1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DRED COLEMAN, 

 

 Petitioner, Case No. 2:12-CV-1213 

 Judge Marbley 

 v. Magistrate Judge King 

 

WARDEN, TRUMBULL CORRECTIONAL 

INSTITUTION, 

 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. 1, Respondent’s Return of Writ, Doc. No. 5, Petitioner’s Traverse,

Doc. No. 7, and the exhibits of the parties. For the reasons that 

follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

Petitioner’s renewed request for the appointment of counsel (see 

Traverse) is DENIED. 

I. Relevant Procedural History 

This case involves Petitioner’s convictions, following a jury 

trial, on charges resulting from the murder of Darryl Wood. After the 

joinder of indictments against Petitioner, 

the cases came for trial before a jury beginning 

October 28, 2009. At trial, the state presented 

evidence that Darryl Wood (“Wood”), Rudolph 

Lynch, and Keith James were each indicted on drug 

charges in Franklin County in June of 2008. Those 

three individuals appeared in Franklin County 

Common Pleas Court on December 8, 2008, at which 

time the prosecutor “made Keith James' attorney 

aware that Darryl [Wood] intended to cooperate 

against the two co-defendants.” (Tr. 470.) The 

case was then continued because of Wood's 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 1 of 33 PAGEID #: <pageID>
2

indication of cooperation. On December 9, 2008, 

Wood was shot and killed at his residence on 2320 

Argyle Drive, Columbus. Appellant, the nephew of 

Rudolph Lynch, and another individual, Ramon 

Blevins, were arrested shortly after the 

shooting. Blevins entered a guilty plea to a 

charge of murder, with a firearm specification, 

in connection with the shooting death of Wood, 

and is currently serving a sentence of 18 years 

to life at the Ross Correctional Institute. 

Blevins, age 25, testified on behalf of the state 

at appellant's trial, and gave the following 

testimony. Blevins, an acquaintance of appellant, 

is a resident of Cleveland. Blevins first met 

Lynch at appellant's residence in early December 

of 2008. On Friday, December 5, 2008, the three 

men got into a van driven by Lynch and traveled 

from Cleveland to Columbus, where they rented a 

room at a Motel 6 on Brice Road; Lynch paid for 

the room. 

On the morning of Monday, December 8, the three 

men drove to Wood's neighborhood and parked 

several houses away from his residence. Lynch 

watched Wood's house from the van; Blevins 

believed they were watching the house “[f]or a 

burglary to occur.” (Tr. 498.) Lynch told Blevins 

that Wood usually went to work in the morning, 

but Wood did not leave for work on this 

particular date. After approximately one hour, 

Lynch drove appellant and Blevins back to the 

motel. 

The next morning, December 9, the three men 

returned to Wood's neighborhood and sat in the 

van near his home. They watched Wood and his wife 

leave their residence that morning. Blevins and 

appellant then went to the rear of the house, 

while Lynch remained outside. Blevins was wearing 

a gray hoodie, a tan coat, white tennis shoes, 

blue jeans, gloves, and a mask. Appellant was 

wearing a gray hoodie, gloves, dark pants, and 

black tennis shoes with white soles. Blevins 

jimmied the back door and they entered the 

residence. Blevins began searching the house for 

marijuana. He went to the basement and tossed two 

items to the floor, not realizing they were bales 

of marijuana. Blevins then went upstairs to tell 

appellant he could not find anything. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 2 of 33 PAGEID #: <pageID>
3

At about that time, Wood returned to his 

residence, and appellant and Blevins ran 

downstairs and hid in a laundry area. Blevins 

heard two voices upstairs. Wood started to come 

downstairs, but he noticed appellant. Wood asked 

appellant what he was doing there, and Wood then 

ran upstairs and yelled to someone “[g]et my 

gun.” (Tr. 516.) Appellant went up the stairs 

directly behind Wood. Blevins began running up 

the stairs, but, halfway up the stairway, he 

heard a couple of gunshots from the front yard. 

He went outside and saw Wood lying on the ground. 

During the shooting incident, Blevins heard Wood 

pleading: “Don't kill me.” (Tr. 549.) Blevins had 

earlier observed a .357 revolver in the van in a 

box. 

Appellant started running across the backyard, 

and Blevins followed after him and jumped over a 

fence. (Tr. 518.) A short time later, Blevins 

threw his tan coat, gloves, and mask into a trash 

can. Appellant gave Blevins his gloves, and 

Blevins also threw those into a trash can. 

Blevins observed the revolver in appellant's 

hand, and appellant threw the weapon into a 

nearby sewer. (Tr. 525.) 

At the time the shots were fired, several 

neighbors called 911, and police officers soon 

arrived and were given a description of “a couple 

of suspicious male blacks” in a backyard 

residence. (Tr. 103.) One officer observed the 

two suspects and gave chase on foot. Appellant 

was arrested after a brief foot chase. Blevins 

hid underneath a van, but was soon discovered by 

police officers and arrested. 

Later that evening, Blevins and appellant were 

released from police custody. They went to a 

nearby restaurant, and appellant called his 

uncle. Lynch arrived a short time later, but when 

appellant and Blevins went to the parking lot, 

Lynch was gone. Blevins and appellant then 

boarded a COTA bus; after a few stops, Lynch got 

on the same bus and handed appellant some 

clothes. 

Blevins and appellant eventually got off the bus 

and began walking toward Brice Road. They 

returned to the Motel 6, but were informed that 

their room was no longer rented. Appellant phoned 

his brother and arranged to have money sent by 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 3 of 33 PAGEID #: <pageID>
4

wire to pay for bus fare for Blevins and 

appellant to return to Cleveland. At the Motel 6, 

appellant told Blevins that Wood “was supposed to 

testify against his uncle.” (Tr. 543–44.) The two 

men began walking toward a nearby store, but they 

were again taken into custody by police officers 

who had been following them. At trial, Blevins 

denied firing the shots that killed Wood. 

Ronald Jones, the uncle of Wood, had accompanied 

his nephew to the Franklin County Courthouse on 

the morning of December 8, 2008. At that time, an 

individual named Keith James “made threatening 

statements to my nephew.” (Tr. 335.) Jones was at 

Wood's residence on the date of the shooting, and 

gave the following testimony of the events that 

day. On the morning of December 9, Wood drove to 

Jones' residence and picked up his uncle at 

approximately 8:30 a.m. Wood drove to a nearby 

gas station, but after receiving a telephone call 

from “Butch,” a friend, Wood drove back to his 

residence. (Tr. 284.) Butch arrived at Wood's 

residence in a green pickup truck, and the three 

men then went inside the house. 

