IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ANDRE WADE, 

 Case No. 2:17-cv-1101 

 Petitioner, Judge Algenon L. Marbley 

 Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, BELMONT 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, and 

the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS 

that this action be DISMISSED. 

Facts and Procedural History 

The Ohio Seventh District Court of Appeals summarized the facts and procedural history 

of the case as follows: 

{¶ 3} Wade was indicted by a grand jury on one count of rape, R.C. 2907.02(A)(2), 

a first-degree felony; one count of possession of drugs, R.C. 2925.11(A) and 

(C)(4)(a), a fifth-degree felony; and one count of assault, R.C. 2903.13(A), a firstdegree misdemeanor. Following final testing results from the Ohio Bureau of 

Criminal Investigation, the drug charge was amended to state a violation of 

subsection (C)(6)(a), also a fifth-degree felony. These charges stemmed from an 

incident involving Wade and two juveniles in the woods near Indian Creek High 

School in Wintersville. Wade retained counsel, was arraigned and entered pleas of 

not guilty and not guilty by reason of insanity (NGRI). 

{¶ 4} Following a defense request for competency and sanity evaluations, the trial 

court found Wade was incompetent to stand trial and issued an order to restore 

competency but Wade subsequently stipulated to his restoration to competency. 

Wade also waived his speedy trial rights. 
2 

{¶ 5} The matter proceeded to a jury trial where the following pertinent evidence 

was adduced. CD testified that in the afternoon he went for a walk in the woods 

near Indian Creek High School with his girlfriend, KS. Both were 17 years old at 

the time. While in the woods, the teenagers had sex. While this was occurring, 

Wade came upon them and claimed they were on his property and threatened to 

call police. CD apologized and offered to leave. Wade responded: “you’re not going 

anywhere until she sucks my dick.” CD responded: “no and she’s only 17,” and 

Wade hit him, knocking him to the ground. CD protested again, and Wade hit him 

a second time, again knocking him to the ground. Although CD weighs 305 pounds, 

much more than Wade did at the time, CD has a heart condition, which requires an 

implanted heart monitor. 

{¶ 6} Because Wade was beating CD, KS said that she would do what Wade 

demanded: give Wade oral sex. Soon after KS began doing this, however, Wade 

demanded that he “wanted pussy.” CD said no, and Wade knocked him down again. 

CD then pleaded with Wade by offering his phone, class ring, necklace or whatever 

he wanted. However, Wade wanted to have sex with KS. CD said he tried to defend 

KS without success. He testified Wade “said that he would kill me if she didn’t do 

what he said and * * * he said that if we told anyone he would kill us too.” 

{¶ 7} Wade then engaged in vaginal intercourse with KS, ejaculating inside of her. 

Afterwards, Wade blew smoke in CD’s face, and walked away; as he did so, CD 

called him “the N word.” 

{¶ 8} CD had bruising on his face, a black eye, and scratches on his neck as a result 

of the incident. Originally, CD thought the scratches might have come from a knife, 

but he admitted he never saw Wade with a knife. 

{¶ 9} CD readily admitted at the beginning of his testimony that he lied during the 

preliminary hearing when he denied that he and KS were having sex in the woods 

that day when Wade came upon them. He explained he was trying to protect KS. 

{¶ 10} KS testified; she confirmed CD’s account of the incident, though her 

testimony was initially less definite about the precise nature of Wade’s threats and 

the sequence of events. KS said she was giving CD oral sex in the woods when 

Wade found them and said they were on his property and threatened to call police 

unless she “did what he said.” She said she did not remember anything else Wade 

said after that; and said she could not remember if Wade made other types of threats. 

She recalled that Wade hit CD, then Wade fingered her and she gave Wade “a blow 

job.” After that Wade hit CD again; while KS was “sitting there in shock.” She 

eventually also had vaginal sex with Wade. 

{¶ 11} KS’s statement to police was presented to her by the prosecutor to help 

refresh her recollection of events, but was not admitted into evidence. KS 

confirmed she was concerned that Wade was hitting CD because CD has a heart 
3 

condition. She said she was afraid of leaving CD in the woods with Wade and 

therefore did not try to flee. She confirmed she did not consent to sexual activity 

with Wade. 

{¶ 12} After he finished having sex with KS, Wade blew smoke in CD’s face and 

tried to clean off KS and her pants by dipping them in water. When Wade left, CD 

and KS immediately ran to the high school, and reported the incident to a teacher, 

Lucinda Phillippi, who called 911 and the victims’ parents. Phillippi testified CD 

appeared “stunned,” and his face was swollen, red and bleeding. She said CD 

became more and more upset as he explained what happened, finally exclaiming: 

“Oh, my God, I just saw my girlfriend get raped in front of my very eyes[,]” after 

which time CD began kicking chairs and the bleachers. Phillippi said she did not 

talk much to KS as a group of girls had circled around her. 

{¶ 13} Officer Anthony Moores testified he responded to the 911 call from the high 

school, spoke to CD and obtained a description of the suspect, which he radioed to 

Officer Shawn Gegick, who apprehended Wade in a cul-de-sac area near the woods 

were the assault took place. Gegick noticed blood on Wade’s ear. Moores arrived 

soon thereafter to assist Gegick; during this time, Gegick obtained from Wade a 

folded-up dollar bill with a white powder inside. Camera footage taken from 

Moores’ cruiser was played for the jury. 

