1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

MICHAEL ANTONIO MALONE, 

Petitioner, : Case No. 1:17-cv-548 

- vs - District Judge Michael R. Barrett 

Magistrate Judge Michael R. Merz 

TIM BUCHANAN, Warden, 

 Noble Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought pro se by petitioner Michael Malone under 28 U.SC. § 

2254, is before the Court for decision on the merits. The Petition was filed August 18, 2017 (ECF 

No. 1). On Magistrate Judge Wehrman’s Order (ECF No. 5), the Respondent filed the State Court 

Record (ECF No. 9) and a Return of Writ (ECF No. 10). Petitioner then filed a Reply (ECF No. 

13). The reference of the case has recently been transferred to the undersigned to help balance the 

Magistrate Judge workload in the Western Division.1

 

1

 The reference was initially made to Magistrate Judge J. Gregory Wehrman of the Eastern District of Kentucky who 

has been sitting by assignment in this Court. The reference was briefly transferred to Magistrate Judge Litkovitz 

because of Magistrate Judge Wehrman’s pending retirement. Ultimate assignment of the case remains with District 

Judge Michael Barrett. 
2 

Litigation History 

 A Scioto County grand jury indicted Petitioner on March 6, 2014, on one count of theft 

from an elderly person or disabled adult in violation of Ohio Revised Code § 2913.02(A)(1), 

(B)(1), and(3)(Count 1); one count of forgery in violation of Ohio Revised Code § 2913.31(A)(1) 

and (C)(1)(c)(iii)(Count 2); one count of forgery (uttering) in violation of Ohio Revised Code § 

2913.31(A)(3) and (C)(1)(c)(iii)(Count 3); and one count of receiving stolen property in violation 

of Ohio Revised Code § 2913.51(A) and (C)(Count 4). (Indictment, State Court Record, ECF No. 

9, PageID 73 et seq.) Malone was convicted on all counts and sentenced to a term of eleven years 

imprisonment. 

 The Fourth District Court of Appeals affirmed except for concluding that uttering a forged 

check and receiving stolen property were allied offenses of similar import under Ohio Revised 

Code § 2941.25; the case was remanded for resentencing as to those two counts. State v. Malone, 

2016-Ohio-3543 (4th Dist. Jun. 16, 2016), appellate jurisdiction declined, 148 Ohio St. 3d 1411 

(2017). 

 Meanwhile, and proceeding pro se, Malone filed an Application for Reopening his direct 

appeal under Ohio R. App. P. 26(B), asserting he received ineffective assistance of appellate 

counsel when his appellate attorney omitted six assignments of error. (State Court Record, ECF 

No. 9, PageID 224 et seq.) The Fourth District denied relief on the merits. State v. Malone, Case 

No. 14CA3648 (4th Dist. Nov. 29, 2016)(unreported; copy at ECF No. 8, PageID 287 et seq.), 

appellate jurisdiction declined, 148 Ohio St. 3d 1428 (2017). 

 After the trial court resentenced him, Malone filed the instant Petition for Habeas Corpus, 

pleading the following grounds for relief: 
3 

Ground One: The Allied Offense and Merger violation is apparent 

on the face of the indictment when Petitioner is charged as if it is a 

single count. Petitioner was convicted on one count of forgery and 

one count of uttering. The Court of Appeals of Ohio, Fourth 

Appellate District, Scioto County, unreasonably applied clear 

United States Supreme Court precedent and applied unreasonably 

and undermined facts thereby violating Petitioner’s Fifth and 

Fourteenth Constitutional rights as well as Article I, §10 of the Ohio 

Constitution, which left Petitioner with an 11-year sentence and is 

contrary to Federal and State due process clauses to the Constitution. 

Ground Two: The Court of Appeals of Ohio, Fourth Appellate 

District, Scioto County, made an objectively unreasonable 

determination of the facts when there was no inquiry as to Malone’s 

present or future ability to pay the amount of the Financial sanction 

violating the Federal Victim and Witness Protection Act of 1982 

(VWPA) and the federal Sentencing Reform Act of 1984. 

Ground Three: Petitioner was prejudicially deprived of his rights 

to Effective Assistance of Appellate Counsel on direct appeal as 

secured by the Sixth Amendment to the United States Constitution 

and Article I, Section 10 of the Ohio Constitution where ineffective 

assistance offered by Appellate Counsel plagued petitioner’s 

appeals with prejudice. The Court of Appeals of Ohio, Fourth 

Appellate District, Scioto County, unreasonably applied the 

Strickland standard to assess ineffective assistance of counsel when 

it erroneously concluded that it is their belief that Petitioner’s 

proposed assignments of error would not have had a reasonable 

probability of success had appellate counsel raised them on appeal. 

