1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

MARCUS A. CANADA, 

Petitioner, : Case No. 2:17-cv-1014 

- vs - Chief Judge Edmund A. Sargus, Jr. 

Magistrate Judge Michael R. Merz 

TIMOTHY BUCHANAN, Warden, 

 Noble Correctional Institution, 

 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus case, brought by Petitioner Marcus Canada pro se, to obtain relief 

from his convictions in the Franklin County Court of Common Pleas and consequent sentence. 

The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 4) and 

the Return of Writ (ECF No. 5). Although Chief Magistrate Judge Deavers set a reply date of 

twenty-one days after the Return (ECF No. 2, PageID 67), Petitioner has not filed a reply and the 

time to do so expired February 12, 2018. 

Litigation History 

 A Franklin County, Ohio, grand jury indicted Canada on November 27, 2013, on two 

counts of aggravated burglary and one count of felony domestic violence. A trial jury convicted 

him on one aggravated burglary count and the domestic violence count, and he was sentenced to 
2 

an aggregate term of five years imprisonment. The appellate court affirmed the judgment. State 

v. Canada, 2015-Ohio-2167 (10th Dist. Jun. 4, 2015)(“Canada I”), appellate jurisdiction declined, 

143 Ohio St. 3d 1467 (2015). 

 Canada filed an Application to Reopen his direct appeal under Ohio R. App. P. 26(B) which 

the court denied. State v. Canada, No. 14AP-523 (10th Dist. Jan. 21, 2016)(unreported; copy at 

State Court Record, ECF No. 4-1, PageID 480, et seq.), appellate jurisdiction declined, 145 Ohio 

St. 3d 1425 (2016). On July 29, 2015, Canada filed a petition for post-conviction relief under Ohio 

Revised Code § 2953.21. The trial court denied the petition on the basis of Ohio’s criminal res 

judicata doctrine, but the Court of Appeals reversed and remanded. State v. Canada, 2016-Ohio5948 (10th Dist. Sept. 22, 2016). On remand the trial court again dismissed the petition and Canada 

failed to perfect an appeal. 

 In the meantime, Canada filed a habeas petition raising ten grounds for relief in this Court. 

See Canada v. Warden, Case No. 2:16-cv-103. That petition was dismissed without prejudice 

because his state court petition for post-conviction relief was still pending, rendering his habeas 

claims unexhausted. Those proceedings are now concluded and Canada pleads the same ten 

grounds for relief here as in his previous petition as follows: 

Ground One: Petitioner/Canada is entitled to Habeas Corpus relief 

on grounds that the state courts committed prejudicial err[or], in 

violation of the Confrontation Clause, Sixth Amendment, U.S. 

Constitution, by permitting the assistant prosecuting attorney, to use 

out-of-court, C.D. recordings, which also deprived Petitioner[] 

Canada of his right to a fair trial. 

Ground Two: Appellant was substantially prejudiced against and 

denied his right to a fair trial in violation of his 6th and 14th 

Amendment Rights, on grounds that the Ohio courts state courts 

allowed inadmissible other bad acts into evidence that were not 

admissible under Evid. R. 403(A). 
3 

Ground Three: Petitioner’s right to a fair trial under the United 

States [Constitution] was violated when the State engaged in 

prosecutorial misconduct when the prosecuting attorney denigrante 

[sic] defense counsel and made improper comments during closing 

arguments. 

Ground Four: Petitioner was deprived of a fair trial under the Sixth 

and Fourteenth Amendments to the United States Constitution, due 

to ineffective assistance of trial counsel by trial counsel’s failure to 

object to prosecutorial misconduct during closing arguments. 

Ground Five: Petitioner’s constitutional right to a fair trial as 

guaranteed by the 6th and 14th Amendments to the United States 

Constitution was violated as a result of the trial court’s ruling(s) 

based on cumulative erroneous evidentiary rulings and improper 

comments made by the prosecutor during closing arguments 

deprived Petitioner of a fair trial. 

Ground Six: The state courts of Ohio committed constitutional 

error, to the prejudice of petition[er], in violation of the Due Process 

Clause of the Fourteenth Amendment to the United States 

Constitution, as a result of the fact that Petitioner’s conviction rests 

on insufficient evidence and is against the manifest weight of the 

evidence. 

Ground Seven: Petitioner/Canada was deprived of his 6th and 14th 

Amendment right to effective assistance of counsel on direct appeal, 

and at trial, as a result of appellate counsel’s failure to raise claims 

on appeal that: (A) trial counsel was “ineffective” by failing to 

“investigate” the case, prior to a proposed plea bargain offer, 

pertaining to the existance [sic] of certain 911 C.D. recording(s); and 

(B) due to the fact that counsel at trial was ineffective during the 

“plea proceedings,” which caused Petitioner to reject the proposed 

plea offer, and causing Petitioner to suffer “actual prejudice,” as a 

result of ineffective assistance of trial counsel that appellate counsel 

should have raised on direct appeal, and thus, violated Canada’s 6th 

and 14th Amendment right to effective assistance of counsel on 

appeal and at trial. 

Ground Eight: Appellate counsel on direct appeal was ineffective 

as a result of appellate counsel’s failure to raise all of the similar 

claims: (1) defense counsel was ineffective for failing to object to 

the admissibility of the 911 C.D. recordings, on grounds that 

prosecutor withheld such evidence from being timely provided, and 

thus, violated the rule of discovery of evidence; (2) the prosecutor 

committed prosecutorial misconduct by not providing the evidence 
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in a timely manner; (3) the trial judge committed a gross abuse of 

discretion by allowing the introduction of the C.D. recordings to be 

allowed into the record as evidence, when she was put on notice that 

defense counsel had just obtained the evidence on the day of trial; 

(4) Petitioner was deprived of his right to effective assistance of 

counsel arising out of prosecutorial misconduct, by not providing to 

the defense with the 911 C.D. tape recordings until the day of trial; 

and (5) Petitioner was denied his right to a fair trial, as well as to 

the right to effective assistance of counsel, resulting from the 

prosecution’s failure to timely provide the actual C.D. recordings 

over the defense until the day of trial. 

Ground Nine: Petitioner’s Sixth and Fourteenth right to “effective” 

assistance of counsel at trial was violated, which deprived the 

Petitioner of his constitutional right to a fair trial, as a result of 

defense counsel’s failure to independently subpoena any witnesses 

to come to court to testify; and for failing to “investigate” the case 

prior to the date of trial. 