Jones began watching television in the living 

room, while Wood and Butch went into the kitchen 

area. Wood walked toward his bedroom, but then 

returned to the kitchen. Wood then stated, 

“[s]omeone is in my house, they have a gun, get 

out.” (Tr. 289.) Jones heard a gunshot and exited 

the house through the front door. Jones went to 

the next-door neighbor's house and knelt behind 

an SUV. Jones heard at least four or five 

gunshots. Jones also heard his nephew fall down 

and yell out: “No, man, no.” (Tr. 291.) Jones saw 

Wood on the ground and his body shaking. Jones 

observed someone wearing white tennis shoes “walk 

up on him.” (Tr. 292.) He heard two more shots 

after seeing the individual approach his nephew. 

Jones then observed two men running away. One of 

the individuals ran toward Meredith Avenue. Jones 

was unable to see the faces of these individuals, 

but he observed that they were both black males. 

Charles “Butch” Martin, age 43, a high school 

acquaintance of Wood, was also at Wood's 

residence on the date of the shooting. Martin 

testified that he drove to Wood's house on 

December 9, shortly before 9:00 a.m. Wood's uncle 

was at the residence when he arrived. While 

standing in the kitchen, Martin heard Wood scream 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 4 of 33 PAGEID #: <pageID>
5

out: “Uncle Ron, get the gun, there is somebody 

in the house.” (Tr. 357.) Martin ran toward the 

back door, attempting to unlock it. The screen 

door was locked, so Martin threw himself against 

the screen and knocked the screen out. Martin ran 

toward a hill in the backyard and heard five 

shots. He then heard three more shots, and as he 

jumped over a fence he heard two more shots. 

Martin asked a neighbor to call 911. 

At the scene of the shooting, police officers 

recovered several bales of marijuana from Wood's 

residence. Police officers found a firearm in a 

sewer near Bethesda Avenue and Elton Road. 

Officers also found a coat, a pair of brown 

gloves, and a mask while searching a trash can. 

Dr. Tae Lyong An, a deputy coroner with the 

Franklin County Coroner's Office, conducted an 

autopsy on Wood. Dr. An noted five entry wounds 

and two exit wounds on the body. The entry wounds 

were to the victim's left front chest, the back 

of the head, the right upper back, the left midback area near the spine, and the right forearm. 

The bullet wound to the chest lacerated the left 

lung, while the wound to the head lacerated the 

victim's brain. Dr. An opined that the cause of 

death was the “multiple gunshot wounds, 

laceration multiple internal organs.” (Tr. 456.) 

Mark Hardy, a forensic scientist with the 

Columbus Police Department, opined that five 

bullets retrieved from the victim following the 

autopsy had been fired from the .357 Smith & 

Wesson revolver recovered from the sewer. (Tr. 

739.) A forensic scientist testified that swabs 

taken from the hands of Blevins and appellant 

both tested positive for gunshot residue. 

Andre Brown, age 20, is currently incarcerated 

for murder. In November of 2008, Brown was 

incarcerated in the Franklin County Jail, where 

he met appellant. Brown watched a newscast 

involving the shooting of Wood. Brown told 

appellant that he knew a girl who lived near the 

house where the shooting occurred. Appellant 

wanted to know the name of the girl “to use the 

girl [Brown knew] as an alibi.” (Tr. 634.) 

Appellant told Brown that he had already told a 

detective that a girl was his alibi. According to 

Brown, appellant was worried his co-defendant 

would “tell on him.” (Tr. 638.) Appellant told 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 5 of 33 PAGEID #: <pageID>
6

Brown that he and his co-defendant “had came down 

here for his uncle, he had paid him to kill a 

dude so he wouldn't testify on him the next day 

or something, and he basically told me what 

happened.” (Tr. 639.) Appellant said that “they 

came in a cab, jumped out of the car, he seen 

him, he shot him, he ran, and threw the gun in 

the backyard.” (Tr. 639.) Appellant also told 

Brown he was worried “there was some gunpowder on 

his hoodie. He didn't know if it would be on 

there or not.” (Tr. 642.) Following this 

conversation, Brown contacted Ann Pennington, the 

lead police detective in the case involving Wood. 

Robert Mason, age 42, is currently incarcerated, 

and was previously held in the Franklin County 

Jail in December 2008, where he met appellant. 

Appellant asked Mason “about gunshot residue on a 

jacket and if I thought that it would be able to 

be detected in a test, and I said yes, I thought 

that it would.” (Tr. 661.) Later, Mason told 

appellant about someone who owed him money. 

Appellant “said to me that he could have that 

taken care of.” (Tr. 662.) According to Mason, 

appellant stated during this conversation that he 

“would just put two or three in the MF'er like I 

did down here.” (Tr. 662.) Later, appellant told 

Mason he was worried about information he had 

given to Brown “about the murder.” (Tr. 663.) 

Columbus Police Detective Ann Pennington, the 

lead homicide detective on the case, testified 

that Brown had contacted her on December 12, 

2008, stating he had information. Brown told the 

detective that appellant related he and Blevins 

had shot and killed Wood because he was going to 

testify against appellant's uncle. Brown told 

Pennington that appellant wanted Brown to find a 

girl to play the part of “Pebbles” for him as an 

alibi. Pennington testified that Tamara Lynch, 

the wife of Rudolph Lynch, had rented a van 

around the time of the shooting, and that the van 

had been returned on the afternoon of December 9. 

Appellant testified on his own behalf, and gave 

the following account. On December 5, 2008, 

appellant and his uncle went to Cleveland to pick 

up Blevins. They drove to Columbus, and appellant 

and Blevins stayed at a Motel 6 near Brice Road. 

On December 9, Lynch picked up appellant and 

Blevins and drove to a residence; Lynch stated 

that there were “many pounds of marijuana in this 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 6 of 33 PAGEID #: <pageID>
7

house.” (Tr. 1096.) Blevins was ready to enter 

the house, but appellant was reluctant and would 

not go inside without a mask. Lynch told 

appellant to get out of the van, so appellant 

began to walk through the neighborhood in the 

direction they had come from. Approximately eight 

minutes later, Blevins came running toward him, 

out of breath. Blevins told him to call his 

uncle. While walking through a backyard, 

appellant saw a police officer approach them, and 

appellant began running, jumping over a fence. 

Appellant eventually surrendered to the police. 

Appellant denied ever entering the house or being 

in the backyard of Wood's residence. According to 

appellant, he was three streets from the 

residence when he thought he heard gunshots. When 

questioned by detectives, appellant told them he 

was in the area looking for a girl named 

“Pebbles.” (Tr. 1104.) He acknowledged at trial 

that there was no girl named Pebbles. 

Following deliberations, the jury returned 

verdicts finding appellant guilty on all counts. 

