1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

IAN MILLER, 

Petitioner, : Case No. 1:17-cv-536 

- vs - District Judge Susan J. Dlott 

Magistrate Judge Michael R. Merz 

JEFFREY NOBLE, Warden, 

 London Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus action brought pro se by Petitioner Ian Miller under 28 U.S.C. § 

2254 to obtain relief from his conviction in the Hamilton County Common Pleas Court for murder 

with a firearm specification (Petition, ECF No. 1, PageID 1). Upon conviction by a jury, he was 

sentenced to life imprisonment with parole eligibility at eighteen years. Id. Upon Order for 

Answer by Magistrate Judge Stephanie Bowman (ECF No. 2), Respondent has filed the State 

Court Record (ECF No. 4) and a Return of Writ (ECF No. 5). Petitioner then filed a Reply (ECF 

No. 9), making the case ripe for decision. The reference in the case has recently been transferred 

to the undersigned to help balance the Magistrate Judge workload in the Western Division of this 

Court (ECF No. 10). 
2 

Procedural History 

The Hamilton County grand jury indicted Miller on two counts of murder, one in violation 

of Ohio Revised Code § 2903.02(A) (purposeful murder), and one in violation of Ohio Revised 

Code § 2903.02(B)(felony murder), each with a firearm specification. He was acquitted of 

purposeful murder but convicted of felony murder, and was sentenced as set forth above. He 

appealed to the First District Court of Appeals which affirmed the convictions. State v. Miller, 

Case No. C-140101 (1st Dist. May 22, 2015) (unreported; copy at State Court Record, ECF No. 4, 

PageID 77, et seq.), appellate jurisdiction declined, Ohio Sup. Ct. Case No. 2015-1108 (2015). 

 Miller filed an application to reopen his direct appeal to raise claims of ineffective 

assistance of appellate counsel. Id. at PageID 117. The First District denied the application on the 

merits. Id. at PageID 122, et seq. Miller was again unsuccessful at obtaining Supreme Court 

review. Id. at PageID 135. 

 Miller then filed his Petition in this Court, pleading the following Grounds for Relief: 

Ground One: I was deprived of my constitutional right to due 

process and to a fair trial as guaranteed by the Fifth and Fourteenth 

Amendments to the U. S. Constitution by the application of Ohio’s 

felony murder rule to this case. 

Supporting Facts: The Ohio felony murder rule as applied in this 

case deprived me of Due Process and Equal Protection. I was 

convicted under the theory that I committed a felonious assault and 

the victim died as a result. This permitted the State of Ohio to 

convict me of murder without providing a scintilla of evidence that 

I intended to kill my victim. Because I was convicted of Murder 

without any evidence of intent, my conviction violates Due Process 

and Equal Protection. 

Ground Two: I was denied due process and equal protection in 

violation of the Fifth and Fourteenth Amendments to the U.S. 

Constitution because the Felony Murder statute and the involuntary 

manslaughter statute prohibit the same activity. 
3 

Supporting Facts: The Ohio Court of Appeals unreasonably failed 

to apply existing precedent on equal protection to the facts of this 

case. Both Ohio’s felony murder statute and its involuntary 

manslaughter prohibit identical activity, require identical proof, and 

yet imposed different penalties. The felony murder rule has no 

rational basis to any legitimate statutory objective and it treats 

similarly situated people differently and accordingly it violates the 

Equal Protection Clause of the Fourteenth Amendment. 

Ground Three: There was insufficient evidence to sustain the 

conviction in this case and the conviction was against the manifest 

weight of the evidence. 

Supporting Facts: My Due Process Rights were violated because 

the State of Ohio failed to present any evidence that I committed 

felonious assault. Further, there was no evidence that I met the 

statutory requirements for felonious assault and because I failed to 

meet those requirements this offense could not be used as the 

predicate felony to invoke the felony murder rule. Because the State 

failed to present proof beyond a reasonable doubt of each and every 

fact necessary to commit felonious assault, my conviction is a 

miscarriage of justice. 

