1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

JASON ADAMS, 

Petitioner, : Case No. 1:17-cv-572 

- vs - District Judge Susan J. Dlott 

Magistrate Judge Michael R. Merz 

WARDEN, 

 Allen/Oakwood Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case was brought pro se by petitioner Jason Adams to obtain relief from 

his conviction in the Lawrence County Court of Common Pleas on a charge of complicity to 

aggravated robbery. The Petition was filed August 30, 20171 (ECF No. 1). On order of Magistrate 

Judge Bowman (ECF No. 2), Respondent has filed the State Court Record (ECF No. 4) and a 

Return of Writ (ECF No. 5). The pleadings became complete when Petitioner filed his Reply (ECF 

No. 7). The case has recently been transferred to the undersigned to help balance the Magistrate 

Judge workload in the Western Division of this Court (ECF No. 8). 

 

1

 Adams claims he mailed the Petition on August 9, 2017, and Respondent does not dispute that claim. Under the 

“mailbox” rule, Adams is entitled to a filing date of August 9, 2017. Houston v. Lack, 487 U.S. 266 (1988); Cook v. 

Stegall, 295 F.3d 517, 521 (6th Cir. 2002). The difference is not material. 
2 

Procedural History 

 Petitioner was indicted March 25, 2014, by the Lawrence County Grand Jury on one count 

of aggravated robbery of Charles Jones. Adams was convicted by a trial jury and sentenced to 

nine years imprisonment. He timely appealed to the Fourth District Court of Appeals, raising six 

assignments of error. Among them were his claim that he received ineffective assistance of trial 

counsel because his attorney did not object to references to the guilty pleas of his co-defendants. 

The Fourth District overruled four assignments of error, including the ineffective assistance of trial 

counsel assignment, found one moot because it had been resolved by the parties, and remanded 

for proper advice to Adams on the terms of post-release control. State v. Adams, 2016-Ohio-7772, 

84 N.E.3d 155(4th Dist.) (“Adams I”). Adams did not appeal to the Supreme Court of Ohio. 

 On June 14, 2016, while his direct appeal was pending, Adams filed a petition for postconviction relief under Ohio Revised Code § 2953.21. The trial court dismissed the petition, and 

Adams again appealed to the Fourth District. That court affirmed dismissal of the petition. State 

v. Adams, Case No. 16CA23, 2017-Ohio-509 (4th Dist. Lawrence Feb. 6, 2017) (“Adams II”). This 

time, Adams appealed to the Supreme Court of Ohio, but that court declined jurisdiction. Adams 

II, 149 Ohio St. 3d 1434, 2017-Ohio-4396 (2017). 

 Adams then filed his Petition here, pleading one ground for relief: 

Ground One: Deprivation of my Sixth and Fourteenth 

Amendments to the United States Constitution- Ineffective 

assistance of counsel. 

Supporting Facts: Counsel at trial failed to defend petitioner with 

evidence of inconsistencies of statements of co-defendant and 

victim, as well as attack the credibility of the detective in the case. 

Also the Common Pleas court did not submit findings of fact and 

conclusions of law when it denied petitioner’s post-conviction. 
3 

(Petition, ECF No. 1, PageID 6). 

Analysis 

 Although Adams has stated his claims in one Ground for Relief, Respondent reads the 

Petition as raising two claims: ineffective assistance of trial counsel; and denial of due process by 

the state trial court’s failure to file findings of fact and conclusions of law in post-conviction. 

Adams accepts that reading and argues the two claims separately (ECF No. 7). This Report will 

also analyze the two claims separately. 

Claim One: Ineffective Assistance of Trial Counsel by Failure to Cross-examine 

 Adams asserts his defense counsel provided ineffective assistance by not attacking the 

credibility of the co-defendants, the victim, and the investigating detective. This was not part of 

the ineffective assistance of trial counsel claim he raised on direct appeal. Rather, he first presented 

it to the Ohio courts in his petition for post-conviction relief. 

Defendant was deprived effective assistance of counsel under the 

Sixth and Fourteenth Amendments to the United States Constitution 

as well as Article I Section 10 of the Ohio Constitution because 

counsel rendered ineffective assistance when failing to defend the 

defendant with evidence of inconsistencies of statements of codefendant and victim, as well as attack the credibility of the 

detective in this case. 

(Petition, State Court Record, ECF No. 4, PageID 258). In denying relief on that claim, the trial court 

recited the governing federal standard from Strickland v. Washington, 466 U.S. 668 (1984), which 

requires that a defendant show professionally deficient performance by his trial attorney and that 
4 

the deficiency prejudiced his case (Judgment Entry, State Court Record, ECF No. 4, PageID 276, 

et seq.). Judge Cooper noted that the choice of what witnesses to call or what lines of questioning 

to pursue “falls within the area of trial strategy.” Id. at PageID 277. Without adverting to any 

evidence Adams had filed2, he concluded “the Defendant failed to make a prima facie argument 

or argue substantive grounds for relief as required by [Ohio] R.C. 2953.21(C).” Id. 

