Randle, 271 F.3d 239, 244 (6th Cir. 2001). Therefore, Petitioner has procedurally
defaulted this issue for review in these proceedings. He has failed to establish
cause and prejudice for this procedural default. For the reasons previously
addressed by this Court, Petitioner's convictions involve separate victims and
separate acts and do not violate the Double Jeopardy Clause. Wells v. Bagley,
Case No. 2:01-cv-628, R&R, ECF No. 29. This Court has access to Petitioner’s
prior federal habeas corpus petition and the record that was filed in that case.
Moreover, as discussed by the Magistrate Judge, Petitioner has procedurally
defaulted all of the claims he now raises challenging his initial judgment entry of
conviction and sentence, which claims he failed to raise in his first direct appeal.
See McKinney v. Warden, Warren Correctional Institution, No. 2:14-cv-1992, 2017
WL 2336009, at *13-14 (S.D. Ohio May 30, 2017) (enforcing the procedural default
under these same circumstances).

The United States Supreme Court has held that a claim of actual innocence
may be raised “to avoid a procedural bar to the consideration of the merits of [the
petitioner's] constitutional claims.” Schlup v. Delo, 513 U.S. at 326-27. “[I]n an
extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the writ
even in the absence of a showing of cause for the procedural default.” Murray v.
Carrier, 477 U.S. at 496. In Schiup, the Supreme Court held that a credible showing
of actual innocence was sufficient to authorize a federal court to reach the merits of
an otherwise procedurally-barred habeas petition. /d. at 317. However, the actual

innocence claim is “not itself a constitutional claim, but instead a gateway through

Case No. 2:17-cv-944 Page 5 of 9


extraordinary case reflecting Petitioner's actual innocence so as to justify a merits
review of his otherwise procedurally defaulted claims.

For these reasons, and for the reasons discussed in the Magistrate Judge’s
R&R, Petitioner's objections, ECF Nos. 4 & 5, are OVERRULED. The R&R, ECF
No. 2, is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
States District Courts, the Court now considers whether to issue a certificate of
appealability. “In contrast to an ordinary civil litigant, a state prisoner who seeks a
writ of habeas corpus in federal court holds no automatic right to appeal from an
adverse decision by a district court.” Jordan v. Fisher, —-U.S. ——. ——, 135 S.
Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a habeas petitioner to
obtain a certificate of appealability in order to appeal.)

When a claim has been denied on the merits, a certificate of appealability
may issue only if the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of the
denial of a constitutional right, a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim
has been denied on procedural grounds, a certificate of appealability may issue if
the petitioner establishes that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of

Case No. 2:17-cv-944 Page 8 of 9


indicates, inter alia, that Petitioner's wife, Drema Wells, wrongly accused Petitioner
of molesting their children so that she could be with his brother, that Petitioner is
innocent, and that she and her boyfriend convinced the children to lie when they
testified against him. PAGEID # 82-3. Amos also indicates that one of the alleged
victims told him several years after the trial that she had lied. PAGEID # 84.
Petitioner has additionally attached copies of the jury verdicts and portions of the
trial transcript. PAGEID # 53-79.

Petitioner's arguments are not persuasive. The state appellate court held that
Petitioner had waived any complaint regarding the verdict forms by failing to object
at trial. State v. Wells, No. 98-JE-3, 2000 WL 309401, at *7 (Ohio App. 7th Dist.
March 22, 2000) (“As to appellant's complaints about the verdict forms, he did not
object to them at trial thereby waiving all but plain error.”) (citing State v. Williams,
74 Ohio St. 3d 569, 581 (1996))). The Sixth Circuit has held that a state court's
plain-error review does not constitute a waiver of the state’s procedural default rules,
Seymour v. Walker, 224 F.3d 542, 557 (2000), and any “alternative ruling on the
merits [does] not remove the procedural default because ‘a state court need not fear
reaching the merits of a federal claim in an alternative holding,” Conley v. Warden
Chillicothe Corr. Inst., 505 F. App’x 501, unpublished, 2012 WL 5861713, at *5 (6th
Cir. 2012) (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Coe v. Bell, 161
F.3d 320, 330 (6th Cir. 1998)). Moreover, the Sixth Circuit has held that Ohio's
contemporaneous objection rule constitutes an adequate and independent state
ground barring federal review absent a showing of cause for the waiver and resulting

prejudice. See Williams v. Bagley, 380 F.3d 932, 968 (6th Cir. 2004); Hinkle v.
Case No. 2:17-cv-944 Page 4 of 9


which a habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.” /d. at 315 (quoting Herrera v. Collins, 506 U.S.
390, 404 (1993)).