In case No. 09CR–1055, the trial court merged the 

aggravated murder counts and sentenced appellant 

on Count 2. The court imposed a sentence of life 

without parole on the aggravated murder count, 

plus an additional three-year term for the 

firearm specification, and the court imposed a 

sentence of ten years on the aggravated burglary 

charge, with an additional three years for the 

firearm specification. The trial court ordered 

the sentences to run consecutive each other and 

consecutive to case No. 08CR–8790. In case No. 

08CR–8790, the trial court imposed a sentence of 

five years of incarceration on the count of 

having a weapon under disability, to run 

concurrent to a one-year term (with a one-year 

firearm specification) on the count of tampering 

with evidence. 

State v. Coleman, No. 10AP-265, 10AP-266, 2011 WL 1483891, at *1-5 

(Ohio App. 10th Dist. April 19, 2011). 

 On direct appeal, Petitioner raised the following assignments of 

error: 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 7 of 33 PAGEID #: <pageID>
8

I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT 

OF DUE PROCESS OF LAW AS GUARANTEED BY THE 

FOURTEENTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE 

OHIO CONSTITUTION BY FINDING HIM GUILTY OF 

AGGRAVATED MURDER, BURGLARY AND TAMPERING WITH 

EVIDENCE AS THOSE VERDICTS WERE NOT SUPPORTED BY 

SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

II. APPELLANT WAS DEPRIVED OF HIS RIGHT TO BE 

PRESENT AND TO THE PRESENCE AND ASSISTANCE OF HIS 

COUNSEL DURING A CRITICAL STAGE OF HIS JURY 

TRIAL, AND HIS RIGHT TO DUE PROCESS AND A 

FUNDAMENTALLY FAIR JURY TRIAL AS REQUIRED BY THE 

FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION AND ARTICLE ONE 

SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIO 

CONSTITUTION AND CRIMINAL RULE 43(A). 

III. THE TRIAL COURT ERRED BY IMPOSING 

CONSECUTIVE SENTENCES WITHOUT MAKING THE 

REQUISITE FACTUAL FINDINGS; THEREBY DEPRIVING 

APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY 

THE FOURTEENTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF 

THE OHIO CONSTITUTION. 

Exhibit 24 to Return of Writ, PAGEID # 128. On April 19, 2011, the 

state appellate court affirmed the judgment of the trial court. State 

v. Coleman, 2011 WL 1483891, *5. Petitioner did not pursue a timely 

appeal from that decision; however, on September 21, 201, the Ohio 

Supreme Court granted Petitioner’s motion for a delayed appeal. State 

v. Coleman, 129 Ohio St.3d 1473 (2011). On December 21, 2011, the Ohio 

Supreme Court dismissed the appeal. State v. Coleman, 130 Ohio St.3d 

1494 (2011). 

 On December 26, 2012, Petitioner filed the Petition, alleging that 

he is in the custody of the Respondent in violation of the Constitution 

of the United States based on the following grounds: 

1. The trial court erred and deprived appellant 

of due process of law when his convictions are 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 8 of 33 PAGEID #: <pageID>
9

not supported by sufficient evidence and were 

against the manifest weight of the evidence. 

2. Appellant was deprived of his right to be 

present and to the presence and assistance of 

counsel during a critical stage of his jury 

trial violating his right to due process and a 

fundamentally fair trial. 

3. The trial court erred by imposing consecutive 

sentences without making the requisite factual 

findings. 

Respondent contends that Petitioner’s claims are procedurally 

defaulted or without merit. 

II. Manifest Weight of the Evidence 

In claim one, Petitioner asserts that his convictions are against 

the manifest weight of the evidence. This claim fails to present an 

issue appropriate for federal habeas corpus review. The Due Process 

Clause offers no relief for defendants whose convictions are against 

the manifest weight of the evidence, but only for those who have been 

convicted without sufficient evidence to permit a rational trier of 

fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 

F.2d 959, 969 (6th Cir. 1983). 

A petitioner alleging that a conviction is not supported by the 

“sufficiency of the evidence” alleges a violation of the due process 

requirement that there be sufficient evidence introduced in favor of 

the prosecution to permit a rational trier of fact to find each 

element of a crime beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319 (1979). When reviewing a sufficiency of the 

evidence claim, a federal habeas court must defer to the trier of fact 

with respect to issues of conflicting testimony, weight of the 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 9 of 33 PAGEID #: <pageID>
10

evidence, and the credibility of the witnesses. Id. at 319; Walker, 

703 F.2d at 969. On the other hand, under Ohio law, a claim that a 

verdict was against the manifest weight of the evidence − as opposed 

to one based upon insufficient evidence − requires the state appellate 

court to act as a “thirteenth juror” and review the entire record, 

weigh the evidence, and consider the credibility of witnesses to 

determine whether “the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed 

and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175 

(1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Because a federal 

habeas court does not function as an additional state appellate court, 

vested with the authority to conduct such an exhaustive review, any 

claim that Petitioner's convictions were against the manifest weight 

of the evidence cannot be considered by this Court. 

III. Insufficiency of the Evidence 

In claim one, Petitioner also alleges that the evidence was 

constitutionally insufficient to sustain his convictions. As it 

relates to all of Petitioner’s convictions except his conviction on 

the aggravated murder charge, the claim has been procedurally 

defaulted and this Court cannot, therefore, consider the merits of 

that claim to that extent. Moreover, even as the claim relates to 

Petitioner’s aggravated murder conviction, the Court concludes that 

the claim lacks merit. The state court's decision rejecting this claim 

was not contrary to or an unreasonable application of clearly 

established federal law, nor was it based on an unreasonable 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 10 of 33 PAGEID #: <pageID>
11

determination of the facts in light of the evidence presented in the 

state court. 

A. Sufficiency of the Evidence Supporting Convictions for 

Burglary, Tampering With Evidence, and Possessing a Weapon 

while under a Disability 

 

Petitioner also alleges in claim one that the evidence was 

constitutionally insufficient to sustain his convictions, including 

his convictions for aggravated murder, burglary, tampering with 

evidence, and having a weapon while under a disability. Petitioner, 

however, waived this claim with regard to all his convictions, except 

aggravated murder, because he failed to raise this claim on direct 

appeal. He is therefore barred by procedural default with regard to 

these convictions. 

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 to present those 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 because of a state 

procedural rule, he has waived them for federal habeas review unless 

he can demonstrate cause for the procedural default and actual 

prejudice resulting from the alleged constitutional error. Murray v. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 11 of 33 PAGEID #: <pageID>
12

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). 

The Sixth Circuit uses the four-part Maupin test to determine 

whether a federal habeas claim is precluded due to the 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’s claim that the evidence was constitutionally 

insufficient to sustain his convictions on burglary, tampering with 

the evidence, and having a weapon while under a disability has been 

waived because, being readily apparent from the face of the record, 

that claim should have been raised on direct appeal, but was not. 

