1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Michael Antonio Malone, 

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

v. Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

Warden, Chillicothe

Correctional Institution,

1 ORDER

Respondent.

This matter is before the Court on the Report and Recommendations (“R&R”) 

issued by the Magistrate Judge on April 4, 2019 (Doc. 17) and on May 8, 2019 (Doc. 20).2

I. BACKGROUND

Michael Antonio Malone was convicted of one count of theft from an elderly person 

in violation of Ohio Rev. Code § 2913.02(A)(1), (B)(1) & (3) (Count 1); one count of forgery 

in violation of Ohio Rev. Code § 2913.31(A)(1), (C)(1)(c)(iii) (Count 2); one count of 

forgery (uttering) in violation of Ohio Rev. Code § 2913.31(A)(3), (C)(1)(c)(iii) (Count 3); 

and one count of receiving stolen property in violation of Ohio Rev. Code § 2913.51(A) & 

(C) (Count 4). (Doc. 9 (Exh. 4) PAGEID 91–98). For purposes of sentencing, the trial 

1 At the time his petition was filed, Petitioner was housed at Noble Correctional Institution. He 

currently is housed at Chillicothe Correctional Institution. See Ohio Department of Rehabilitation & 

Correction, Offender Details, located at 

https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A698282 (last visited 03/25/2022).

2 The parties were given proper notice under Fed. R. Civ. P. 72(b), including notice that the parties 

would waive further appeal if they failed to file objections to the R&R in a timely manner. See United States 

v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). Recently, though, the Sixth Circuit clarified that failure to 

object is not a waiver, but instead a forfeiture. Berkshire v. Dahl, 920 F.3d 520, 530 (6th Cir. 2019) 

(“Although our cases often use the terms interchangeably, ‘[w]aiver is different from forfeiture.’ Waiver is 

affirmative and intentional, whereas forfeiture is a more passive ‘failure to make the timely assertion of a 

right[.]’”) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

 

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court merged (pursuant to Ohio Rev. Code § 2941.25(A)3) Count 1 with Counts 2 and 3.

(Doc. 9 (Exh. 5) PAGEID 100–01).4 Malone was sentenced to four years on Count 2, 

seven years on Count 3, and 18 months on Count 4. (Id. PAGEID 101). The trial court 

ordered that Counts 2 and 4 run concurrent to each other, but consecutive to Count 3, for

a total aggregate prison term of 11 years. (Id. PAGEID 102). 

Malone filed a direct appeal with the Fourth District Court of Appeals, which 

affirmed save for concluding that uttering a forged check (in violation of Ohio Rev. Code

§ 2913.31(A)(3)) and receiving stolen property (in violation of Ohio Rev. Code § 

2913.51(A)) were allied offenses of similar import such that the trial court should also 

have merged Count 4 with Count 3 (again, pursuant to Ohio Rev. Code § 2941.25(A)).

(Doc. 9 (Exh. 13)). On remand, the trial court merged Count 4 with Count 3 but noted, 

“In that this Court had previously ordered the sentence in Count 4 to be served 

concurrently with defendant’s sentence on the other charges of the indictment, this 

merger does not affect the aggregate sentence defendant was previously ordered to 

serve.” (Doc. 9 (Exh. 30) PAGEID 352).

Malone filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on 

August 18, 2017, in which he pled eight grounds for relief. (Doc. 1). The Magistrate 

Judge issued an initial R&R (Doc. 17) on the merits of Malone’s petition on April 4, 2019, 

3 Ohio Rev. Code § 2941.25(A) provides, “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.” Conversely, “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.” Ohio Rev. Code § 2941.25(B).

 

4 The trial court expressly found that Counts 2 and 3 did not merge with each another and that 

Count 4 did not merge with any other count. (Doc. 9 (Exh. 5) PAGEID 100–01). 

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recommending that it be dismissed with prejudice. He also recommended that Malone

be denied a certificate of appealability5. (Id. PAGEID 878).

Malone timely filed objections. (Doc. 18). The undersigned recommitted the 

matter to the Magistrate Judge (Doc. 19), who then issued a Supplemental R&R (Doc. 

20) on May 8, 2019 that again recommended that Malone’s petition be dismissed with 

prejudice and a certificate of appealability be denied. Malone timely filed objections to 

the Supplemental R&R, stating “Although the petition in the case at bar pleads eight (8) 

grounds, Petitioner has chosen to move forward only on Ground One, Ground Three and 

Ground Six of the petition.” (Doc. 21 PAGEID 966). With Grounds Two, Four, Five, 

Seven, and Eight abandoned, the Court will proceed to review Malone’s objections to the 

Magistrate Judge’s recommendations (initial and supplemental) as to Grounds One, 

Three, and Six.