Ground Ten: Petitioner’s 6th and 14th Amendment Right to the 

effective assistance of counsel was violated based on grounds that: 

(A) defense counsel failed to investigate the 911 C.D. recording(s) 

(prior to the day of trial) for purposes of properly “advising” Canada 

on accepting the prosecutor’s plea deal, which was offered prior to 

the date of trial; and (B) Canada did not receive “effective” 

assistance of trial counsel during the “plea negotiations”, as a result 

of the prosecutor’s own purposeful delay in furnishing the 911 C.D. 

tape recordings until after the plea negotiations were offered, which 

violated Canada’s right to the effective assistance of counsel during 

the plea process proceedings, which also prejudicially affected 

Canada’s choice on going to trial. 

(Petition, ECF No. 1.) 

Analysis 

Ground One: Confrontation Clause 

 In his First Ground for Relief, Canada claims his rights under the Confrontation Clause 
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were violated when the trial court permitted the jury to hear recorded telephone calls made by 

Alicia and Anthony Jenkins on November 9, 2013. The content of those calls was recited by the 

Tenth District on direct appeal. Canada I, 2015-Ohio-2167 at ¶¶ 5-8. The court then decided the 

related assignment of error as follows: 

A. First Assignment of Error 

[*P24] In his first assignment of error, appellant contends the trial 

court erred in admitting statements made by Alicia and Anthony in 

the three recorded telephone calls made on November 9, 2013. 

Despite capiases issued against them, neither Alicia nor Anthony 

appeared at trial. Appellant argues admission of their out-of-court 

statements violated the Ohio Rules of Evidence as well as his right 

to confront the witnesses against him as guaranteed by the Sixth 

Amendment to the United States Constitution and Article I, Section 

10 of the Ohio Constitution.

[*P25] Prior to the commencement of testimony, defense counsel 

made an oral motion in limine asking the court to exclude the 

statements made in the recorded calls on grounds they were 

testimonial evidence which should be excluded from trial pursuant 

to his constitutional right to confront witnesses against him. The 

prosecutor urged admission of the statements under the excited 

utterance exception to the hearsay rule. After taking a short recess 

to listen to the calls, the trial court denied appellant's motion. 

Following presentation of its case, the prosecutor moved to admit 

State's exhibit No. 19, the CD containing all three calls. Defense 

counsel objected on grounds that admission of the statements 

violated Ohio evidentiary rules and state and federal constitutional 

provisions. The trial court overruled the objection and admitted the 

CD. 

[Discussion of hearsay objection omitted.] 

[*P45] Appellant next contends that admission of the statements 

violated his right to confront the witnesses against him as guaranteed 

by the Sixth Amendment to the United States Constitution and 

Article I, Section 10 of the Ohio Constitution. We review the 

question of whether the trial court violated appellant's Confrontation 

Clause rights under a de novo standard. State v. Durdin, 10th Dist. 

No. 14AP-249, 2014-Ohio-5759, ¶ 15, citing State v. Rinehart, 4th 
6 

Dist. No. 07CA2983, 2008-Ohio-5770, ¶ 20; McClain at ¶ 16, citing 

State v. Dennison, 10th Dist. No. 12AP-718, 2013-Ohio-5535, ¶ 61. 

[*P46] "The Sixth Amendment's Confrontation Clause provides 

that, '[i]n all criminal prosecutions, the accused shall enjoy the right 

. . . to be confronted with the witnesses against him.'" Crawford v. 

Washington, 541 U.S. 36, 42 (2004). This "bedrock procedural 

guarantee applies to both federal and state prosecutions." Id., citing 

Pointer v. Texas, 380 U.S. 400, 406, (1965). "'Section 10, Article I 

[of the Ohio Constitution] provides no greater right of confrontation 

than the Sixth Amendment.'" State v. Arnold, 126 Ohio St.3d 290, 

2010-Ohio-2742, ¶ 12, quoting State v. Self, 56 Ohio St.3d 73, 79, 

(1990). 

[*P47] In Crawford, the United States Supreme Court considered 

whether the introduction of hearsay statements admissible under 

state law violated an accused's Sixth Amendment right to confront 

the witnesses against him. The statements at issue were made in a 

recorded formal police interrogation. The recorded statements were 

played for the jury at a trial in which the declarant did not testify. 

The court held the Confrontation Clause bars "admission of 

testimonial statements of a witness who did not appear at trial unless 

he was unavailable to testify and the defendant had had a prior 

opportunity for cross-examination." Id. at 53-54. Although the court 

did not expressly define "testimonial," it stated that the core class of 

testimonial statements includes ex parte in-court testimony or its 

functional equivalent, extrajudicial statements contained in 

formalized testimonial materials such as affidavits and depositions, 

"statements that were made under circumstances which would lead 

an objective witness reasonably to believe that the statement would 

be available for use at a later trial," and "[s]tatements taken by police 

officers in the course of interrogations." Id. at 52. The court further 

stated that the Confrontation Clause does not apply to 

nontestimonial hearsay. Id. at 68. 

[*P48] Later, in Davis v. Washington, 547 U.S. 813 (2006), the 

court considered whether a caller's responses to a 911 dispatcher's 

interrogation were testimonial when the caller failed to appear to 

testify at trial. The court held that "[s]tatements are nontestimonial 

when made in the course of police interrogation under 

circumstances objectively indicating that the primary purpose of the 

interrogation is to enable police assistance to meet an ongoing 

emergency. They are testimonial when the circumstances 

objectively indicate that there is no such ongoing emergency, and 

that the primary purpose of the interrogation is to establish or prove 

past events potentially relevant to later criminal prosecution." Id. at 
7 

822. The court assumed, without deciding, that the acts of a 911 

operator constituted acts of police. Id. at 823, fn.2. The court 

concluded the 911 caller's hearsay statements were not testimonial 

and were therefore not barred by the Sixth Amendment. Id. at 829. 

In so concluding, the court reasoned that (1) the statements 

described the events as they were actually happening, rather than 

explaining events that had happened in the past, (2) any reasonable 

listener would conclude the statements were made in the face of an 

ongoing emergency, (3) the interrogation was objectively necessary 

to resolve the ongoing emergency, rather than simply to learn what 

had happened in the past, and (4) the interrogation was informal 

because it was conducted over the telephone and the answers were 

provided frantically while in a chaotic and unsafe environment. Id.

at 827. The court averred the circumstances surrounding the 

interrogation "objectively indicate its primary purpose was to enable 

police assistance to meet an ongoing emergency. [The caller] simply 

was not acting as a witness; she was not testifying." (Emphasis sic.) 