Although Petitioner indicated in his appellate brief that he intended 

to challenge his convictions for “aggravated murder, burglary and 

tampering with evidence,” on this basis, see Exhibit 24 to Return of 

Writ, PAGEID # 128, he actually presented argument on this basis only 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 12 of 33 PAGEID #: <pageID>
13

in connection with his aggravated murder conviction. See Exhibit 24 to 

Return of Writ, PAGEID # 135-36. The state appellate court addressed 

only this claim on appeal. 

At the outset, we note that while appellant's 

statement of assignment of error lists each of 

his convictions (i.e., aggravated murder, 

aggravated burglary, tampering with evidence, and 

having a weapon under disability),1

 the argument 

set forth in the body of the first assignment of 

error only addresses the sufficiency and manifest 

weight of the evidence regarding his conviction 

for aggravated murder. Specifically, appellant 

argues that the element of prior calculation and 

design was lacking because Blevins testified that 

the intent of the burglary of Wood's home was to 

steal drugs and money, not to kill Wood. 

According to appellant, the testimony of Blevins 

indicates that appellant and Blevins entered the 

house and began searching for drugs, and that the 

return of Wood appeared to be a surprise; 

further, that appellant only began shooting at 

Wood after Wood confronted him in the basement. 

Appellant notes that another of the state's 

witnesses, Jones, observed an individual with 

white tennis shoes standing over his nephew, 

while the evidence indicates appellant was 

wearing black tennis shoes at the time of the 

incident. 

State v. Coleman, 2011 WL 1483891, at *7. 

Petitioner can now no longer raise this claim in connection with 

his other convictions 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, 423 N.E.2d 1068, (1981); State v. 

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, (1967) (claims must be 

raised on direct appeal, if possible, or they will be barred by the 

                                                            

1 Petitioner’s appellate brief actually did not include in this claim his 

conviction on having a weapon while under a disability. See Exhibit 24 to 

Return of Writ, PAGEID # 128. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 13 of 33 PAGEID #: <pageID>
14

doctrine of res judicata). Although Petitioner attempted to raise his 

claim of insufficiency of the evidence as to all of his convictions on 

appeal to the Ohio Supreme Court, he did not thereby preserve the 

claim for federal habeas corpus review, because the Ohio Supreme Court 

does not ordinarily consider claims not raised in the appellate court 

below. See State v. Jester, 32 Ohio St.3d 147, 154 (1987); see also

Normand v. McAninch, 2000 WL 377348, *5 (6th Cir. April 6, 2000) (this 

rule serves the state's interest in the regularity of criminal 

convictions and does not implicate federal law). The state courts 

were never given an opportunity to enforce this procedural rule due to 

the nature of Petitioner's procedural default. This Court therefore 

deems the first and second parts of the Maupin test to have been met. 

The Court must next decide whether the procedural rule at issue 

constitutes an adequate and independent ground that forecloses review 

of the petitioner's federal constitutional claims. 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 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 14 of 33 PAGEID #: <pageID>
15

521, 561 (S.D. Ohio 1998). This Court must also balance the state's 

interests behind each procedural rule against the federal interest in 

reviewing federal claims. See Maupin, 785 F.2d at 138. 

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's doctrine of res judicata does not 

rely upon or otherwise implicate federal law. In addition, the 

doctrine of res judicata is stated in unmistakable terms in countless 

Ohio decisions, and Ohio courts have consistently refused, in reliance 

on that doctrine, to review the merits of claims. State v. Cole, 2 

Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Further, 

the doctrine of res judicata serves the state's interest in finality 

and in ensuring that claims are adjudicated at the earliest possible 

opportunity. The third pong of the Maupin test is therefore met. 

Under the fourth prong of the Maupin test, Petitioner may still 

obtain review of the merits of these claims if he establishes cause 

for his procedural default as well as actual prejudice from the 

alleged constitutional violations. In this context, “ ‘[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] impeded ... 

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

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 15 of 33 PAGEID #: <pageID>
16

Stegall, 340 F.3d 433, 438 (6th Cir. 2003)(quoting Coleman v. 

Thompson, 501 U.S. at 753). Petitioner has failed to meet this 

standard here. Nothing in the record indicates that any external 

factor impeded Petitioner’s ability to file a direct appeal. 

Therefore, the fact that res judicata now bars his claims is 

attributable only to him. 

 Beyond the four-part Maupin analysis, the 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). 

[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. 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. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 16 of 33 PAGEID #: <pageID>
17

Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (footnote omitted). 

The record fails to reflect such circumstances here. Petitioner 

alleges no new facts related to his convictions for burglary, 

tampering with evidence, and having a weapon while under disability. 

He has therefore not presented a case of actual innocence. 

B. Sufficiency of the Evidence for the Aggravated Murder 

Conviction

In claim one, Petitioner also alleges that the evidence was 

constitutionally insufficient to sustain his aggravated murder 

conviction. In support, he asserts that the conviction was based on 

the unreliable testimony of his co-defendant and two “jail house 

snitches,” Petition, PAGEID# 19, and that the only eyewitness to the 

crime testified that the killer was wearing white tennis shoes while 

Petitioner was wearing black tennis shoes. Additionally, Petitioner 

argues that, because his co-defendant testified that they entered the 

residence to steal drugs and had no intention, at the time, of 

committing murder, the evidence was insufficient to sustain a 

conviction for aggravated murder. 

 The state appellate court rejected this claim in relevant part as 

follows: 

Sufficiency of the evidence is a legal standard 

that tests whether the evidence introduced at 

trial is legally sufficient to support a verdict. 

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–

Ohio–52. The test is a question of law. Id. The 

appellate court's function is to determine 

whether, when viewing the evidence in a light 

most favorable to the state, any rational trier 

of fact could have found that the state proved, 

beyond a reasonable doubt, all of the essential 

elements of the crime. State v. Jenks (1991), 61 

Ohio St.3d 259, paragraph two of the syllabus; 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 17 of 33 PAGEID #: <pageID>
18

State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–

2126, ¶ 78. The existence of conflicting evidence 

does not render the evidence insufficient as a 

matter of law. State v. Murphy, 91 Ohio St.3d 

516, 543, 2001–Ohio–112. The trier of fact makes 

determinations of credibility and the weight to 

be given to the evidence. State v. DeHass (1967), 

10 Ohio St.2d 230, paragraph one of the syllabus. 

A jury may believe or disbelieve all, part, or 

none of a witness' testimony. State v. Antill

(1964), 176 Ohio St. 61, 67; State v. Raver, 10th 

Dist. No. 02AP–604, 2003–Ohio–958, ¶ 21. 