II. GENERAL STANDARD OF REVIEW 

Under 28 U.S.C. § 636(b)(1), determinations by a magistrate judge are subject to 

review by a district judge. With regard to dispositive matters, 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). After review, the district judge “may accept, reject, 

or modify the recommended disposition; receive further evidence; or return the matter to 

5 See 28 U.S.C. 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate of 

appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree with the district court’s 

resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to 

deserve encouragement to proceed further.’”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). “In 

short, a court should not grant a certificate without some substantial reason to think that the denial of relief 

might be incorrect.” Moody v. United States, 958 F.3d 485, 488 (6th Cir. 2020). “Crucially, in applying this 

standard, a court must consider not only the merits of the underlying constitutional claim but also any 

procedural barriers to relief.” Id. (citing, inter alia, Buck v. Davis, --- U.S. ---, 137 S. Ct. 759, 777 (2017)) 

(italics in original).

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the magistrate judge with instructions.” Id.; see 28 U.S.C. § 636(b)(1).

General objections are insufficient to preserve any issue for review. “A general 

objection to the entirety of the magistrate[ judge]’s report has the same effects as would 

a failure to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th 

Cir. 1991); see Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004) (“An 

‘objection’ that does nothing more than state a disagreement with a magistrate[ judge]’s 

suggested resolution, or simply summarizes what has been presented before, is not an 

‘objection’ as that term is used in this context.”); Renchen v. Comm’r of Soc. Sec., No. 

1:13-cv-752, 2015 WL 1097349, at *6 (S.D. Ohio Mar. 11, 2015) (plaintiff’s objection “is 

an almost verbatim recitation of the argument presented to and considered by the 

Magistrate Judge” and therefore need not be reconsidered) (citing Howard, 932 F.2d at 

508–09).

III. DISCUSSION

April 4, 2019 R&R (Doc. 17). As noted, the Magistrate Judge initially

recommended that all eight grounds for relief pled in Malone’s petition be dismissed with 

prejudice and that Malone be denied a certificate of appealability. Below is a summary 

of the Magistrate Judge’s analysis as to the grounds (One, Three, and Six)6 that Petitioner 

has not since abandoned.

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 

6 (See Doc. 17 PAGEID 859–63, 865–72, 874–75). 

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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.

(Doc. 1 PAGEID 5 (bold emphasis added) (italics in original)).

As to Ground One, the Magistrate Judge was persuaded by the Warden’s 

arguments that: (1) the Fourth District Court of Appeals did not err in its merger of allied 

offenses analysis because the convictions for forgery and for uttering are based on 

different checks; (2) a violation of Ohio Rev. Code § 2941.25 is not cognizable in federal 

habeas corpus because it only involves a question of state law;7 and (3) any Fifth 

Amendment Double Jeopardy Clause claim asserted here is procedurally defaulted

because Malone did not first present it to the state courts for consideration. (Doc. 17 

PAGEID 860). Thus, the Magistrate Judge initially recommended that Ground One be

dismissed with prejudice as non-cognizable (as to claimed Ohio Rev. Code § 2941.25 

violations) or procedurally defaulted (as to a Double Jeopardy Clause claim) for failure to 

fairly present it to the Fourth District. (Id. PAGEID 863). 

The Magistrate Judge acknowledged that Malone correctly cited the ways in which 

a federal constitutional claim can be fairly presented to the state courts8, but explained

7 “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an 

application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State 

court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the 

United States.” 28 U.S.C. § 2254(a) (emphasis added). (See Doc. 17 PAGEID 863 (citing, inter alia, 

Wilson v. Corcoran, 562 U.S. 1, 5 (2010))). 

8 “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.” (Doc. 13 PAGEID 754 (citing 28 U.S.C. § 2254(b); Carter v. Bell, 218 F.3d 

581, 606–07 (6th Cir. 2000))). 

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that Malone failed to apply any of them to his own case. (Id. PAGEID 862). In his First 

Assignment of Error before the Fourth District, Malone argued a violation of Ohio Rev. 

Code § 2941.25 only, with no citation to the United States Constitution or federal case 

law interpreting it. (Id.). And the Fourth District, in rejecting Malone’s claim, made no 

reference to deciding a double jeopardy issue. (Id.).