Appellate counsel was ineffective under Strickland by not 

addressing appellant's concerns. 

Ground Four: By accepting the jury verdict, the court erred and 

violated the Due Process clauses to the United States and the Ohio 

Constitutions, whereas the prosecution for the State, failed to offer 

sufficient evidence, as to all necessary elements of a crime beyond 

a reasonable doubt and appellate counsel was ineffective under 

Strickland by not having the State to prove each and every element 

contained in the indictment beyond a reasonable doubt. 

Ground Five: The jury verdict deprived petitioner [of] Due Process 

of law as the verdict of one count of theft from the elderly, one count 

of forgery, one count of uttering, and one count of receiving stolen 

property are against the manifest weight of the evidence and 
4 

appellate counsel was ineffective under Strickland by not having the 

State to prove each and every element contained in the indictment 

beyond a reasonable doubt. 

Ground Six: Petitioner will show that he was denied his federal 

Sixth Amendment rights to have a fair and impartial jury when 

erroneous jury instructions made its way into the hands of the jury 

and the appellate court unreasonably applied clear federal 

constitution [sic] when during the course of the trial, portions of the 

jury instructions were admitted into evidence pursuant to an 

agreement of counsel that unadmitted portions would be removed 

from the instructions before they were submitted to the jury. The 

deletions were not made before the jury began its deliberations. The 

unfair prejudicial error was committed when erroneous jury 

instructions made its way into jury room as part of the government 

exhibit and appellate counsel was ineffective under Strickland for 

not addressing the Constitutional Violation on direct appeal. 

Ground Seven: Petitioner will also show that the State appellate 

court disregarded the United States Supreme Court’s decision by 

violating his Sixth Amendment rights to a fair and impartial jury 

verdict where as missing verdict forms effected [sic] the outcome of 

the trial and appellate counsel was ineffective under Strickland for 

not addressing it on direct appeal. 

Ground Eight: This case reeks with multiple constitutional 

violations. The above cited errors, when taken together, deprived 

Petitioner, Michael Malone Sr., of a fair trial as guaranteed under 

the Fourth, Fifth and Fourteenth Amendment's to the United States 

as well as the Ohio Constitutions “Due Process” clauses and 

appellate counsel was ineffective under Strickland for not 

addressing it on direct appeal. 

(Petition, ECF No. 1, PageID 5-15.) 

Analysis 

Ground One: Allied Offenses Error 
5 

 In his First Ground for Relief, Malone contends the Fourth District Court of Appeals erred 

in its merger of allied offenses analysis. 

 The State argues that there was no error because the convictions for forgery and for uttering 

are based on different checks (Return, ECF No. 10, PageID 706-11). Second, it asserts a violation 

of Ohio Revised Code § 2941.25 is not cognizable in habeas corpus because it involves only a 

state law question. Id. Finally, to the extent Malone attempts to argue a federal constitutional 

claim, specifically Double Jeopardy in Ground One, the Respondent asserts Malone never made 

such a claim in the state courts and is thus barred by lack of fair presentation. Id. 

 Malone responds that he did not procedurally default on the Double Jeopardy claim in 

Ground One because it was fairly presented to the Fourth District Court of Appeals (Traverse, ECF 

No. 13, PageID 760). In fact, he claims the Fourth District understood he was presenting a federal 

constitutional claim with the allied offenses argument. Id. at 754. 

 Malone presented his allied offenses claim on appeal as his First Assignment of Error 

which the Fourth District decided as follows: 

[*P8] In his first assignment of error, appellant asserts that the trial 

court erred in determining which counts should have merged as 

allied offenses of similar import. 

[*P9] The determination of whether crimes constitute allied 

offenses of similar import is a question of law. Thus, appellate 

courts will review a trial court's determination de novo. State v. 

Cole, 4th Dist. Athens No. 12CA49, 2014-Ohio- 2967, at ¶7; State 

v. Greer, 4th Dist. Jackson No. 13CA2, 2014-Ohio-2174, at ¶8. In 

other words, an appellate court will afford no deference to a trial 

court's decision and, instead, conduct an independent review. 

Holiday Haven Members Assn. v. Paulson, 4th Dist. Hocking No. 

13CA13, 2014-Ohio-3902, at ¶13; Bodager v. Campbell, 4th Dist. 

Pike No. 12CA828, 2013-Ohio-4650, at ¶19. 