Id. at 828. The Supreme Court of Ohio adopted the Davis primarypurpose test in State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 

paragraph one of the syllabus. 

[*P49] Appellant first contends the statements Alicia made in her 

first call at 5:33 a.m. were testimonial and, thus, barred by the 

Confrontation Clause. Specifically, appellant claims the statements 

fail the second prong of the primary-purpose test "because a 

reasonable listener would not conclude that [she] was facing an 

ongoing emergency." (Appellant's Brief, 18.) Appellant generally 

reiterates the same arguments presented in his challenge to the 

admission of the statements under the rules of evidence, i.e., that 

Alicia called a non-emergency police number and she spoke in a 

calm, matter-of-fact manner. The fact that Alicia called a nonemergency number rather than 911 does not establish there was no 

ongoing emergency. Alicia called a valid police telephone number 

and requested officer assistance. Her statements demonstrate that 

the situation was an emergency. She identified appellant as an 

"intruder" and reported that he had just kicked in her door and 

refused to leave. Further, her speaking in a calm manner does not 

mean there was no ongoing emergency. As we stated above, unlike 

a situation where a break-in by an unknown intruder might well 

result in a more emotionally-charged call to police, Alicia was wellacquainted with appellant. The trial court reviewed the call and, 

thus, was able to listen to the tone and tenor of Alicia's voice. Thus, 

we conclude Alicia's statements were not testimonial and, therefore, 

not barred by the Confrontation Clause. 
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[*P50] Appellant also contends the statements Alicia made in her 

7:21 a.m. 911 call were testimonial and, thus, barred by the 

Confrontation Clause. Appellant first refers to Alicia's statement 

that appellant kicked in her door at 5:30 that morning. Appellant 

claims this statement fails the first prong of the primary-purpose test 

because she "is describing events that happened in the past." 

(Appellant's Brief, 21.) We disagree. Alicia made the statement in 

response to the 911 dispatcher's question about what was happening. 

In an effort to explain the urgency of the current situation and to 

convince the 911 dispatcher to send the police, Alicia needed to 

provide some background information regarding appellant's earlier 

actions. Alicia's statement was not made to prove a past event, but 

to explain the full nature of her current emergency. 

[*P51] Appellant next cites Alicia's later statement that she and her 

family were outside and away from appellant. Appellant claims this 

statement fails the second prong of the primary-purpose test because 

"a reasonable listener would not conclude that she was facing an 

ongoing emergency." (Appellant's Brief, 21.) Again, we disagree. 

We first note that Alicia did not state that she and her family were 

away from appellant. To the contrary, she averred "he's still here." 

(Tr. 57, State's exhibit No. 19.) Appellant's continued presence at 

the scene after twice kicking in Alicia's doors and assaulting both 

Alicia and Anthony arguably establishes an ongoing emergency. 

This conclusion is buttressed by the 911 dispatcher's admonition to 

stay away from appellant. Thus, we conclude Alicia's statements 

were not testimonial and, therefore, not barred by the Confrontation 

Clause. 

Canada I, 2015-Ohio-2167. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100 

(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); 

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. § 

2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceedings. 
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 Respondent defends Ground One on the merits, asserting the Tenth District’s decision is 

entitled to deference under 28 U.S.C. § 2254(d)(1)(Return, ECF No. 5, PageID 1020-21). 

In his Petition Canada presented a substantial argument that the trial court erred in its Ohio 

evidence ruling on hearsay (Petition, ECF No. 1, PageID 17-22). This Court cannot review Ohio 

evidence law rulings of the state courts because habeas corpus is available only to correct federal 

constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. 

Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 

U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court 

determinations on state law questions. In conducting habeas review, a federal court is limited to 

deciding whether a conviction violated the Constitution, laws, or treaties of the United States." 

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 

152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, 

J., concurring). A federal habeas court may not re-evaluate a state court’s interpretation of state 

law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). 

 Canada also argues the Confrontation Clause point in the Petition (ECF No. 1, PageID 22-

26). He quarrels with the Tenth District’s findings that the speakers are describing an ongoing 

emergency, both by claiming that in the second and third calls, they are describing past events and 

by claiming that Alicia Jenkins was calm during the calls. However, the three calls are made in 

the course of an ongoing series of events, attempting to obtain police intervention, and Canada’s 

characterization of Alicia as calm in the face of his having kicked in both of her doors and assaulted 

her and her brother is, to say the least, self-interested. 

 The Magistrate Judge concludes the Tenth District’s decision is not an objectively 

unreasonable application of Davis v. Washington, 547 U.S. 813 (2006). The Tenth District 
10 

reasonably determined that Alicia Jenkins and her brother were attempting to obtain police 

assistance through all three calls. Therefore, the state court decision is entitled to deference under 

§ 2254(d)(1). On that basis, Ground One should be dismissed. 

Ground Two: Bad Acts Evidence 

 In his Second Ground for Relief, Canada claims he was denied a fair trial by the admission 

of other bad acts evidence against him in violation of Ohio R. Evid. 403(A). 

 Respondent first asserts that this claim is procedurally defaulted because it was never fairly 

presented to the state courts as a federal constitution claim. (Return, ECF No. 5, PageID 1021-

25.) As noted above, Canada has filed no reply, so this argument has not been rebutted. 

 To preserve a federal constitutional claim for presentation in habeas corpus, the claim must 

be "fairly presented" to the state courts in a way which provides them with an opportunity to 

remedy the asserted constitutional violation, including presenting both the legal and factual basis 

of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 

1506, 1516 (6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 

99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The claim must be fairly 

presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6th

Cir. 2009). 

 “Federal courts do not have jurisdiction to consider a claim in a habeas petition that was 

not ‘fairly presented’ to the state courts.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2004); 

accord, Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674, 

681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006); Blackmon v. Booker, 394 

F.3d 399, 400 (6th Cir. 2004). 
11 

 Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does 

not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th

Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); McMeans v. Brigano, 228 F.3d 

674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984). Mere 

use of the words “due process and a fair trial by an impartial jury” are insufficient. Slaughter v. 

Parker, 450 F.3d 224, 236 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 

2004)(same). “A lawyer need not develop a constitutional argument at length, but he must make 

one; the words ‘due process’ are not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th

Cir. 1995). 

 If a petitioner’s claims in federal habeas rest on different theories than those presented to 

the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 

2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d 313, 

322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)(“relatedness” of a claim 

will not save it). 