On the video, Wade admits that he fought with CD. Wade’s father Alfred Wade 

came upon the scene as Wade was being arrested. Gegick testified he overheard 

Wade tell his father “he was walking through the woods, saw a guy and a girl having 

sex,” and that the male called him a racial slur, so Wade walked over and knocked 

him out. 

{¶ 14} On cross-examination of Gegick, as part of a line of questioning to try to 

cast doubt into KS’s identification of Wade, defense counsel asked Gegick to read 

from his preliminary hearing testimony. Gegick read what KS had reported to him 

about the crimes. 

{¶ 15} A video of Wade while he was in a holding cell was also played for the jury. 

On this video, Wade is seen stripping off all of his clothing. 

{¶ 16} Lieutenant Jesse Kosegi testified that he tested the white powder found on 

the dollar bill confiscated from Wade during his arrest. The results of this 

preliminary field test were read to indicate the powder was cocaine. The powder 

was subsequently sent to BCI and was evaluated by forensic scientist Shervonne 

Bufford who testified that more conclusive laboratory tests revealed the powder 

was heroin. 

{¶ 17} Meanwhile, CD and KS were transported to the hospital where an exam and 

rape kit was performed on KS by the sexual assault nurse examiner Marla Rockey. 

Without objection by the defense, Rockey testified about statements KS made to 
4 

her about the offenses, reading from her emergency room report. The report itself 

was also admitted into evidence. 

{¶ 18} On cross, Rockney testified that there were no injuries to KS’s genital or 

anal areas, and that KS’s hair and clothing appeared neat. She noted that KS was 

“calm at first,” but became “teary-eyed” after her family arrived at the hospital. She 

also testified that KS reported consensual sexual activity within 96 hours of the 

exam, listing the time as 16:45, which was the same time listed for the alleged rape. 

{¶ 19} The rape kit was transported to the BCI office. BCI forensic scientist 

Christopher Smith testified that analysis performed on the rape kit evidence, 

confirmed Wade’s DNA located inside K.S.’s vagina. 

{¶ 20} CD and KS positively identified Wade as their assailant in a photographic 

“six-pack” line-up. 

{¶ 21} CD and KS were not positive in their courtroom identifications of Wade, 

explaining he looked different in that he had shaved his beard and gained weight. 

However, Captain Louis Vandeborne of the Wintersville Police Department 

testified he had the six-pack line-up made for a blind administrator to give to the 

victims and that the person identified by KS and CD was in fact Wade. Vandeborne 

was able to positively identify Wade as the defendant in the courtroom. 

{¶ 22} Because Wade had entered an NGRI plea, the State presented expert 

testimony to rebut Wade’s assertions that he was legally insane at the time of the 

incident, specifically that of Dr. Howard A. Beazel, a forensic psychologist who 

performed competency and sanity evaluations on Wade. Dr. Beazel said he 

explained to Wade at the beginning of the sanity evaluation that Wade’s 

participation was voluntary; that the evaluation was not confidential; and that a 

report would be provided to the court and counsel. 

{¶ 23} Dr. Beazel explained that in order to determine whether someone meets the 

legal criteria for insanity at the time of the offense—that the defendant was 

suffering from a severe mental disease or defect at the time of the alleged offenses 

such that he was unable to know the wrongfulness of his actions—he needed to 

obtain a defendant’s psychiatric records and interview the defendant to learn his 

account of the incident. Dr. Beazel testified that Wade initially told him he did not 

remember what happened in the woods that day, but eventually provided details. 

Over objections, Dr. Beazel said Wade admitted he hit CD, but claimed the sex 

with KS was consensual. 

{¶ 24} Ultimately, based in part on Wade’s account of the incident, and the fact 

that Wade made no mention of experiencing any psychotic symptoms at the time 

of the offenses, Dr. Beazel opined that although Wade suffered from chronic mental 

illness that could be severe at times, Wade was not legally insane at the time the 

offenses were committed. 
5 

{¶ 25} After the State rested, Wade moved for acquittal, which was overruled by 

the trial court. Via counsel, Wade also withdrew his NGRI plea. The trial court 

engaged in a brief colloquy with Wade about his decision. 

{¶ 26} The defense first called Wintersville Police Chief Edward Laman to testify. 

He confirmed that while in a holding cell, Wade removed all of this clothing and 

was acting “disoriented.” He said that as a result, per protocol, Wade was 

transported to the hospital for an assessment; a physician later released him for 

transport to the county jail. Laman was also questioned about the photo line-up and 

confirmed it was presented to the victims by Angela Household, who is his 

secretary and clerk of courts for the Wintersville Magistrate’s Court. On cross, 

Laman explained that Householder qualifies as a blind administrator for the lineup because she had no knowledge of the suspect placed in the line-up. 

{¶ 27} The defense also presented the testimony of Wade’s father, Alfred Wade. 

He explained he had been trying for years to help manage his son’s mental illness. 

Alfred lived nearby Indian Creek High School; Wade had been staying with him. 

He described some of the bizarre behavior that Wade exhibited while off of his 

medications during the time the offenses took place. On the day of the incident, 

Wade had gone to a job interview, then out with his cousin, and finally returned to 

Alfred’s home. Unbeknownst to his father, Wade left the house for about 30 

minutes. A neighbor came over to tell Alfred that Wade was being questioned by 

police nearby. Alfred asked Wade what happened and Wade said he had seen a 

male and female in the woods, told them to get off his property and that the “boy 

called him a n*gger,” and as a result, Wade “started beating him up.” 