 On appeal, Adams urged reversal because the trial court had not held a hearing or provided 

findings of fact and conclusions of law. The Fourth District summarized the trial evidence, which 

it had just reviewed on direct appeal, and noted that Adams himself had testified. Adams II, 2017-

Ohio-4396. Judge McFarland noted that “[t]he defense strategy was to attempt to cast doubt on the 

credibility of the investigating officers and Scott Lewis [one of the co-defendants]. However, the jury 

must have found the circumstantial evidence overwhelming and Appellant not to be a credible 

witness.” Id. at ¶ 6. Thus, the Fourth District credits trial counsel for pursuing the same strategy 

Adams advances. Adams’s claim before this Court, then, appears to be that counsel did not pursue 

that strategy hard enough, and did not use all the tools available to him (Petition, ECF No. 1, 

PageID 6). 

 The Fourth District then held that before granting a hearing on a post-conviction petition, 

the trial court must determine that substantive grounds for relief exist per Ohio Revised Code § 

2953.21(C). "Substantive grounds for relief exist and a hearing is warranted if the petitioner 

produces sufficient credible evidence that demonstrates the petitioner suffered a violation of the 

petitioner's constitutional rights," Adams II, 2017-Ohio-519 at ¶ 11, quoting In re B.C.S., 4th Dist. 

 

2

 The only evidence attached to the Petition for post-conviction relief in the State Court Record as filed here is Adams’s 

own affidavit. 
5 

Washington Case No. 07CA60, 2008-Ohio-5771, ¶ 11 (Oct. 29, 2008). 

 Judge McFarland also cited Ohio’s doctrine of res judicata as applied to criminal cases, 

derived from State v. Perry, 10 Ohio St. 2d (1967). Adams II, 2017-Ohio-519 at ¶ 12. Noting that 

res judicata bars a claim in post-conviction that could have been raised on direct appeal, he noted 

also that “the doctrine of res judicata does not apply where the petitioner relies on competent, 

relevant, and material evidence, outside the trial court's record, and such evidence must not be 

evidence that existed or was available for use at the time of trial.” Id. at ¶ 14, citing State v. 

Melhado, 10th Dist. Franklin Case No. 13AP-114, 2013-Ohio-3547, ¶ 10 (Aug. 15, 2013), and 

State v. Braden, 10th Dist. Franklin No.02AP-954, 2003-Ohio-2949, ¶ 27 (10th Dist. Jun. 10, 2003). 

The court then listed twenty evidentiary items attached to the Petition for post-conviction relief, 

id. at ¶ 15, and then concluded that: 

We are unable to determine whether all of the memoranda and 

reports submitted with Appellant's petition were submitted with 

discovery and actually made part of the trial court record. However, 

it is clear that all the memoranda and reports were submitted to 

defense counsel and available for use at trial. 

A petition for post-conviction relief is not the proper vehicle to raise 

issues that were or could have been determined on direct appeal. 

Id. (citations omitted). The Fourth District concluded that the trial judge could not have relied on 

res judicata at the time he filed his decision because the direct appeal was still pending. At the 

time of the appeal from denial of post-conviction, however, the direct appeal judgment was final. 

The court accordingly concluded: 

We find, as in [State v.] Black [2016-Ohio-3104, (4th Dist. Ross May 

17, 2016)] that Appellant's current claims of ineffective assistance 

of trial counsel could have and should have been raised in the direct 

appeal of his conviction. Appellant had different counsel in his 

direct appeal and did not raise an ineffective assistance of counsel 
6 

claim. Although the trial court could not have relied on res judicata 

because Appellant's direct appeal was still pending at the time the 

petition was dismissed, it is applicable. Like Black, Appellant was 

well aware of his counsel's actions and/or claimed inactions. Like 

Black, Appellant generally claims he provided his counsel with 

evidence and information which his counsel failed to use at trial. 

Appellant, like Black, was aware of these claims and others and 

could have included them in his direct appeal. For the foregoing 

reason, we find the claims Appellant raised his post-conviction 

petition are barred by the doctrine of res judicata. 

Id., ¶ 21. 

The Asserted Res Judicata Procedural Default Bar 

 Respondent asserts that Adams’s claim of ineffective assistance of trial counsel is 

procedurally defaulted by his failure to raise it on direct appeal (Return, ECF No. 5, PageID 466-

67.) That is, Respondent relies on the Fourth District’s holding that the ineffective assistance of 

trial counsel issues raised in post-conviction could have been raised on direct appeal and are barred 

by res judicata because they were not so raised. 

