IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEFFREY J. JOHNSON, 

CASE NO. 2:12-CV-234

Petitioner, JUDGE GREGORY L. FROST

Magistrate Judge Elizabeth P. Deavers

v. 

WARDEN, MADISON

CORRECTIONAL INSTITUTION,

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, Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, the

Magistrate Judge RECOMMENDS that this action be DISMISSED. 

FACTS and PROCEDURAL HISTORY

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

this case as follows: 

The convictions herein are contained in two different case numbers,

namely, No. 08CR-09-6639 (“No. 6639”), and No. 09CR-09-3535

(“No. 3535”). On September 9, 2008, appellant was indicted in case

No. 6639 for one count of burglary and one count of vandalism. On

June 15, 2009, appellant was indicted in case No. 3535 for three

counts of burglary, one count of theft, two counts of receiving stolen

property, two counts of tampering with evidence and one count of

possessing criminal tools. Though not part of this appeal, appellant

was also indicted on May 22, 2009 in case No. 09CR-3101 for one

count of attempted burglary and one count of possessing criminal

tools.

Appellant waived his right to a jury trial, and all three cases were

tried to the bench beginning on November 3, 2009. At the conclusion

of the bench trial, appellant was found guilty of burglary and

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vandalism as set forth in case No. 6639 and two counts of receiving

stolen property as set forth in case No. 3535. Appellant was found not

guilty on all remaining counts. A sentencing hearing was held on

January 14, 2010, and appellant was sentenced to an aggregate term

of incarceration of six years and six months.

The testimony relevant to this appeal which was adduced at trial is as

follows. Mamadou Ndiaye rented an apartment at 1842 Brimfield

Road (“Brimfield apartment”), to appellant's mother, Crystal Carson,

beginning December 15, 2007. According to Mr. Ndiaye, Ms. Carson

lived at the Brimfield apartment with appellant and his brother.

However, Mr. Ndiaye testified that he had to begin eviction

proceedings in February 2008 for failure to pay rent. Mr. Ndiaye

testified that it was not until May 3, 2008, that the family moved out.

According to Mr. Ndiaye, after Ms. Carson moved out on this date,

he went to the apartment with the new tenant, Georgia Minniefield,

to change the locks. After the locks were changed, Mr. Ndiaye

testified that he left Ms. Minniefield at the apartment with the new

keys.

Ms. Minniefield testified that she went to the Brimfield apartment on

May 3, 2008, and saw people moving things into a U-Haul truck.

Upon inquiry, Ms. Minniefield was told that they would be done

moving out by 6:00 p.m. that evening. Therefore, Ms. Minniefield

returned to the apartment at approximately 7:00 p.m. with Mr. Ndiaye

who changed the locks and gave her the new keys. According to Ms.

Minniefield, she stayed at the apartment and cleaned until about

11:00 p.m. that night. However, when Ms. Minniefield returned the

next morning, the apartment had been “trashed.” Ms. Minniefield

testified that bleach had been thrown on the carpet, the drywall had

been damaged, the ceiling fan had been damaged, cabinets had been

ripped from the walls, and “Fuck you, bitch” had been painted on the

basement wall.

Cynthia Kerkes testified that on May 3, 2008, she lived next to the

Brimfield apartment and saw the residents of the apartment moving

their belongings into a U-Haul truck. Ms. Kerkes then saw appellant,

his brother, and a girl return to the apartment around 11:30 p.m. that

night. Ms. Kerkes testified that she saw the three go to the back of the

residence and that at approximately 1:00 a.m., she heard the car

leave.

Kadia Sesay (“Sesay”) testified that on May 3, 2008, she was dating

appellant's brother, Chris Jones (“Jones”). Sesay testified that on the

night of May 3, 2008, she, Jones, and appellant went to the Brimfield

apartment. Sesay explained that appellant entered the property

through a window and then let her and Jones in through the door.

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According to Sesay, they proceeded to tear the place up because

appellant and Jones were mad at the landlord for evicting them.

In May 2009, Columbus police began investigating a string of

burglaries in the area of the Sharon Green apartment complex. Steven

E. Tennant testified that on May 29, 2009, he lived at 1373 Bolen

Hill Avenue, which was near the Sharon Green complex. According

to Mr. Tennant, on this date his home was broken into, ransacked,

and several items were taken, such as jewelry, a camcorder, a camera,

a laptop, and several firearms, including a .410 shotgun. Holly

Frazier testified that she lived at 1320 Sharon Green Drive and that

on June 2, 2009, she returned home to find that a brick had been

thrown through her window. Additionally, Ms. Frazier found several

items missing from her apartment, including two plasma televisions,

an Xbox gaming system, a laptop computer, a cell phone, and

jewelry.