[*P10] Appellant argues that the trial court erred in regard to two 

separate mergers [sic] issues. We address each separately. 
6 

A. The two forgery counts 

[*P11] Appellant argues that the trial court erred by not merging the 

two forgery counts as allied offenses of similar import. Count two 

of the indictment charged appellant with forging McKibbin's name 

to checks in violation of R.C. 2913.31(A)(1). Count three charged 

appellant with "uttering" (cashing) forged checks in violation of 

subsection (A)(3) of that statute. 

[*P12] Appellant's position is that he could not cash the check 

without forging it. By contrast, the State argued that forging the 

check in and of itself, is a complete crime and cashing that check is 

something altogether different. We point out that neither party has 

cited any authority to support their respective positions. 

[*P13] R.C. 2941.25 provides as follows: 

"(A) Where the same conduct by defendant can be 

construed to constitute two or more allied offenses of 

similar import, the indictment or information may contain 

counts for all such offenses, but the defendant may be 

convicted of only one. 

(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results 

in two or more offenses of the same or similar kind 

committed separately or with a separate animus as to each, 

the indictment or information may contain counts for all 

such offenses, and the defendant may be convicted of all of 

them." 

[*P14] The Ohio Supreme Court has determined that this statute 

protects a defendant from receiving multiple punishments for "a 

single criminal act." See State v. Washington, 137 Ohio St.3d 427, 

2013-Ohio-4982, 999 N.E.2d 661, at ¶18; State v. Williams, 134 

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, at ¶13. In the 

case sub judice, however, we do not have "a single criminal act." 

This is not a case in which appellant forged and uttered a single 

$37,000 check. Instead, a string of more than fifty separate 

criminal acts, carried out over approximately one year, resulted in 

the theft of $83,000. In the case sub judice, we believe that the 

evidence can be viewed in such a way to show that appellant 

committed forgery and uttering with completely different checks. 

State's Exhibits four and ten, as well as the testimony of several 

witnesses, establishes the existence of sufficient evidence to convict 
7 

appellant on each of the two counts. Insofar as count II (forgery) is 

concerned, the State introduced into evidence the following checks 

that the victim claimed he did not sign: 

[Table of forged checks omitted.] 

[*P13] In short, we believe that evidence of different instances of 

criminal misconduct exists on different dates, and with different 

check numbers, to support the convictions under the two subsections 

of 2923.13(A). Thus, under the circumstances present in this case, 

we need not determine whether forging and uttering a forged check 

are allied offense of similar import for purposes of R.C. 2941.25. 

Rather, the fact remains that multiple separate instances of forgery 

and "uttering" exist to support each conviction. 

B. The Forgery and Receiving Stolen Property Counts 

[Omitted because the decision was favorable to Malone and not 

relevant to this Court’s decision.] 

State v. Malone, 2016-Ohio-3543 (footnote omitted). 

 In his Traverse Malone cites the ways in which a federal constitutional claim can be fairly 

presented to state courts: “A petitioner fairly presents his claim to the state courts by citing a 

provision of the United States Constitution, federal decisions using constitutional analysis, or state 

decisions employing constitutional analysis in similar fact patterns.” (Traverse, ECF No. 13, 

PageID 754.) But Malone fails to apply this standard to his own case. There are no federal 

constitutional authorities cited in his Amended Brief (State Court Record, ECF No. 9, PageID 

141). No reference is made to any provision of the Federal Constitution or to any federal case law 

interpreting it. Only the asserted violation of Ohio Revised Code § 2941.25 is argued. Nor did 

the Fourth District somehow “understand” it was deciding a Double Jeopardy claim. Its decision 

makes no reference to the United States Constitution or to federal or state case law analyzing a 

Double Jeopardy claim. 
8 

 Respondent is correct that this Court cannot review the Fourth District’s decision on the 

application of Ohio Revised Code § 2941.25 to Malone’s case. That is purely a matter of state law 

and federal habeas corpus is available only to consider federal constitutional questions. 28 U.S.C. 

§ 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010)(quoting Estelle v. McGuire, 502 U.S. 62, 67 

(1991), in turn quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Smith v. Phillips, 455 

U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). 

 Malone suggests that he has not procedurally defaulted the Double Jeopardy claim because 

he raised it on appeal to the Supreme Court of Ohio. However, that court will not consider a claim 

of error not raised in the lower court of appeals. 

 Malone relies on Judge Weber’s decision in Palmer v. Haviland, No. C-1-04-028, 2006 

U.S. Dist. LEXIS 95890 (S.D. Ohio 2006), for the proposition that pleading a violation of Ohio 

Revised Code § 2941.25 adequately alerts the Ohio courts to the presence of a double jeopardy 

claim. But in Palmer the petitioner argued his Ohio Revised Code § 2941.25 claim in terms of 

State v. Rance, 85 Ohio St. 3d 632 (1999), an Ohio Supreme Court decision which Judge Weber 

found relied on federal double jeopardy analysis. Palmer at *15-16. That is not the case here. 