 Even if this claim had been properly preserved as a federal constitutional claim, Petitioner 

would not be entitled to relief on the merits. Cross-examination of a testifying defendant as to 

prior felony convictions is such an accepted part of American criminal practice that most felony 

defendants do not testify in their own behalf. “There is no clearly established Supreme Court 

precedent which holds that a state violates due process by permitting propensity evidence in the 

form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that 

the Supreme Court refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991). This is 

true even when the other bad acts evidence is introduced in some way other than upon crossexamination of a testifying defendant. 
12 

 Accordingly, Ground Two should be dismissed as procedurally defaulted or alternatively 

as without merit. 

Ground Three: Prosecutorial Misconduct 

 In his Third Ground for Relief, Canada asserts he was denied a fair trial by prosecutorial 

misconduct. Respondent asserts this Ground for Relief is barred by procedural default in that trial 

counsel did not object to the complained-of prosecutorial comments in closing . 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights 

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 

72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “[A]bsent cause and prejudice, ‘a federal 

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal 

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v. 

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 

456 U.S. at 110; Wainwright, 433 U.S. at 87. 
13 

[A] federal court may not review federal claims that were 

procedurally defaulted in state court—that is, claims that the state 

court denied based on an adequate and independent state procedural 

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 

L.Ed.2d 417 (2009). This is an important “corollary” to the 

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 

S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which 

a state prisoner fails to exhaust state remedies, a habeas petitioner 

who has failed to meet the State’s procedural requirements for 

presenting his federal claims has deprived the state courts of an 

opportunity to address” the merits of “those claims in the first 

instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115 

L.Ed.2d 640. The procedural default doctrine thus advances the 

same comity, finality, and federalism interests advanced by the 

exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 

S.Ct. 1454, 113 L.Ed.2d 517 (1991). 

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). 

 The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a 

habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 

2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 

345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott 

v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001). 

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, citing County Court of Ulster 

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 

(1979). 

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. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 
14 

there was "cause" for him to not follow the procedural rule and that 

he was actually prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). 

 In this case, the Tenth District reviewed Canada’s prosecutorial misconduct claim for plain 

error because there had been no contemporaneous objection. Canada I, 2015-Ohio-2167 ¶ 70. 

Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by calling 

them to the attention of the trial court at a time when the error could have been avoided or 

corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see 

also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground 

of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 

455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith 

v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); 

Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), 

citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 

2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 

542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. 

Bradshaw, 591 F.3d 517, 522 (6th Cir. 2009). 

An Ohio state appellate court’s review for plain error is enforcement, not waiver, of a 

procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell,

538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White 

v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); 

Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th

Cir. 2000)(plain error review does not constitute a waiver of procedural default); accord, Mason 
15 

v. Mitchell, 320 F.3d 604 (6th Cir. 2003). 

Because Canada filed no reply, he has offered no rebuttal to the State’s procedural default 

argument. Assuming he would rely on his attorney’s asserted ineffective assistance as providing 

excusing cause, that argument is rejected in Ground Four below. 

Ground Three should be dismissed as procedurally defaulted. 

Ground Four: Ineffective Assistance of Trial Counsel 

 In his Fourth Ground for Relief, Canada asserts he received ineffective assistance of trial 

counsel when his trial attorney failed to object to the prosecutorial misconduct allegedly committed 

during closing argument. 

The governing standard for ineffective assistance of trial counsel was adopted by the 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): 

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence has 

two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel was 

not functioning as the "counsel" guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the conviction 

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable. 

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009). 
16 

With respect to the first prong of the Strickland test, the Supreme Court has commanded: 

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

conduct, and to evaluate the conduct from counsel=s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action "might be 

considered sound trial strategy." 

466 U.S. at 689. 

As to the second prong, the Supreme Court held: 

The defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability 

sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 

313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally 

Annotation, 26 ALR Fed 218. 

 Although an Ohio appellate court’s plain error review is an enforcement rather than a 

waiver of a procedural default, its opinion is still entitled to deference under 28 U.S.C. § 

2254(d)(1). Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009); Kittka v. Franks, 539 Fed. 

Appx. 668, 672 (6th Cir. 2013); Bond v. McQuiggan, 506 Fed. Appx. 493, 498 n. 2 (6th Cir. 2013); 

Stojetz v. Ishee, 2014 U.S. Dist. LEXIS 137501 *231 (S.D. Ohio Sept. 24, 2014)(Frost, D.J.). In 

this case the Tenth District determined that the complained-of comments by the prosecutor in 

closing did not amount to prosecutorial misconduct. Therefore, even if objections had been made, 

it would not have been error for the trial judge to overrule them. It cannot be ineffective assistance 

of trial counsel to fail to make objections that would have been overruled. 
17 

 Therefore, Ground Four should be dismissed. 

Ground Five: Trial Court Cumulative Error 

 In his Fifth Ground for Relief, Canada claims he was denied a fair trial on the basis of the 

cumulative errors by the trial court. However, "post-AEDPA, not even constitutional errors that 

would not individually support habeas relief can be cumulated to support habeas relief." Hoffner 

v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010), quoting Moore v. Parker, 425 F.3d 250, 256 (6th

Cir. 2005); Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012). On that basis Ground Five 

should be dismissed. 

Ground Six: Insufficient Evidence/Manifest Weight of the Evidence 

 In his Sixth Ground for Relief, Canada asserts his conviction is against the manifest weight 

of the evidence and is not supported by sufficient evidence. A manifest weight of the evidence 

claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). 

 In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Ohio Supreme Court reaffirmed the 

important distinction between appellate review for insufficiency of the evidence and review on the 

claim that the conviction is against the manifest weight of the evidence. It held: 

In essence, sufficiency is a test of adequacy. Whether the evidence 

is legally sufficient to sustain a verdict is a question of law. State v. 

Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. 

In addition, a conviction based on legally insufficient evidence 

constitutes a denial of due process. Tibbs v. Florida (1982), 457 

U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing 

Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 

560. Although a court of appeals may determine that a judgment of 
18 

a trial court is sustained by sufficient evidence, that court may 

nevertheless conclude that the judgment is against the weight of the 

evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-

389, 124 N.E.2d at 149. Weight of the evidence concerns "the 

inclination of the greater amount of credible evidence, offered in a 

trial, to support one side of the issue rather than the other. It 

indicates clearly to the jury that the party having the burden of proof 

will be entitled to their verdict, if, on weighing the evidence in their 

minds, they shall find the greater amount of credible evidence 

sustains the issue which is to be established before them. Weight is 

not a question of mathematics, but depends on its effect in inducing 

belief." (Emphasis added.) 