 Adams does not quarrel with Respondent’s statement of the general law of procedural 

default, but contends it does not apply to this case because his claims could not have been raised 

on direct appeal (Traverse, ECF No. 7, PageID 475). 

 Adams is correct that, even if his appellate attorney had had these investigative materials, 

he could not have placed them in the trial record because that record is “frozen” at the time of the 

verdict. But that does not dispose of the Fourth District’s res judicata determination, for that court 

reads Ohio res judicata law as applying not only to evidence that was actually in the appeals record, 

but evidence that was in the hands of defense counsel as the time of trial, whether or not ever made 
7 

part of the appellate record. 

 Instead, Adams cites Sixth Circuit law to the effect that state court reliance on res judicata 

is not a procedural bar if that reliance is “misplaced.” (Traverse, ECF No. 7, PageID 473-76, citing 

White v. Mitchell, 431 F.3d 517 (6th Cir. 2005); Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005); and 

Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001)). 

 Federal habeas corpus courts are bound by state court interpretation of state law. "[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. 2018)(Thapar, J., concurring). Whereas an appellate court 

on habeas review decides federal law questions de novo, the federal reviewing court is generally 

bound by state court interpretations of state law. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), 

quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s 

interpretation of state law, including one announced on direct appeal of the challenged conviction, 

binds a federal court sitting in habeas corpus.”); Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 

2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-

36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). 

 Certainly in this case, the Fourth District definitively interpreted Ohio criminal res judicata 

doctrine as barring Petitioner’s claim because all the material on which he relied was, by his own 

admission, in the hands of his trial attorney before trial. Adams principally relies on White v. 

Mitchell, supra, for bypassing res judicata when state court reliance on it is “misplaced.” White 

was a capital case and it relies on two prior capital cases, also cited by Adams, Hill v. Mitchell, 
8 

supra, and Greer v. Mitchell, supra. In none of those three cases was the evidence outside the 

record relied on in post-conviction of the same character as the evidence here, to wit, available to 

the trial attorney. In White, the post-conviction evidence was an affidavit from the mitigation 

expert, Dr. Smith, as well as affidavits from two additional experts. 431 F.3d at 527. In Hill as 

well, the post-conviction evidence relied on was an affidavit of the mitigation specialist which was 

prepared after conclusion of the trial. 400 F.3d at 313. In Greer, the Sixth Circuit noted that: 

The petition for post-conviction relief includes forty-six exhibits, 

the majority of which were affidavits from individuals who 

allegedly had information favorable to petitioner but who were not 

contacted by trial counsel. They include family members who attest 

that they could have placed petitioner's personal history and 

character in a favorable context; Larry Dehus, an expert who would 

have disputed the state's evidence regarding bloody footprints found 

near the victim's body; James Eisenberg, a psychologist who would 

have testified concerning the shortcomings of trial counsels' 

preparation for mitigation; trial counsel, who indicate that their 

notes reveal that certain jurors excused by the prosecution were 

black; and a juror who states that evidence of petitioner's 

background would have "been helpful and may have affected the 

jury's decision." 

While the probative value of this evidence is difficult to assess in 

retrospect, it seems clear that this material and the arguments that 

logically flow from it are outside the trial record. 

264 F.3d at 675. 

All of these capital cases reflect situations where the post-conviction evidence did not exist 

at the time of trial. All of them reflect the preference of the federal courts to reach the merits in 

death penalty cases. In none of them did the state courts give detailed analysis to the Ohio res 

judicata doctrine, as the Fourth District did here. 

Based on these distinctions from the cited precedent, the Court should conclude that 

Adams’s ineffective assistance of trial counsel claim is barred by his procedural default in not 

presenting it on direct appeal. 
9 

Alternative Analysis of the Merits of Adams’s Ineffectiveness Claim 

 Alternatively, if the Court were to reject the analysis above on the res judicata procedural 

bar and reach the merits, it should still dismiss the Petition because the trial judge’s decision3 on 

the merits is not an unreasonable application of Strickland. 

 As a factual matter, Adams claims that the material attached to his post-conviction petition 

“was never provided to his appellate counsel, and was only obtained by his family4 when they had 

continuously pressed trial counsel for the findings of the private investigator.” (Traverse, ECF No. 

7, PageID 476). 

 Adams also does not dispute the Fourth District’s finding that these materials were in the 

hands of his trial attorney at the time of trial. He indeed asserts that: 

Petitioner’s trial counsel was in possession of certain investigative 

documentation that he simply kept to himself. Trial counsel never 

placed his private investigator on a witness stand to learn the 

information that was obtained by him, never used investigative 

reports that clearly attack the truthfulness and credibility of not only 

the alleged co-defendant of the petitioner, but the victim himself as 

well as the lead detective in the case. 

Id. at PageID 475. 