Malone points to no Ohio case cited in his Amended Appellant’s Brief which contained a federal 

double jeopardy analysis. Judge Weber also noted that the appellate decision in Palmer recognized 

the federal constitutional question raised by Rance. Id. at *18. That also is not the case here – the 

Fourth District’s decision does not advert to double jeopardy at all. 

 Accordingly Ground One should be dismissed with prejudice as non-cognizable (as to 

claimed Ohio Revised Code § 2941.25 violations) or procedurally defaulted (as to double jeopardy 

claims) for failure to fairly present a double jeopardy claim to the Ohio courts. 
9 

Ground Two: Failure to Inquire into Ability to Pay Restitution 

 In his Second Ground for Relief, Malone claims his rights under Ohio Revised Code § 

2929.18 and 2929.19 as well as the federal Victim and Witness Protection Act of 1992 and the 

Federal Sentencing Reform Act of 1984 were violated because the trial court failed to make an 

adequate inquiry into his ability to pay restitution to the victim. 

 Respondent argues this claim is not cognizable in habeas because Malone is not in custody 

as a result of the monetary sanction imposed on him. (Return, ECF No. 10, PageID 712, citing 

Smith v. White, 2012 WL 3961233 (W.D. Ky. Sept. 10, 2012), and United States v. Collier, 2011 

WL 1882401 (E.D. Ky. Jan. 11, 2011). 

 Malone argues in his Traverse that he has not procedurally defaulted this claim, but the 

State did not raise that defense. Malone essentially makes no response to the State’s claim that 

Ground Two is not cognizable because he is not in custody as a result of the costs and restitution 

order. He notes that he was found to be indigent at the outset of his case for purposes of 

appointment of counsel and essentially argues that there was no evidence to overcome that finding 

(Traverse, ECF No. 13, PageID 777). But that point is irrelevant to the State’s claim of 

noncognizability. He argues as a federal standard for review the provisions of the United States 

Sentencing Manual, but the Manual and the Reform Act of 1984 from which it derives have no 

application in state courts. The same is true of the Victim and Witness Protection Act. 

 The undersigned is persuaded by Magistrate Judge Whalin’s conclusion in Smith that 

habeas corpus is not available to review monetary sanctions because they do not place a petitioner 

in custody. A different question would be presented if a habeas petitioner were imprisoned for 

failure to pay a monetary sanctions, but that is not the case here. 
10 

 Ground Two should be dismissed for failure to state a claim on which habeas corpus relief 

can be granted. 

Ground Three: Ineffective Assistance of Appellate Counsel 

 In his Third Ground for Relief, Malone claims he received ineffective assistance of 

appellate counsel in five ways: counsel failed (1) to raise a claim that the jury received erroneous 

instructions; (2) to raise an insufficiency of the evidence claim; (3) to keep Malone informed about 

“important decisions and on arguments he was preparing”; (4) “to protect petitioner’s 

Constitutional rights raised herein”; and (5) to argue the prejudice which resulted from jurors being 

given evidence of Malone’s prior convictions. 

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).
11 

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: 

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). 

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

trial, and that means counsel who acts as an advocate rather than merely as a friend of the court. 

Evitts v. Lucey, 469 U.S. 387, 394 (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.” Henness, supra, citing Wilson. The attorney need not 
12 

advance every argument, regardless of merit, urged by the appellant. Jones v. Barnes, 463 U.S. 

745, 751-52 (1983)("Experienced advocates since time beyond memory have emphasized the 

importance of winnowing out weaker arguments on appeal and focusing on one central issue if 

possible, or at most on a few key issues." 463 U.S. 751-52). Effective appellate advocacy is rarely 

characterized by presenting every non-frivolous argument which can be made. Joshua v. DeWitt, 

341 F.3d 430, 441 (6th Cir. 2003). Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004); see Smith 

v. Murray, 477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those 

presented will the presumption of effective assistance of [appellate] counsel be overcome.” 

Dufresne v. Palmer, 876 F.3d 248, 257 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 

614, 642 (6th Cir. 2008)(internal quotation marks omitted). However, failure to raise an issue can 

amount to ineffective assistance. McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004), citing Joshua 

v. Dewitt, 341 F.3d 430, 441 (6th Cir. 2003); Lucas v. O’Dea, 179 F.3d 412, 419 (6th Cir. 1999); 

and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 1999). Counsel can be ineffective by failing 

to raise a “dead-bang winner,” defined as an issue which is obvious from the trial record and which 

would have resulted in a reversal on appeal, even if counsel raised other strong but unsuccessful 

claims. Mapes, supra, citing Banks v. Reynolds, 54 F. 3d 1508, 1515 n. 13 (10th Cir. 1995); see 

also Page v. United States, 884 F. 2d 300, 302 (7th Cir. 1989). Stated differently, failure to raise a 

significant and obvious claim can amount to reversible error. Mapes v. Tate, 388 F.3d 187, 192 

(6th Cir. 2004). 