When a court of appeals reverses a judgment of a trial court on the 

basis that the verdict is against the weight of the evidence, the 

appellate court sits as a " 'thirteenth juror' " and disagrees with the 

factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. 

at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin 

(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 

717, 720-721 ("The court, reviewing the entire record, weighs the 

evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new 

trial ordered. The discretionary power to grant a new trial should be 

exercised only in the exceptional case in which the evidence weighs 

heavily against the conviction."). 

78 Ohio St. 3d at 387. 

 The Thompkins case is consistent with federal constitutional law. An allegation that a 

verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 

(1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); 

Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a conviction to be 

constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In 

re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 
19 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable inferences 

from basic facts to ultimate facts. 

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); 

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was 

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law 

which determines the elements of offenses; but once the state has adopted the elements, it must 

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge 

should be assessed against the elements of the crime, not against the elements set forth in an 

erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S.Ct. 709, 715, 193 

L.Ed.2d 639 (2016). 

 In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to groups 

who might view facts differently than we would. First, as in all 

sufficiency-of-the-evidence challenges, we must determine 

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. 

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. 

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for 

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th 

Cir. 1993). Thus, even though we might have not voted to convict a 

defendant had we participated in jury deliberations, we must uphold 

the jury verdict if any rational trier of fact could have found the 

defendant guilty after resolving all disputes in favor of the 

prosecution. Second, even were we to conclude that a rational trier 

of fact could not have found a petitioner guilty beyond a reasonable 
20 

doubt, on habeas review, we must still defer to the state appellate 

court's sufficiency determination as long as it is not unreasonable. 

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to 

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 

541 F.3d 652, 665 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en 

banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction 

based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 

656 (6th Cir. 2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial 

deference. First, on direct appeal, "it is the responsibility of the jury 

-- not the court -- to decide what conclusions should be drawn from 

evidence admitted at trial. A reviewing court may set aside the jury's 

verdict on the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 

1, ___, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). And 

second, on habeas review, "a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 

federal court instead may do so only if the state court decision was 

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U.S. 

[766], [773], 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43 

(2012) (per curiam). 

 Canada raised manifest weight and sufficiency claims together as his Seventh Assignment 

of Error on direct appeal and the Tenth District decided the sufficiency claims as follows: 

[*P98] In his seventh assignment of error, appellant contends his 

convictions for aggravated burglary and domestic violence were not 

supported by sufficient evidence and were against the manifest 

weight of the evidence. 
21 

[*P99] "In a criminal prosecution, the state bears the burden of proof 

with respect to each statutory element of an offense." Abi-Adballah. 

The standard for evaluating whether the state has presented 

sufficient evidence 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. Robinson, 124 Ohio St.3d 76, 2009-

Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259, (1991), 

paragraph two of the syllabus. Whether the evidence is legally 

sufficient to sustain a verdict is a question of law, not fact. State v. 

Thompkins, 78 Ohio St.3d 380, 386, (1997). On review for 

sufficiency, courts do not assess whether the state's evidence is to be 

believed, but whether, if believed, the evidence would support a 

conviction. Id. at 390. In determining the sufficiency of the 

evidence, an appellate court must give "'full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts.'" State v. Gordon, 10th Dist. No. 

10AP-1174, 2011-Ohio-4208, ¶ 5, quoting Jackson v. Virginia, 443 

U.S. 307, 319 (1979). "Consequently, a verdict will not be disturbed 

based upon insufficient evidence unless, after viewing the evidence 

in a light most favorable to the prosecution, it is apparent that 

reasonable minds could not reach the conclusion reached by the trier 

of fact." Id., citing Treesh at 484. 

[*P100] We first address appellant's claim that insufficient evidence 

supported his conviction for aggravated burglary. R.C. 2911.11(A)

proscribes aggravated burglary and provides, in relevant part, that 

"[n]o person, by force, stealth, or deception, shall trespass in an 

occupied structure * * * when another person * * * is present, with 

purpose to commit in the structure * * * any criminal offense, if any 

of the following apply: (1) [t]he offender inflicts, or attempts or 

threatens to inflict physical harm on another." 

[*P101] Appellant's sole contention regarding the sufficiency of the 

evidence is that the state failed to prove he trespassed in Alicia's 

apartment. "[T]respass is an essential element of aggravated 

burglary." State v. O'Neal, 87 Ohio St.3d 402, 408 (2000). Pursuant 

to R.C. 2911.21(A)(1), a criminal trespass occurs when a person 

"without privilege to do so," "[k]nowingly enter[s] or remain[s] on 

the land or premises of another." R.C. 2901.01(A)(12) defines 

"[p]rivilege" as "an immunity, license, or right conferred by law, 

bestowed by express or implied grant, arising out of status, position, 

office, or relationship, or growing out of necessity." "Land or 

premises" includes "any land, building, structure, or place belonging 

to, controlled by, or in custody of another." R.C. 2911.21(F)(2). 
22 

[*P102] Appellant cites his own testimony that he lived with Alicia 

and paid bills associated with the apartment, along with Shelton's 

testimony that he removed some of appellant's personal belongings 

from Alicia's apartment after the incident and that he thought 

appellant paid some of Alicia's bills, as proof that appellant did not 

trespass in the apartment. Appellant contends the state provided no 

evidence contradicting this testimony other than the inadmissible 

hearsay testimony of Alicia and Anthony in their calls to the police. 

As noted in our resolution of appellant's first assignment of error, 

statements made in those calls were properly admitted into evidence. 

[*P103] In O'Neal, the Supreme Court of Ohio held that "R.C. 

2911.21(A)(1), when read in conjunction with R.C. 2911.21(E)

[now (F)(2)], establishes that any person can indeed commit a 

trespass against property that belongs to, is controlled by, or is in the 

custody of, someone else." (Emphasis sic.) Id. at 408. Indeed, even 

"a spouse can be convicted of trespass and aggravated burglary in 

the dwelling of the other spouse who owns, has custody of, or 

control over the property where the crime has occurred." Id., citing 

State v. Lilly, 87 Ohio St.3d 97 (1999), paragraph one of the 

syllabus. 