Columbus Police Officer Matthew Springer testified that he was

called by Columbus Police Detective Carl Covey to go to the area of

1348 Sharon Green Drive to do surveillance. While waiting for

Detective Covey, Officer Springer testified that he saw two males

enter 1360 Sharon Green and exit with a television and a bag. As

Officer Springer approached the two men, later identified as Matthew

Bunting and Donzell Whitaker, they dropped the property and ran.

Bunting and Whitaker were apprehended by another officer and

returned to the scene. According to Detective Covey, after searching

1348 Sharon Green, they found Ms. Frazier's laptop and Mr.

Tennant's shotgun hidden in the basement.

Donzell Whitaker (“Whitaker”) testified for the state as part of a plea

agreement. Whitaker testified that in June 2009 he had no place to

live and was therefore staying with appellant and appellant's mother

at 1348 Sharon Green. According to Whitaker, he committed several

burglaries with appellant. Whitaker testified that appellant would tell

him what places to go to, and, once the burglaries were complete,

appellant would call someone who would pay them for the stolen

property, and he and appellant would split the profits.

Appellant testified on his own behalf. According to appellant,

because he felt sorry for Whitaker, he allowed Whitaker to live with

him beginning in April 2009. Appellant testified that he had never

committed any burglaries with Whitaker or otherwise, nor did he

direct anyone to do so. Additionally, appellant testified he did not

negotiate any prices for stolen goods, and he was not even aware that

there was stolen property in his apartment. With respect to the

incident at the Brimfield apartment, appellant testified he was

unaware of any eviction proceedings taking place against them.

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According to appellant, he returned to the Brimfield apartment the

night of May 3, 2008, with Sesay and Jones because their new

apartment did not yet have the electricity turned on. Appellant

testified that he believed he still had possession of the property

because he still had a key to the Brimfield property, and he thought

they did not have to leave the property until the following Monday.

Appellant testified that when they got to the apartment, despite him

having a key, Jones entered through a window and then let Sesay and

appellant in through the back door. Once inside, appellant testified

that he went to sleep in the living room while Sesay and Jones were

in the basement. According to appellant, he did not damage anything

at the apartment and that the damage about which Ms. Minniefield

and Mr. Ndiaye testified was already there prior to May 3, 2008.

. . . [A]t the conclusion of the bench trial, appellant was found guilty

of burglary and vandalism as set forth in case No. 6639 and two

counts of receiving stolen property as set forth in case No. 3535.

Appellant was sentenced to an aggregate term of six years and six

months of incarceration. This appeal followed, and appellant brings

the following four assignments of error for our review.

FIRST ASSIGNMENT OF ERROR

The trial court violated Jeffrey Johnson's rights to due process and a

fair trial when it entered a judgment of guilt against him, when that

finding was not supported by sufficient evidence.

SECOND ASSIGNMENT OF ERROR

The trial court violated Jeffrey Johnson's rights to due process and a

fair trial when it entered a judgment of guilt against him, when that

finding was against the manifest weight of the evidence.

THIRD ASSIGNMENT OF ERROR

Jeffrey Johnson's attorney provided him with the ineffective

assistance of counsel and violated his right to due process and a fair

trial where defense counsel failed to call additional witnesses to the

stand to testify regarding the eviction process.

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FOURTH ASSIGNMENT OF ERROR

Jeffrey Johnson was denied his right to due process and a fair trial

because of cumulative error.

State v. Johnson, Nos. 10AP-137, 10AP-138, 2010 WL 4514666, at *1-3 (Ohio App. 10th Dist. Nov.

9, 2010). On November 9, 2010, the Ohio Tenth District Court of Appeals affirmed the judgment

of the trial court. Id. On March 16, 2011, the Ohio Supreme Court dismissed Petitioner’s

subsequent appeal. State v. Johnson, 128 Ohio St.3d 1427 (2011). 