{¶ 28} Wade elected not to take the stand. The trial court had a brief discussion 

with him to ensure he understood his right to remain silent as well as his right to 

testify. 

{¶ 29} After considering all of the evidence, the jury found Wade guilty of all of 

the indicted charges. Following a hearing, the trial court sentenced Wade to an 

aggregate prison term of 12 years, with five years of mandatory post-release 

control; Wade was also classified as a Tier III sex offender. 

State v. Wade, 71 N.E.3d 311, 313-17 (Ohio App. 7th Dist. Dec. 22, 2016). On appeal, Petitioner 

asserted that he was denied the effective assistance of counsel; that the trial court erred in 

permitting expert testimony about statements Petitioner made during the sanity evaluation; and 

that his rape conviction was against the manifest weight of the evidence and that the evidence was 

constitutionally insufficient to sustain his rape conviction. Id. at 313. On December 22, 2016, the 
6 

appellate court affirmed the judgment of the trial court. Id. On May 31, 2017, the Ohio Supreme 

Court declined to accept jurisdiction of the appeal. State v. Wade, 149 Ohio St.3d 1421 (2017). 

 On March 1, 2017, Petitioner filed an application to reopen the appeal pursuant to Ohio 

Appellate Rule 26(B), asserting that he had been denied the effective assistance of appellate 

counsel because his attorney failed to raise on appeal a claim of the denial of the effective 

assistance of trial counsel, and that the trial court violated due process when it failed to sua sponte

instruct the jury on a lesser included offense. See State v. Wade, No. 14 JE 0036, 2017 WL 

2437279 (Ohio App. 7th Dist. June 5, 2017). On June 5, 2017, the appellate court denied the Rule 

26(B) application. Id. On October 11, 2017, the Ohio Supreme Court declined to accept 

jurisdiction of the appeal. State v. Wade, 150 Ohio St.3d 1455 (2017). 

 On December 20, 2017, Petitioner filed this Petition for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. He asserts that he was denied the effective assistance of counsel because his 

attorney failed to object to bad character evidence, and failed to impeach witness[es] (claim one); 

that the trial court erred when it permitted admission of testimony from Petitioner in violation of 

Ohio law and the Fifth Amendment (claim two); that the evidence was constitutionally insufficient 

to sustain his rape conviction (claim three); that he was denied the effective assistance of trial 

counsel because his attorney failed to request a lesser included jury instruction on the offense of 

sexual battery (claim four); that he was denied a fair trial because the trial court failed to sua sponte

instruct the jury on a lesser included offense (claim five); and that he was denied the effective 

assistance of appellate counsel because his attorney failed to advise him of the deadline for filing 

a petition for post-conviction relief, or raise a claim of the denial of the effective assistance of trial 

counsel (claim six). It is the position of the Respondent that Petitioner’s claims are without merit. 
7 

Standard of Review 

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the 

Antiterrorism and Effective Death Penalty Act (“the AEDPA”) govern this case. The United State 

Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for prisoners 

whose claims have been adjudicated in state court” and emphasized that courts must not “lightly 

conclude that a State’s criminal justice system has experienced the ‘extreme malfunction’ for 

which federal habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting 

Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) 

(“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and 

demands that state court decisions be given the benefit of the doubt.”) (internal quotation marks, 

citations, and footnote omitted). 

The AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids 

a federal court from granting habeas relief with respect to a “claim that was adjudicated on the 

merits in State court proceedings” unless the state court decision either 

(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). 

Further, under the AEDPA, the factual findings of the state court are presumed to be 

correct: 

In a proceeding instituted by an application for a writ of habeas 

corpus by a person in custody pursuant to the judgment of a State 

court, a determination of a factual issue made by a State court shall 

be presumed to be correct. The applicant shall have the burden of 
8 

rebutting the presumption of correctness by clear and convincing 

evidence. 

28 U.S.C. § 2254(e)(1). 

Accordingly, “a writ of habeas corpus should be denied unless the state court decision was 

contrary to, or involved an unreasonable application of, clearly established federal law as 

determined by the Supreme Court, or based on an unreasonable determination of the facts in light 

of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) 

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub nom. Coley v.

Robinson, 134 S. Ct. 513 (2013). The United States Court of Appeals for the Sixth Circuit has 

summarized these standards as follows: 

A state court’s decision is “contrary to” Supreme Court precedent if 

(1) “the state court arrives at a conclusion opposite to that reached 

by [the Supreme] Court on a question of law[,]” or (2) “the state 

court confronts facts that are materially indistinguishable from a 

relevant Supreme Court precedent and arrives” at a different result. 

Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 146 L.Ed. 

2d 389 (2000). A state court’s decision is an “unreasonable 

application” under 28 U.S.C. § 2254(d)(1) if it “identifies the correct 

governing legal rule from [the Supreme] Court’s cases but 

unreasonably applies it to the facts of the particular . . . case” or 

either unreasonably extends or unreasonably refuses to extend a 

legal principle from Supreme Court precedent to a new context. Id. 

at 407, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed. 2d 389. 

Id. at 748–49. The burden of satisfying the AEDPA’s standards rests with the petitioner. See 

Cullen v. Pinholster, 563 U.S.170, 181 (2011). 

Claim One 

In claim one, Petitioner asserts that he was denied the effective assistance of counsel, 

because his attorney failed to impeach witnesses or object to the admission of bad character 

evidence. The appellate court denied this claim: 

In his first assignment of error, Wade asserts: 
9 

The failure of defense counsel to object timely, properly impeach witnesses, as well 

as other deficiencies resulted in prejudicial error and ineffective assistance of 

counsel. 