Malone raised claims of ineffective assistance of appellate counsel in his Rule 26(B) 

application, which is the appropriate forum for raising those claims under Ohio law. In deciding 

that application, the Fourth District carefully recited the applicable standard of review provided in 

Strickland as applied to appellate counsel. State v. Malone, No. 14 CA 3648 (4th Dist. Nov. 29, 
13 

2016)(unreported; copy at State Court Record, ECF No. 9, PageID 287, et seq.) The state court of 

appeals then recited the assignments of error Malone claimed had been omitted as a result of 

ineffective assistance of appellate counsel: 

In appellant's application to reopen appeal, he raises various 

proposed assignments of error that cover a wide range of topics. In 

his first proposed assignment of error, appellant asserts that his 

appellate counsel provided ineffective assistance because, inter alia, 

counsel (1) did not focus on the merits of the case, (2) did not keep 

appellant informed about important decisions, ( 3) was unwilling to 

raise various constitutional issues and address appellant's concerns, 

(4) was unwilling to request the correction of the transcript, and (5) 

did not prevent the jury from learning about various prior criminal 

convictions. In his second proposed assignment of error, appellant 

contends that the state ''failed to introduce evidence on the 

independent mens rea element or produce any testimony that the 

appellant possessed knowledge of the forgery and the conviction is 

not supported by sufficient evidence.” In this third proposed 

assignment of error, appellant again contends that the state "failed 

to introduce evidence on the independent mens rea element or 

produced any testimony that the appellant possessed knowledge or 

that he was deceptive when he uttered the writing" and that the 

conviction is against the manifest weight of the evidence. In this 

fourth assignment of error, appellant argues that the jury improperly 

received a file-stamped copy of ''the wrong and unedited version of 

the proposed instructions" that the prosecution had submitted to the 

trial court. In his fifth proposed assignment of error, appellant 

asserts that plain error infected the proceedings because verdict 

forms were missing after the jury reached its verdict. In his sixth 

proposed assignment of error, appellant asserts that the 

"conglomeration of errors, when taken together, deprived appellant 

of a fair trial.'' 

(ECF No. 9, PageID 296-97.) 

 The court of appeals then decided the Application as follows: 

After our review of appellant's application, appellant's supporting 

argument and the appellee's response to appellant's application, we 

do not believe that appellant has demonstrated that appellate counsel 

provided ineffective assistance during his participation in appellant's 

direct appeal. 
14 

In the case sub judice (1) the trial court properly instructed the jury 

on the applicable culpable mental states for the various criminal 

violations, and (2) the prosecution presented substantial competent, 

credible evidence that, if believed by the trier of fact, fully supported 

the jury's decision. 

With respect to a claim that a conviction is against the manifest 

weight of the evidence, a reviewing court must review the record, 

weigh the evidence and all inferences, consider witness credibility 

and determine whether, in resolving conflicts in the evidence, the 

jury clearly lost its way and created a manifest miscarriage of 

justice. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The 

question is whether substantial evidence exists upon which the trier 

of fact could have reasonably concluded that all elements of the 

offenses have been proven beyond a reasonable doubt. State v. 

Smith, Pickaway App. No. 06CA7, 2007-Ohio-502. With respect to 

a claim that sufficient evidence does not support a conviction, a 

reviewing court must determine whether, after a review of the 

evidence admitted at trial, if believed and viewed in a light most 

favorable to the state, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt. 

Thompkins.

After our review, we believe that during the jury trial the state 

adduced substantial competent, credible evidence that, if believed, 

established that appellant committed the crimes charged in the 

indictment. The fact that appellant can extract some bits of 

testimony and point to somewhat favorable evidence does not 

require the conclusion that the jury's verdict is against the manifest 

weight of the evidence, or is not supported by sufficient evidence. 

The fact that appellant disagrees with the jury's conclusion is 

understandable, but is of no consequence. Here, we again point out 

that the evidence fully supports the jury's verdicts. 

Appellant also asserts that the jury received erroneous jury 

instructions.2

 However, our review of the trial transcript and the trial 

court's jury instructions included within the transcript reveals no 

improper comments or instructions. The trial court did not refer to 

appellant's prior criminal convictions. 