On March 16, 2012, Petitioner filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He asserts that the evidence was constitutionally insufficient to

sustain his convictions (claim one); his convictions are against the manifest weight of the evidence

(claim two); he was denied effective assistance of counsel because his attorney failed to call defense

witnesses to testify regarding the eviction process (claim three); and he was denied a fair trial based

upon cumulative error (claim four). 

STANDARD OF REVIEW

2. Standards

Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective

Death Penalty Act (“AEDPA”) sets forth standards governing this Court’s review of state-court

determinations. The United State Supreme Court recently described AEDPA as “a formidable

barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court” and

emphasized that courts must not “lightly conclude that a State’s criminal justice system has

experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.

Titlow, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)); see also

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Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for

evaluating state-court rulings, and demands that state-court decisions be given the benefit of the

doubt.” (internal quotation marks, citations, and footnote omitted)).

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 

2254(e)(1) provides:

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.

“Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was

contrary to, or involved an unreasonable application of, clearly established federal law as determined

by the Supreme Court, or based on an unreasonable determination of the facts in light of the

evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing

Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show

that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly

established federal law”); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied

on an “unreasonable determination of the facts in light of the evidence presented in the State court

proceeding”). The United States Court of Appeals for the Sixth Circuit recently explained these

standards as follows: 

A state court’s decision is “contrary to” Supreme Court precedent if

(1) “the state court arrives at a conclusion opposite to that reached by

[the Supreme] Court on a question of law[,]” or (2) “the state court

confronts facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives” at a different result. Williams

v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389

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(2000). A state court’s decision is an“unreasonable application”

under 28 U.S.C. § 2254(d)(1) if it “identifies the correct governing

legal rule from [the Supreme] Court’s cases but unreasonably applies

it to the facts of the particular . . . case” or either unreasonably

extends or unreasonably refuses to extend a legal principle from

Supreme Court precedent to a new context. Id. at 407, 120 S.Ct.

1495. 

Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with the

petitioner. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). 

“In order for a federal court to find a state court’s application of [Supreme Court precedent]

unreasonable, . . . [t]he state court’s application must have been objectively unreasonable,” not

merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (internal quotation

marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade, 538 U.S. 63,

76 (2003)); see also Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (“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.” (quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable application” under §

2254(d)(1), courts must focus on the reasonableness of the result, not on the reasonableness of the

state court’s analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (“‘[O]ur focus on the

‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal conclusion that

the state court reached and not whether the state court considered and discussed every angle of the

evidence.’” (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc))); see also Nicely

v. Mills, 521 F. App’x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that

was “not expressly considered by the state court in its opinion” to evaluate the reasonableness of

state court’s decision). Relatedly, in evaluating the reasonableness of a state court’s ultimate legal

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conclusion under § 2254(d)(1), a court must review the state court’s decision based solely on the

record that was before it at the time it rendered its decision. Pinholster, 131 S.Ct. at 1398. Put

simply, “review under § 2254(d)(1) focuses on what a state court knew and did.” Id. at 1399.

CLAIMS ONE and TWO 

State Court Determinations

In claims one and two, Petitioner asserts that the evidence was constitutionally insufficient

to sustain his convictions and that his convictions are against the manifest weight of the evidence. 

The state appellate court rejected these claims, reasoning in relevant part as follows: 

When reviewing the sufficiency of the evidence, an appellate court

must:

* * * [e]xamine the evidence admitted at trial to

determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt

beyond a reasonable doubt. The relevant inquiry is

whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

proven beyond a reasonable doubt.

State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph

two of the syllabus.

This test raises a question of law and does not allow the court to

weigh the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541, 1997-Ohio-52; State v. Thomas (1982), 70 Ohio St.2d

79, 80, 434 N.E.2d 1356. Rather, the sufficiency of the evidence test

“gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson v.

Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d

560. Consequently, when reviewing the sufficiency of the evidence,

an appellate court must accept the fact finder's determination with

regard to the credibility of the witnesses. State v. Yarbrough, 95 Ohio

St.3d 227, 767 N.E.2d 216, 2002-Ohio-2126, ¶ 79; State v. Worrell,

10th Dist. No. 04AP-410, 2005-Ohio-1521, ¶ 41 (“In determining

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whether a conviction is based on sufficient evidence, we do not

assess whether the evidence is to be believed, but, whether, if

believed, the evidence against a defendant would support a

conviction.”).