Malone’s contention that he has not procedurally defaulted his Double Jeopardy 

Clause claim likewise fails. As the Magistrate Judge clarified, even assuming Malone

raised it on discretionary appeal to the Ohio Supreme Court, that court will not consider 

a claim of error not raised in the lower court of appeals. (Id. PAGEID 863). Furthermore, 

Palmer v. Haviland, No. C-1-04-28, 2006 WL 1308219 (S.D. Ohio May 11, 2006), on 

which Malone relies, does not stand for the proposition that pleading a violation of Ohio 

Rev. Code § 2941.25 automatically (and sufficiently) alerts an Ohio court to the presence 

of a Double Jeopardy Clause claim. Judge Weber, who decided Palmer, determined that 

the petitioner before him had argued his allied offenses claim in terms of State v. Rance, 

a case in which the Ohio Supreme Court framed the issue as whether “R.C. 2941.25(A) 

and the constitutional protections against double jeopardy prohibit trial courts from 

imposing separate sentences for both involuntary manslaughter and aggravated 

robbery.” Palmer, 2006 WL 1308219, at *6 (quoting Rance, 85 Ohio St. 3d 632, 634, 710 

N.E.2d 699, 702 (Ohio 1999)9) (emphasis added by the undersigned). Here, again, as 

the Magistrate Judge pointed out, Malone did not cite to an Ohio case that contained a 

9 State v. Rance was overruled by State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061 (Ohio 

2010).

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double jeopardy analysis and the Fourth District does not mention “double jeopardy” 

anywhere within its decision. (Doc. 17 PAGEID 863).10 

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.

(Doc. 1 PAGEID 8–9 (emphasis added)).

The Supreme Court set forth the governing standard to measure ineffective 

assistance of trial counsel in Strickland v. Washington, 466 U.S. 668 (1984). To establish 

ineffective assistance, a defendant must show both deficient performance as well as

prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (citing Knowles v. 

Mirzayance, 556 U.S. 111 (2009) (citing Strickland, 466 U.S. at 694)). The Strickland test 

applies to appellate counsel, too. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing 

Smith v. Murray, 477 U.S. 527, 535–36 (1986)). “Although appellate counsel has no 

obligation to raise every possible claim and the decision on which claims to raise is 

ordinarily entrusted to counsel’s professional judgment, the failure of counsel to raise a 

meritorious issue can amount to constitutionally ineffective assistance. Henness v. 

10 The Court notes that Magistrate Judge Merz reached the opposite conclusion under what 

appears to be similar facts (that is, no mention of the Double Jeopardy Clause in the assignments of error 

on direct appeal) in a different habeas case. See Creachbaum v. Robinson, No. 3:20-cv-164, 2020 WL 

2085191, at *4 (S.D. Ohio Apr. 30, 2020) (“[R]aising a § 2941.25 claim in the state courts fairly presents 

and therefore preserves a double jeopardy claim for federal habeas review.”) (citing Palmer v. Haviland).

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Bagley, 644 F.3d 308, 317 (6th Cir. 2011) (citing McFarland v. Yukins, 356 F.3d 688, 710 

(6th Cir. 2004)). “To evaluate a claim of ineffective assistance of counsel, then, the court 

must assess the strength of the claim that counsel failed to raise.” Id. (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, 515 F.3d at 

707).11 Counsel need not 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.”). But a failure to raise a “significant and obvious” claim can amount to 

reversible error. Mapes v. Tate, 388 F.3d 187, 192 (6th Cir. 2004). 

The Magistrate Judge chronicled the five ways in which Malone claims, on habeas 

review, he received ineffective assistance of appellate counsel. (Doc. 17 PAGEID 865). 

Appellate 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 that resulted from jurors 

being given evidence of Malone’s prior convictions. (Id.). The Magistrate Judge also 

noted that Malone raised claims of ineffective assistance of appellate counsel in his Rule 

11 “If a reasonable probability exists that the defendant would have prevailed had the claim been 

raised on appeal, the court still must consider whether the claim’s merit was so compelling that the 

failure to raise it amounted in ineffective assistance of appellate counsel.” Henness, 644 F.3d at 317 (citing 

Wilson, 515 F.3d at 707) (emphasis added by the undersigned).

 

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26(B)12 application, which is the appropriate forum under Ohio law. There the Fourth 

District measured the merits of Malone’s claims against the Strickland standard, as recast 

for appellate counsel. (Doc. 17 PAGEID 867–70 (citing Doc. 9 (Exh. 25, “Entry on 

Application to Reopen Appeal”) PAGEID 287–95)).

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 Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).13 Relevant 

here:

Establishing that a state court’s application of Strickland was 

unreasonable under § 2254(d) is all the more difficult. The standards 

created by Strickland and § 2254(d) are both “highly deferential,” and 

when the two apply in tandem, review is “doubly” so. The Strickland 

standard is a general one, so the range of reasonable applications is 

substantial. Federal habeas courts must guard against the danger 

of equating unreasonableness under Strickland with 

unreasonableness under § 2254(d). When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The 

12 “A defendant in a criminal case may apply for reopening of the appeal from the judgment of 

conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application 

for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from 

journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.” 

Ohio R. App. P. 26(B)(1).

13 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the 

judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits 

in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d).

