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. 

ORDER ADOPTING REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought pro se by Petitioner Ian Miller, is before the Court for 

consideration of Petitioner’s Objections (ECF No. 14) to the Magistrate Judge’s Report and 

Recommendations which recommended dismissal of the Petition with prejudice (“Report, ECF 

No. 11). 

 As required by Fed. R. Civ. P. 72(b) the Court has reviewed de novo every part of the 

Report to which objection has been made. Based on that review, the Court makes the following 

rulings. 

Ground One: Unconstitutionality of the Felony Murder Rule 

In his First Ground for Relief, Petitioner 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) 
2 

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

No. 9, PageID 1195). 

 The First District Court of Appeals decided this claim on the merits on direct appeal. 

Instead of presenting the same argument in this Court, Petitioner argued in his Traverse that the 

trial judge should have given jury instructions on the lesser included offenses of voluntary or 

involuntary manslaughter (Traverse, ECF No. 9, PageID 1194-99). The Magistrate Judge found 

that this claim was procedurally defaulted because it was not presented on direct appeal (Report, 

ECF No. 11, PageID 1243-46). 

 In his Objections, Petitioner argues that his claim in Ground One is not that the trial judge 

should have given the lesser-included instruction, but that “the Trial Court abused its discretion 

when it failed to view the evidence to make a determination if a lesser included offense instruction 

was warranted.” (Objections, ECF No. 14, PageID 1263). Petitioner concedes that this claim also 

was not raised on direct appeal, but asserts that failure is excused by “Appellate Counsel’s 

ignorance or oversight of the [relevant] Ohio Supreme Court rulings[.]” Id. at PageID 1264, citing 

State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5034 (2002);State v. Shane, 63 Ohio St. 3d 630 

(1992); and State v. Wilkins, 64 Ohio St. 2d 382 (1980). 

 In order to rely on ineffective assistance of appellate counsel to excuse failure to present a 

claim on direct appeal, a habeas petitioner must first present the ineffective assistance of appellate 

counsel claim to the state courts in the manner those courts have prescribed. Edwards v. 

Carpenter, 529 U.S. 446 (2000). Petitioner concedes that when he filed his Application for 

Reopening his direct appeal under Ohio R. App. P. 26(B), he did not include this claim. He seeks 

to excuse that omission by claiming that he reasonably believed the claims he did raise were strong 

enough that the First District Court of Appeals would appoint him counsel who would then raise 
3 

all the issues he has brought to this Court in habeas (Objections, ECF No. 14, PageID 1255-56). 

 Nothing in the text of Ohio R. App. P. 26(B) or the case law interpreting it would give rise 

to a reasonable belief that the process would work the way Petitioner supposed it would. Under 

that Rule, if an appellant presents a genuine issue as to whether he has a colorable claim of 

ineffective assistance of appellate counsel, then the appeals court reopens the appeal and an 

attorney is appointed if the appellant is indigent. State v. Spivey, 84 Ohio St. 3d 24 (1998). There 

is nothing in the rule that speaks to having an appointed attorney broaden the 26(B) application or 

withholding ineffective assistance of appellate counsel claims until that happens. 

 The First District decided the ineffective assistance of appellate counsel claims Petitioner 

actually made on the merits and found they were without merit. State v. Miller, Case No. C140101 (1st Dist. Hamilton Jan. 3, 2016) (unreported; copy at State Court Record, ECF No. 4, 

PageID 122, et seq.) Ohio law does not permit a second 26(B) application to raise claims omitted 

from the first such application. State v. Richardson, 74 Ohio St. 3d 235 (1996). Indeed, “there is 

no right to file successive applications for reopening” under App. R. 26(B). State v. Twyford, 106 

Ohio St. 3d 176, 2005-Ohio-4380, ¶ 16 (2005), quoting State v. Williams, 99 Ohio St. 3d 179, 

2003-Ohio-3079, ¶ 12 Once the issue of ineffective assistance has been raised and adjudicated, res 

judicata bars its relitigation, State v. Cheren, 73 Ohio St. 3d 137 (1995), following State v. Perry, 

