPECIALLY WHERE THE DEFENDANT IS PRO 

SE. 

ASSIGNMENT OF ERROR NO. 2: 

THE CONVICTION IN THIS CASE IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

ASSIGNMENT OF ERROR NO. 3: 

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT 

THE DEFENDANT'S MOTION FOR ACQUITTAL. 

ASSIGNMENT OF ERROR NO. 4: 

THE JUDGMENT OF CONVICTION AND SENTENCE 

IMPOSED UPON APPELLANT SAMUEL FOR BEING A 

REPEAT VIOLENT OFFENDER VIOLATES HIS RIGHT TO 

DUE PROCESS OF LAW, UNDER THE FOURTEENTH 

AMENDMENT OF THE U.S. CONSTITUTION AND HIS 

RIGHT TO TRIAL BY JURY UNDER THE SIXTH AND 

FOURTEENTH AMENDMENTS, AND THEIR COUNTER 

PARTS IN THE OHIO CONSTITUTION, ART. I §§ 9, 16, IN 

THAT APPELLANT DID NOT WAIVE HIS RIGHT TO TRIAL 

BY JURY OF THAT OFFENSE/SPECIFICATION AS 

REQUIRED BY R.C. 2945.05. 

ASSIGNMENT OF ERROR NO. 5: 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

APPELLANT'S RIGHT UNDER THE DUE PROCESS CLAUSE 

OF THE FOURTEENTH AMENDMENT TO THE U.S. 

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CONSTITUTION BY ENTERING JUDGMENT OF 

CONVICTION AND SENTENCE UPON HIM FOR BEING A 

REPEAT VIOLENT OFFENDER IN THE ABSENCE OF 

LEGALLY SUFFICIENT EVIDENCE TO SUPPORT SUCH A 

CONVICTION AND SENTENCE. 

State v. Samuel, No. 11AP-158, 2011 WL 6930630, at *1-3 (Ohio App. 10th Dist. Dec. 30, 

2011). On December 30, 2011, the Ohio Court of Appeals affirmed the trial court’s judgment. 

On April 18, 2012, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. 

Samuel, 131 Ohio St. 1512 (2012). 

 On January 30, 2013, Petitioner initiated this action for a writ of habeas corpus pursuant 

to 28 U.S.C. 2254. He alleges, first, that he was denied a fair trial because the prosecution 

produced the 911 recording only on the first day of trial (claim one) and, second, that the 

evidence was constitutionally insufficient to sustain his convictions (claim two). 

 It is the position of the Respondent that 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 he can no 

longer present his claims to a state court, he has waived them for federal habeas review unless he 

can demonstrate cause for the procedural default and actual prejudice from the alleged 

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constitutional error. Murray v. Carrier, 477 U.S. 478, 485 397 (1986); Engle v. Isaac, 456 U.S. 

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

In the Sixth Circuit, the Court considers the following to determine whether a federal 

habeas claim is precluded because of a petitioner's failure to observe a state procedural rule: 

“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.” Maupin v. Smith, 785 

F.2d 135, 138 (6th Cir. 1986). Second, the Court must determine whether the state courts 

actually enforced the state procedural sanction. Id. Third, the Court must determine whether the 

state procedural forfeiture is an ‘adequate and independent’ state ground on which the state can 

rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court determines that 

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

must demonstrate cause for his failure to follow the State's procedural rule as well as actual 

prejudice from the alleged constitutional error. Id. 

Petitioner complains in his first claim that the prosecution failed to produce the 911 

recording until the first day of trial. Petitioner raised this claim with the trial court in his motion 

for acquittal, but failed to raise the claim on direct appeal. Petitioner may now no longer raise 

this claim in the state courts by operation of Ohio's doctrine of res judicata. See State v. Cole, 2 

Ohio St.3d (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 

(1967) (claims must be raised on direct appeal, if possible, or they will be barred by the doctrine 

of res judicata.). The state courts were never given an opportunity to enforce the procedural rule 

at issue due to the nature of Petitioner's procedural default. 

Ohio's doctrine of res judicata in this context 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 

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court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 

722, 732–33 (1991). To be “adequate,” the state procedural rule must be firmly established and 

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

established and regularly followed state practice’ may be interposed by a State to prevent 

subsequent review by this Court of a federal constitutional claim.” Id. at 423 (quoting James v. 

Kentucky, 466 U.S. 341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 

(1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. 

Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998). 

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

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

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

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

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

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

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

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

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

prong, the Court concludes that Ohio's doctrine of res judicata in this context does not rely on or 

otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of 

relevant case law that the Perry rule is an adequate and independent ground for denying relief. 

In claim two, Petitioner alleges that the evidence was constitutionally insufficient to 

sustain his convictions. Although Petitioner raised this claim on direct appeal, he failed to raise 

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the claim in his appeal to the Ohio Supreme Court. See Exhibit 33 to Return of Writ. Again, 

Petitioner may now no longer do so by operation of Ohio’s doctrine of res judicata. 

Petitioner may still secure this Court’s review of these claims on the merits if he 

establishes cause for his procedural default as well as actual prejudice from the alleged 

constitutional violations. 

“ ‘Cause’ under the cause and prejudice test must be something external to 

the petitioner, something that cannot fairly be attributed to him [;] ... some 

objective factor external to the defense [that] impeded ... efforts to comply with 

the State's procedural rule.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 

2546, 115 L.Ed.2d 640 (1991). 

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Petitioner has failed to meet this standard. 

Nothing in the record indicates that any external factor impeded Petitioner's ability to pursue 

proper appeals raising the claims presented in the Petition. 

 Additionally, any claimed ineffective assistance of appellate counsel cannot serve as 

cause for Petitioner's procedural default, because such a claim has never been presented to the 

state courts. See Edwards v. Carpenter, 529 U.S. 446, 451–52 (2000) (ineffective assistance of 

counsel can constitute cause for a procedural default only if that claim has been properly 

preserved). 

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. 

[I]f 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, 130 L.Ed.2d 808. 

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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, 513 U.S. 298, 115 S.Ct. 851, 130 

L.Ed.2d 808. 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, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. 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, 130 L.Ed.2d 808. The Court counseled 

however, that the actual innocence exception should “remain rare” 

and “only be applied in the ‘extraordinary case.’ ” Id. at 321, 513 

U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. 

Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (footnote omitted). The record in this action 

fails to satisfy this standard. 

 In short, the Court concludes that Petitioner’s claims have been procedurally defaulted. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be

DISMISSED as procedurally defaulted. 

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, 106 S.Ct. 466, 88 L.Ed.2d 435 (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/ Norah McCann King 

Norah McCann King 

 United States Magistrate Judge 

March 31, 2014 

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