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question is whether there is any reasonable argument that counsel 

satisfied Strickland’s deferential standard.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). The Magistrate Judge 

discussed the two “omitted” assignments of error on which Malone specifically focuses:

the jury saw erroneous instructions and appellate counsel failed to claim that the verdicts 

were based on insufficient evidence or were against the manifest weight of the evidence. 

(Doc. 17 PAGEID 871–72).

As to the jury instructions, Malone claims that “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.” (Id. at 

PAGEID 871 (quoting Doc. 13, “Petitioner’s Traverse/Reply Brief,”14 PAGEID 788 (citing 

Doc. 9 (Exh. 3, “State’s Proposed Jury Instructions”)) (emphasis by Petitioner in 

original))). Referencing the Fourth District’s opinion, the Magistrate Judge noted that 

there is no proof that these instructions—though filed with the clerk of court—ever 

reached the jury. And, under Supreme Court precedent, a failure to raise an assignment 

of error that could not have been won is not ineffective assistance of appellate counsel.

The Magistrate Judge further noted that the Fourth District outright rejected 

Malone’s claim of ineffective assistance of appellate counsel based on the sufficiency and 

weight of the evidence, which is tantamount to holding that it would have rejected those 

claims had they been presented. Had that happened and had Malone presented the 

14 Rule 5 of the Rules Governing Section 2254 Cases provides for an answer by the State and a 

reply from the petitioner, traditionally known as a “return” and a “traverse”. 

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claims here for habeas consideration, this Court would be required to give deference first 

to the jury’s verdict15 and then to the Fourth District’s review of the verdict on direct 

appeal16. In the Magistrate Judge’s view, “Malone had motive, means, and opportunity 

to commit these crimes” and “[h]is alternative story that someone else broke into the 

[victim’s] home, stole the checks, and then made them payable to Malone and put them 

in [Malone’s home] mailbox is patently absurd.” (Doc. 17 PAGEID 872).

Because Malone failed to meet his burden that one or more of the “omitted” 

assignments of error, if argued, likely would have changed the outcome of his appeal, the 

Magistrate Judge recommended dismissal with prejudice as to Ground Three. 

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 a

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.

(Doc. 1 PAGEID 11–12 (emphasis added)). Malone asserts in Ground Six that he was 

denied a fair trial when the jury saw erroneous instructions while deliberating. As before, 

the instructions to which Malone refers are the State’s Proposed Jury Instructions that 

mention his prior convictions. As the Magistrate Judge explained, this claim could have 

15 Jackson v. Virginia, 443 U.S. 307, 319 (1979).

16 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (Pub. L. No. 104–132, 110 Stat. 

1214) (codified at 28 U.S.C. § 2254(d)).

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been on raised direct appeal but was not. Thus, Malone’s due process claim is 

procedurally defaulted.17 And, as the Magistrate Judge further explained, Malone’s 

attempt to excuse the procedural default fails under well-settled law.

The Fourth District did not “lift[ ] the procedural bar” in denying Malone’s Rule 

26(B) application. (See Doc. 17 PAGEID 874 (quoting Doc. 13 PAGEID 816)). Instead, 

the Fourth District clearly limited its analysis to the question of whether appellate counsel 

was ineffective for failing to present this assignment of error. In other words, the key 

question is how strong the omitted assignment of error would have been. (Id. PAGEID 

874). “[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)). Thus, 

Malone’s Rule 26(B) application “based on ineffective assistance of counsel cannot 

function to preserve” the underlying substantive claim. Id.

Because Ground Six is procedurally defaulted by failure to raise this claim on direct 

appeal and because the default is not excused by ineffective assistance of appellate 

counsel, the Magistrate Judge recommended dismissal with prejudice.

May 8, 2019 Supplemental R&R (Doc. 20). As noted, after Malone filed timely 

objections (Doc. 18) to the April 4, 2019 R&R (Doc. 17), the undersigned recommitted the 

17 See Anderson v. Harless, 459 U.S. 4, 6 (1982) (“In Picard v. Connor, 404 U.S. 270, 92 S. Ct. 

509, 30 L.Ed.2d 438 (1971), we made clear that 28 U.S.C. § 2254 requires a federal habeas petitioner to 

provide the state courts with a ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon 

his constitutional claim.”).

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matter (Doc. 19) to the Magistrate Judge for further analysis. The Magistrate Judge then 

issued a Supplemental R&R (Doc. 20) on May 8, 2019. Summarized below are those 

portions of the Supplemental R&R (relating to Grounds One, Three, and Six) to which 

Malone has objected.

Ground One. Malone objected to the “factual” finding in the April 4, 2019 R&R 

that he procedurally defaulted his double jeopardy claim, referring the Court to his Rule 

26(B) application. (See Doc. 20 PAGEID 959 (citing Doc. 18 PAGEID 881)). But, as the 

Magistrate Judge observes in his Supplemental R&R, none of the six assignments of 

error listed in the application mention a Double Jeopardy Clause violation. (Id.; see Doc. 