***

Appellant was charged with burglary in violation of R.C. 2911.12,

which provides in pertinent part:

(A) No person, by force, stealth, or deception,

shall do any of the following:

* * *

(2) Trespass in an occupied structure or in a

separately secured or separately occupied

portion of an occupied structure that is a

permanent or temporary habitation of any

person when any person other than an

accomplice of the offender is present or likely

to be present, with purpose to commit in the

habitation any criminal offense[.]

Appellant was also charged with vandalism in violation of R.C.

2909.05, which provides in relevant part:

(A) No person shall knowingly cause serious

physical harm to an occupied structure or any

of its contents.

(B)(1) No person shall knowingly cause

physical harm to property that is

owned or possessed by another, when

either of the following applies:

(a) The property is used by its owner or possessor

in the owner's or possessor's profession,

business, trade, or occupation, and the value

of the property or the amount of physical

harm involved is five hundred dollars or

more;

(b) Regardless of the value of the property or the

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amount of damage done, the property or its

equivalent is necessary in order for its owner

or possessor to engage in the owner's or

possessor's profession, business, trade, or

occupation.

It is appellant's position that his convictions for burglary and

vandalism cannot stand because there is insufficient evidence that he

committed a trespass, which is an element in both offenses.

According to appellant, he believed the Brimfield apartment was still

in his family's possession and there was no expectation that anyone

was present or likely to be present the night of May 3, 2008. These

arguments, however, are premised on a finding that the state's

witnesses were not credible. An appellate court does not weigh

credibility in considering an insufficiency of the evidence argument.

State v. Coit, 10th Dist. No. 02AP-475, 2002-Ohio-7356, citing Ruta

v. Breckenridge Remy Co. (1982), 69 Ohio St.2d 66, 68-69, 430

N.E.2d 935. Rather, the test is whether the evidence viewed in a light

most favorable to the prosecution if believed would convince the

average mind of the defendant's guilt beyond a reasonable doubt.

According to appellant, because he possessed a key and the eviction

process was not complete, he had a legal right to access the Brimfield

apartment. In State v. Johnson (Oct. 10, 1991), 8th Dist. No. 59096,

the defendant, Johnson, argued that because his landlord failed to

serve him with an eviction notice, he had a privilege to be at the

house out of which he took property, and, therefore, he could not be

convicted of aggravated burglary. The Eighth District Court of

Appeals held that the notice requirements of landlord/tenant law were

not applicable where a tenant voluntarily vacates the premises before

his landlord files a complaint for eviction. Because Johnson chose to

vacate the premises rather than pay rent, the court held that the

moment he vacated the premises, he was no longer a tenant. The

Johnson court further held that, when Johnson moved his belongings

out and the landlord locked the door, Johnson then needed permission

to re-enter the premises. The court went on to state that Johnson's

“failure to seek permission before entering the house constituted an

unconsented and unprivileged entry and was punishable as a

trespass.” Id.

Here, the evidence is sufficient to establish that any property interest

held by appellant ended prior to his entry into the Brimfield

apartment on the night of May 3, 2008. The evidence established that

Mr. Ndiaye began eviction proceedings for Ms. Carson's failure to

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pay rent. Mr. Ndiaye testified that on May 2, 2008, he was informed

that Ms. Carson would be moving out and that the move would be

complete by noon the following day. Therefore, Mr. Ndiaye returned

to the Brimfield apartment during the evening of May 3, 2008 to

change the locks. After changing the locks, Mr. Ndiaye testified that

he gave the keys to the new tenant, Ms. Minniefield, who testified

that she remained at the apartment that evening to clean. Ms. Kerkes

testified that she saw appellant and his family pack their belongings

into a U-Haul truck and leave on May 3, 2008, but that appellant

returned with two others at approximately 11:00 p.m. that night.

Appellant admitted that he was at the apartment the night of May 3,

2008 with Sesay and Jones and that they gained entry by climbing

through a window. Despite appellant's assertion to the contrary,

Sesay's testimony established that she, Jones, and appellant caused

the damage to the Brimfield apartment and that they did so because

appellant and Jones were upset about being evicted. Additionally,

Ms. Minniefield testified that the damage she saw in the apartment on

the morning of May 4, 2008 was not present when she left the

apartment the prior night. Accordingly, we find the record contains

sufficient evidence to support appellant's convictions for burglary and

vandalism.