Ground Four: I received the ineffective assistance of appellate 

counsel for his failure to raise on appeal the ineffective assistance of 

trial counsel in violation of the Sixth Fourteenth Amendments to the 

U. S. Constitution. 

Supporting Facts: Trial counsel was ineffective for failing to argue 

that the Defendant saw what appeared to be a gun in Marcus Lane’s 

hand. Evidence presented at trial indicated that the victim had a cell 

phone that the Defendant reasonably believed to be a firearm – 

evidence that a reasonably competent attorney would have 

emphasized in a self-defense case. This incident also occurred on 

the 4th of July and the simultaneous sound of fireworks also 

influenced Petitioner’s judgment and his reasonable belief that he 

was being confronted with a firearm. Trial counsel was ineffective 

in failing to make these arguments to the jury and appellate counsel 

was ineffective in failing to present trial counsel’s ineffectiveness 

on appeal. 

(Petition, ECF No. 1, PageID 5, 6, 8, 9-10.) 
4 

Analysis 

Ground One: Unconstitutionality of the Felony Murder Rule 

 In his First Ground for Relief, Miller argues that he was unconstitutionally convicted of 

murder under the felony murder rule which allowed the State to prove only the mens rea element 

of the underlying felony (felonious assault which requires that the offender have acted knowingly) 

instead of the mens rea – purposely -- required for a straight murder conviction (Traverse, ECF 

No. 9, PageID 1195) 

 Respondent defends on the merits, arguing that the First District interpreted the statutes in 

question in accordance with state law and found that Miller’s conviction under the felony murder 

statute was not unconstitutional. 

 Miller presented this claim as his Third Assignment of Error on direct appeal which the 

First District decided as follows: 

In his third assignment of error, Miller argues that the state's use of 

felonious assault as the predicate felony for his felony-murder 

conviction violated his due-process rights as guaranteed by the Ohio 

and United States Constitutions. But the legislature has “narrowly 

defined” the scope of the offense of felony murder and “related it to 

the legitimate purpose of punishing the taking of human life while 

committing a separate offense of violence.” State v. Pickett, 1st 

Dist. Hamilton No. C-000424, 2001 Ohio App. LEXIS 5549 (Dec. 

14, 2001). Moreover, the offense as statutorily defined “does not 

arbitrarily relieve the state from proving criminal intent, nor does it 

eliminate the role of the jury as the trier of fact.” Id. And Miller has 

failed to cite any Ohio or federal case law that supports his argument 

that Ohio's failure to adopt a "merger doctrine" raises constitutional 

concerns. See State v. Mays, 2d Dist. Montgomery No. 24168, 

2012-Ohio-838, ¶¶12-13. Therefore, Miller's conviction under the 

felony-murder rule of R.C. 2903.02(B), where the predicate offense 

was the felonious assault of the murder victim, did not deprive him, 

of due process. Thus, we overrule the third assignment of error. 
5 

State v. Miller, supra, (Judgment Entry of May 22, 2015, State Court Record, ECF No. 4, PageID 

80-81.) 

 In his Traverse, Petitioner does not argue his First Ground for Relief as it was presented to 

the First District in his Third Assignment of Error. Instead he argues at some length that the trial 

court should have given jury instructions on the lesser included offense of voluntary manslaughter 

or involuntary manslaughter (Traverse, ECF No. 9, PageID 1194-99). 

 Examination of Miller’s Brief on Appeal shows that he did not raise as an assignment of 

error the failure to the trial judge to charge on lesser included offenses (Appellant’s Brief, State 

Court Record, ECF No. 4, PageID 40-62.) Because this claim was not presented to the Court of 

Appeals, Miller has forfeited his right to have it heard on the merits in habeas corpus. 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights 

claim he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 

110 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). Absent cause and prejudice, a federal habeas 

petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas 
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corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v. 

Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. 

 The Sixth Circuit Court of Appeals requires a four-part analysis of procedural default. 

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 

(6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 

785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); 

Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001). 

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. 

 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of Ulster 

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 

(1979). 

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. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

there was "cause" for him to not follow the procedural rule and that 

he was actually prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner 

can overcome a procedural default by showing cause for the default and prejudice from the asserted 

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015). 