9 (Exh. 22) PAGEID 224–35)). But even if they had, a defendant cannot raise a new

“direct appeal” issue by including it in a Rule 26(B) application. (Doc. 20 PAGEID 959). 

As already discussed, a Rule 26(B) application preserves for habeas review only the 

ineffective assistance of appellate counsel arguments, not the underlying substantive 

arguments. (See id. (citing Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012) 

(citing Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001)))). “The Lott court explained that 

permitting an Ohio prisoner to raise a substantive claim in a Rule 26(B) motion ‘would 

eviscerate the continued vitality of the procedural default rule; every procedural default 

could be avoided, and federal court merits review guaranteed, by claims that every act 

giving rise to every procedural default was the result of constitutionally ineffective 

counsel.’” (Id. (quoting Wogenstahl, 668 F.3d at 338 (quoting Lott, 261 F.3d at 612))).

Malone also claimed his appellate lawyer argued a double jeopardy claim at oral 

argument before the Fourth District, but the Magistrate Judge notes in his Supplemental 

R&R that there is no transcript of that oral argument in the state court record filed by the 

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Warden and thus no evidence in support of this assertion. (Doc. 20 PAGEID 960). The 

Magistrate Judge also notes in his Supplemental R&R—as he did in his April 4, 2019 

R&R—that there is also no textual evidence that the Fourth District understood that it was 

deciding a Double Jeopardy Clause claim (as opposed to a state statute-based merger 

of allied offenses claim). (Id.). That is to say, the Fourth District did not include the words

“double jeopardy” anywhere in its opinion.

Malone additionally claimed that he (proceeding pro se) argued a double jeopardy 

claim before the Ohio Supreme Court. (See id.). Although his “Memorandum in Support 

of Jurisdiction” presented the first of two “critical” issues as “whether the court erred in its 

allied offenses and merger ruling under O.R.C. 2941.25, pursuant to the Double Jeopardy 

Clause[,]” as the Magistrate Judge points out in his Supplemental R&R, Malone failed to 

cite any federal case law in support. (Id.; see Doc. 9 (Exh. 20) PAGEID 196–203). And 

again, as the Magistrate Judge previously discussed, a defendant may not raise a claim 

for the first time on appeal to the Ohio Supreme Court.

Finally—and ostensibly in the alternative—the Magistrate Judge cited to Jackson 

v. Smith, 745 F.3d 206, 209 (6th Cir. 2014) for the proposition that “the Sixth Circuit has 

held that an Ohio court of appeals decision of a double jeopardy claim which is limited to 

the application of Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double 

jeopardy claim.” (Doc. 20 PAGEID 960). Thus, as the Magistrate Judge explained, “the 

Fourth District’s denial of Malone’s merger of allied offenses claims effectively determines 

that the [Ohio] General Assembly intended multiple punishments in situations such as 

Malone’s.” (Id.). 

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Grounds Three and Six. In his April 4, 2019 R&R, the Magistrate Judge 

recommended dismissal with prejudice as to Ground Three—alleging ineffective 

assistance of appellate counsel—because Malone failed to meet his burden that one or 

more of the “omitted” assignments of error, if argued, likely would have changed the 

outcome of his appeal. For example, as to the claim that the jury received a set of 

proposed instructions that included reference to Malone’s prior criminal record, the 

Magistrate Judge observed that the Fourth District found, as a matter of fact, that the 

transcribed jury instructions read orally by the court did not include the objectionable 

language. (Doc. 20 PAGEID 961). Moreover, the Fourth District concluded, as a matter 

of law, that there was no proof that these proposed instructions, although filed with the 

clerk of court, were ever given to the jury. (Id.).

The Magistrate Judge again recommended dismissal with prejudice as to Ground 

Six, which, like Ground Three, references the same proposed jury instructions. Malone’s 

claim that he was denied due process (in the form of a fair trial) is procedurally defaulted 

and not excused by an allegation of ineffective assistance of appellate counsel.

Objections (Doc. 21) to May 8, 2019 Supplemental R&R (Doc. 20).

Ground One. Malone’s 15-page objection to the Magistrate Judge’s 

recommendation as to Ground One focuses first on the issue of procedural default. He 

argues that, under Palmer v. Haviland and Jackson v. Smith, the Fourth District 

“necessarily” considered a double jeopardy claim in deciding his allied offenses claim. 

(Doc. 21 PAGEID 970–75). For purposes of ruling on Malone’s objection, the 

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undersigned will assume this to be true.

18 Accordingly, the Court must review the Fourth 

District’s decision under AEDPA’s heightened standards. Jackson, 745 F.3d at 21019; 

Henley v. Marquis, No. 18-4209, 2019 WL 9047226, at *7 (6th Cir. Dec. 13, 2019).

