IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHERIKA BANKS, 

CASE NO. 2:11-CV-1117

Petitioner, JUDGE GEORGE C. SMITH

Magistrate Judge Elizabeth A. Preston Deavers

v. 

WARDEN, FRANKLIN 

MEDICAL CENTER, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent’s Return

of Writ, Respondent’s Supplemental Response, 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 Fifth District Court of Appeals summarized the facts and procedural history of

this case as follows: 

On October 30, 2009, Appellant was indicted by the Fairfield

County Grand Jury on four counts: trafficking in 1 to 25 grams of

crack cocaine, as both a principal and for complicity, a second

degree felony; possession of 10 to 25 grams of crack cocaine, a

second degree felony, as both a principal and for complicity;

trafficking in an unspecified amount of crack cocaine, a fifth

degree felony; and permitting drug abuse, a fifth degree felony, for

knowingly permitting a 2008 Chrysler motor vehicle to be used for

the commission of a drug offense.

The matter proceeded to a jury trial on February 2, 2010. At trial,

the State introduced evidence the Fairfield–Hocking Major Crimes

Unit (MCU) employed a confidential informant, Danny Wilson, to

purchase crack cocaine from suspected drug traffickers. Wilson

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had worked as a paid informant for approximately three years, and

had a prior criminal history of trafficking in drugs.

On May 22, 2010, Wilson participated in a “buy/bust” in which he

was paid to arrange a purchase of crack cocaine. Wilson made a

phone call to Ronnell Leeper arranging to purchase $150 worth of

crack cocaine. Wilson made arrangements to meet Leeper at a BP

gas station in Lancaster, Ohio. Leeper, told Wilson he would find

him at the BP and pick him up. Prior to the meeting, Wilson was

outfitted with a wireless transmitter.

Officers of MCU maintained visual contact with Wilson during the

pick-up, and observed him enter the rear passenger side of a silver

Chrysler sedan. This same Chrysler vehicle was later located

outside a private residence in Lancaster.

The officers remained outside the residence while Wilson went

inside. Eventually, the Chrysler left the residence and officers of

MCU initiated a stop of the vehicle.

Leeper was found in the front passenger seat of the vehicle.

Appellant was found in the driver's seat. Wilson was in the back

seat of the car. The officers found rocks, believed to be crack

cocaine, in Wilson's hand. A plastic bag containing similar rocks

believed to be crack cocaine was found in the car. Officers also

found other contraband on Leeper's person, including crack

cocaine, pills and money.

The items seized as a result of the arrest were received by Jennifer

Meadows, the property room manager for the Lancaster Police

Department, on May 28, 2009. Meadows testified at trial she was

unable to account for the whereabouts of the drugs from May 22,

2009 to May 28, 2009, although she believed they were in the

custody of MCU and among the confiscated property.

Pursuant to a negotiated plea agreement, Leeper testified against

Appellant, stating he paid her to drive him from Columbus to

Lancaster. He testified she concealed cocaine in her crotch while

they were driving in case they got pulled over. The confidential

informant, Danny Wilson, also testified to witnessing Appellant

pull drugs out of her pants.

The jury returned guilty verdicts on all four counts of the

indictment. The State agreed to merge the two second degree

felony offenses for trafficking and possession of the same 10 to 25

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grams of crack cocaine for sentencing. The State elected to

sentence on the trafficking charge. The trial court imposed a

mandatory two year sentence on the second degree trafficking

offense and six months for each of the two fifth degree felonies to

be served concurrent to each other, but consecutive to the

mandatory two year term on the second degree trafficking. A five

year term of community control was also imposed.

State v. Banks, No. 10-CA-36, 2011 WL 3305383, at *1-2 (Ohio App. 5th Dist. July 25, 2011). 

Petitioner asserted on direct appeal that she had been denied effective assistance of counsel 

because his attorney failed to impeach the credibility of Danny Wilson, the confidential

informant, and failed to object to the introduction of other acts evidence. Petitioner additionally

asserted that the trial court erred in denying her motion for judgment of acquittal, because there

was insufficient evidence to sustain her convictions, her convictions were against the manifest

weight of the evidence, and the State failed to establish a proper chain of custody. See id. On

July 25, 2011, the state appellate court affirmed the judgment of the trial court. Id. Petitioner

filed a timely appeal to the Ohio Supreme Court. He asserted that he had been denied the

effective assistance of appellate counsel because his attorney failed to raise on appeal the issues

he requested to be raised; however, he did not identify any of the issues his attorney should have,

but did not, raise on direct appeal. See Exhibit 16 to Return of Writ. On December 21, 2011, the

Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Banks, 130 Ohio St.3d

1495 (2011). 