 

2

 [footnote from Fourth District] It appears that appellant is citing the proposed instructions that the prosecution filed 

with the court that contained a reference to appellant's (1) choice about whether to testify, and (2) prior felony 

convictions. However, as the prosecution points out it does not appear that these topics were included in the trial 

court's actual jury instructions, and we see no evidence to indicate that the jury actually viewed the proposed 

instructions. The fact that certain documents appear in a court file does not mean that the trial court judge would have 

submitted those documents to the jury. A court may fashion its own jury instructions and give those instructions to 

the jury. 
15 

With respect to the missing jury verdict forms, it does appear that 

the jury did receive four guilty verdict forms and four not guilty 

verdict forms. However, when the jury reached its verdict, the jury 

returned only six forms. The trial court immediately addressed this 

issue and learned from the jury that they had mistakenly filled out 

the forms, then shredded the forms and placed them in the trash. The 

court thereupon instructed the court bailiff to locate the forms. The 

bailiff soon found the missing forms in the jury room's trash can, 

and then marked the forms as an exhibit. This activity, however, has 

no bearing whatsoever on the jury's verdict. In fact, we commend 

the trial court for its actions in this case to maintain an accurate 

record of the trial court proceedings. 

Accordingly, based upon the foregoing reasons, we do not believe 

that any of the appellant's proposed assignments of error had a 

reasonable probability of success had appellant's counsel raised 

them in an appeal. Thus, we do not believe that appellant has 

demonstrated that his appellate counsel rendered ineffective 

assistance and we hereby deny his application to reopen his appeal. 

Id. at PageID 296-300. 

 Thus, the Fourth District decided Malone’s ineffective assistance of appellate counsel 

claims on their merits; it did not discern any procedural bar to that decision. 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, 1005 (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). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state 

court decision was based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceedings. Because the Fourth District decided these claims on the 

merits, Malone’s burden in habeas is to show that decision is an objectively unreasonable 

application of the relevant Supreme Court precedent. 
16 

 In his Traverse, Malone recognizes that is the standard (ECF No. 13, PageID 782). 

Malones argues Ground Three from PageID 782 to PageID 796. Argument about the omitted 

assignments of error appears at various places and is considered here seriatim. 

 Regarding the claim that the jury saw erroneous instructions, Malone claims 

In the instant case it is a known fact that appellate counsel knew but 

failed to present arguments to the appellate court when he was 

aware that jurors received proposed jury instructions (which 

contained evidence of prior convictions), in the deliberation room, 

that were not meant for them to have. (ECF No. 9, Exhibit 3.) This 

alone had a "substantial and injurious effect or influence in 

determining the jury's verdict." Davis v. Ayala, 135 S. Ct. 2187 

(quoting O'Neal, 513 U.S., at 435). 

Id. at PageID 788 (emphasis in original). As proof of the factual assertions in this statement, 

Malone points to the State’s Proposed Jury Instructions (State Court Record, ECF No. 9, Ex. 3). 

 Malone’s evidence does not prove what he asserts. Because these proposed instructions 

had been filed with the Clerk of Courts, they were available to appellate counsel to see and also 

available to the court of appeals. But as Judge Abele wrote, that does not prove they ever reached 

the jury room. Appellate counsel could only argue assignments of error that were of record. 

Without proof that these proposed instructions ever reached the jury – proof Malone does not cite3

– an assignment of error based on the speculation that they might have done so would have had no 

merit. It cannot be ineffective assistance of appellate counsel to fail to raise and assignment of 

error that could not have been won. 

 The only other omitted assignments of error that Malone argues in his Traverse are 

appellate counsel’s failure to claim that the verdicts were based on insufficient evidence or were 

against the manifest weight of the evidence (ECF No. 13, PageID 792). The Fourth District 

 

3

 Malone argues, again without providing any evidence, that his appellate counsel could have proved the proposed 

instructions reached the jury by interviewing the jurors (Traverse, ECF No. 13, PageID 788). But this is pure 

speculation without some actual evidence of what such interviews would have produced. 
17 

expressly addressed those claims. This is the same court that had the entire record before it on 

direct appeal and so had occasion to evaluate the evidence. Its decision to reject a claim of 

ineffective assistance of appellate counsel based on the sufficiency and weight of the evidence 

amounts to a holding that, if it had been presented with those claims, it would have rejected them. 

Had it done so and the claims then come to this Court in habeas, we would be compelled by 

precedent to give deference both to the jury’s weighing of the evidence and that of the Fourth 

District on direct appeal. There is no doubt what the outcome would have been. Malone had 

motive, means, and opportunity to commit these crimes. His alternative story that someone else 

broke into the McKibbin home, stole the checks, and then made them payable to Malone and put 

them in the mailbox is patently absurd. 

