UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Ladon Smith, 

 Petitioner,

 vs.

Warden, Chillicothe Correctional 

Institution,

 

 Respondent.

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Case No. 1:17-cv-00570

Judge Michael R. Barrett

ORDER 

This matter is before the Court on the Magistrate Judge’s Report and 

Recommendation (“R&R”) that Petitioner’s petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254 should be denied. (Doc. 13).

I. BACKGROUND

The Magistrate Judge adequately summarized the procedural background and 

pertinent facts of this case in the R&R and the same will not be repeated herein. The 

parties received proper notice under Rule 72(b) of the Federal Rules of Civil Procedure, 

which included notice that the parties would waive further appeal if they failed to file 

objections to the R&R in a timely manner. (Doc. 13); see United States v. Walters, 638 F.2d 

947, 949-950 (6th Cir. 1981). Petitioner filed timely objections. (Doc. 14).

II. STANDARD OF REVIEW

When the assigned district court judge receives objections to a magistrate judge’s 

R&R on a dispositive matter, the district judge “must determine de novo any part of the 

magistrate judge’s disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3). 
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After that review, the district judge “may accept, reject, or modify the recommended 

decision; receive further evidence; or return the matter to the magistrate judge with 

instructions.” Id.

III. ANALYSIS

As an initial matter, Petitioner does not object to the Magistrate Judge’s 

recommendations regarding Grounds One through Four or Petitioner’s argument 

concerning the propriety of his sentence. (Doc. 14). Accordingly, the Court will not discuss 

those Grounds or that argument and, instead, will focus on Petitioner’s objections to the 

Magistrate Judge’s recommendations regarding Ground Five and Petitioner’s argument 

that the trial court failed to give jury instructions about Ohio Rev. Code § 2903.12 

(“Aggravated assault”). (Doc. 14).

a. Ground Five

The Magistrate Judge acknowledged Petitioner’s argument that his conviction is 

supported by insufficient evidence, found that Petitioner’s argument is properly before this 

Court, and explained the standard of review for a federal habeas court reviewing a 

petitioner’s allegation that a verdict was entered upon insufficient evidence and a state 

court’s decision on the merits of that federal constitutional claim. (Doc. 13 at PageID 723-

27). The Magistrate Judge emphasized that credibility questions are for the jury and found 

that, ultimately, the jury in Petitioner’s trial found the two victims’ testimony more credible 

than Petitioner’s testimony. (Id. at PageID 727).

In his objections, Petitioner states that “the Magistrate[‘]s determination of the 

evidence . . . would not support [Petitioner’s] conviction,” “the Magistrate misapplied the 

law to the facts and evidence adduced at trial,” and the “Magistrate erred in his evaluation 
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of the evidence.” (Id. at PageID 731-32). Petitioner’s conclusory statements disagreeing 

with the Magistrate Judge’s report, without more, do nothing to persuade the Court that it 

should reject the Magistrate Judge’s recommendation on this Ground.

Petitioner next asserts that,

although the jury has the primary duty to detect and disregard any and all 

false testimony, the trial court and appellate court has the same like duty 

when reviewing the evidence, and not simply throw such responsibility back 

at those who don’t know the law, no matter how well they’ve been 

instructed.

(Doc. 14 at PageID 733). However, “[t]he flaw in Petitioner's argument is that neither the 

state court of appeals, nor this Court, is permitted by law to second-guess the jury's 

decision about which witnesses to believe” and “[r]esolving conflicts in the testimony is 

precisely the jury's role in a case.” Bailey v. Mohr, No. 2:14-CV-2751, 2016 WL 6822796, 

at *8 (S.D. Ohio Nov. 18, 2016), report and recommendation adopted, No. 2:14-CV-2751, 

2016 WL 7243559 (S.D. Ohio Dec. 14, 2016). The Court is not persuaded by Petitioner’s 

belief that juries are largely unable to follow the instructions given to them to make 

credibility determinations or this specific objection.

Petitioner further objects to the Magistrate Judge’s citation to Stewart v. 

Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010), for the proposition that “a court may 

sustain a conviction based upon nothing more than circumstantial evidence.” (Doc. 14 at 

PageID 734). Petitioner is incorrect to the extent that he argues that circumstantial 

evidence is insufficient to support a conviction. (Doc. 14 at PageID 734). See United 

States v. Wettstain, 618 F.3d 577, 583 (6th Cir.2010) (“[c]ircumstanial evidence alone is 

sufficient to sustain a conviction”); United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir.

2007) (“We afford the same weight to both circumstantial and direct evidence.”); see also 

Stewart, 595 F.3d at 656 (“In assessing the proof, a court may sustain a conviction based 
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upon nothing more than circumstantial evidence.”) (citing United States v. Kelley, 

461 F.3d 817, 825 (6th Cir. 2006) (“Circumstantial evidence alone is sufficient to sustain 

a conviction and such evidence need not remove every reasonable hypothesis except 

that of guilt.”)).

b. Jury Instructions

The Magistrate Judge acknowledged Petitioner’s argument that the trial court 

violated his constitutional rights by giving jury instructions on felonious assault, instead of 

aggravated assault, and his trial attorney violated Petitioner’s constitutional rights by failing 

to request a jury instruction on aggravated assault instead of felonious assault. (Doc. 13 

at PageID 727-28). See (Doc. 10 at PageID 704-06). Compare Ohio Rev. Code § 2903.11 

(“Felonious assault”), with Ohio Rev. Code. § 2903.12 (“Aggravated assault”). The 

Magistrate Judge noted that Petitioner did not raise this argument at trial, before Ohio’s 

First District Court of Appeals, or in his petition before this Court and explained that 

Petitioner cannot amend his petition by adding new arguments at the traverse/reply stage. 

(Doc. 13 at PageID 728).

In his objections, Petitioner reiterates his argument that the jury should have been 

instructed on aggravated assault, not felonious assault, based in Petitioner’s view of the 

evidence. (Doc. 14 at PageID 735). Petitioner, though, ignores the Magistrate Judge’s 

explanation that he cannot attempt to amend his habeas petition by raising a new issue in 

his traverse. The Court agrees with the Magistrate Judge and declines to address 

Petitioner’s asserted ground for relief. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir.

2005) (“Because the penalty-phase insufficiency argument was first presented in [the 
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petitioner]'s traverse rather than in his habeas petition, it was not properly before the district 

court, and the district court did not err in declining to address it.”). 

IV. CONCLUSION

In light of the above, and after a de novo review of the filings in this matter, the 

Court accepts the Magistrate Judge’s recommended decision. See FED. R. CIV. P.

72(b)(3). It is hereby ORDERED that the R&R (Doc. 13) is ADOPTED in full and the 

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED 

with prejudice. Moreover, Petitioner is denied a certificate of appealability, because 

reasonable jurists would not disagree with the Court's conclusion, and Petitioner shall not 

be granted leave to appeal in forma pauperis, as the Court certifies that any appeal would 

be objectively frivolous.

IT IS SO ORDERED.

 _s/ Michael R. Barrett____________

Michael R. Barrett, Judge

United States District Court