Appellant was also convicted of receiving stolen property in violation

of R.C. 2913.51, which provides that “[n]o person shall receive,

retain, or dispose of property of another knowing or having

reasonable cause to believe that the property has been obtained

through commission of a theft offense.” R.C. 2913.51(A). According

to appellant, there is insufficient evidence to support his receiving

stolen property convictions since his testimony established that he

had no choice but to temporarily store stolen property because

Whitaker was living with him at the time. This argument, however,

completely disregards Whitaker's testimony that appellant not only

took part in several burglaries, but also was instrumental in

organizing burglaries and telling Whitaker where in the apartment to

hide the stolen items. Also, according to Whitaker, he and appellant

would contact a third party who would pay them for the stolen goods,

and then he and appellant would split the profits. If believed,

Whitaker's testimony could convince the average mind of appellant's

guilt of receiving stolen property beyond a reasonable doubt, and,

therefore, we find sufficient evidence to support appellant's

convictions of the same.

. . . The trial judge, as trier of fact, was fully aware that Whitaker and

Sesay were testifying for the state pursuant to their own negotiated

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plea agreements that arose out of the incidents herein. The trial judge

simply did not find appellant's testimony to be credible with respect

to either the Brimfield apartment or the stolen goods, and this was

clearly within his province as trier of fact.

***

[A]ppellant's convictions are . . . supported by sufficient evidence[.]

State v. Johnson, 2010 WL 4514666, at *4-7. 

A. Manifest Weight of the Evidence

A federal court may only issue a writ of habeas corpus on behalf of a person in custody

pursuant to the decision of a state court if his custody is in violation of the Constitution or laws of

the United States. 28 U.S.C. § 2254(a). Thus, “[a] federal court may not issue the writ on the basis

of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). A manifest weight of

the evidence claim is an alleged error of state law that is not cognizable in this Court. Under Ohio

law, “[w]eight of the evidence concerns ‘the inclination of the greater amount of credible evidence,

offered in a trial, to support one side of the issue rather than the other. . . .’ State v. Thompson, 78

Ohio St. 3d 380, 386 (Ohio 1997) (citations omitted). “When a court of appeals reverses a judgment

of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court

sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” 

Id. A federal habeas court, however, may not “reweigh the evidence or redetermine the credibility

of the witnesses whose demeanor has been observed by the trial court” because, in habeas

proceedings, “[i]t is the province of the factfinder to weigh the probative value of the evidence and

resolve any conflicts in testimony.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003)

(citations omitted). 

Here, in Claim Two, Petitioner asserts his that his convictions were against the manifest

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weight of the evidence. Because a federal habeas court does not function as an additional state

appellate court, vested with the authority to conduct such an exhaustive review, Petitioner's claim

that his convictions were against the manifest weight of the evidence cannot be considered by this

Court.

B. Insufficiency of the Evidence 

Petitioner also asserts that the evidence was constitutionally insufficient to sustain his

convictions. A criminal defendant may be convicted consistent with the United States Constitution

only if the evidence adduced at trial is sufficient to justify a reasonable trier of fact to find guilt

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine whether

the evidence was sufficient to support a conviction, this Court must view the evidence in the light

most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, 443

U.S. at 319). The prosecution is not affirmatively required to “rule out every hypothesis except that

of guilty.” Id. (quoting Jackson, 443 U.S. at 326). “[A] reviewing court ‘faced with a record that

supports conflicting inferences must presume– even if it does not appear on the record– that the trier

of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’ ”

Id. (quoting Jackson, at 326).

Further, this Court must afford a “double layer” of deference to state court determinations

about the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.

2009), deference is due to the jury’s finding of guilt because the standard, established by 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 a de novo review of the evidence leads to the conclusion that no

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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.” Id.; see also White v.

Steele, 602 F.3d 707, 710 (6th Cir. 2009). 

As discussed by the state appellate court, Petitioner asserts he had a legal right to remain in

the apartment, because the landlord failed to comply with Ohio eviction law. He complains that the

State should have pursued civil, and not criminal, proceedings. Petitioner denies causing any

destruction to the apartment. He further denies causing or participating in any theft or storage of

stolen items. Finally, Petitioner argues that the State failed to establish the value of the items stolen. 

Petitioner’s arguments are not persuasive. Under Ohio law, Petitioner no longer had

authority to enter or remain in the apartment once he vacated the premises. This Court defers to a

state court’s interpretation of its own laws and does not function as an additional state appellate

court reviewing decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir.