 “A claim may become procedurally defaulted in two ways.” Lovins v. Parker, 712 F.3d 

283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a 

claim is procedurally defaulted where state-court remedies have been exhausted within the 
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meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits 

because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is 

procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies 

are no longer available at the time the federal petition is filed because of a state procedural rule. 

Id. 

 Here the relevant Ohio procedural rules are that a defendant is entitled to only one direct 

appeal of right and the court of appeals decides only the assignments of error that are pleaded. 

Miller did not raise this claim about lesser included offense instructions on direct appeal. There is 

no doubt, however, that if he attempted to appeal again to raise this claim, he could not do so. 

 Because Miller’s claim relating to failure to instruct the jury on lesser included offenses 

was never presented to the state courts, it is procedurally defaulted and should be dismissed. 

 Regarding the claim actually made in the Petition, which is the same claim made in the 

Third Assignment of Error on direct appeal, Miller has not argued that claim at all in his Traverse. 

Instead, he argues the lesser included offense instruction claim. 

 The claim actually made in the Petition was decided by the First District in the language 

quoted above. The First District made clear, albeit in summary fashion, that it was deciding the 

federal constitutional question presented in the Third Assignment. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. 

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Miller has not argued in any 
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way that the First District’s decision on his Third Assignment of Error was an unreasonable 

application of clearly established Supreme Court precedent. For that reason as well, the First 

Ground for Relief should be dismissed with prejudice. 

Ground Two: Denial of Equal Protection 

 In his Second Ground for Relief, Miller argues his convictions violate the Equal Protection 

Clause of the Fourteenth Amendment1 because the felony murder statute and the involuntary 

manslaughter statute prohibit the same conduct. 

 This claim was presented to the First District on direct appeal as the Fifth Assignment of 

Error. That court decided 

In his fifth assignment of error, Miller argues that his conviction for 

felony murder under R.C. 2903.02(B), rather than involuntary 

manslaughter under R.C. 2903.04, denied him equal protection of 

the law, because the statutes prohibit identical conduct and require 

identical proof, but the felony-murder statute provides a greater 

penalty. See State v. Wilson, 58 Ohio St.2d 52, 66, 388 N.E.2d 745 

(1979). But Miller has failed to demonstrate a constitutional 

violation because the statutes no not prohibit identical conduct and 

required identical proof. See State v. Dixon, 2d District Montgomery 

No. 18582, 2002 Ohio App. LEXIS 472 (Feb. 8, 2002); accord State 

v. Ford, 10th Dist. Franklin No. 07AP803, 2008-Ohio-4373, ¶29; 

State v. Jones, 8th Dist. Cuyahoga No. 80737, 2002-Ohio-6045, ¶ 

133-135. Because the assignment of error is meritless, we overrule 

it. 

State v. Rice, supra, at PageID 82. 

 

1

 Miller also mentions the Fifth Amendment. That provision of the Constitution has no equal protection clause, but 

the Supreme Court has held that the Fifth Amendment protects persons from the same conduct when carried out by 

the federal government as the Equal Protection Clause of the Fourteenth Amendment prohibits States to carry out. 

Bolling v. Sharpe, 347 U.S. 497 (1954). The Fifth Amendment does not apply to this case because no federal actor 

was involved. 
9 

 To prevail on habeas corpus, Miller must show that this decision is contrary to or an 

objectively unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. 

§ 2254(d)(1). He concedes that the First District’s interpretation of the Ohio statutes in question 

is binding on this Court, and that the First District decided that the felony murder and involuntary 

manslaughter statutes do not prohibit identical conduct and do not require identical proof 

(Traverse, ECF No. 9, PageID 1200). Nevertheless, he argues the First District’s decision is an 

unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979), and In re Winship, 397 U.S. 

358 (1970). Id. at PageID 1199-1200. 

 Those two cases hold that the Fourteenth Amendment Due Process of Law Clause requires 

a State to prove every element of a criminal charge by proof beyond a reasonable doubt. Although 

the States define the elements of crime, once they have done so, proof beyond a reasonable doubt 

is required as a matter of constitutional law. 