{¶ 58} To prove ineffective assistance of counsel, the defendant must satisfy a twoprong test; that counsel’s performance has fallen below an objective standard of 

reasonable representation, and that he was prejudiced by counsel’s performance. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), at paragraph 

two of the syllabus. To demonstrate prejudice, the defendant must prove that, but 

for counsel’s errors, the result of the trial would have been different. Id., paragraph 

three of the syllabus. In Ohio, a properly licensed attorney is presumed to be 

competent and the burden is on the defendant to prove otherwise. State v. Hamblin, 

37 Ohio St.3d 153, 155, 524 N.E.2d 476 (1988). 

{¶ 59} Wade asserts trial counsel’s representation was deficient in three areas: 

during opening statements, cross-examination of witnesses, and in her questioning 

of the State’s expert. Each will be discussed in turn, and discussion of overall 

prejudice will be reserved until the end. 

{¶ 60} First, the prosecutor referred to Wade as a “sexual predator” eight times 

during his opening statement, despite the fact that Wade had never been previously 

convicted of any sex crimes. Defense counsel failed to object to the use of this term 

and did not bring it to the trial court’s attention until after the conclusion of the 

opening statement, when, during a side-bar, outside of the presence of the jury, she 

requested a mistrial based upon the prosecutor’s use of the term. The trial court then 

asked counsel why she failed to object after the first time the term was used, to 

which she replied she was unaware that one could object during an opening 

statement. The trial court stated he would have sustained her objection “in a 

second,” had she made it at the appropriate time; and went on to explain: “There is 

no time that you’re not allowed to object.” However, counsel did request a curative 

instruction be given to the jury, which the trial court granted, telling jurors: “to the 

extent that the term sexual predator implies a prior sexual conviction, that is not the 

case here. So, we don’t want anyone confused or mislead. [sic].” 

{¶ 61} “Sexual predator” is a legal term of art that was used in a prior version of 

Ohio’s sex offender statute, known as Meghan’s Law, and was defined as “a person 

who has been convicted of or pleaded guilty to committing a sexually oriented 

offense and is likely to engage in the future in one or more sexually oriented 

offenses.” State v. Cook, 83 Ohio St.3d 404, 407, 700 N.E.2d 570 (1998), quoting 

former R.C. 2950.01(E). 

{¶ 62} This label does not apply to Wade as he had no prior sex offense convictions, 

and thus defense counsel should have objected when those statements were made, 

instead of waiting until the end of the prosecutor’s opening statement to move for 
10 

a mistrial. Counsel’s confusion about basic aspects of trial procedure falls below an 

objective standard of reasonable representation. 

{¶ 63} Second, there are a number of instances where defense counsel attempted to 

impeach the victim, KS, improperly. First, the trial court had to instruct defense 

counsel, in the presence of the jury, on how to use a prior inconsistent statement: 

THE COURT: Here’s what you can do. You can ask her what happened. If what 

she said is different than a prior statement, then you can ask her about the prior 

statement but you don’t start out with the prior statement. You start out with just 

asking her the question straight up. 

{¶ 64} Despite this instruction, defense counsel resumed questioning the victim 

improperly: 

Q. You’re saying that he made you perform oral sex on him, the blow job thing. 

A. Yes, with his threats. 

Q. At one point you say as soon as you had the— 

[PROSECUTOR]: Your Honor, I’m going to object again on the grounds that she’s 

reading this from the doctor’s report and the doctor’s not here. 

{¶ 65} The trial court then had the attorneys approach the bench and had to instruct 

defense counsel a second time about how to properly impeach using prior 

inconsistent statements: 

THE COURT [to defense counsel]: What are you doing? 

DEFENSE COUNSEL: I am trying to establish that she has given us a lot of stories 

that have indicated— 

THE COURT: Okay. Here’s how you do that and it’s in the rules of evidence and 

you are going to follow them. You ask a question. “Did this happen?” She says 

“No.” She said yes some other time. You say “Well, didn’t you tell the doctor that 

that’s what happened?” That’s how you do it. You don’t start “Did you tell the 

doctor this and did you tell the doctor that?” We are going to follow the rules. We 

are going to do it right. 

DEFENSE COUNSEL: Okay. 

THE COURT: Okay. Now, I’ve told you once and I told you nicely the first time. 

Now I’m telling you less nicely. 

DEFENSE COUNSEL: Okay. Let me see if I understand what you are saying. 
11 

THE COURT: It’s called a prior inconsistent statement. There’s a rule on that. The 

rule says you ask the question, then if you get an answer that’s different than the 

prior statement, then you ask about the prior statement and that’s what we are going 

to do and we’re not going to go line by line. 

DEFENSE COUNSEL: Okay. Okay. I will try—I will try to— 

THE COURT: Huh? 

DEFENSE COUNSEL: I will try to see if I can get my head around that. I 

understand what you are saying. I need to figure out how to do that. 

THE COURT: This is something you should already know before you get here. I 

might need to remind you but I shouldn’t have to explain it to you. You should 

know that before you get here. 

DEFENSE COUNSEL: I thought I had it but I apparently don’t. So, I appreciate 

what you are saying. 

THE COURT: Do we understand how we are going to do this? 

DEFENSE COUNSEL: Yes, sir. 