1988).

Although the state appellate court did not explicitly address Petitioner’s argument herein that

the State failed to establish that the value of the items stolen was between $500.00 and $5000.00 to

support his convictions on receiving stolen property, as charged in Counts 5 and 6 of Case Number 

09 CR 06 3535, the record reflects that he raised this same argument in his appellate brief. 

Accordingly, it is therefore properly addressed in these proceedings. In any event, this argument

fails. Count 5 involved possession of a stolen firearm, which constituted a fourth degree felony at

the time of Petitioner’s conviction. See Ohio Rev. Code § 2913.51, Amendment Notes. Count 6

involved the stolen property of Holly Frazier, i.e., two lap top computers, a cell phone, two

televisions, and a game. Donzell Whitaker testified he received “approximately 500 something

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dollars” for the sale of this property, and that they split profits three ways. Trial Transcript, Exhibit

20 to Return of Writ, at PageID # 547. 

When considering a claim of insufficiency of the evidence, this Court must view all of the

evidence in the light most favorable to the prosecution. Under this standard, for the reasons set forth

above and for the reasons already detailed by the state appellate court, the evidence plainly was

constitutionally sufficient to sustain Petitioner’s convictions. 

Claims one and two are without merit. 

CLAIM THREE 

In claim three, Petitioner asserts he was denied effective assistance of counsel because his

attorney failed to call witnesses who would have established that his landlord failed to complete the

eviction process, as provided under Ohio law. Had his attorney done so, Petitioner contends, he

could not have been convicted either of burglary or vandalism because he remained in legal

possession of the premises.

State Court Determinations 

The state appellate court rejected this claim, reasoning as follows: 

[A]ppellant contends he was denied his constitutional right to

effective assistance of counsel when his trial counsel failed to call

additional witnesses regarding the eviction process. “The benchmark

for judging any claim of ineffectiveness must be whether counsel's

conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just

result.” Strickland v. Washington (1984), 466 U.S. 668, 686, 104

S.Ct. 2052, 2064, 80 L.Ed.2d 674. In order to establish a claim of

ineffective assistance of counsel, a defendant must first demonstrate

that his trial counsel's performance was so deficient that it was

unreasonable under prevailing professional norms. Id. 466 U.S. at

687, 104 S .Ct. at 2064. The defendant must then establish “there is

a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A reasonable

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probability is a probability sufficient to undermine confidence in the

outcome.” Id. 466 U.S. at 694, 104 S.Ct. at 2068.

According to Strickland:

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel's errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is

reliable. Unless a defendant makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in

the adversary process that renders the result unreliable.

Id. 466 U.S. at 687, 104 S.Ct. at 2064.

“A fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to evaluate

the conduct from counsel's perspective at the time. Because of the

difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel's conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’” Id. 466

U.S. at 689, 104 S.Ct. at 2065, quoting Michel v. Louisiana (1955),

350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83. A verdict adverse

to a criminal defendant is not of itself indicative that he received

ineffective assistance of trial counsel. State v. Hester (1976), 45 Ohio

St.2d 71, 75, 341 N.E.2d 304.

It is appellant's contention that, had additional witnesses been called,

it would have been established that the eviction process was not

complete, and, therefore, the state would not have been able to

establish the element of trespass, which would have resulted in a

finding of not guilty on the burglary and vandalism charges.

The decision whether to call a witness is generally a matter of trial

strategy and, absent a showing of prejudice, does not deprive a

defendant of effective assistance of counsel. State v. Samatar, 152

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Ohio App.3d 311, 787 N.E.2d 691, 2003-Ohio-1639, ¶ 90, citing

State v. Williams (1991), 74 Ohio App.3d 686, 694, 600 N.E.2d 298.