 Miller goes on to argue that an Ohio court has held that involuntary manslaughter is a lesser 

included offense of murder under the relevant facts. (Traverse, ECF No. 9, PageID 1200, citing 

State v. Carter, 1983 Ohio App. LEXIS 13290 (2nd Dist. Oct. 14, 1983). In that case, the defendant 

had been charged with murder in violation of Ohio Revised Code § 2903.02(A) and the trial court 

dismissed that charge at the conclusion of the State’s evidence, but, contrary to defendant’s 

argument, allowed the trial to proceed on the lesser included offense of involuntary manslaughter. 

Carter is not relevant here where Petitioner was acquitted of the § 2903.02(A) charge 

altogether. Carter does not hold that involuntary manslaughter is a lesser included offense of 

felony murder. Neither Jackson v. Virginia nor In re Winship requires a trial judge on his or her 

own initiative to determine whether a lesser included offense conviction is warranted. And in any 

event, no such claim was submitted to the First District on direct appeal. 
10 

 Miller correctly cites Bagby v. Sowders, 894 F.2d 792, 795-97 (6th Cir. 1990), for the 

proposition there is no constitutional requirement to give a lesser included offense instruction in a 

non-capital case. Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001), is more recent authority 

to the same effect. But, says Miller, this is no ordinary failure to instruct on a lesser included 

offense because “the Trial Court failed in its duty to make a reasonable view of the evidence in 

light most favorable to the Petitioner.” No such duty is imposed by the United States Constitution. 

To the extent Miller is relying on Jackson, supra, he has the standard upside down; in applying 

Jackson a court must view the evidence in the light most favorable to the State. 

 Petitioner’s Second Ground for Relief is without merit and, to the extent it constitutes a 

claim of failure to instruct on a lesser included offense, is also barred by procedural default. 

Ground Two should therefore be dismissed with prejudice. 

Ground Three: Insufficient Evidence of Felonious Assault 

 In his Third Ground for Relief, Miller asserts there was insufficient evidence to convict 

him of felonious assault and that his conviction on that underlying charge was against the manifest 

weight of the evidence. 

 A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 

534 F.2d 1232 (6th Cir. 1986). That is to say, a conviction against the manifest weight of the 

evidence does not violate the United States Constitution. Therefore, this part of Ground Three will 

not be further analyzed. 

 However, an allegation that a verdict was entered upon insufficient evidence states a claim 

under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 
11 

Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 

200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). 

In order for a conviction to be constitutionally sound, every element of the crime must be proved 

beyond a reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence 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 . . . . This familiar standard 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, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States 

v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in Ohio 

law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which determines the 

elements of offenses; but once the state has adopted the elements, it must then prove each of them 

beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge should be assessed 

against the elements of the crime, not against the elements set forth in an erroneous jury instruction. 

Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). 

 In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 

Stat. 1214) (the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to groups 

who might view facts differently than we would. First, as in all 

sufficiency-of-the-evidence challenges, we must determine 

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. 

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. 

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
12 

evaluate the credibility of witnesses, or substitute our judgment for 

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th 

Cir. 1993). Thus, even though we might have not voted to convict 

a defendant had we participated in jury deliberations, we must 

uphold the jury verdict if any rational trier of fact could have found 

the defendant guilty after resolving all disputes in favor of the 

prosecution. Second, even were we to conclude that a rational trier 

of fact could not have found a petitioner guilty beyond a reasonable 

doubt, on habeas review, we must still defer to the state appellate 

court's sufficiency determination as long as it is not unreasonable. 

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

case, deference should be given first to the trier-of-fact's verdict under Jackson v. Virginia and 

then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. 

Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) 

(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction 

based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 

656 (6th Cir. 2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial 

deference. First, on direct appeal, “it is the responsibility of the jury 

-- not the court -- to decide what conclusions should be drawn from 

evidence admitted at trial. A reviewing court may set aside the jury's 

verdict on the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 

1, 2, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam). And 

second, on habeas review, “a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 

federal court instead may do so only if the state court decision was 

‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U. 

S.766, 773, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012) (per curiam); Parker v. Matthews, 567 U.S. 37, 

43 (2012) (per curiam). 