The actual innocence exception allows a petitioner to pursue his constitutional
claims if it is “more likely than not’ that new evidence—not previously presented at
trial—would allow no reasonable juror to find him guilty beyond a reasonable doubt.
Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth
Circuit explained the exception as follows:

The United States Supreme Court has held that if a habeas petitioner
“presents evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied
that the trial was free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue the merits of
his underlying claims.” Schiup, 513 U.S. at 316, 115 S.Ct. 851, 130
L.Ed.2d 808. Thus, the threshold inquiry is whether “new facts raise[ ]
sufficient doubt about [the petitioner's] guilt to undermine confidence in
the result of the trial.” /d. at 317, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. To establish actual innocence, “a petitioner must show
that it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” /d. at 327, 513 U.S. 298,
115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that “actual
innocence means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140
L.Ed.2d 828 (1998). “To be credible, such a claim requires petitioner to
support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schiup, 513 U.S. at 324, 115 S.Ct. 851, 130 L.Ed.2d
808. The Court counseled however, that the actual innocence
exception should “remain rare” and “only be applied in the
‘extraordinary case.” /d. at 321, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808.

Souter, 395 F.3d at 589-90 (footnote omitted). Petitioner does not meet these

standards here.

Case No. 2:17-cv-944 Page 6 of 9


reason would find it debatable whether the district court was correct in its procedural
tuling. fd.

This Court is not persuaded that reasonable jurists would debate the
dismissal of this case as procedurally defaulted and without merit. Therefore, the
Court DECLINES to issue a certificate of appealability.

The Clerk is DIRECTED to enter final JUDGMENT.

IT IS SO ORDERED. Ip bub

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:17-cv-944 Page 9 of 9


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN WELLS,

CASE NO. 2:17-CV-944
Petitioner, JUDGE MICHAEL H. WATSON

Magistrate Judge Kimberly A. Jolson
v.

WARDEN, BELMONT
CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On November 7, 2017, the Magistrate Judge issued a Report and
Recommendation (“R&R”) pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts recommending that this action be
dismissed. ECF No. 2. Petitioner has filed objections to the Magistrate Judge’s
R&R. ECF Nos. 4, 5. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a
de novo review. For the reasons that follow, Petitioner's objections, ECF Nos. 4, 5,
are OVERRULED. The R&R, ECF No. 2, is ADOPTED and AFFIRMED. This
action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner challenges his December 16, 1997, convictions after a jury trial in
the Jefferson County Court of Common Pleas on five counts of rape of a child under
the age of thirteen. He asserts as follows:

1. The Petitioner was denied Due Process and his Jury Trial rights

where the State Trial Court entered judgment of conviction and

imposed sentence where the Jury failed to find, and failed to set out in
their verdicts, every element essential to the conviction and sentence;


At trial, Tasha Wells testified that appellant had performed sexual intercourse
with her on numerous occasions since she was three or four years old.
Tiffanie Wells testified that appellant had performed oral sex on her and
forced her to perform oral sex on him on numerous occasions since she was
about three years old. Thomas Wells testified that appellant had performed
oral sex on Tara Wells and forced her to perform oral sex on him.

pond

Tiffanie Wells testified that appellant had told her that he would “smack her’ if
she ever told anyone about the sexual abuse. Tara Well testified that
appellant threatened to dig a hole, chop her head off, and bury her in the
hole.

State v. Wells, 2000 WL 309401, at *12.

Petitioner's submission of an affidavit from a person who purportedly knew
Drema Wells and his brother, indicating that Drema engaged in sexual misconduct
and that they falsified the sexual abuse allegations against Petitioner in order to get
him sent to prison, and that Tasha later recanted, does not rise to the level of new
reliable evidence establishing it is more likely than not that no reasonable juror would
find him guilty beyond a reasonable doubt. Further,

[rlecantation testimony, particularly when it is belatedly submitted, is
considered “of little value” and “viewed with great suspicion.” See Carter v.
Mitchell, 443 F.3d 517, 539 (6th Cir. 2006) (and cases cited therein).See also
Herrera v. Collins, 506 U.S. 390, 423 (1993) (O'Connor, J., concurring))
(holding the petitioner had failed to demonstrate a credible claim of actual
innocence “under the demanding Schiup standard” given that “recanting
affidavits are always viewed with ‘extreme suspicion’ ” and “new statements
from witnesses years after the crime are inherently suspect” and “are to be
viewed with a ‘degree of skepticism’ ”); Byrd v. Collins, 209 F.3d 486, 508 n.
16 (6th Cir. 2000)(" ‘Recanting affidavits and witnesses are viewed with
extreme suspicion by the courts.’ ”) (quoting Spence v. Johnson, 80 F.3d 989,
997 (5th Cir.1996)); Gray v. Hudson, 2008 WL 1995362, at *7 (N.D. Ohio May
5, 2008) (Boyko, J.)(stating that “the inherent suspiciousness of the recanting
affidavits [of prosecution witnesses] coupled with their late filing more than
three years after conviction and the lack of explanation as to why they were
filed so late” failed to demonstrate “new reliable evidence” of the petitioner's
actual innocence)[.]