*** 

At the outset, we note that while appellant's 

statement of assignment of error lists each of 

his convictions (i.e., aggravated murder, 

aggravated burglary, tampering with evidence, and 

having a weapon under disability), the argument 

set forth in the body of the first assignment of 

error only addresses the sufficiency and manifest 

weight of the evidence regarding his conviction 

for aggravated murder. Specifically, appellant 

argues that the element of prior calculation and 

design was lacking because Blevins testified that 

the intent of the burglary of Wood's home was to 

steal drugs and money, not to kill Wood. 

According to appellant, the testimony of Blevins 

indicates that appellant and Blevins entered the 

house and began searching for drugs, and that the 

return of Wood appeared to be a surprise; 

further, that appellant only began shooting at 

Wood after Wood confronted him in the basement. 

Appellant notes that another of the state's 

witnesses, Jones, observed an individual with 

white tennis shoes standing over his nephew, 

while the evidence indicates appellant was 

wearing black tennis shoes at the time of the 

incident. 

R.C. 2903.01(A) states in part: “No person shall 

purposely, and with prior calculation and design, 

cause the death of another.” Pursuant to R.C. 

2901.22(A), “[a] person acts purposely when it is 

his specific intention to cause a certain 

result.” Intent may be determined from the 

surrounding facts and circumstances. State v. 

Johnson (1978), 56 Ohio St.2d 35, 38. An intent 

to kill may be presumed where the natural and 

probable consequence of an act is to produce 

death and the jury may conclude from the 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 18 of 33 PAGEID #: <pageID>
19

surrounding circumstances that there was an 

intention to kill. State v. Robinson (1954), 161 

Ohio St. 213. It is presumed that a person 

intends the natural, reasonable, and probable 

consequences of his voluntary acts. State v. 

Nabozny (1978), 54 Ohio St.2d 195. 

In State v. Robbins (1979), 58 Ohio St.2d 74, 

paragraph one of the syllabus, the Supreme Court 

of Ohio held: 

Where evidence adduced at trial 

reveals the presence of sufficient 

time and opportunity for the planning 

of an act of homicide to constitute 

prior calculation, and the 

circumstances surrounding the homicide 

show a scheme designed to implement 

the calculated decision to kill, a 

finding by the trier of fact of prior 

calculation and design is justified. 

Prior calculation and design can be formed over a 

short time period. For example, in Robbins, the 

court upheld a finding of prior calculation and 

design where the defendant was the aggressor and 

had accosted the decedent in an apartment 

building hallway, knocking him to the floor. The 

defendant then went into his adjacent apartment, 

retrieved a long knife, and stabbed the victim to 

death “instants later.” Robbins at 79. 

In the present case, the state presented evidence 

indicating that appellant's uncle, Rudolph Lynch, 

had been charged with a serious drug offense, and 

that Wood had agreed to testify against him. 

Several days before the shooting, appellant, who 

had been living with his uncle, accompanied his 

uncle to Cleveland to pick up Blevins. Lynch then 

drove them to Columbus, where Lynch rented a 

motel room for the two men. The day prior to the 

shooting, Lynch drove appellant and Blevins to 

Wood's neighborhood, where they watched his house 

for approximately one hour. The next day, they 

returned and waited for Wood and his wife to 

leave the house and then entered it, searching 

for drugs and money. Blevins testified that he 

observed a .357 revolver in the van. 

When Wood returned to his house, Blevins and 

appellant hid in the basement. Wood started down 

the stairs, but then noticed appellant. As Wood 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 19 of 33 PAGEID #: <pageID>
20

ran upstairs, appellant chased after him and 

multiple shots were fired outside. Wood was heard 

saying, “[d]on't kill me” or “[n]o, man, no” 

before he was killed. (Tr. 291; 549.) Wood was 

shot five times, including three wounds to the 

back of the body (head, upper back and mid-back). 

The testimony by Jones was that the last two 

shots were fired at close range as the shooter 

was standing over Wood. (Tr. 293.) Appellant and 

Blevins fled the area after the shooting and 

disposed of a weapon, coats, gloves, and a mask. 

Appellant himself testified he told the police 

that he lied about his alibi being a girl named 

“Pebbles.” 

Blevins testified that appellant told him that 

Wood had agreed to testify against Lynch. 

Further, two jailhouse informants provided 

testimony about encounters with appellant 

following the shooting. Andre Brown testified 

that appellant told him that he and Blevins came 

to Columbus with his uncle, and that his uncle 

“had paid him to kill a dude so he wouldn't 

testify on him.” Appellant expressed concern to 

Brown about gunshot residue on his clothing, and 

that he was worried his co-defendant would “tell 

on him.” The other informant, Mason, similarly 

testified that appellant expressed concern about 

gunshot residue on his clothing. 

Upon review, considering all of the facts and 

circumstances, including the number of shots 

fired and the location of the wounds on the 

victim's body, there was evidence upon which a 

reasonable trier of fact could have found that 

appellant made a calculated decision to kill 

Wood. Here, construing the evidence most strongly 

in favor of the state, there was sufficient 

evidence for the jury to have found that the 

state proved, beyond a reasonable doubt, the 

element of prior calculation and design necessary 

to convict appellant of aggravated murder. 

In arguing that his conviction was against the 

manifest weight of the evidence, appellant 

challenges the credibility of the testimony of 

Blevins as well as the testimony of the 

“jailhouse informants.” However, as noted by the 

state, Blevins' testimony was corroborated by 

other evidence. The state introduced evidence 

that a van was rented by Lynch's wife during the 

time surrounding the events. Cell phone records 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 20 of 33 PAGEID #: <pageID>
21

indicated that appellant phoned Lynch shortly 

after the incident. Blevins testified that he 

threw a mask, gloves, and coat in the trash, 

where they were later recovered by police 

officers. Blevins also testified that appellant 

threw the weapon into a sewer, and officers 

recovered the weapon from that location. A Motel 

6 employee testified that appellant appeared to 

be in charge, and that appellant kept trying to 

call his uncle. As to the credibility of Brown, 

one of the informants, the record reflects 

similarities between Blevins' version of the 

events and the testimony given by Brown. Further, 

it was within the province of the jury to believe 

or disbelieve Brown's testimony, including 

testimony that appellant stated his uncle “paid 

him to kill a dude so he wouldn't testify.” 

Upon review, giving deference to the jury's 

determinations regarding credibility, and having 

reviewed the entire record, we do not find that 

the jury clearly lost its way and created such a 

manifest miscarriage of justice that the 

conviction must be reversed and a new trial 

ordered. Accordingly, the conviction is not 

against the manifest weight of the evidence. 

Finally, although appellant's assignment of error 

only addresses the conviction for aggravated 

murder, we further note that a review of the 

record indicates there was sufficient evidence to 

support appellant's remaining convictions, and 

that those convictions are similarly not against 

the manifest weight of the evidence. 

Based upon the foregoing, appellant's . . . 

assignment of error is overruled. 

State v. Coleman, 2011 WL 1483891, at *6-9. 