THE COURT: And I think you’re digging yourself a hole with this Jury but that’s 

your business. 

DEFENSE COUNSEL: Okay. 

{¶ 66} Third, the trial court had to explain to defense counsel how to question an 

expert witness, including the proper use of a hypothetical question. On one 

occasion, out of the hearing of the jury, the trial court stated: 

You get two choices. You get to stick to the record of whatever is in there you can 

ask him about or you can ask hypothetical questions. You can say “If this was going 

on or if that was going on” but what you’re not going to do is stand at the podium 

and tell him [the expert, Dr. Beazel] that he [Wade] was taking off his clothes and 

he was doing this and he was doing that, you know, because you say so. That is not 

what we’re going to do. 

{¶ 67} Even after this instruction, the trial court had to help counsel correctly 

formulate the questions, step by step. 

DEFENSE COUNSEL [to Dr. Beazel]: You observed him on that day. That’s the 

day 4–5–2013. At that time he tells me that he had been off his meds for some 

years. His brother was in the process of dying. He had been in a verbally-abusive 
12 

relationship with a woman and he was not getting to see his kids, all compounded 

together. 

PROSECUTOR: Your honor, I’m not sure where these facts are coming from. 

THE COURT: Right. Where are you getting all this? I don’t know that any of this 

is in the record. 

DEFENSE COUNSEL: He tells me. 

THE COURT: Excuse me? 

DEFENSE COUNSEL: Hypothetically. 

THE COURT: All right. Hypothetical question. Go ahead. 

DEFENSE COUNSEL: Given that hypothetical— 

THE COURT: Assuming those facts to be true. 

DR. BEAZEL: Yes, sir. 

DEFENSE COUNSEL: —what is your opinion? 

{¶ 68} Thus, there were three instances where trial counsel’s performance was 

subpar, meeting the first prong of the Strickland test. Next, we must decide whether 

there was prejudice. Here we find none. 

{¶ 69} The evidence against Wade, as set forth in detail above—the victims’ 

testimony, Wade’s DNA evidence found inside of KS, the injuries to CD and the 

victims’ behavior testified to by witnesses who encountered them immediately after 

the incident, statements Wade made to his father—strongly support the jury’s guilty 

verdicts. For example, during sentencing, the trial court noted how afraid KS 

appeared on the stand, stating: “I watched for a hour with her on the stand shaking 

and quivering and obviously greatly affected. * * * It’s horrible. She shook for an 

hour on the stand.” 

{¶ 70} That counsel’s missteps permeated the trial gives us pause. It is troubling 

that counsel lacked the ability to properly cross-examine and impeach the victim 

and expert witness, and that she failed to grasp basic aspects of trial procedure. 

While ineffectiveness at this level could result in prejudice in another case where—

mindful that the State’s burden of proof is beyond a reasonable doubt—the 

evidence is not as strong, we find no prejudice here given the overwhelming 

evidence against Wade. 
13 

{¶ 71} . . . . Although there were several errors made by defense counsel throughout 

the trial that fall below an objective standard of reasonable representation, no 

prejudice resulted. Accordingly, the judgment of the trial court is affirmed. 

State v. Wade, 71 N.E.3d at 322-25. 

“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . . 

. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective 

assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) 

(citation omitted). The United States Supreme Court set forth the legal principals governing claims 

of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland

requires a petitioner claiming ineffective assistance of counsel to demonstrate that his counsel’s 

performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; Hale v. 

Davis, 512 F. App’x. 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient performance by 

counsel by demonstrating ‘that counsel’s representation fell below and objective standard of 

reasonableness.” Poole v. MacLaren, 547 F. App’x 749, 754 (6th Cir. Dec. 5, 2013) (quoting 

Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and citing 

Strickland, 466 U.S. at 687). To make such a showing, a petitioner “must overcome the ‘strong [ 

] presum[ption]’ that his counsel ‘rendered adequate assistance and made all significant decisions 

in the exercise of reasonable professional judgment.” Poole, 547 F. App’x at 754 (quoting 

Strickland, 466 U.S. at 687). “To avoid the warping effects of hindsight, [courts must] ‘indulge a 

strong presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.’’ Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. 

at 689). 

The United States Supreme Court has cautioned federal habeas courts to “guard against the 

danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” 
14 

Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court observed that while “‘[s]urmounting 

Strickland’s high bar is never an easy task, . . . [e]stablishing that a state court’s application of 

Strickland was unreasonable under § 2254(d) is all the more difficult. . . .” Id. (quoting Padilla v. 

Kentucky, 559 U.S. 356,371-72 (2010) and citing Strickland, 466 U.S. at 689)). The Court 

instructed that the standards created under Strickland and § 2254(d) are both “‘highly deferential,’ 

and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted). 

Thus, when a federal habeas court reviews a state court’s determination regarding an 

ineffective assistance of counsel claim, “[t]he question is not whether counsel’s actions were 

reasonable. The question is whether there is any reasonable argument that counsel satisfied 

Strickland’s deferential standard.” Id. Under this deferential standard of review, Petitioner has 

failed to establish that he is entitled to relief. This Court is not persuaded that the appellate court’s 

determination that Petitioner cannot establish prejudice, due to the substantial evidence of guilt, is 

so unreasonable so as to warrant relief. 

Notably, even where a defendant shows that particular errors of counsel were unreasonable, 

he must also show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at 

693. “It is not enough for the defendant to show that the errors had some conceivable effect on 

the outcome of the proceeding.” Id. He “must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 

694. 

