IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRUCE A. HIVELY, 

 CASE NO. 2:17-CV-222 

 Petitioner, JUDGE JAMES L. GRAHAM 

 Magistrate Judge Kimberly A. Jolson 

 v. 

WARDEN, MARION 

CORRECTIONAL INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On February 5, 2018, the Magistrate Judge issued a Report and Recommendation

recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be 

denied and that this action be dismissed. (ECF No. 10.) Petitioner has filed an Objection to the 

Magistrate Judge’s Report and Recommendation. (ECF No. 13.) Pursuant to 28 U.S.C. § 

636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s 

Objection (ECF No. 13) is OVERRULED. The Report and Recommendation (ECF No. 10) is 

ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

 Petitioner’s request for a certificate of appealability is DENIED. 

 Petitioner is serving an aggregate term of incarceration of thirty-three years on his 

convictions after a jury trial in the Gallia County Court of Common Pleas on aggravated murder 

with a firearm specification and tampering with evidence. The Ohio Fourth District Court of 

Appeals affirmed Petitioner’s convictions and sentence, State v. Hively, No. 13CA15, 2015 WL 

3745609 (Ohio App. 4th Dist. June 8, 2015), and the Ohio Supreme Court declined to accept 

jurisdiction of the appeal. State v. Hively, 143 Ohio St.3d 1501 (2015). Petitioner 

unsuccessfully pursued an application to reopen the appeal pursuant to Ohio Appellate Rule 
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26(B). He now asserts that he was denied the effective assistance of trial counsel (claim one); 

that he was denied a fair trial because the trial court refused to grant his motion for a change of 

venue (claim two); that he was denied due process based on inconsistent jury verdicts for murder 

and aggravated murder (claim three); that the evidence is constitutionally insufficient to sustain 

his conviction on aggravated murder and that this conviction was against the manifest weight of 

the evidence (claim four); and that he was denied a fair trial because the trial court refused to 

give a “castle doctrine” jury instruction (claim five). The Magistrate Judge recommended 

dismissal of Petitioner’s claims as being procedurally defaulted or without merit. 

 Petitioner filed timely objections to the recommendations of the Magistrate Judge. He 

again argues that he has properly preserved his claims for review. Petitioner complains that the 

Magistrate Judge did not address his claim of the denial of the effective assistance of appellate 

counsel so as to make a determination of whether he stablished cause for his procedural defaults. 

Petitioner again argues that he has presented meritorious claims for relief. He raises all of the 

same arguments he previously presented. He maintains that this case constitutes a manifest 

miscarriage of justice. 

Upon careful review of the entire record, the Court finds Petitioner’s objections to be 

unpersuasive. Petitioner waived claims one (ineffective assistance of trial counsel), two (failure 

to grant a change of venue) and three (the allegedly inconsistent jury verdict of guilty of 

aggravated murder but not guilty of murder) by failing to raise these issues on direct appeal. He 

also waived claim two, in which he asserts that he was denied a fair trial because the trial court 

refused to grant a change of venue, because he failed to request a change of venue at the time of 

trial. The appellate court noted in Rule 26(B) proceedings that the issue therefore would be 

considered for plain error only. See Entry Denying Application to Reopen Direct Appeal (ECF 
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No. 6-1, PageID# 221-23.) 1 In addition to being procedurally defaulted, Petitioner’s third claim 

that his murder conviction must be overturned as inconsistent with the jury’s verdict of not guilty 

on the lesser included offense of murder does not provide him a basis for relief: 

“[I]nconsistent verdicts are generally held not to be reviewable.” 

United States v. Lawrence, 555 F.3d 254, 262 (6th Cir.2009). As 

the Supreme Court has made clear, “[t]he fact that [verdict] 

inconsistency may be the result of lenity, coupled with the 

Government's inability to invoke review, suggests that inconsistent 

verdicts should not be reviewable.” United States v. Powell, 469 

U.S. 57, 66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Rather, “a 

defendant's protection against an inconsistent verdict lies in an 

independent review of the sufficiency of the evidence.” United

States v. Ruiz, 386 Fed.Appx. 530, 533 (6th Cir.2010); see also

Powell, 469 U.S. at 67, 105 S.Ct. 471 (“[A] criminal defendant 

already is afforded protection against jury irrationality or error by 

the independent review of the sufficiency of the evidence 

undertaken by the trial and appellate courts.”). 

United States v. Stetler, 526 F. App’x 631, 635 (6th Cir. 2013); see also Jones v. Lazaroff, No. 

16-3044, 2017 WL 3122015, at *2-3 (6th Cir. 2017). 

The ineffective assistance of trial counsel cannot constitute cause for this procedural 

default, because Petitioner never presented this same claim to the state courts. Edwards v. 

Carpenter, 529 U.S. 446, 452 (2000) (An ineffective assistance of counsel claim generally must 

be presented to the state courts before it may be used to establish cause for a procedural default) 

(quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). 