 On direct appeal, Miller raised only a manifest weight assignment of error (Appellant’s 
13 

Brief, State Court Record, ECF No. 4, PageID 64). Respondent asserts a procedural default 

defense to this Ground for Relief, noting that it was not raised on direct appeal. Miller admits as 

much, but claims he can show excusing cause and prejudice because it was ineffective assistance 

of appellate counsel to fail to make this claim (Traverse, ECF No. 9, PageID 1204-05). Ineffective 

assistance of appellate counsel can act to excuse failure to raise a claim on direct appeal. However, 

before that excuse can be heard, the ineffective assistance of appellate counsel claim must itself 

be presented to the state courts. Edwards v. Carpenter, 529 U.S. 446 (2000). When he filed his 

Application to Reopen the Direct Appeal under Ohio R. App. P. 26(B), he did not claim it was 

ineffective assistance of appellate counsel to fail to raise the insufficient evidence claim 

(Application for Reopening, State Court Record, ECF No. 4, PageID 117-18). Respondent’s 

procedural default defense on this Ground for Relief is well taken. 

Alternatively, this Ground for Relief fails on the merits. 

A state court finding that the verdict is not against the manifest weight of the evidence 

implicitly also holds that there is sufficient evidence. Nash v. Eberlin, No. 06-4059, 258 Fed. 

Appx. 761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10, 2011) (White, M.J.); Hughes v. Warden,

No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011) (Merz, M.J.). This is 

because it takes less evidence to satisfy the Jackson v. Virginia, 443 U.S. 307 (1979), test than to 

show the manifest weight of the evidence was against the verdict. To obtain habeas corpus relief 

on this claim, therefore, Miller must show that the First District’s decision is contrary to or an 

unreasonable application of Supreme Court precedent or an unreasonable determination of the 

facts on the basis of the evidence presented. 

 On direct appeal, the First District found the following to be the relevant facts: 
14 

[P3] Miller had a child with Victoria Ellis in 2011. The couple broke 

up soon after and Ellis starting dating [Marcus] Lane. Miller and 

Lane often argued with each other, and Miller was uncomfortable 

around Lane, whom he had learned had prior convictions for 

carrying a concealed weapon. Miller had obtained a concealedcarry permit for a firearm in 2006 and had carried a loaded weapon 

with him since that time. 

[P4] On the evening of July 4, 2012, Miller had arranged to meet 

Ellis so that he could exchange their daughter and her diaper bag. 

Lane drove Ellis to this meeting, which occurred near the 

neighborhood where Ellis and Lane resided. After the exchange 

took place, Miller discovered that the keys to his truck were missing. 

He immediately accused Lane of taking them, and called the police 

to report the theft. Lane and Ellis had driven away, but returned to 

after [sic] Ellis had found the keys in the diaper bag. 

[P5] Upon their return, Lane pulled the car alongside Miller's truck, 

where Miller stood outside of, but near, the opened driver's side 

door. Lane threw the keys toward the truck, and Miller recovered 

them. Miller made a derogatory statement about Lane's mother, 

which upset Lane and caused him to get out of the car, despite Ellis’s 

attempt to stop him. Lane walked around the back of Ellis's car, 

where, according to Ellis, he remained as he argued with Miller. 

Moments later, Miller repeatedly shot Lane and sped away in his 

truck. Ellis saw Lane running away from Miller after 

she heard the first shot. 

[P6] According to Miller, before he shot Lane, Lane had shouted, 

'Victoria tell me you carry a gun; I got hammers, too, what you want 

to do," while he was reaching towards his waistband. Although 

Miller had the keys to his truck, he could not get into his truck 

without turning his back on Lane, whom he claimed was charging 

him and was only three feet away from when he [Miller] fired the 

first shot, and half that distance when he fired the second. Miller 

claimed that Lane then turned away, and that he [Miller] did not 

remember firing the other three shots. 

[P7] Miller testified that he had feared for his life and that he did not 

believe that he could escape without shooting Lane. He claimed that 

he had never intended to kill Lane. 