18 As the panel in Jackson reasoned:

In cases where the state court relied solely upon state authority, we 

previously held that the federal claim was not adjudicated on the merits 

and considered the claim de novo. See [Danner v. Motley, 448 F.3d 372, 

376 (6th Cir. 2006)] (concluding that “[a]ny consideration of the Sixth 

Amendment contained within the state case law upon which the state 

courts relied is too attenuated to consider the Sixth Amendment claim to 

have been ‘adjudicated on the merits’”). But the Supreme Court recently 

overruled our approach and held that “[w]hen a federal claim has been 

presented to a state court and the state court has denied relief, it may be 

presumed that the state court adjudicated the claim on the merits in the 

absence of any indication or state-law procedural principles to the 

contrary.” [Harrington v.] Richter, 131 S. Ct. [770,] 784–85 [(2011)]. And 

this rule applies, whether the state court denied relief summarily, see id., 

expressly addressed some of the claims but not the one advanced on 

federal habeas review, see Johnson [v. Williams], 133 S. Ct. [1088,] 1093

[(2013)], or confined its analysis to state-law authorities, see Brown v. 

Bobby, 656 F.3d 325, 329 (6th Cir. 2011) (holding the state court’s 

exclusive focus on Ohio’s speedy-trial provisions in rejecting a federal 

speedy-trial claim failed to rebut the presumption of a merits adjudication).

745 F.3d at 209–10.

19 On this point, Jackson is clear:

Citing our earlier decision in Danner, Jackson contends that his double 

jeopardy claim, though fairly presented, was not adjudicated on the merits 

and therefore must be reviewed de novo. We disagree. Jackson is correct 

that the Ohio Court of Appeals’ analysis of his double jeopardy claim was 

limited to an application of Ohio’s allied offenses statute, Ohio Rev. Code. 

§ 2941.25, as interpreted by the Ohio Supreme Court in State v. Rance, 

85 Ohio St.3d 632, 710 N.E.2d 699 (1999). But that analysis is entirely 

dispositive of the federal double jeopardy claim, as the Ohio Supreme 

Court recognized in Rance. Id. at 705 (explaining that the allied offenses 

analysis “answers the constitutional and state statutory inquiries”). 

Therefore, the state court necessarily resolved the federal claim, despite

not expressly saying so. See Johnson [v. Williams], 133 S. Ct. [1088,] 

1098 [(2013)] (“Regardless of whether a California court would consider 

Williams’ [state] and Sixth Amendment claims to be perfectly coextensive, 

the fact that these claims are so similar makes it unlikely that the California 

Court of Appeal decided one while overlooking the other.”); cf. Early v. 

Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam)

(holding that an explained decision receives AEDPA deference even if the 

state court fails to cite—or is not even aware of—relevant Supreme Court 

precedent). Because the Ohio Court of Appeals adjudicated Jackson’s 

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“The Double Jeopardy Clause protects individuals from, inter alia, multiple 

punishments for the same offense.” Henley, 2019 WL 9047226, at *6 (citing Brown v. 

Ohio, 432 U.S. 161, 165 (1977)). “Resolution of the double jeopardy question is a matter 

of legislative intent, and a habeas court is bound by a state court’s determination as to 

whether the state legislature intended multiple punishments for a single criminal incident.” 

Id. (citing Volpe v. Trim, 708 F.3d 688, 696–97 (6th Cir. 2013)). “Moreover, in determining 

a state legislature’s intent, ‘a federal court is bound by a state court’s construction of that 

state’s own statutes.’” Id. (quoting Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989)). 

Ohio Rev. Code § 2941.25(B) “determines whether a defendant has been punished twice 

for the same offense under Ohio law in violation of the federal Double Jeopardy Clause.” 

Id. (citing Jackson, 745 F.3d at 213). Thus, a decision rendered under the Ohio allied

offenses statute is “entirely dispositive” of a federal double jeopardy claim. Id. at *7 (citing 

Jackson, 745 F.3d at 210).

On appeal, Malone argued that the trial court erred by not merging the two forgery 

counts as allied offenses of similar import. (Doc. 9 (Exh. 13) PAGEID 161). Count 2 

charged Malone with forging the victim’s name to checks and Count 3 charged him with 

“uttering” (that is, cashing) forged checks. (Id.). Malone argued that he could not cash a 

check without forging it; in contrast, the State claimed that forging a check is a “complete”

crime and cashing that check is “something altogether different.” (Id.). The Fourth District 

determined that it need not reach that precise issue, however, because there was 

federal claim “on the merits,” we must review its decision under AEDPA’s 

heightened standards.