Appellant has not demonstrated that counsel's failure to call

additional witnesses was prejudicial. First, appellant does not direct

us to any specific witness that should have been called. Secondly,

appellant speculates without any evidentiary support as to what this

unidentified witness's testimony may or may not have been if called

to testify. Thus, it is pure speculation to conclude that the result of

appellant's trial would have been different had any additional

witnesses testified. State v. Williams, 10th Dist. No. 08AP-719, 2009-

Ohio-3237, ¶ 35, citing State v. Thorne, 5th Dist. No.2003CA00388,

2004-Ohio-7055, ¶ 70 (failure to show prejudice without affidavit

describing testimony of witnesses not called); State v. Stalnaker, 5th

Dist. No. 21731, 2004-Ohio-1236, ¶ 9. This type of vague

speculation is insufficient to establish ineffective assistance of

counsel. State v. Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008,

¶ 30, citing State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373. Moreover, even if appellant's speculation regarding the

testimony of an unknown, unidentified witness was accurate, it is

unlikely that such testimony would have changed the result. As we

have already discussed, eviction is not necessarily dispositive to the

issue of whether a former tenant has trespassed when that tenant has

voluntarily given up his possessory interest in the property. Johnson,

supra.

Accordingly, we reject appellant's argument that his counsel was

ineffective and overrule his third assignment of error.

State v. Johnson, 2010 WL 4514666, at *7-8.

Ineffective Assistance of Counsel

“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . . .

to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective

assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)

(citation omitted). 

The United States Supreme Court set forth the legal principals governing claims of

ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland

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requires a petitioner claiming ineffective assistance of counsel to demonstrate that his counsel’s

performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; Hale v. Davis,

512 F. App’x 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient performance by counsel by

demonstrating ‘that counsel’s representation fell below and objective standard of reasonableness.’” 

Poole v. MacLaren, No. 12-1705, --- F. App’x ----, 2013 WL 6284355, at *5 (6th Cir. Dec. 5, 2013)

(quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and

citing Strickland, 466 U.S. at 687). To make such a showing, a petitioner “must overcome the

‘strong [] presum[ption]’ that his counsel ‘rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.’” Poole, 2013 WL 6284355 at *5

(quoting Strickland, 466 U.S. at 687). “To avoid the warping effects of hindsight, [courts must]

‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting

Strickland, 466 U.S. at 689). 

To satisfy the second Strickland prong, prejudice, a petitioner “must ‘show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Hale, 512 F. App’x at 520 (quoting Strickland, 466 U.S. at 694). 

“This means [a petitioner] must show a ‘substantial, not just a conceivable, likelihood of a different

result.’” Id. (quoting Pinholster, 131 S.Ct. at 1403 (internal quotation marks and citation omitted)). 

Thus, this Court’s review of ineffective assistance claims under § 2254(d) is “‘doubly deferential.’” 

Id. (quoting Pinholster, 131 S.Ct. at 1403 (internal quotation marks and citation omitted)).

Petitioner’s claim of ineffective assistance of counsel plainly lacks merit. As discussed by

the state appellate court, Petitioner has failed to identify any defense witnesses that his attorney

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should have called, but did not. Furthermore, the record fails to reflect any witnesses would have

provided exculpatory evidence for the defense. Moreover, as already discussed, the issue regarding

the status of the eviction would not necessarily have assisted Petitioner’s defense, as he had already

vacated the premises and no longer had a legal right to enter the apartment. 

Claim three is without merit. 

CLAIM FOUR

In claim four, Petitioner asserts he was denied a fair trial based on cumulative error. “[T]he

Supreme Court has not held that distinct constitutional claims can be cumulated to grant habeas

relief.” Gillard v. Mitchell, 445 F.3d 883, 898 (6th Cir. 2006) (quoting Lorraine v. Coyle, 291 F.3d

416, 447 (6th Cir. 2002)). To justify a grant of habeas relief, a federal court must find a violation

of law that has been clearly established by the holdings of the United States Supreme Court

decisions at the time of the relevant state-court decision. King v. Bobby, 433 F.3d 483, 490 (6th Cir.

2006). The Sixth Circuit has consistently held that a habeas petitioner cannot find relief on a claim

of cumulative error by the trial court. See, e.g., Williams v. Anderson, 460 F.3d 789, 816 (6th Cir.

2006) (“[T]he law of this Circuit is that cumulative error claims are not cognizable on habeas

because the Supreme Court has not spoken on this issue.”); Moore v. Parker, 425 F.3d 250, 256 (6th

Cir.2005) (“[W]e have held that, post-AEDPA, not even constitutional errors that would not

individually support habeas relief can be cumulated to support habeas relief.”). 

Claim four is without merit. 

WHEREUPON the Magistrate Judge RECOMMENDS that this action be DISMISSED.

PROCEDURE ON OBJECTIONS

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If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further 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: February 4, 2014

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