 Malone does not address specifically any of the other omitted assignments of error, but 

contents himself with reciting generalities about constitutional rights (see Traverse, ECF No. 13, 

PageID 782-96). But his burden on Ground Three is to show that one or more of the omitted 

assignments , if argued, probably would have changed the outcome of the appeal. He has not done 

so. Ground Three should be dismissed on the merits. 

Ground Four: Sufficiency of the Evidence 

 In his Fourth Ground for Relief, Malone argues his convictions are not supported by 

sufficient evidence. 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. 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. 
18 

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 v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006). 

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. 

 While Malone’s Fourth Ground for Relief states a claim cognizable in habeas corpus, he 

procedurally defaulted on this claim when he failed to raise it on direct appeal. Ineffective 

assistance of appellate counsel can excuse such a default, but that claim must itself be raised and 

litigated in the state courts before it can be used to excuse a default. Edwards v. Carpenter, 529 

U.S. 446, 451-53 (2000). Malone did raise the omission of this claim as alleged ineffective 

assistance of appellate counsel, but, as held above with respect to Ground Three, the Fourth 

District’s denial of that claim on the merits was not an objectively unreasonable application of 

Strickland. Therefore, Ground Four should be dismissed. 

Ground Five: Verdicts Against the Manifest Weight of the Evidence 

 In his Fifth Ground for Relief, Malone asserts the jury verdicts are against the manifest 

weight of the evidence. A manifest weight of the evidence claim is not a federal constitutional 
19 

claim. Johnson v. Havener, 534 F.2d 1232, 1234 (6th Cir. 1986). Because only federal 

constitutional claims are cognizable in habeas corpus, Malone’s Ground Five should be dismissed. 

Ground Six: Erroneous Jury Instructions 

 In his Sixth Ground for Relief, Malone asserts he was denied a fair trial when erroneous 

jury instructions reached the jury. The Traverse explains that the instructions referred to are the 

same Proposed Instructions filed by the State before trial. 

 This was a claim that could have been raised on direct appeal but was not. To excuse that 

procedural default, Malone asserts the Fourth District, in denying his 26(B) Application, “lifted 

the procedural bar by addressing its merits.” (ECF No. 13, PageID 816.) Not so. The Fourth 

District plainly limited its analysis to the question whether appellate counsel was ineffective for 

failing to present this assignment of error. Of course, in doing so it was obliged to discuss the 

potential merits of the claim. As the general standard for ineffective assistance of appellate counsel 

claims recited above implies, the key question on the merits of an ineffective assistance of appellate 

counsel claim is how strong the omitted assignment of error would have been. A court does not 

waive the default by discussing the prejudice prong of the Strickland standard. “[B]ringing an 

ineffective assistance claim in state court based on counsel’s failure to raise an underlying claim 

does not preserve the underlying claim for federal habeas review because ‘the two claims are 

analytically distinct.’” Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008) quoting White v 

Mitchell, 431 F.3d 517, 526 (6th Cir. 2005); see also Roberts v. Carter, 337 F.3d 609, 615 (6th Cir. 

2003)(noting that, “[i]n light of the requirements of Rule 26(B), the court’s holding must be read 

as pertaining to the merits of” the ineffective assistance claim, not the underlying state rule claim). 
20 

 Ground Six is procedurally defaulted by failure to raise this claim on direct appeal and the 

default is not excused by ineffective assistance of appellate counsel. Ground Six should therefore 

be dismissed. 

Ground Seven: Missing Verdict Forms 

 In his Seventh Ground for Relief, Malone claims the missing not-guilty verdict forms 

violated his Sixth Amendment right to a fair trial. In the Traverse he restates this claim as being 

that the jury was never given not guilty forms, thus skewing the deliberations in the direction of 

guilty findings (ECF No. 13, PageID 828.) 

 Respondent asserts this claim is procedurally defaulted because it could have been but was 

not raised on direct appeal. Because it was not ineffective assistance of appellate counsel to fail 

to raise this claim on direct appeal, as held above on Ground Three, Malone cannot rely on 

ineffective assistance of appellate counsel to excuse the default. 