[*P104] In her 5:33 a.m. call to the police station, Alicia referred to 

appellant as an "intruder," and reported that he "decided to come 

kick my door in and he's standing in my living room refusing to 

leave." (Emphasis added.) (Tr. 52, State's exhibit No. 19.) In his call 

to 911, Anthony described appellant as "an intruder." In her call to 

911, Alicia again reported that appellant "kicked in my door at 5:30 

in the morning" and "kicked in my back door." (Emphasis added.) 

(Tr. 56, State's exhibit No. 19.) Further, Officers Garrett and 

Dawson and Detective Rotthoff all testified that their investigations 

revealed no information that appellant resided at Alicia's apartment. 

To the contrary, appellant reported his address as 45 Stevens 

Avenue both when he was arrested and during his interview with 

police. Alicia's identification of appellant as an "intruder," her 

references to "my door" and "my living room," along with 

appellant's action in kicking in the doors and his subsequent 

reporting of his address as one other than 1842 Noe-Bixby Road, 

support the conclusion that Alicia exercised sole custody and/or 

control over the apartment at the time appellant entered and that 

appellant knowingly entered Alicia's apartment without privilege to 

do so, thereby committing a trespass in violation of R.C. 

2911.21(A)(1). Viewing the evidence in a light most favorable to 

the prosecution and without making credibility determinations, we 

conclude the evidence was sufficient to prove the element of 
23 

trespass and, by extension, to support the conviction for aggravated 

burglary in violation of R.C. 2911.11(A)(1). 

[*P105] Appellant also contends the evidence was insufficient to 

support his conviction for domestic violence. R.C. 2919.25(A)

provides that "[n]o person shall knowingly cause or attempt to cause 

physical harm to a family or household member." As pertinent here, 

"[p]hysical harm" to a person means "any injury * * * regardless of 

its gravity or duration." R.C. 2901.01(A)(3). "Family or household 

member" includes a person who "has resided with an offender" and 

was "living as a spouse." R.C. 2919.25(F)(1)(a)(i). As pertinent 

here, R.C. 2919.25(F)(2) defines "[p]erson living as a spouse," as "a 

person who * * * has cohabited with the offender within five years 

prior to the date of the alleged commission of the act in question." 

Pursuant to R.C. 2919.25(D)(4), if an offender previously has been 

convicted of two or more offenses of domestic violence, then a 

violation of R.C. 2919.25(A) is a felony of the third degree. 

[*P106] Appellant does not dispute that Alicia is a "family member" 

or that he previously was convicted of two offenses of domestic 

violence. Rather, appellant solely contends the state failed to prove 

he physically harmed or threatened to physically harm Alicia. 

Appellant argues that no evidence in the record, other than through 

improperly admitted testimonial hearsay, established that any 

physical harm occurred. Again, we note that Alicia's call to 911 was 

properly admitted into evidence. In that call, Alicia reported that 

appellant "smacked" her. (Tr. 56, State's exhibit No. 19.) Further, 

Officer Garrett described observing a mark on Alicia's face that 

suggested she had been slapped, and the state presented photographs 

depicting a red mark on Alicia's face. More importantly, appellant 

admitted in his jailhouse call that he slapped Alicia. Viewing the 

evidence in a light most favorable to the prosecution, and without 

making credibility determinations, we conclude the evidence was 

sufficient to prove the element of physical harm and, by extension, 

to support the conviction for domestic violence in violation of R.C. 

2919.25(A). 

Canada I, 2015-Ohio-2167. 

 Upon review, the Magistrate Judge concludes the Tenth District’s decision on sufficiency 

of the evidence is neither contrary to nor an objectively unreasonable application of Jackson. 

Although the evidence was not unequivocal about where Canada resided, the gave his address to 

the police as different from the premises at which he kicked in the doors. And he admitted in a 
24 

telephone call from the jail that he slapped Alicia Jenkins. He now claims that was a lie, but the 

jury was free to believe it was a true admission, 

The Sixth Ground for Relief should therefore be dismissed on the merits. 

Grounds Seven and Eight: Ineffective Assistance of Appellate Counsel 

In his Seventh Ground for Relief, Canada claims he received ineffective assistance of 

appellate counsel when his appellate attorney failed to raise as assignments of error that: (A) trial 

counsel was “ineffective” by failing to “investigate” the case, prior to a proposed plea bargain 

offer, pertaining to the existance [sic] of certain 911 CD recording(s); and (B) due to the fact that 

counsel at trial was ineffective during the “plea proceedings,” which caused Petitioner to reject the 

proposed plea offer, and causing Petitioner to suffer “actual prejudice. 

 In his Eighth Ground for Relief, Canada claims he received ineffective assistance of 

appellate counsel when counsel did not raise the following assignments of error: (1) defense 

counsel’s failure to object to the admissibility of the 911 recordings on grounds that prosecutor 

withheld such evidence from being timely provided to the defense, thereby violating the rules 

governing discovery; (2) the prosecutor committed prosecutorial misconduct by not providing the 

evidence in a timely manner; (3) the trial judge abused her discretion by allowing the introduction 

of the 911 recordings to be allowed into the record as evidence, knowing that defense counsel had 

just been provided the evidence on the day of trial; (4) Petitioner’s right to effective assistance of 

counsel was violated by the prosecutor’s failure to provide the 911 recordings until the day of trial; 

and (5) Petitioner was denied his right to a fair trial, as well as to the right to effective assistance 

of counsel, resulting from the prosecution’s failure to timely provide the actual 911 recordings to 
25 

the defense until the day of trial. 

 In the Return, Respondent concedes that Canada has preserved his ineffective assistance 

of appellate counsel claims for merits review by filing an Application for Reopening under Ohio 

R. App. P. 26(B), but asserts the Tenth District’s decision on the claims is entitled to deference 

under Strickland, supra. The Tenth District rendered the following decision of these claims: 

{¶ 8} In his first proposed assignment of error, appellant argues that 

his appellate counsel's performance was deficient inasmuch as 

counsel did not raise, as an error on appeal, that trial counsel was 

ineffective for failing to investigate the case prior to advising 

appellant on plea offers. Specifically, appellant contends that his 

trial counsel was ineffective by failing to obtain and listen to 911 

recordings prior to the date of the trial and by failing to contact the 

victim and her brother to confirm they would testify at trial. 

Appellant asserts that he rejected plea offers on the belief that the 

victim and her brother would testify, and therefore he would be able 

to establish his residency at the apartment through their crossexamination, thereby disproving the aggravated burglary offenses. 

Instead, the "secret" 911 recordings used "[i]n place of" the victim's 

and her brother's testimony tended to show he was an "intruder" to 

the victim's apartment, and prejudiced the jury against him. . . . 