The factual findings of the state appellate court are 

presumed to be correct: 

In a proceeding instituted by an application for 

a writ of habeas corpus by a person in custody 

pursuant to the judgment of a State court, a 

determination of a factual issue made by a State 

court shall be presumed to be correct. The 

applicant shall have the burden of rebutting the 

presumption of correctness by clear and 

convincing evidence. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 21 of 33 PAGEID #: <pageID>
22

28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant 

relief unless the state court's decision was contrary to or an 

unreasonable application of clearly established federal law, or based 

on an unreasonable determination of the facts in light of the evidence 

that was presented. 

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. 

28 U.S.C. § 2254(d). In order to obtain habeas corpus relief, a 

petitioner must show that 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 (Nov. 7, 

2011) (quoting Harrington v. Richter, 562 U.S. ––, ––, 131 S.Ct. 770, 

786–87 (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, 131 S.Ct. at 786 (quoting Jackson v. 

Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring in 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 22 of 33 PAGEID #: <pageID>
23

judgment)). In short, “[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.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 

(2004)). 

A state court's determination regarding a sufficiency of evidence 

claim is entitled a “double layer” of deference. As explained in 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009), deference is due 

the jury's finding of guilt because the standard, announced in Jackson 

v. Virginia, is whether, “viewing the trial testimony and exhibits in 

the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Even if de novo review of the evidence leads to 

the conclusion that no rational trier of fact could have so found, a 

federal habeas court “must still defer to the state appellate court's 

sufficiency determination as long as it is not unreasonable.” See 

also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a 

substantial hurdle for a habeas petitioner to overcome, and for the 

reasons discussed by the state appellate court, Petitioner has failed 

to do so here. 

IV. The Right to Be Present at a Critical Stage of the Proceedings 

In claim two, Petitioner alleges that he was denied his right to 

be present during a critical stage of the proceedings. This claims 

arises in connection with the jury’s questions during deliberations; 

Petitioner alleges that “[n]othing in the record indicates that the 

Petitioner was present during the reading of the questions or even 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 23 of 33 PAGEID #: <pageID>
24

knew of the exist[e]nce of the questions.” Traverse, PAGEID# 369. The 

Court concludes that this claim is also barred by Petitioner’s 

procedural default pursuant to the four-part Maupin analysis described 

above. 785 F.2d at 138 

The first prong of the Maupin test is satisfied because 

Petitioner failed to comply with Ohio’s contemporaneous objection 

rule. Although Petitioner properly raised this claim on direct appeal 

and on appeal to the Ohio Supreme Court, no objection was raised in 

the trial court at the time that the alleged error occurred. Ohio 

applies a contemporaneous objection rule to any error that could have 

been avoided or corrected by the trial court had a contemporaneous 

objection been made. LeFort v. Century 21–Maitland Realty Co., 32 

Ohio St.3d 121 (1987) (“An appellate court will not consider any error 

which a party complaining of a trial court's judgment could have 

called but did not call to the trial court's attention at a time when 

such error could have been avoided or corrected by the trial court.”) 

(citations omitted). Under that rule, an appellant who fails to raise 

an objection to a trial court waives later review unless he can 

demonstrate “plain error.” Williams v. Bagley, 380 F.3d 932, 968 (6th 

Cir. 2004). The state appellate court reviewed this claim for plain 

error: 

[A]ppellant contends that he was deprived of his right 

to be present and to have the presence and assistance 

of his counsel during a critical stage of his jury 

trial. Specifically, appellant argues there is nothing 

in the record indicating he was present during the 

reading of a question submitted to the jury during 

deliberations. 

A criminal defendant has a fundamental right to be 

present at all critical stages of his criminal trial. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 24 of 33 PAGEID #: <pageID>
25

Section 10, Article I, Ohio Constitution; Crim.R. 

43(A); State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–

3246, ¶ 100. “An accused's absence, however, does not 

necessarily result in prejudicial or constitutional 

error.” State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–

2, ¶ 90. “ ‘[T]he presence of a defendant is a 

condition of due process to the extent that a fair and 

just hearing would be thwarted by his absence, and to 

that extent only.’ “ Id., quoting Snyder v. 

Massachusetts (1934), 291 U.S. 97, 107–08, 54 S.Ct. 

330, 333, overruled on other grounds Duncan v. 

Louisiana (1968), 391 U.S. 145, 154, 88 S.Ct. 1444, 

1450. Thus, a violation of Crim.R. 43(A), where the 

defendant is absent, although improper, can constitute 

harmless error where no prejudice is suffered. State 

v. Williams (1983), 6 Ohio St.3d 281, 286–87. 

Although appellant did not argue such in his written 

brief, at oral argument his counsel argued that the 

error was structural in nature, requiring no showing 

of prejudice. Structural errors “defy harmless-error 

analysis and are cause for automatic reversal” without 

a showing that a substantial right has been affected. 

State v. Perry, 101 Ohio St.3d 118, 2004–Ohio–297, ¶ 

16. A structural error is a “ ‘defect affecting the 

framework within which the trial proceeds, rather than 

simply an error in the trial process itself.’ “ State 

v. Hill, 92 Ohio St.3d 191, 197, 2001–Ohio–141, 

quoting Arizona v. Fulminante (1991), 499 U.S. 279, 

309, 111 S.Ct. 1246, 1265. “Such errors ‘infect the 

entire trial process,’ [Brecht v. Abrahamson (1993), 

507 U.S. 619, 630, 113 S.Ct. 1710, 1717], and 

‘necessarily render a trial fundamentally unfair,’ [ 

Rose v. Clark (1986), 478 U.S. 570, 577, 106 S.Ct. 

3101, 3106].” Hill. “Put another way, these errors 

deprive defendants of ‘basic protections' without 

which ‘a criminal trial cannot reliably serve its 

function as a vehicle for determination of guilt or 

innocence * * * and no criminal punishment may be 

regarded as fundamentally fair.’ “ Hill, quoting Rose 

v. Clark (1986), 478 U.S. 570, 577–78, 106 S.Ct. 3101, 

3106. 

The Twelfth District and the Second District have held 

that failure to comply strictly with Crim.R. 43(A) is 

not a structural error. See State v. Armas, 12th Dist. 

No. CA2004–01–007, 2005–Ohio–2793, ¶ 27 (“Statutory or 

rule violations, even serious ones, will not sustain a 

structural-error analysis”); State v. Vinzant, 2d 

Dist. No. 18546, 2001–Ohio–7005. This court has 

previously recognized that a defendant's absence is 

not a structural error, and even if improper, can 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 25 of 33 PAGEID #: <pageID>
26

constitute harmless error where no prejudice is 

suffered. State v. Reed, 10th Dist. No. 09AP–1164, 

2010–Ohio–5819; State v. Warren, 10th Dist. No. 10AP–

376, 2010–Ohio–5718. 