Davis v. Bradshaw, No. 1:14CV2854, 2016 WL 8257676, at *29 (N.D. Ohio June 16,

2016). In short, review of the entire record fails to reflect that this is such a rare and

Case No. 2:17-cv-944 Page 7 of 9


and where the Jury Verdict Forms, which matched the jury instructions,
constructively amended and changed the name and/or nature of the
charged offenses, and reduced the State’s burden of proof by delaying
determination of elements essential to the guilty finding essential to the
enhanced offenses from the jury’s consideration.

2. The Petitioner was denied Due Process when the State Trial Court
imposed/re-imposed postrelease control (PRC) without a valid
sentence, without a valid judgment of conviction, and without a valid
guilt determination set out in one or more Jury’s Verdicts.

3. The Petitioner was denied due process when the State Trial Court
rendered judgment of conviction and imposed multiple sentences with
a want of jurisdiction over the subject matter of the sets of facts upon
which the jury made their guilt determinations as shown within the
record and set out in the Jury’s verdicts.

4. The Petitioner was denied Due Process where the State Trial Court
refused to hear or properly determine the Petitioner's objections and
challenges to the void and illegal judgment, sentences, and re-
imposition/correction of PRC that were made during the resentencing
hearings, and where the State Appellate and Supreme Courts refused
to determine the Petitioner's appeal on the merits.

5. The Petitioner was denied Due Process, his Jury Trial rights, and
Constitutional Double Jeopardy Protections when the State Trial Court
rendered judgment of conviction and imposed several sentences for
five Counts that charged the same offense repeatedly.

6. The Petitioner was denied Due Process when the State Trial Court
impose[d] two undefined “life” terms.

7. The Petitioner was denied Due Process when the State Trial Court
imposed, then re-imposed, “bad time”, which the Ohio Supreme Court
determined was unconstitutional approximately 15 years before it was
reimposed.

8. The Petitioner was denied Due Process when the State Trial Court
sentenced him beyond the maximum terms allowed on the basis of the
facts found by the jury in its verdicts.

9. The Petitioner was denied Due Process where the State Trial Court

ignored statutory mandatory sentencing provisions when imposing the
multiple sentences.

Case No. 2:17-cv-944 Page 2 of 9


Petition, ECF No. 1.

The Magistrate Judge recommended dismissal of claim four as failing to
provide a basis for federal habeas corpus relief and the remainder of Petitioner's
claims as procedurally defaulted.

Petitioner objects to the Magistrate Judge’s recommendation of dismissal.
Petitioner again argues that the state courts improperly applied res judicata to bar
consideration of the merits of his claims after the trial court’s 2015 re-sentencing
hearing, because his sentence was void under Ohio law. Petitioner contends that
the trial court's re-sentencing entry constitutes a new judgment that permits
consideration of all his claims in these proceedings, despite his failure to previously
raise his claims on direct appeal. Petitioner claims that the record will show that the
State modified the charges via the verdict forms after the close of evidence, thereby
resulting in a void and non-final judgment and sentence, and complains that the
Court has not reviewed the record. Obj., ECF No. 4, PAGEID # 33; see also ECF
No. 5. Additionally, Petitioner asserts that he is actually innocent of the charges and
is the victim of a manifest miscarriage of justice. ECF No. 5, PAGEID # 47-52. In
support of this allegation, he has attached the affidavit of John Amos, ECF No. 5-1,
PAGEID # 80-85, and also refers to exhibits he attached in support of his prior §

2254 petition. See Wells v. Bagley, Case No. 2:01-cv-628.' PAGEID #37. Amos

* On June 4, 2001, Petitioner filed a prior § 2254 petition challenging the same convictions
that he does in these proceedings. On June 28, 2002, the Court dismissed that action.
However, the Sixth Circuit has held that, even where a sentence is vacated and remanded
for re-sentencing solely to include a term of post-release control, it creates a “new
judgment” that does not implicate successive petition concerns. In re Stansell,828 F.3d
412, 419 (6th Cir. 2016).

Case No. 2:17-cv-944 Page 3 of 9