Thus, according to appellant, his trial counsel's failure to investigate 

the 911 calls and confirm trial witnesses caused appellant to reject 

several proposed plea offers, and appellant believes this error should 

have been raised on appeal instead of weaker arguments selected by 

appellate counsel. 

{¶ 9} Regarding the 911 recordings, the record does not support 

appellant's allegation that trial counsel's performance was deficient 

in failing to investigate the 911 recordings. Trial counsel requested 

discovery from the state and, through no fault of his own, did not 

receive the calls until the morning of trial. The record similarly does 

not support appellant's allegation that trial counsel's performance 

was deficient regarding the victim and her brother testifying. The 

victim and her brother were served with subpoenas, but failed to 

appear several times. The state, let alone defense counsel, was 

unable to ascertain whether they would appear at trial. 

{¶ 10} Further, appellant cannot show he was prejudiced by defense 

counsel's receipt of the 911 recordings on the morning of the trial, 

or by the lack of cross-examining the victim and her brother. The 

record shows that appellant was present while the victim called 911, 
26 

and the existence of the recordings was disclosed before plea 

negotiations in the police summary provided by the state. Trial 

counsel reviewed the calls prior to trial, argued against their 

admission into evidence, and succeeded in having one call excluded. 

Further, nothing in the record shows that either the victim or her 

brother would have testified to appellant residing at the apartment 

in question on cross-examination, as appellant suggests. Although 

the state mentioned that the victim did not wish for appellant to go 

to jail for a long time, it also emphasized that she never wavered 

from her version of the facts, which included appellant breaking into 

her residence. 

{¶ 11} Shortly after hearing that the victim had not recanted or 

changed the facts of her story, appellant declined the second plea 

offer, which featured a jointly recommended sentence with a 

significant reduction from the possible maximum sentence. 

Discussing appellant's rejection of the plea offer, trial counsel 

indicated that despite the reduction offered, appellant "nonetheless 

* * * has not wavered from his desire to have that trial throughout" 

and simply "wants to have a trial." . . . Therefore, although appellant 

now insists otherwise, the record does not show that appellant would 

have accepted the plea offers had he known that the 911 recordings 

would be admitted and the victim and her brother would not testify, 

but rather demonstrates appellant's unwavering desire to proceed 

with a jury trial. 

{¶ 12} In summary, trial counsel was not deficient in regard to 

investigating the 911 recordings and the victim's testimony, and 

appellant either cannot show prejudice or relies on evidence outside 

the record to show prejudice. As such, appellate counsel was not 

deficient in failing to assign errors related to these points on appeal 

and, regardless, appellant did not have a reasonable probability of 

success if the issue had been presented on appeal. Lee at ¶ 2; State 

v. Coles, 5th Dist. No. 15CAA010001, 2015-0hio-4159, ¶ 11, citing 

State v. Hartman, 93 Ohio St.3d 274, 299 (2001) ("A claim requiring 

proof that exists outside of the trial record cannot appropriately be 

considered on a direct appeal."). Under these circumstances, 

appellant's first proposed assignment of error fails to demonstrate a 

colorable claim of ineffective assistance of appellate counsel to 

reopen this case. 

{¶ 13} In appellant's second proposed assignment of error, appellant 

argues that his appellate counsel was deficient in failing to raise 

several more assignments of error related to the prosecutor's 

provision of the 911 recordings on the day of the trial. Specifically, 

appellant believes that appellate counsel should have raised as errors 
27 

on appeal: that trial counsel was ineffective for failing to object to 

the 911 recordings on the grounds that that prosecutor withheld the 

calls in violation of discovery rules; that the prosecutor committed 

prosecutorial misconduct by not providing the 911 recordings until 

the day of the trial, which deprived appellant of effective assistance 

of counsel and a fair trial; and that the trial court abused its discretion 

by allowing the 911 recordings into evidence. 

{¶ 14} Appellant's arguments are rooted in Brady v. Maryland, 373 

U.S. 83 (1963), and its progeny or, alternatively, a violation of 

Crim.R. 16 discovery rules. Brady provides that "[t]he prosecutor 

must * * * provide defendants any evidence that is favorable to them 

whenever that evidence is material either to their guilt or 

punishment." State v. Pickens, 141 Ohio St.3d 462, 2014-0hio5445, ¶ 96, cert. denied, Pickens v. Ohio, _U.S._, _ S.Ct. 193 

L.Ed.2d 471, 84 U.S.L.W. 3320 (2015), citing Brady at 87. "Brady

material" may be disclosed during trial and not result in a due 

process violation, so long as it is disclosed to a defendant in time for 

its effective use. Pickens, citing State v. Iacona, 93 Ohio St.3d 83, 

100 (2001). 

{¶ 15} Crim.R. 16 requires the prosecutor to disclose certain 

information, including any recorded statement by a witness in the 

state's case-in-chief, prior to trial upon a proper discovery request 

made by the defendant. Crim.R. 16(B) and note. Under Crim.R. 

16(L), "[t]he trial court: continues to retain discretion to ensure that 

the provisions of the rule are followed," for example, by giving 

orders to permit discovery or inspection, granting a continuance, 

prohibiting the party from introducing in evidence the material not 

disclosed, or "such other order as it deems just under the 

circumstances." Crim.R. 16(L) and note. On appeal," '[v]iolations 

of Crim.R. 16 by the prosecution may result in reversible error only 

upon a showing that (1) the prosecution's failure to disclose was a 

willful violation of the rule, (2) foreknowledge of the information 

would have benefited the accused in preparing a defense, and (3) the 

accused has suffered prejudice.' " State v. Payne, 10th Dist. No. 

09AP-107, 2010-0hio-1018, ¶ 35, quoting State v. LaMar, 95 Ohio 

St.3d 181, 2002-0hio-2128, ¶ 38, citing State v. Joseph, 73 Ohio 

St.3d 450, 458 (1995). 

{¶ 16} Here, the prosecutor provided the 911 recordings to defense 

counsel on the morning of the trial, prior to the start of trial. The 

prosecutor stated that he made great efforts in order to receive the 

911 recordings from the detectives, and defense counsel believed 

that the prosecutor was not at fault for the timing of provision of the 

recordings. Although she did not determine a discovery violation 
28 

occurred, the trial court judge offered defense counsel the 

opportunity to recess for a day. Defense counsel indicated that he 

had already listened to the recordings, proceeded to pursue 

arguments against the inclusion of the recordings into evidence, and 

ultimately succeeding in having one out of four of the recordings 

excluded. Furthermore, as discussed previously, the recordings 

indicate that appellant was present while the victim spoke to the 911 

operator, and the existence of the recordings was included in the 

police summary provided as part of discovery. 