745 F.3d at 210 (italics in original).

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sufficient evidence of multiple separate instances of forgery and of “uttering” to support 

each of the two convictions. (Id. PAGEID 162–64). Because the Fourth District 

“discerned the Ohio legislature’s intent by applying Ohio’s allied offenses statute[,] there 

can be no doubt that its decision falls outside § 2254(d)(1)’s narrow exceptions to the bar 

on federal habeas relief.” Jackson, 745 F.3d at 214–15. Malone, therefore, is ineligible 

for habeas relief on Ground One. (See Doc. 20 PAGEID 960).

Ground Three. Malone’s 17-page objection to the Magistrate Judge’s 

recommendation as to Ground Three is essentially a reprise of prior arguments. Under 

Aldrich and Renchen, then, it is properly overruled. Nonetheless, the Court will address 

the newly-cited case law by Malone.

Malone again focused his attention on appellate counsel’s failure to claim that the 

jury mistakenly received proposed instructions (tendered by the State) that included 

reference to his prior criminal record. These proposed instructions read (at the bottom of 

page 4 to the top of page 5) in pertinent part:

[bottom of page 4] Evidence was received that the defendant 

was convicted of Passing Bad Checks, Breaking and Entering, 

Safecracking, Receiving Stolen Property, Forgery, Attempted 

Forgery, Passing Bad Check, Passing Bad Checks, Passing Bad 

Checks, and Passing Bad Checks. That evidence was received only 

for a limited purpose. It was not received, and you may not consider 

it, to prove the character of the defendant in order to show he [top of 

page 5] acted in accordance with that character. If you find that the 

defendant was convicted of Passing Bad Checks, Breaking and 

Entering, Safecracking, Receiving Stolen Property, Forgery, 

Attempted Forgery, Passing Bad Checks, Passing Bad Checks, 

Passing Bad Checks, or Passing Bad Checks, you may consider that 

evidence only for the purpose of testing the defendant’s credibility, 

or believability, and the weight to be given the defendant’s testimony. 

It cannot be considered for any other purpose.

OR

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It is not necessary that the defendant take the witness stand 

in her own defense. He has a constitutional right not to testify. The 

fact that the defendant did not testify must not be considered for any 

purpose.

(Doc. 9 (Exh. 3) PAGEID 81–82). During the charging conference, at which time both the 

State’s proposed instructions and verdict forms were discussed, the trial judge noted that 

“so bottom of page 4 comes out” and “the top of page 5 comes out” based on trial 

counsel’s representation that Malone “[was] not going to testify.” (Doc. 9-2 PAGEID 593 

(219:7–20)). Review of the trial transcript confirms that, as between these two proposals, 

the only instruction read to the jury was the one instructing the jury that Malone need not 

testify in his own defense. (Id. PAGEID 639 (265:9–12)). There is absolutely no mention 

of his past convictions in the oral charge to the jury.

Review of the trial transcript also suggests that a written copy of the final 

instructions was prepared for the jury to have during deliberations. In his closing 

argument, the prosecutor remarked: “The Judge is going to again instruct you. He’s going 

to give you jury instructions to take back with you. You’ll have these but I wanted to go 

over them.” (Id. PAGEID 612 (238:15–18)). In fact, the jury appears to have been given 

a written copy to follow during the oral charge, because the alternate jurors, who were 

excused, were told they could keep theirs “for a souvenir.” (Id. PAGEID 654 (280: 6–8) 

(“At this time the two alternates are excused. Leave your notebooks on your chair but 

you can keep your jury instructions for a souvenir.”)). From these transcript excerpts, 

Malone leaps to the conclusion that “the proposed jury instructions made its way into the 

jury room.” (Doc. 21 PAGEID 987 (“If there are no other written instructions for this 

Honorable Court to go by one would have to assume that the instructions contained in 

the court files are the ones given to the jurors in their retirement.”)). 

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Such an assumption is, in a word, fantastical. And, to the Magistrate Judge’s point, 

Malone refers to no direct proof that the Fourth District’s contrary decision is clearly 

unreasonable.

Malone argues that the Magistrate Judge “failed to see the importance and the 

constitutional violation of” Ohio Rev. Code § 2945.10(G) and Ohio R. Crim. P. 30. (Doc. 

17 PAGEID 989). Not so. Rather, the Magistrate Judge correctly applied federal habeas 

precedent that requires “double” deference to the Fourth District’s determination that 

appellate counsel was not ineffective for failing to raise a due process claim on direct 

appeal. See Harrington, 562 U.S. at 105.