Petitioner argues that he suffered prejudice from the prosecutor’s reference to him as a 

sexual predator during opening statement, because the trial court never advised the jury to 

disregard those comments. Reply (ECF No. 13, PAGEID # 834.) However, the trial court 

explicitly advised the jury that Petitioner had no prior sexual offense convictions, thereby curing 
15 

any potential prejudicial misunderstanding by the jurors on this basis. Petitioner also argues that 

he suffered prejudice from his attorney’s inadequate performance during cross-examination, in 

view of the lack of evidence regarding his use or threat of force. Reply (ECF No. 13, PAGEID # 

834.) However, the record reflects ample evidence regarding the use or threat of force. The alleged 

victim testified that when Petitioner confronted her, he hit her boyfriend, threatened her, told her 

he was Satan, and forced her to have sex with him, so she did what he wanted. Transcript (ECF 

No. 9-3, PAGEID # 526, 530.) She watched him beat her boyfriend, who had a heart condition, 

and was afraid to leave him alone with the Petitioner. (PAGEID # 528.) She felt she had no option 

but to have sex with the Petitioner, because he threatened to kill her boyfriend or she thought that 

he would do so because “he was crazy.” (PAGEID # 529-30.) She made a similar statement to 

the nurse practitioner shortly after commission of the offenses charged. (PAGEID # 509.) CD 

also testified that, when Petitioner approached them, he told them that they could not leave until 

she consented to sexual activity. (PAGEID # 554.) Petitioner hit CD, repeatedly, knocking and 

beating CD to the ground. (PAGEID # 554-56.) Petitioner threatened to kill CD if his girlfriend 

did not comply with his demands. (PAGEID # 558.) This testimony, as well as the DNA evidence 

and facts to which the state appellate court referred, constituted substantial evidence of guilt. 

Contrary to Petitioner’s allegation here, the record reflects that the trial court instructed defense 

counsel on impeaching the alleged victim with a prior inconsistent statement and questioning the 

State’s expert outside of the hearing of the jury. (See PAGEID # 547-49; 597-99). Notably, 

Petitioner does not refer to, and the record does not reflect, that counsel was unable or prevented 

from conducting any additional cross-examination that would have assisted the Petitioner.1

 

 

1 Petitioner does assert that defense counsel should have admitted other prior inconsistent 

statements by C.D. at the preliminary hearing. Reply (ECF No. 13, PAGEID # 836.) However, 

Petitioner does not indicate, and this Court is unable to determine from the record, the nature of 
16 

Claim one is without merit. 

Claim Two 

In claim two, Petitioner asserts that the trial court erred in allowing testimony in violation 

of O.R.C. § 2945.371(J), and the Fifth Amendment. Petitioner has withdrawn this claim. See 

Reply (ECF No. 13, PAGEID # 837.) 

Claim Three 

In claim three, Petitioner asserts that the evidence is constitutionally insufficient to sustain 

his rape conviction. The state appellate court rejected this claim in relevant part as follows: 

{¶ 31} “A challenge to the sufficiency of the evidence tests whether the state has 

properly discharged its burden to produce competent, probative, evidence on each 

element of the offense charged.” State v. Petefish, 7th Dist. No. 10 MA 78, 2011-

Ohio-6367, 2011 WL 6163971, ¶ 16. Thus, sufficiency is a test of adequacy. State 

v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the 

evidence is legally sufficient to sustain a verdict is a question of law. Id. In 

reviewing the record for sufficiency, the relevant inquiry is whether, after viewing 

the evidence in a light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime proven beyond a reasonable 

doubt. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). 

*** 

{¶ 34} Wade challenges only his rape conviction under R.C. 2907.02(A)(2), which 

provides: “No person shall engage in sexual conduct with another when the 

offender purposely compels the other person to submit by force or threat of force.” 

{¶ 35} “‘Sexual conduct’ means vaginal intercourse between a male and female; 

anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, 

without privilege to do so, the insertion, however slight, of any part of the body or 

any instrument, apparatus, or other object into the vaginal or anal opening of 

another. Penetration, however slight, is sufficient to complete vaginal or anal 

intercourse.” R.C. 2907.01(A). 

{¶ 36} The Revised Code defines “force” as “any violence, compulsion, or 

constraint physically exerted by any means upon or against a person or thing.” R.C. 

 

those statements. It is is not this Court’s duty to scour the record om search of support for 

Petitioner’s claims. United States v. Matsa, Nos. 2:15-cv-700, 2:09-cr-297, 2017 WL 4469120, 

at *10 (S.D. Ohio Oct. 6, 2017) (citations omitted). 
17 

2901.01(A)(1). “R.C. 2907.02 only requires that minimal force or threat of force be 

used in the commission of a rape.” State v. Taylor, 7th Dist. No. 15 JE 0009, 2016-

Ohio-2927, 2016 WL 2746902, ¶ 13, citing State v. Eskridge, 38 Ohio St.3d 56, 58, 

526 N.E.2d 304 (1988). “‘Force need not be overt and physically brutal, but can be 

subtle and psychological. As long as it can be shown that the rape victim’s will was 

overcome by fear or duress, the forcible element of rape can be established.’“ 

Eskridge, 38 Ohio St.3d at 58–59, 526 N.E.2d 304, quoting State v. Fowler, 27 

Ohio App.3d 149, 154, 500 N.E.2d 390 (8th Dist.1985). 