Petitioner likewise has failed to establish the alleged ineffective assistance of appellate 

counsel as cause for the procedural default of his claim of the ineffective assistance of trial 

counsel. In considering Petitioner’s Rule 26(B) motion, the state appellate court thoroughly 

analyzed Petitioner’s claim of ineffective assistance of appellate counsel. See Entry Denying 

 

1

 The appellate court also indicated that the record did not support Petitioner’s allegation that the jury was biased or 

that pre-trial publicity prevented him from obtaining a fair trial. Entry Denying Application to Reopen Direct

Appeal (ECF No. 6-1, PageID# 221-23.) 
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Application to Reopen Direct Appeal (ECF No. 6-1, PageID# 218-220, 224-28.) That court 

explained its conclusion that appellate counsel was not ineffective in failing to raise allegations 

of ineffective assistance of trial counsel on appeal, including: (1) trial counsel’s failure to show a 

photograph of petitioner’s injuries to the jury (noting that the prosecution introduced such a 

photograph at trial); (2) trial counsel’s failure to introduce prior police reports concerning 

petitioner and the victim and his two companions (noting that the jury heard the tape recording of 

petitioner’s interview with police concerning petitioner’s prior history with the three men); (3) 

trial counsel’s failure to introduce the report of the state fire marshal concerning arsons on 

petitioner’s property committed by the victim’s family and friends following petitioner’s arrest 

(noting that defense counsel was aware of this evidence and opposed the prosecution’s motion in 

limine, which was granted by the trial court, and that it was not shown how this later evidence 

was relevant to the murder charge); and (4) that trial counsel was ineffective in failing to object 

to the inconsistent verdict of not guilty of murder after the jury returned a verdict of guilty of 

aggravated murder (noting on plain error review that because the alleged inconsistency did not 

warrant vacating the aggravated murder verdict under Ohio law, appellate counsel was not 

ineffective in failing to raise this issue). 

The Magistrate Judge reviewed de novo the state appellate court’s analysis of Petitioner’s 

ineffective assistance of appellate counsel claim and agreed with the conclusion of that court that 

Petitioner cannot satisfy the standards for ineffective assistance of counsel under Strickland v. 

Washington, 466 U.S. 668 (1984). (ECF No. 10, pp. 14-15). This Court has conducted its own 

de novo review of the record and the state appellate court’s analysis. The Court agrees with the 

analysis of the state appellate court, and concludes that there is no evidence in the record 

sufficient to establish under Strickland that appellate counsel was ineffective or that Petitioner 
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was prejudiced by appellate counsel’s failure to raise on appeal the alleged ineffective assistance 

of trial counsel. Petitioner cannot excuse his procedural default based on ineffective assistance 

of appellate counsel. The Court also agrees with the conclusion of the Magistrate Judge that 

Petitioner has not satisfied the standards for avoiding the procedural bar through a claim of 

actual innocence. See ECF No. 10, pp. 15-16. 

Petitioner’s remaining claims were addressed by the Magistrate Judge on the merits. This 

Court agrees with the conclusions of the Magistrate Judge that petitioner’s claims that his 

convictions are against the manifest weight of the evidence and that he was denied a fair trial 

based on the trial court’s failure to issue “castle doctrine” jury instructions do not provide him a 

basis for federal habeas corpus relief. See Williams v. Jenkins, No. 1:15cv00567, 2016 WL 

2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v. Eberlin, 258 F. App’x 761, 765, n. 4 

(6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9, 

2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio)) (“Whether 

a conviction is against the manifest weight of the evidence is purely a question of Ohio law.”); 

see also Waller v. Tibbals, No. 3:15-cv-310, 2016 WL 3906234, at *10 (S.D. Ohio July 19, 

2016) (failure to issue a castle doctrine jury instruction is not cognizable in federal habeas corpus 

proceedings). For the reasons indicated in the decision of the state appellate court, this Court is 

not persuaded that the appellate court contravened or unreasonably applied Jackson v. Virginia, 

443 U.S. 307 (1979), or based its decision on an unreasonable determination of the facts, in 

denying his claim of insufficiency of the evidence. 28 U.S.C. § 2254(d); Tucker v. Palmer, 541 

F.3d 652 (6th Cir. 2008) (Jackson claims are subject to two layers of deference in § 2254 

proceedings). 

 
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For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and 

Recommendation, Petitioner’s Objection (ECF No. 13) is OVERRULED. 

Petitioner seeks 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 reason would find it debatable whether the 

district court was correct in its procedural ruling. Id. 

This Court is not persuaded that reasonable jurists would debate the dismissal of 

Petitioner’s claims as procedurally defaulted or without merit. Therefore, Petitioner’s request for 

a certificate of appealability is DENIED. 

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in 

good faith, and that an application to proceed in forma pauperis on appeal should be DENIED. 
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The Clerk is DIRECTED to enter final JUDGMENT. 

IT IS SO ORDERED. 

Date: March 26, 2018 

 _____s/James L. Graham____ 

 JAMES L. GRAHAM 

 United States District Judge