Ohio. Rev. Code § 2945.10(G)20 requires that the jury take written instructions with 

them to deliberate and give them back when they return their verdict. It also requires that 

these written instructions be filed on the docket. Similarly, Ohio R. Crim. P. 30(A)21

20 Ohio Rev. Code § 2945.10 (G) reads as follows:

The court, after the argument is concluded and before proceeding with other 

business, shall forthwith charge the jury. Such charge shall be reduced to 

writing by the court if either party requests it before the argument to the jury 

is commenced. Such charge, or other charge or instruction provided for in this 

section, when so written and given, shall not be orally qualified, modified, or 

explained to the jury by the court. Written charges and instructions shall be 

taken by the jury in their retirement and returned with their verdict into court 

and remain on file with the papers of the case.

(Emphases added).

21 Ohio R. Crim. P. 30(A) reads as follows:

Instructions; error; record. At the close of the evidence or at such earlier time 

during the trial as the court reasonably directs, any party may file written requests 

that the court instruct the jury on the law as set forth in the requests. Copies shall 

be furnished to all other parties at the time of making the requests. The court shall 

inform counsel of its proposed action on the requests prior to counsel’s argument 

to the jury and shall give the jury complete instructions after the arguments are 

completed. The court also may give some or all of its instructions to the jury prior 

to counsel’s arguments. The court shall reduce its final instructions to writing or 

make an audio, electronic, or other recording of those instructions, provide at 

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requires the trial court to reduce its final instructions to writing for the jury to use during 

deliberations and to “preserve” those instructions for the record. Still, a failure to file on 

the docket a copy of the final instructions—in violation of the statute and in contravention 

of the rule—does not automatically state a due process violation. (Doc. 17 PAGEID 992 

(“Magistrate seems to misunderstand the constitutional argument because this is a dead 

bang winner.”)).22 “A State simply has no ‘federal due process obligation to follow all of 

its procedures; such a system would result in the constitutionalizing of every state rule, 

and would not be administrable.’” Trusty v. Centurion Health Servs., No. 19-5872, 2020 

WL 548225, at *3 (6th Cir. Jan. 7, 2020) (quoting Levine v. Torvik, 986 F.2d 1506, 1515 

(6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 

99, 111 (1995)) 

Ground Six. Malone complains that the Magistrate Judge failed to appreciate that 

Ground Six of his petition was simply an extension of his ineffective assistance of 

least one written copy or recording of those instructions to the jury for use 

during deliberations, and preserve those instructions for the record.

On appeal, a party may not assign as error the giving or the failure to give any 

instructions unless the party objects before the jury retires to consider its verdict, 

stating specifically the matter objected to and the grounds of the objection. 

Opportunity shall be given to make the objections out of the hearing of the jury.

(Emphases added).

22 Malone cites various Ohio cases in which appellate courts considered whether such a failure 

amounts to error. None of them are factually similar to what happened here. For example, in State v. 

Smith, the First District reversed the judgment of the trial court and remanded the case for a new trial 

because “[t]he lack of a copy of the written instructions within the record violates the substantial right of an 

appellate review afforded to any person convicted of a crime in Ohio.” 87 Ohio App.3d 480, 482, 622 N.E.2d 

677, 678 (Ohio App. 1st Dist. 1993). But in that case, the trial court “precharged” the jury and then failed 

to completely instruct the jury at the completion of closing arguments in violation of Ohio R. Crim. P. 30(A). 

Id. at 481–82, 622 N.E.2d at 678 (quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640, at syl. ¶2 

(Ohio 1990) (“After arguments are completed, a trial court must fully and completely give the jury all 

instructions which are relevant and necessary for the jury to weight the evidence and discharge its duty as 

the fact finder.”)).

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appellate counsel claim set forth in Ground Three and not an “underlying” or 

“freestanding” claim. (Doc. 21 PAGEID 1000). Presumably he makes this point in 

response to the Magistrate Judge’s determination that he procedurally defaulted this 

claim. Otherwise, Malone’s 11-page objection to the Magistrate Judge’s recommendation 

as to Ground Six repeats the argument made as to Ground Three. For the reasons 

already discussed, Malone’s objection will be overruled.

IV. CONCLUSION

Having noted that Petitioner has abandoned Grounds Two, Four, Five, Seven, and 

Eight, the Court ACCEPTS and ADOPTS the ultimate recommendation set forth in the 

Magistrate Judge’s April 4, 2019 R&R (Doc. 17) and his May 8, 2019 Supplemental R&R

(Doc. 20) as to Grounds One, Three, and Six of the Petition (Doc. 1). Petitioner’s 

objections (Docs. 18, 21), to the extent they relate to Grounds One, Three, and Six, are

OVERRULED. Thus, the Petition (Doc. 1) is DISMISSED in its entirety with prejudice. 

Because reasonable jurists would not disagree with this conclusion, Petitioner is DENIED

a certificate of appealability. The Court CERTIFIES that any appeal to the United States 

Court of Appeals for the Sixth Circuit would be objectively frivolous and, consequently, 

Petitioner is DENIED leave to appeal in forma pauperis. 

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court

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