{¶ 17} Considering the 911 recordings were not favorable to 

appellant and the state nonetheless provided the recordings in time 

for defense counsel to argue vigorously against their inclusion, this 

record does not reveal the prosecution's suppression of exculpatory 

evidence as proscribed under Brady. Further, even assuming that the 

prosecutor's failure to disclose the 911 recordings until the morning 

of the trial is a violation of Crim.R. 16, the record does not support 

reversible error on appeal, but rather supports the determination that 

the lack of disclosure was inadvertent rather than willful, that 

appellant had prior knowledge of the 911 calls, and that appellant 

was not able to establish prejudice, as noted in the first assignment 

of error. 

{¶ 18} As such, appellant has not demonstrated that appellate 

counsel was deficient in failing to raise issues related to the 

prosecution's provision of the 911 recordings on the day of trial, 

including trial counsel's failure to object to this timing and the trial 

court's exercise of discretion to admit the recordings, or 

demonstrated that he had a reasonable probability of success if the 

issue had been presented on appeal. 

{¶ 19} Under the circumstances, appellant's second proposed 

assignment of error fails to demonstrate a colorable claim of 

ineffective assistance of appellate counsel. 

State v. Canada, No. 14AP-523 (10th Dist. Jan. 21, 2016)(unreported; copy at State Court Record 

ECF No. 4-1, Ex. 19, PageID 483-86). 

A criminal defendant is entitled to effective assistance of counsel on appeal as well 

as at trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. 

Lucey, 469 U.S. 387, 394 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 

631, 636 (6th Cir. 2008). The Strickland test applies to appellate counsel. Smith v. Robbins, 528 
29 

U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). 

To evaluate a claim of ineffective assistance of appellate counsel, 

then, the court must assess the strength of the claim that counsel 

failed to raise.” 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. 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 to ineffective assistance of appellate counsel. 

Id. 

Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011). The attorney 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." 463 U.S. 751-52). Effective appellate advocacy is rarely characterized 

by presenting every non-frivolous argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 

441 (6th Cir. 2003). Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004; see Smith v. Murray, 

477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those presented will the 

presumption of effective assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876 

F.3d 248 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008). 

However, failure to raise an issue can amount to ineffective assistance. McFarland v. Yukins, 356 

F.3d 688 (6th Cir. 2004), citing Joshua, 341 F.3d at 441; Lucas v. O’Dea, 179 F.3d 412, 419 (6th

Cir. 1999); and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 1999). Counsel can be ineffective 

by failing to raise a “dead-bang winner,” defined as an issue which is obvious from the trial record 

and which would have resulted in a reversal on appeal, even if counsel raised other strong but 

unsuccessful claims. Mapes, supra, citing Banks v. Reynolds, 54 F. 3d 1508, 1515 n.13 (10th Cir. 
30 

1995); see also Page v. United States, 884 F. 2d 300, 302 (7th Cir. 1989). Stated differently, failure 

to raise a significant and obvious claim can amount to reversible error. Mapes v. Tate, 388 F.3d 

187, 192 (6th Cir. 2004). 

 “In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner 

must show errors so serious that counsel was scarcely functioning as counsel at all and that those 

errors undermine the reliability of the defendant’s convictions.” McMeans v. Brigano, 228 F.3d 

674(6th Cir. 2000), citing Strickland and Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994). 

Counsel’s failure to raise an issue on appeal could only be ineffective assistance if there is a 

reasonable probability that inclusion of the issue would have changed the result of the appeal. 

McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing Greer v. Mitchell, 264 F.3d 663, 

676 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002). “Counsel’s performance is strongly 

presumed to be effective.” McFarland, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000), 

citing Strickland. “To prevail on a claim of ineffective assistance of appellate counsel, a petitioner 

must show that appellate counsel ignored issues [that] are clearly stronger than those presented.” 

Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009); Smith v. Robbins, 528 U.S. 259, 288 (2000), 

quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). 

 Upon review, the Magistrate Judge concludes that the Tenth District’s decision on these 

ineffective assistance of appellate counsel claims is neither contrary to nor an objectively 

unreasonable application of Strickland. Canada’s claim that it was ineffective assistance of trial 

counsel to fail to investigate the 911 recordings prior to trial is belied by the evidence before the 

Court of Appeals, which Canada emphasizes as true, that the recordings were not produced to 

defense counsel until the day of trial. Since they were in police custody, it is unclear how defense 

counsel could have “investigated” them. The prosecutor insisted and was apparently believed by 
31 

defense counsel that the prosecutor himself did not receive them until just before trial. Canada 

avers his understanding was that Alicia Jenkins and her brother were going to come to trial and 

support his claim that he lived with her, but he points to no record corroboration of that 

understanding. The trial judge offered a continuance because of the later production of the 

recordings, but the defense did not accept that offer. 

 Based on this analysis, the Seventh and Eighth Grounds for Relief should be dismissed. 

Grounds Nine and Ten: Ineffective Assistance of Trial Counsel 

In his Ninth and Tenth Grounds for Relief, Canada asserts he received ineffective 

assistance of trial counsel when his trial attorney (1) failed to subpoena any witnesses for trial, (2) 

failed to investigate the case prior to trial, and (3) failed to investigate the 911 recordings for 

purposes of advising Canada on plea offers. He also asserts that the prosecutor’s purposeful delay 

in furnishing the 911 recordings deprived him of the effective assistance of counsel in plea 

negotiations. 

 Respondent asserts these claims are procedurally defaulted because they could have been 

presented on direct appeal and were not, thereby becoming barred under Ohio’s criminal res 

judicata doctrine (Return, ECF No. 5). Having filed no reply, Canada has not rebutted this defense. 

To the extent Canada raised these claims in his Petition for post-conviction relief, the trial court 

actually enforce the res judicata bar against him and he failed to perfect an appeal from that 

decision. 

 Grounds Nine and Ten should be dismissed as procedurally defaulted. 
32 

Conclusion 

 On the basis for the foregoing analysis, it is respectfully recommended that the Petition 

herein be dismissed with prejudice. Because reasonable jurists would not disagree with this 

conclusion, Petitioner should be denied a certificate of appealability and the Court should certify 

to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be 

permitted to proceed in forma pauperis. 

May 6, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).