{¶ 37} CD testified that Wade hit him repeatedly and threatened to kill both KS 

and CD unless KS had sex with Wade. CD further testified that Wade engaged in 

oral and vaginal intercourse with KS, ejaculating inside of her. KS testified she was 

scared of Wade and did not want to leave CD alone with him in the woods. She 

confirmed she did not consent to sex with Wade. When analysis was performed on 

the rape kit evidence obtained from KS, it was confirmed that Wade’s DNA was 

present inside K.S.’s vagina. Thus, there was sufficient evidence to support a 

conviction of rape in violation of R.C. 2907.02(A)(2). 

{¶ 38} With regard to manifest weight, the evidence overall, including the witness 

testimony, DNA evidence and the photographs of injuries to CD, strongly supports 

the State’s version of events that: Wade came upon the two teenagers in a 

compromising position in the woods; Wade punched CD and threatened both of 

them, in order to engage in oral and vaginal sex with KS; and KS only complied 

out of fear. By contrast, the defense’s theory of the case was that Wade beat CD 

only after CD yelled racial slurs at Wade; and that KS consented to sex with Wade, 

a stranger who happened upon the couple in the woods. It was up to the jury, based 

upon the evidence presented, to determine which version of events was more 

plausible, and in doing so to resolve matters of credibility. Based upon the record, 

the jury did not lose its way so as to create a manifest miscarriage of justice. 

{¶ 39} For all of these reasons, the jury’s verdict on the rape count is supported by 

sufficient evidence. . . . Accordingly, Wade’s. . . assignment[] of error [is] meritless. 

State v. Wade, 71 N.E.3d at 317-18. 

Before a criminal defendant can be convicted consistent with the United States 

Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt 

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining 

whether the evidence was sufficient to support a petitioner’s conviction, a federal habeas court 

must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 

277, 296 (1992) (citing Jackson, 443 U.S. at 319). The prosecution is not affirmatively required 
18 

to “rule out every hypothesis except that of guilt.” Id. (quoting Jackson, 443 U.S. at 326). “[A] 

reviewing court ‘faced with a record that supports conflicting inferences must presume—even if 

it does not appear on the record—that the trier of fact resolved any such conflicts in favor of the 

prosecution, and must defer to that resolution.’“ Id. (quoting Jackson, at 326). 

Moreover, federal habeas courts must afford a “double layer” of deference to state court 

determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 

205 (6th Cir. 2009), deference must be given, first, to the jury’s finding of guilt because the 

standard, announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits 

in the light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” Second, and even if a de novo review 

of the evidence leads to the conclusion that no rational trier of fact could have so found, a federal 

habeas court “must still defer to the state appellate court’s sufficiency determination as long as it 

is not unreasonable.” White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial 

hurdle for a habeas petitioner to overcome, and plainly, Petitioner cannot do so here. 

 The testimony of the alleged victim, alone, constitutes constitutionally sufficient evidence 

to sustain Petitioner’s conviction on rape. The state appellate court’s determination in this regard 

was clearly reasonable. 

 Claim three plainly lacks merit. 

Claims Four and Six 

It is the position of the Respondent that Petitioner has procedurally defaulted claims four 

and six. 

 
19 

Procedural Default 

In recognition of the equal obligation of the state courts to protect the constitutional rights 

of criminal defendants, and in order to prevent needless friction between the state and federal 

courts, a state criminal defendant with federal constitutional claims is required to present those 

claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner 

fails to do so, but the state still provides a remedy to pursue, his or her petition is subject to 

dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 

(1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004).

If, because of a procedural default, the petitioner can no longer present the relevant claims 

to a state court, the petitioner also waives the claims for purposes of federal habeas review unless 

he or she can demonstrate cause for the procedural default and actual prejudice resulting from the 

alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. 

at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether 

procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138 

(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the 

four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth 

Circuit requires the district courts to engage in the following inquiry:

First, the court must determine that there is a state procedural rule that is applicable 

to the petitioner’s claim and that the petitioner failed to comply with the rule. . . 

.Second, the court must decide whether the state courts actually enforced the state 

procedural sanction. . . .Third, the court must decide whether the state procedural 

forfeiture is an adequate and independent state ground on which the state can rely 

to foreclose review of a federal constitutional claim. 

Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if “the court determines that a state 

procedural rule was not complied with and that the rule [has] an adequate and independent state 
20 

ground, then the petitioner” may still obtain review of his or her claims on the merits if the 

petitioner establishes: (1) a substantial reason to excuse the default and (2) that he or she was 

actually prejudiced by the alleged constitutional error. Id. “Cause” under this test “must be 

something external to the petitioner, something that cannot fairly be attributed to him[;]. . . some 

factor external to the defense [that] impeded [ ] efforts to comply with the State’s procedural rule.” 

Coleman, 501 U.S. at 753. This “cause and prejudice” analysis also applies to failure to raise or 

preserve issues for review at the appellate level or failure to appeal at all. Id. at 750. 

Nevertheless, “‘[i]n appropriate cases’ the principles of comity and finality that inform the 

concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust 

incarceration.’“ Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135 (1892)). 

Petitioners who fail to show cause and prejudice for procedural default may nonetheless receive a 

review of their claims if they can demonstrate that a court’s refusal to consider a claim would result 

in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261 

F.3d 594, 601–02 (6th Cir. 2001) (same). The fundamental miscarriage of justice exception 

requires a showing that “in light of the new evidence, no juror, acting reasonably, would have 

voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995). 