[P8] The forensic and medical evidence demonstrated that Lane was 

fatally shot four times in the back with Miller's gun, and that none 

of the wounds were inflicted at a distance of less than two feet. The 
15 

police did not recover any evidence indicating that Lane had had a 

gun, and Miller admitted that he never saw Lane with a weapon. 

(Judgment Entry of May 22, 2015, State Court Record, ECF No. 4, PageID 77-79.) 

 In arguing this Ground for Relief in his Traverse, Miller does not contend that these factual 

findings by the First District are not supported by the evidence or that, accepted by this Court as 

true, they do not constitute sufficient evidence of felonious assault: shooting a man four times in 

the back is certainly enough to show felonious assault. 

 Instead, Miller argues that the trial court impermissibly allowed the State to present 

evidence to support a premeditated murder charge and also other bad acts evidence. These two 

claims are procedurally defaulted because they were never raised on direct appeal (See Appellant’s 

Brief, State Court Record, ECF No. 4, PageID 40, et seq.) 

 Miller then makes a two-page argument about a claimed violation of his rights under Brady 

v. Maryland, 373 U.S. 83 (1963) (Traverse, ECF No. 9, PageID 1206-08). This claim is also 

procedurally defaulted because it was not raised on direct appeal (See Appellant’s Brief, State 

Court Record, ECF No. 4, PageID 40, et seq.). 

 The claims Miller makes in his Third Ground for Relief are procedurally defaulted. In the 

alternative, his insufficiency of the evidence claim is without merit because the facts found by the 

First District are plainly sufficient to support a conviction for felonious assault. Ground Three 

should be dismissed with prejudice. 

Ground Four: Ineffective Assistance of Appellate Counsel 

 In his Fourth Ground for Relief, Miller asserts he received ineffective assistance of 

appellate counsel when his appellate attorney failed to argue his trial attorney provided ineffective 
16 

assistance for failing to argue that (1) Miller saw what appeared to be a gun in the victim’s hand 

and (2) the incident occurred on the Fourth of July “and the simultaneous sound of fireworks also 

influenced Petitioner’s judgment and his reasonable belief that he was being confronted with a 

firearm.” 

 Miller raised this claim as his first omitted assignment of error in his Rule 26(B) 

Application (State Court Record, ECF No. 4, PageID 117). The First District decided the claim 

as follows: 

Appellate counsel was not ineffective in failing to assign as error 

trial counsel's alleged ineffectiveness in failing to argue in support 

of Miller's self-defense claim that he had reasonably believed that 

the victim had shot at him first, when amid the noise of July 4th 

fireworks, the victim stated that he had a gun and reached toward 

the waistband of his pants. Appellate counsel presented an 

assignment of error challenging the weight of the evidence 

supporting Miller's felony-murder conviction and argued in support 

of that assignment of error that Miller had proved his self-defense 

claim. We overruled the assignment of error based upon our review 

of the evidence adduced at trial. That evidence included Miller's 

testimony that he had shot the victim because his threatening 

statements and conduct had caused Miller to believe that the victim 

had a gun. And trial counsel advanced that theory in support of 

Miller's self-defense claim. But Miller did not testify, and thus trial 

counsel could not have argued, that the sound of fireworks had 

caused Miller to believe that the victim had shot at him first. Thus, 

the record does not demonstrate a reasonable probability that, but 

for trial counsel's alleged deficiencies in advancing Miller's selfdefense claim, the result of his trial would have been different. See 

Strickland at 694; Bradley at paragraph three of the syllabus. 

(Entry Denying Application for Reopening, State Court Record, ECF No. 4, PageID 123.) 

 To prevail on his Fourth Ground for Relief, Miller must show that this decision of the First 

District was contrary to or any objectively unreasonable application of Supreme Court precedent. 

In making its decision, the First District cited Strickland [v. Washington] and [State v.] Bradley,
17 

42 Ohio St. 3d 136 (1989). Bradley is the case in which the Ohio Supreme Court recognized the 

Strickland standard as governing ineffective assistance of trial counsel claims. 

The governing standard for ineffective assistance of trial counsel was adopted by the 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): 

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 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. 

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing 

Knowles v. Mirzayance, 556 U.S.111 (2009). 