In the present case, there was no objection made to 

the trial court, and we therefore review this 

assignment of error under a plain error analysis. 

Although generally a court will not consider alleged 

errors that were not brought to the attention of the 

trial court, Crim.R. 52(B) provides that the court may 

consider errors affecting substantial rights even 

though they were not brought to the attention of the 

trial court. “‘Plain error is an obvious error * * * 

that affects a substantial right.’” Yarbrough at ¶ 

108, quoting State v. Keith, 79 Ohio St.3d 514, 518, 

1997–Ohio–367. An alleged error constitutes plain 

error only if the error is obvious and, but for the 

error, the outcome of the trial clearly would have 

been different. Id. “Notice of plain error is taken 

with utmost caution only under exceptional 

circumstances and only when necessary to prevent a 

manifest miscarriage of justice.” State v. Martin, 

10th Dist. No. 02AP–33, 2002–Ohio–4769, ¶ 28. 

Appellant argues that the trial court's handling of 

the jury's question was improper since defense counsel 

was in Cleveland, and the record does not demonstrate 

that appellant was present during the reading of the 

question, or even informed of the existence of the 

question. Appellant contends that having counsel 

present to discuss a substantive question with his 

client is an important and critical juncture in the 

case. 

The record demonstrates that, during deliberations, 

defense counsel requested permission to return to 

Cleveland. Counsel stated: “I have requested the 

assistance of a local attorney. * * * He is in court 

on Monday, and he is available.” (Tr. 1329.) Counsel 

also stated that he had spoken with his client, and 

that “Mr. Coleman is in agreement and he understands 

that Mr. Ireland is now added on our team.” (Tr. 

1329.) Defense counsel also stated: “I explained to 

Mr. Coleman jury deliberation is not a critical state 

of the case. However, I'll be available by cell phone 

for any questions that the jury may have and I would 

partake fully in helping answer any questions they may 

have.” (Tr. 1330.) The trial court then addressed 

appellant and inquired as to his understanding, and 

appellant indicated he was in agreement. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 26 of 33 PAGEID #: <pageID>
27

The jury question at issue, which occurred during 

deliberations on November 9, 2009, is as follows: 

“Does complicity apply to every part of every count of 

each indictment? For example, does complicity apply to 

the ‘firearm specification’?” The trial court's 

response was, “Yes. Please see page 16 para 1 of your 

instructions.” Next to this notation are the judge's 

initials. After the notation is written, “Agreed to by 

Liz Geraghty and Fred Crosby2

 at 1:45,” and the 

bailiff's signature appears on the page. 

The Supreme Court of Ohio has held that when a 

defendant's counsel is present via telephone and 

consulted concerning the answer to be given, any error 

regarding the defendant's absence is harmless error. 

State v. Franklin, 97 Ohio St.3d 1, 18, 2002–Ohio–

5304, citing State v. Taylor (1997), 78 Ohio St.3d 15, 

25. 

Upon review, we conclude that appellant's presumed 

absence was harmless error. As noted above, the record 

reflects that, even though counsel was in Cleveland, 

counsel was consulted as to the jury's inquiry by 

telephone before an answer was given, and that counsel 

was in agreement with the answer provided to the jury. 

Here, the answer merely reinforced the earlier 

instruction, and appellant has not demonstrated 

prejudice or shown how his presence would have altered 

the trial court's response. Further, the answer was 

“innocuous,” as in Taylor at 26 (trial court's answer 

to jury, without consulting defense counsel, was 

incorrect; however, question and answer were 

innocuous, and therefore judge's brief answer was 

harmless). 

Appellant cites State v. Wade, 10th Dist. No. 03AP–

774, 2004–Ohio–3974, and State v. Sales, 10th Dist. 

No. 02AP–175, 2002–Ohio–6563, as supporting his 

argument that his presence was required. Those cases, 

however, are distinguishable from the facts of this 

case because, in both of those cases, the record was 

unclear whether the defendant or counsel was present 

during the preparation of the answers to the 

questions. In the instant case, appellant waived his 

counsel's physical presence, but counsel was consulted 

by telephone and approved the answer given to the 

jury. Given these facts, we cannot say that the trial 

court's procedure was other than harmless error. 

                                                            

2 Mr. Crosby was Petitioner’s trial counsel. Petition, PAGEID# 12. 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 27 of 33 PAGEID #: <pageID>
28

State v. Coleman, 2011 WL 1483891, at *9-12. 

The state appellate court explicitly relied on Petitioner’s 

failure to contemporaneously object to the alleged error and thus 

engaged in a plain error review. The appellate court also found that 

Petitioner’s counsel was consulted by telephone, and thus any error 

was harmless. The state court’s alternative ruling on the merits does 

not forgive the procedural default or otherwise revive the claim for 

purposes of habeas corpus review. See Harris v. Reed, 489 U.S. 255, 

264 n. 10 (1989) (“a state court need not fear reaching the merits of 

a federal claim in an alternative holding”); Bowling v. Parker, 344 

F.3d 487, 498 (6th Cir. 2003) (where state court's dismissal of claim 

on merits constitutes an alternative holding, federal habeas court 

will consider the claim procedurally defaulted); Kenney v. Haviland, 

No. 1:04 CV 2194, 2006 WL 2792171, at *6 n. 8 (N.D. Ohio Sep.26, 2006) 

(“The mere existence of the clear statement rule confirms that an 

alternative holding on the merits cannot save a claim where the court 

clearly and expressly enforces a state procedural bar”). The first 

prong of the Maupin test has thus been satisfied. 

Under the Maupin test, the Court must next determine whether the 

state courts actually enforced the state procedural rule. “In 

determining whether state courts have relied on a procedural rule to 

bar review of a claim, we look to the last reasoned opinion of the 

state courts and presume that later courts enforced the bar instead of 

rejecting the defaulted claim on its merits.” Hinkle v. Randle, 271 

F.3d 239, 244 (6th Cir. 2001). Here, the state appellate court, which 

issued the last reasoned opinion reviewing petitioner's claim, applied 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 28 of 33 PAGEID #: <pageID>
29

a plain error analysis. Moreover, the Sixth Circuit routinely holds 

that plain error review by a state appellate court constitutes 

enforcement of Ohio’s contemporaneous objection rule. Williams, 380 

F.3d 968–69 (citing examples). 