10 Ohio St. 2d 175 (1967). 

 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-
4 

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). The First District decided the 

merits of Petitioner’s actually presented ineffective assistance of appellate counsel claims and its 

decision is not an objectively unreasonable application of the relevant Supreme Court precedent, 

Strickland v. Washington, 466 U.S. 668 (1984). Therefore, Petitioner cannot rely on ineffective 

assistance of appellate counsel to excuse his failure to present his First Ground for Relief to the 

Ohio courts on direct appeal and Ground One is therefore procedurally defaulted. 

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. The First District Decided this claim was without 

merit because the two criminal statutes in question do not prohibit identical conduct or require 

identical proof. State v. Miller, Case No. C-140101 (1st Dist. Hamilton May 22, 2015) (unreported; 

copy at State Court Record, ECF No. 4, PageID 81). In his Traverse, Petitioner conceded this was 

a correct reading of those two statutes, but argued the First District’s decision nonetheless violated 

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

 The Report concluded neither these two cases nor other authority requires a trial judge “to 

make a reasonable view of the evidence in the light most favorable to the Petitioner” in deciding 

whether to instruct on a lesser included offense. It also concluded this claim was barred by 

procedural default to the extent it raised a claim of failure to instruct on the lesser included offense. 

 The Objections provide no additional authority for the proposition that a trial judge is 

obliged constitutionally to review the evidence in a light most favorable to a defendant in deciding 
5 

whether to instruct on a lesser included offense. Thus, the Court finds no error in the Magistrate 

Judge’s recommendation on this Ground for Relief. 

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. The Magistrate Judge found this Ground procedurally defaulted because 

it had only been presented to the First District as a manifest weight of the evidence claim, which 

is not a claim cognizable under the Fourteenth Amendment. (Report, ECF No. 11, PageID 1253). 

Additionally, Petitioner’s claims made under this heading of a Brady violation and admission of 

other bad acts evidence had never been presented to the state courts and were therefore defaulted. 

Alternatively, the Magistrate Judge found the claim was without merit because the fact found by 

the First District on the manifest weight assignment of error were sufficient to support the felonious 

assault conviction. Id. 

 In his Objections, Petitioner again attempts to excuse his failure to present these issues on 

appeal as attributable to ineffective assistance of appellate counsel and his failure to submit them 

as omitted assignments of error in his 26(B) Application on the theory offered as to Ground One 

(Objections, ECF No. 14, PageID 1269). He then makes arguments on the merits of his Brady and 

other bad acts claims. Id. at PageID 1271-72 But this Court cannot decide on the merits claims 

which have been procedurally defaulted in the state courts. 
6 

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 

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.” (Petition, ECF No. 1, PageID 10). The Magistrate Judge concluded the First District’s 

rejection of this claim in denying the 26(B) Application was not an unreasonable application of 

Strickland. The Magistrate Judge wrote: 

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. 

(Report, ECF No. 11, PageID 1256). The Report also concluded the other claims Petitioner raised 

in his Traverse were procedurally defaulted because they had never been presented to the state 

courts. Id. at PageID 1256-58. 

 In his Objections, Miller attempts to overcome his procedural defaults by asserting 

ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Again, based 

on Edwards, supra, those claims must first be presented to the state courts before they can be relied 

on as excusing cause. Miller’s 26(B) Application has already been discussed. He never filed a 

petition for post-conviction relief to show ineffective assistance of trial counsel. 
7 

Conclusion 

 Upon de novo review, the Court finds the Report includes no clearly erroneous findings of 

fact and no errors of law. Accordingly, the Report is ADOPTED and the Petition is ordered 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner is denied a certificate of appealability and the Court certifies to the Sixth Circuit that 

any appeal would be objectively frivolous and therefore should not be permitted to proceed in 

forma pauperis. 

 ____s/Susan J. Dlott____________ 

 Susan J. Dlott 

 United States District Judge