With respect to the first prong of the Strickland test, the Supreme Court has commanded: 

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . 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 a 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.” 

466 U.S. at 689. 

As to the second prong, the Supreme Court held: 
18 

The defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability 

sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 

313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally 

Annotation, 26 ALR Fed 218. 

A criminal defendant is entitled to effective assistance of counsel on appeal as well as at 

trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey, 

469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 

(6th Cir. 2008). The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 

285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance 

of appellate counsel, then, the court must assess the strength of the claim that counsel failed to 

raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 

(6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective assistance only 

if a reasonable probability exists that inclusion of the issue would have changed the result of the 

appeal. Id., citing Wilson. 

Miller makes no argument in his Traverse as to why this decision is an unreasonable 

application of Strickland. The Magistrate Judge concludes it was completely reasonable. It would 

not have helped Miller’s cause to have appellate counsel complain of a supposedly omitted 

argument that was, in fact, not omitted. And the second omitted argument was one that could not 

have properly been made because Miller did not testify about reacting to fireworks. 

Instead of attempting to show the First District was unreasonable in its application of 

Strickland, Miller spend most of his Traverse arguing about claims that were never made in the 

state courts. First of all, he argues his trial attorney provided ineffective assistance by his decision 
19 

“to set forth an Affirmative Defense of Self Defense in a murder case” when counsel had not 

conducted “a pre-trial interview of Victoria Ellis and Ava Pye. . . .” (ECF No. 9, PageID 1210). 

But that is not the ineffective assistance of trial counsel claim Miller accused his appellate attorney 

of omitting. There is no proof in the record, or at least Miller cites no such proof, that his trial 

attorney did not interview these witnesses. To the extent such proof would involve evidence not 

of record on appeal, it would have had to be brought to the trial court’s attention by a petition for 

post-conviction relief claiming ineffective assistance of trial counsel, but no such petition was ever 

filed and the time for doing so has expired. 

Miller hypothesizes that without Ellis’s and Pye’s testimony, the outcome of the trial would 

have been different (Traverse, ECF No. 9, PageID 1211). But he offers no theory or proof as to 

how a pre-trial interview of these witnesses would have prevented them from testifying as they 

did. He cites trial testimony that the jury heard and that he claims is conflicting (Traverse, ECF 

No. 9, PageID 1212-13), but no basis on which his trial attorney could have prevented the jury 

from believing what they decided to believe out of the conflicting testimony. 

Miller argues that State effectively amended the indictment by arguing its premeditated 

murder theory, but no premediated murder claim was submitted to the jury, just purposeful murder 

and felony murder. He claims effective counsel would have filed a motion in limine to preclude 

the premeditated murder and other bad acts evidence (Traverse, ECF No. 9, PageID 1214). But 

he never presented this claim to the Ohio courts in a post-conviction petition; nor did he include it 

as an omitted assignment of error in his 26(B) application. The same thing is true of Miller’s claim 

he received ineffective assistance of trial counsel because his attorney did not visit the crime scene. 

Id. at PageID 1215. 

In fact, most of the remainder of Miller’s Traverse consists of arguments about how trial 
20 

counsel was ineffective (ECF No. 9, PageID 1212-26). None of these claims has ever been 

presented to the Ohio courts, and they are procedurally defaulted on that basis. Miller concludes 

his Traverse by arguing four additional ways that his appellate counsel allegedly provided 

ineffective assistance of appellate counsel (Traverse, ECF No. 9, PageID 1226). But these claims 

also have never been presented to the Ohio courts. 

Miller’s Fourth Ground for Relief as pleaded in the Petition should be denied on the merits, 

because the First District’s 26(B) decision was not an unreasonable application of Strickland. The 

new claims of ineffective assistance of trial counsel Miller raises in his Traverse should be 

dismissed as procedurally defaulted, because they were never presented to the state courts. 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends the 

Petition in this case be dismissed with prejudice. Because reasonable jurists would not disagree 

with this conclusion, Petitioner should be denied a certificate of appealability and the Court should 

certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not 

be permitted to proceed in forma pauperis. 

June 15, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 
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NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).