On February 7, 2012, Petitioner filed an application to reopen the appeal pursuant to

Ohio Appellate Rule 26(B). She asserted that she had been denied effective assistance of

appellate counsel because her attorney failed to raise on appeal a claim that she had been denied

the right to testify on her own behalf; that the trial court erred by failing to strike testimony of

Leeper and Wilson; and that the trial court erred by permitting Leeper to lie under oath. See

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Exhibits 18, 19 to Return of Writ. On February 28, 2012, the appellate court denied Petitioner’s

Rule 26(B) application as untimely. Exhibit 20 to Return of Writ. Petitioner apparently never

filed an appeal to the Ohio Supreme Court. See Respondent’s Supplemental Response. 

On November 3, 2011, Petitioner filed a pro se motion in the trial court, requesting the

trial court to reconsider or stay imposition of sentence. Exhibits 21, 22 to Return of Writ. On

November 10, 2011, the trial court denied the motion. Exhibit 23 to Return of Writ.

1

 

On December 14, 2012, Petitioner filed the instant pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. She asserts she is in the custody of the Respondent in

violation of the Constitution based on the following ground: 

My lawyer refused to let me testify in my trial. A witness from my

trial admitted that everything he testified to was a lie and it was

threw [sic] out. The other witness admits to lying in a letter. I

never knew he had drugs on him, and no drugs or money were ever

found on me. I told the judge the whole story and that my attorney

wouldn’t let me testify and he ignored, as well as he ignored the

prosecutor helping the witnesses with there testimony. I was

falsely convicted, railroaded. Now I’m away from my three small

kids for a crime I did not commit. Bottom line is I need help, I was

falsely, wrongfully convicted of these crimes I did not commit,

now I’m in prison distressed and away from my three small

children, pregnant, on crimes I had nothing to do with and I didn’t

commit.

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

Procedural Default: 

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

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

1

  On February 8, 2012, Petitioner filed a Notice of Appeal and Motion for Delayed appeal in the Ohio Fifth

District Court of Appeals. Exhibits 24, 25 to Return of Writ. This Court is unable to determine from the record

whether the appellate court ever ruled on Petitioner’s motion; however, as discussed, Petitioner already had his first

appeal of right. 

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

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

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

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

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

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

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

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

Carrier, 447 U.S. 478, 485 (1986); Engle v. Issac, 456 U.S. 107, 129 (1982); Wainwright v.

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

In the Sixth Circuit, a reviewing court must undertake a four-part analysis 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.” Id. Second, the Court must determine whether the

state courts actually enforced the state procedural sanction. Id. Third, the Court must decide

whether the state procedural forfeiture is an adequate and independent state ground on which the

state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has

determined that a petitioner did not comply with a state procedural rule and that the rule was an

adequate and independent state ground, then the petitioner is required to demonstrate that there

was cause for her not to follow the procedural rule and that she was actually prejudiced by the

alleged constitutional error. Id. This “cause and prejudice” analysis also applies to failure to

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raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.

1985).

As her sole claim for federal habeas corpus relief, Petitioner asserts that her attorney

refused to let her testify on her own behalf, prosecution witnesses lied, the prosecutor improperly

assisted prosecution witnesses in testifying, and she was falsely convicted. These claims, being

readily apparent from the face of the record, should have been raised on direct appeal, but were

not. Petitioner did assert that the evidence was constitutionally insufficient to sustain her

convictions; however, she failed again to raise this claim on appeal to the Ohio Supreme Court. 

Petitioner asserted she was denied effective assistance of appellate counsel as her sole claim on

appeal to the Ohio Supreme Court. See Exhibit 16 to Return of Writ. 

Further, Petitioner may now no longer present these claims to the state courts under

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). The state courts were never given an

opportunity to enforce the procedural rule at issue due to the nature of Petitioner's procedural

default.

Further, the State of Ohio has a procedural rule that claims must be raised on direct

appeal, if possible, or they will be barred by the doctrine of res judicata. The Court finds that

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

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

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

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

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

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

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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, 84 S.Ct. 1302 (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 res judicata does not rely on or otherwise implicate federal law.

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

is an adequate and independent ground for denying relief.

To the extent that Petitioner’s claims may rely on off-the-record evidence, they properly

would have been raised in a petition for post conviction relief pursuant to O.R.C. § 2953.21. The

time period for filing a post conviction petition, however, has expired, and the record fails to

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indicate that Petitioner can meet the strict requirements set forth in O.R.C. § 2953.23,2

 for

2

  O.R.C.§ 2953.23 provides: 

(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court

may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a

second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this

section applies:

(1) Both of the following apply:

(a) Either the petitioner shows that the petitioner was unavoidably prevented

from discovery of the facts upon which the petitioner must rely to present the

claim for relief, or, subsequent to the period prescribed in division (A)(2) of

section 2953.21 of the Revised Code or to the filing of an earlier petition, the

United States Supreme Court recognized a new federal or state right that applies

retroactively to persons in the petitioner's situation, and the petition asserts a

claim based on that right.