Third, it must be decided whether the state procedural forfeiture 

is an adequate and independent state ground upon which the state can 

rely to foreclose review of a federal constitutional claim. In Hinkle 

v. Randle, the United States Court of Appeals for the Sixth Circuit 

held that a claim for prosecutorial misconduct claim involving the 

prosecutor's statements in closing argument was procedurally defaulted 

because a contemporaneous objection had not been raised. 271 F.3d at 

244. “We have held that Ohio's contemporaneous objection rule 

constitutes an adequate and independent state ground that bars federal 

habeas review absent a showing of cause and prejudice.” 271 F.3d at 

244. Similarly, in Williams v. Bagley, the Sixth Circuit applied the 

contemporaneous objection rule to petitioner's failure to object to a 

prosecutor's improper vouching for the credibility of the petitioner's 

accomplices during their testimony. 380 F.3d 968–69. This prong of 

the Maupin test has also been met. 

The final prong of the Maupin analysis permits review of the 

merits of an otherwise defaulted claim if the petitioner establishes 

cause for his procedural default and actual prejudice from the alleged 

constitutional violation. In this context, Petitioner must demonstrate 

that something external to his defense impeded his ability to comply 

with the state procedural rule. See Coleman, 501 U.S. 753; Maples,

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 29 of 33 PAGEID #: <pageID>
30

340 F.3d at 438. Petitioner has failed to meet this standard here.3 

Nor is this “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. Petitioner alleges no new evidence that raises 

doubts sufficient to undermine confidence in the results of the trial. 

Indeed, Petitioner raises no new facts at all. 

V. The Imposition of Consecutive Sentences 

In claim three, Petitioner alleges that the trial court erred by 

imposing consecutive sentences without making the requisite factual 

findings. The state appellate court rejected this claim as follows: 

[A]ppellant contends that the trial court erred by 

imposing consecutive sentences without making 

requisite factual findings, thereby depriving him of 

due process of law. Appellant notes that, in State v. 

Foster, 109 Ohio St.3d 1, 2006–Ohio–856, the Supreme 

Court of Ohio found R.C. 2929.14(E)(4) 

unconstitutional and severed that statutory provision, 

leaving trial courts with the discretion to impose 

consecutive sentences without the need for factual 

findings. Appellant argues that Oregon v. Ice (2009), 

555 U.S. 160, 129 S.Ct. 711, has in effect revived 

R.C. 2929.14(E)(4). 

Subsequent to the time for filing briefs in this case, 

the court rendered its decision in State v. Hodge, 128 

Ohio St.3d 1, 2010–Ohio–6320, in which the court 

addressed this issue and held that Ice does not revive 

R.C. 2929.14(E)(4). Specifically, in Hodge at 

paragraph two of the syllabus, the court held in part: 

“The United States Supreme Court's decision in Oregon 

                                                            

3 Petitioner does not allege that his trial counsel should have objected and 

that his counsel’s failure to do so constituted ineffective assistance. 

Moreover, Petitioner has never presented such a claim to the state courts, 

and it does not appear that he could at this point present such a claim. Any 

procedural default can therefore not be excused by the failure of 

Petitioner’s counsel to complain to the trial court of the alleged error. 

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

of counsel cannot constitute cause for a procedural default where that claim 

has itself been procedurally defaulted). 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 30 of 33 PAGEID #: <pageID>
31

v. Ice * * * does not revive Ohio's former 

consecutive-sentencing statutory provisions, R.C. 

2929.14(E)(4) and 2929.41(A), which were held 

unconstitutional in State v. Foster.” Accordingly, 

because trial judges are not obligated to engage in 

judicial fact-finding prior to imposing consecutive 

sentences, appellant's third assignment of error is 

without merit and is overruled. 

State v. Coleman, 2011 WL 1483891, at *12. 

This claim plainly fails. As this Court has previously explained: 

[T]he Ohio Supreme Court had ruled in State v. Foster, 

109 Ohio St.3d 1, 845 N.E.2d 470 (Ohio 2006), that 

portions of Ohio's sentencing statutes, including the 

provision requiring the trial judge to make certain 

findings before imposing consecutive sentences, 

violated the defendant's Sixth Amendment right to a 

jury trial under the Supreme Court's decision in 

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 

159 L.Ed.2d 403 (2004). To remedy the constitutional 

defects, the Foster court severed the unconstitutional 

provisions and held, among other things, that the 

trial court had “full discretion” to impose 

consecutive prison terms without making findings or 

giving reasons for its decision. Foster, 845 N.E.2d at 

497–99. Nearly three years later, in Ice, the Supreme 

Court upheld the constitutionality of Oregon's 

sentencing statute, which like Ohio's pre-Foster

statute, required the trial judge to make factual 

findings prior to imposing consecutive sentences. In 

so ruling, the Court reasoned that the imposition of 

consecutive sentences does not implicate 

constitutional concerns under the Sixth Amendment. See 

Ice, 555 U.S. at 167–69. 

Scott v. Warden, No.1:12-cv-118, 2013 WL 2096641, at *5 (S.D. Ohio May 

14, 2013). 

Simply put, Oregon v. Ice does not support Petitioner’s claim 

that his constitutional rights were violated or that he is entitled to 

federal habeas relief on his third claim. 

Although the Supreme Court in Oregon v. Ice allowed 

Oregon and other states to require additional judicial 

factfinding before imposing consecutive sentences, it 

did not require states (or Ohio specifically) to allow 

the imposition of consecutive sentences only when the 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 31 of 33 PAGEID #: <pageID>
32

sentencing judge finds additional predicate facts. 

Oregon and other states remained free, after Oregon v. 

Ice, to choose — or not choose — to impose consecutive 

sentences only after finding certain predicate facts. 

Neither sentencing choice runs afoul of Blakely or the 

Sixth and Fourteenth Amendments. . . . 

The Supreme Court explained: 

Most States continue the common-law 

tradition: They entrust to judges' 

unfettered discretion the decision whether 

sentences for discrete offenses shall be 

served consecutively or concurrently. In 

some States, sentences for multiple 

offenses are presumed to run consecutively, 

but sentencing judges may order concurrent 

sentences upon finding cause therefor. 

Oregon v. Ice, 555 U.S. at 163–64, 129 S.Ct. at 714. 

Oregon v. Ice did not invalidate the common-law 

tradition of extending “unfettered discretion” to 

judges in states that allow judges to impose multiple 

consecutive sentences without additional predicate 

factfinding. As a result, the imposition of 

consecutive sentences . . . without judicial predicate 

factfinding does not conflict with Oregon v. Ice or 

the Constitution. See id., 555 U.S. at 164–72, 129 

S.Ct. at 714–19. 

Handcock v. Warden, No. 3:12-cv-00096, 2014 WL 223649, at *8-9 (S.D. 

Ohio Jan. 21, 2014). Claim three is thus without merit.

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be

DISMISSED. 

VI. 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 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 32 of 33 PAGEID #: <pageID>
33

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). 

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. 

Date: May 2, 2014 s/ Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:12-cv-01213-ALM-NMK Doc #: 11 Filed: 05/05/14 Page: 33 of 33 PAGEID #: <pageID>