 In deciding the 26(B) Application, the Fourth District found as a matter of fact that the jury 

did receive the proper number (eight) of verdict forms. It held: 

With respect to the missing jury verdict forms, it does appear that 

the jury did receive four guilty verdict forms and four not guilty 

verdict forms. However, when the jury reached its verdict, the jury 

returned only six forms. The trial court immediately addressed this 

issue and learned from the jury that they had mistakenly filled out 

the forms, then shredded the forms and placed them in the trash. The 

court thereupon instructed the court bailiff to locate the forms. The 

bailiff soon found the missing forms in the jury room's trash can, 

and then marked the forms as an exhibit. This activity, however, has 

no bearing whatsoever on the jury's verdict. In fact, we commend 

the trial court for its actions in this case to maintain an accurate 

record of the trial court proceedings. 

 State v. Malone, No. 14 CA 3648 (4th Dist. Nov. 29, 2016)(unreported; copy at State Court Record, 
21 

ECF No. 9, PageID 299-300.) Malone disputes the accuracy of this finding, directing this Court’s 

attention to the colloquy between the trial judge and the jury foreman in which the judge said he 

had sent eight verdict forms into deliberations and only six were handed back (Trial Transcript, 

State Court Record, ECF No. 9-2, PageID 655). The foreman insisted that the jury had received 

seven and had returned all but one. Id. At sidebar the judge insisted that he had stapled the verdict 

forms together himself, with a guilty and not guilty form for each count. Id. at PageID 656. Back 

in open court, the judge received the assurance of the jury that the absence of the one not guilty 

form did not affect their deliberations because they took a vote “before we opened up the forms.” 

Id. at PageID 657-58. At the request of defense counsel, the jury was then polled and they 

individually and unanimously confirmed their guilty verdicts. Id. at PageID 661-62. Asked if 

there was anything else, defense counsel answered “not at this time Your Honor.” Id. at PageID 

663. 

 The court reconvened the next day, July 16, 2014, and stated the following for the record. 

Last night I started thinking and I called in this morning and asked 

my Bailiff to go up to the jury room and check the garbage can and 

see if the papers were up there that they started to write down wrong. 

He did find shredded verdict forms, documents, up there and he as 

[sic] placed those in a plastic bag which I am going to mark as Court 

Exhibit I which would be the majority of the things and in the second 

bag will be Court 16 Exhibit II. In looking at II bag there are six 

pieces of torn documents which were the verdict forms and on Court 

Exhibit II it's clear that they had both not guilty forms for the counts 

that they said that they didn't have, which 20 I believe is Count 1. 

I did not piece them together but I'm just making it a part of the 

record here today that Court of Appeals can look at and examine 

what we took out of the garbage can. My concern was they said they 

didn't have a not guilty form as to Count 1. I didn't know how that 

could happen and apparently, I didn't look at it real close but it looks 

like they were both together and they shredded them both up so I 

think they are torn in about the same pattern. 

Counsel is free to examine those if you want. 
22 

(Trial Tr., State Court Record, ECF No. 9-2, PageID 682-83.) This statement of facts shows that 

the Fourth District was correct as to what happened. Even if there had been a mistake of the type 

the jury foreman believed had occurred, it was entirely cured by the jury poll. Thus, even if this 

Ground for Relief were not procedurally defaulted, it would be without merit because the evidence 

shows the mistake did not happen. 

 Ground Seven should be dismissed as procedurally defaulted and alternatively as without 

merit. 

Ground Eight: Cumulative Error 

 In his Eighth Ground for Relief, Malone asserts, “[t]his case reeks with multiple 

constitutional violations.” Respondent reads this as a claim for relief based on cumulative error 

and argues this is not a cognizable habeas claim (Return, ECF No. 10, PageID 725). Petitioner 

confirms this reading in his Traverse (ECF No. 13, PageID 839). 

 Respondent argues that the United States Supreme Court has not recognized cumulative 

error as a basis for habeas corpus relief. (Return, ECF No. 10, PageID 726, citing Lorraine v. 

Coyle, 291 F.3d 416 (6th Cir. 2002); Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), cert. denied, 

132 S.Ct. 2751 (2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005; Hoffner v. Bradshaw, 

622 F.3d 487, 513 (6th Cir. 2010); Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012; Hazel v. 

Warden, Chillicothe Corr. Inst., No. 3:13cv332, 2014 WL 4076152, at *19 (S.D. Ohio Aug. 15, 2014) 

(Report and Recommendation), adopted (S.D. Ohio Sept. 24, 2014). 

 Malone cites no authority to the contrary. In fact, in his Traverse he writes, “[t]his court 

have [sic] held that ‘post-AEDPA, not even constitutional errors that would not individually 
23 

support habeas relief can be cumulated to support habeas relief.’” (ECF No. 13, PageID 840, citing 

Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002). Scott v. Elo does in fact make that holding and it 

is dispositive of the Eighth Ground for Relief which should therefore be dismissed. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition 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. 

April 3, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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 
24 

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