(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense of which the petitioner was convicted or, if the

claim challenges a sentence of death that, but for constitutional error at the

sentencing hearing, no reasonable factfinder would have found the petitioner

eligible for the death sentence.

(2) The petitioner was convicted of a felony, the petitioner is an offender for

whom DNA testing was performed under sections 2953.71 to 2953.81 of the

Revised Code or under former section 2953.82 of the Revised Code and

analyzed in the context of and upon consideration of all available admissible

evidence related to the inmate's case as described in division (D) of section

2953.74 of the Revised Code, and the results of the DNA testing establish, by

clear and convincing evidence, actual innocence of that felony offense or, if the

person was sentenced to death, establish, by clear and convincing evidence,

actual innocence of the aggravating circumstance or circumstances the person

was found guilty of committing and that is or are the basis of that sentence of

death.

As used in this division, "actual innocence" has the same meaning as in division

(A)(1)(b) of section 2953.21 of the Revised Code, and "former section 2953.82

of the Revised Code" has the same meaning as in division (A)(1)(c) of section

2953.21 of the Revised Code.

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consideration of her claims in an untimely post conviction action. 

Petitioner may still obtain review of all of her claims on the merits if she establishes

cause for her procedural default, as well as actual prejudice from the alleged constitutional

violations.

“ ‘[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.”

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). Constitutionally ineffective assistance of

counsel may constitute cause for a procedural default.

Ineffective assistance of appellate counsel may constitute cause for a procedural default,

so long as the claim has been presented to the state courts, and is not itself procedurally

defaulted. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray, 477 U.S. at 488–89). 

Such are not the circumstances here, as Petitioner’s ineffective assistance of appellate counsel

claim likewise is procedurally defaulted. The state appellate court dismissed his Rule 26(B)

application as untimely; Petitioner failed to file an appeal of that decision to the Ohio Supreme

Court. Although Petitioner raised a claim of ineffective assistance of appellate counsel on

appeal to the Ohio Supreme Court, she failed to identify the basis for that claim, or what claims

her attorney should have raised on appeal but did not.

Petitioner has failed to establish cause for her procedural default. 

(B) An order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of the Ohio Revised

Code is a final judgment and may be appealed pursuant to Chapter 2953 of the Revised Code.

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Petitioner also asserts that she is innocent of the crimes with which she has been

convicted. The United States Supreme Court has held that a claim of actual innocence may be

raised “to avoid a procedural bar to the consideration of the merits of [the petitioner's]

constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary

case, where a constitutional violation has probably resulted in the conviction of one who is

actually innocent, a federal habeas court may grant the writ even in the absence of a showing of

cause for the procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held

that a credible showing of actual innocence was sufficient to enable a court to reach the merits of

an otherwise procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence

claim in Schlup is “‘not itself a constitutional claim, but instead a gateway through which a

habeas petitioner must pass to have his otherwise barred constitutional claim considered on the

merits.’” Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).

The actual innocence exception allows a petitioner to pursue her constitutional claims if

it is “more likely than not” that new evidence-not previously presented at trial-would allow no

reasonable juror to find her guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th

Cir. 2005). The threshold inquiry is whether “new facts raise[ ] sufficient doubt about [the

petitioner’s] guilt to undermine confidence in the result of the trial.” Schlup, 513 U.S. at 317.

Actual innocence is restricted to factual innocence and does not encompass mere legal

insufficiency. Souter at 590 (citing Bousley v. U.S., 523 U.S. 614, 623 (1998)). Application of

the actual innocence exception should be “rare” and “only in the extraordinary case.” Schlup at

321.

The United States Supreme Court has held that if a habeas

petitioner “presents evidence of innocence so strong that a court

cannot have confidence in the outcome of the trial unless the court

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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. Thus, the threshold inquiry is whether “new

facts raise[ ] sufficient doubt about [the petitioner's] guilt to

undermine confidence in the result of the trial.” Id. at 317, 115

S.Ct. 851. To establish actual innocence, “a petitioner must show

that it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115

S.Ct. 851. The Court has noted that “actual innocence means

factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828

(1998). “To be credible, such a claim requires petitioner to support

his allegations of constitutional error with new reliable

evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup, 513 U.S. at

324, 115 S.Ct. 851. The Court counseled however, that the actual

innocence exception should “remain rare” and “only be applied in

the ‘extraordinary case.’ ” Id. at 321, 115 S.Ct. 851.

Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005)(footnote omitted). 

Petitioner has not argued, and the Court’s independent review of the Petition and record

does not reveal that any “new facts” have arisen that undermine the result of her trial. Petitioner

cannot, therefore, establish a claim for actual innocence sufficient to avoid her procedural

default.

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be

DISMISSED. 

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

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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,

(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/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

Date: November 22, 2013

 

 

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