In claim four, Petitioner asserts that he was denied the effective assistance of trial counsel, 

because his attorney failed to request a jury instruction on the lesser included offense of sexual 

battery. Petitioner failed to raise this claim on direct appeal, where he was represented by new 

counsel. Further, he may now no longer do so, under Ohio’s doctrine of res judicata. See State v.

Cole, 2 Ohio St.3d (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 

175 (1967) (claims must be raised on direct appeal, if possible, or they will be barred by the 
21 

doctrine of res judicata). The state courts were never given an opportunity to enforce the 

procedural rule at issue due to the nature of Petitioner’s procedural default. 

Ohio’s doctrine of res judicata in this context is adequate and independent under the third 

part of the Maupin test. To be “independent,” the procedural rule at issue, as well as the state 

court’s reliance thereon, must rely in no part on federal law. Coleman v. Thompson, 501 U.S. 722, 

732–33 (1991). To be “adequate,” the state procedural rule must be firmly established and 

regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly 

established and regularly followed state practice’ may be interposed by a State to prevent 

subsequent review by this Court of a federal constitutional claim.” Id. at 423 (quoting James v.

Kentucky, 466 U.S. 341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 

(1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 

100 F. Supp. 2d 521, 561 (S.D. Ohio 1998). 

The Sixth Circuit has consistently held that Ohio’s doctrine of res judicata, i.e., the Perry

rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 

765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. 

Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 2000); 

Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently refused, in 

reliance on the doctrine of res judicata, to review the merits of claims because they are 

procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. 

Additionally, the doctrine of res judicata serves the state’s interest in finality and in ensuring that 

claims are adjudicated at the earliest possible opportunity. With respect to the independence 

prong, the Court concludes that Ohio’s doctrine of res judicata in this context does not rely on or 
22 

otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of 

relevant case law that the Perry rule is an adequate and independent ground for denying relief. 

Petitioner may still secure review of his claims on the merits if he demonstrates cause for 

his failure to follow the state procedural rules, as well as actual prejudice from the constitutional 

violations that he alleges. 

“‘[C]ause’ under the cause and prejudice test must be something external to the 

petitioner, something that cannot fairly be attributed to him[;]. . . some objective 

factor external to the defense [that] impeded. . . efforts to comply with the State’s 

procedural rule.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 

L.Ed.2d 640 (1991). 

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). The constitutionally ineffective assistance 

of counsel may constitute cause for a procedural default, so long as such claim has been presented 

to the state courts and is not, itself, procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 

451-52 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). The Court presumes that 

Petitioner asserts, as cause for his procedural default of claim four, the denial of the effective 

assistance of appellate counsel. He raises this same allegation in habeas corpus claim six. 

However, the appellate court denied Petitioner’s Rule 26(B) application for failure to comply with 

Appellate Rule 26(B)(2)(e): 

Although Wade’s timely application includes a sworn statement, he failed to 

provide the portions of the record upon which he relies and cites throughout his 

application. “App.R. 26(B)(2)(e) places the responsibility squarely upon the 

applicant to provide the court of appeals with such portions of the record as are 

available to him.” Where an applicant fails to do so, “his application [is] properly 

denied.” State v. McNeill, 83 Ohio St.3d 457, 459, 700 N.E.2d 613 (1998). Wade 

has not satisfied these requirements; thus, we need not reach the merits of his 

arguments. 

State v. Wade, 2017 WL 2437279, at *1. Petitioner thereby likewise has procedurally defaulted 

his claim of the denial of the effective assistance of appellate counsel. See Schwab v. Warden, No. 

2:15-cv-0491, 2017 WL 2972148, at *2 (S.D. Ohio July 12, 2017) (citing Hutchison v. Warden, 
23 

London Corr. Inst., No. 1:14-cv-874, 2015 WL 6798550 (S.D. Ohio Nov. 6, 2015)). The state 

appellate court’s alternative ruling on the merits does not preclude enforcement of the procedural 

default. See Skatzes v. Warden, Mansfield Corr. Inst., No. 3:09-cv-289, 2017 WL 2374434, at *7-

8 (S.D. Ohio June 1, 2017) (citing Harris v. Reed, 489 U.S. 255, 264 (1989); Scott v. Mitchell, 209 

F.3d 854 (6th Cir. 2000); Wogenstahl v. Mitchell, 668 F.3d 307, 327 (6th Cir. 2012); Bowling v. 

Parker, 344 F.3d 487, 498 (6th Cir. 2003)). The denial of the effective assistance of appellate 

counsel cannot constitute cause for his procedural default, because he has likewise procedurally 

defaulted that claim. Edwards v. Carpenter, 529 U.S. at 451-52 (the constitutionally ineffective 

assistance of counsel may constitute cause for a procedural default, so long as the claim has been 

presented to the state courts and is not, itself, procedurally defaulted). 

 Claims four and six are procedurally defaulted. 

Claim Five 

In claim five, Petitioner asserts that he was denied a fair trial because the trial court failed 

to sua sponte issue a jury instruction on a lesser included offense. Petitioner has withdrawn this 

claim for review. Reply (ECF No. 13, PAGEID # 846.) 

Recommended Disposition 

Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 
24 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may recommit 

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse decision, 

they may submit arguments in any objections filed, regarding whether a certificate of appealability 

should issue. 

s/ Elizabeth A. Preston Deavers__ 

 Elizabeth A. Preston Deavers 

 Chief United States Magistrate Judge