 Attached to his Petition in this Court are a number of items apparently from the file of 

Jeremy Pennington, the private investigator hired by retained defense attorney Warren Morford, 

 

3

 Because the Fourth District applied a procedural bar and did not reach the merits, this Court looks through the Fourth 

District’s decision to the last reasoned decision on the merits, that of Judge Cooper. Ylst v. Nunnemaker, 501 U.S. 

797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991). 

4

 Adams gives this Court no evidence of when trial counsel turned the investigator’s file over to his family. 
10 

Jr. Because the filed State Court Record does not contain these items, the only source this Court 

has for what was attached in state court is the listing in Judge McFarland’s opinion. The Magistrate 

Judge assumes, subject to rebuttal by further proof of the state court record, that Adams filed the 

same materials here as he had filed in the state court. 

 Adams’s claim, quoted above, is that it was ineffective assistance of trial counsel not to put 

Pennington on the witness stand to have him testify about all the information he had found 

undermining the credibility of the State’s witnesses. 

 This theory fails to come to grips with the realities of evidence law. Judge Cooper notes 

that decisions about what witnesses to call and what lines of inquiry to pursue are generally 

considered part of trial strategy which usually is committed to the sound discretion of a trial 

attorney. But trial strategy must be formed in the context of the rules of evidence. Those rules 

have been built up over time in the common law and are now codified in the Ohio Rules of 

Evidence adopted by the Supreme Court of Ohio. 

 Adams’s suggestions about what use Morford should have made of what Pennington found 

must be measured against the rules of evidence. To start with, Morford could not have done what 

Adams first suggests: put Pennington on the witness stand to testify to the content of his reports. 

The reports are hearsay, and having them repeated by Pennington on the witness stand would not 

have cured the hearsay problem. Nor would Pennington have been allowed to give his opinion on 

the credibility of any of the witnesses; opinions of that sort “invade the province of the jury” and 

are not permitted under Ohio R. Evid. 704 

 In his Memorandum in Support of the Petition, Adams makes detailed arguments about 

what use Morford should have made of the Pennington materials (ECF No. 1-2). Examination of 
11 

at least some of these in the order in which they are presented will illustrate the evidence rule 

problems with using them as Adams suggests. 

 Exhibit E to the Petition (ECF No. 1-2, PageID 77-78) is a report of Pennington’s interview 

with Ironton Acting Chief of Police Chris Bowman, in which Bowman purports to comment on 

prior discipline of Detective Ross, the principal investigator in this case, and “allude[s] to 

incompetence of Mr. Ross and Mitch Crum,” another detective assigned to the case. Neither 

Exhibit E nor Pennington’s oral testimony about its contents would have been admissible because 

it was hearsay. If Acting Chief Bowman had been called as a State’s witness and had testified that 

Ross and Crum were good detectives Morford could have confronted him with this prior 

inconsistent statement about their competence, but there is no indication Bowman was called as a 

State’s witness. Obviously, a competent defense attorney would have had qualms about calling 

the Chief of Police in the defense case in chief. 

 Adams next discusses Exhibit I (ECF No. 1-2, PageID 104-05), which is a report of a 

Pennington interview with a Lucas Morris. Morris is reported to have said Detective Ross was 

“mad about being called a liar” in connection with this case, denied that his involvement was 

“personal,” and made statements about someone whom everybody knew to be a “Jim Carey.” 

(Memorandum, ECF No. 1-2, PageID 53). Adams argues “[t]rial counsel had this evidence and 

simply faied to effectively utilize it in Petitioner’s defense.” Id. But Adams makes no argument 

about how this evidence could have been used. Again, the report and Pennington’s testimony 

about its content are inadmissible hearsay. If Lucas Morris had been a trial witness and denied 

making the statements, then he could have been confronted with them as prior inconsistent 

statements, But it is not reported to the Court that Morris was a trial witness. To ask Ross on 
12 

cross-examination if in fact he was angry about being called a liar (we are not told by whom), this 

would not likely have undermined his credibility with the jury: most people are angry at being 

called a liar. 

 Adams next discusses Exhibit J (Memorandum, ECF No. 1-2, PageID 53; Exhibit J is 

PageID 106-07). The fist page of the Exhibit is a report from Pennington to Morford stating that 

the attached page is a “type-written statement from Jim Carry” that Pennington received on May 

31, 2014. Id. at PageID 106 The attachment is not signed, but reports a conversation with Scott 

Lewis and Tom Adams, identified as Petitioner’s father. In the conversation, Lewis denied any 

involvement of himself or Adams in the robbery. Again, neither the report nor the statement by 

Carry would be admissible because they are hearsay. Lewis was the key State’s witness a trial. 

He obviously could be cross-examined about his own prior statements at any time of his own noninvolvement or Adams’. But if he had denied making this particular statement of noninvolvement, neither Carry’s statement nor his oral testimony would have been admissible to prove 

he did in fact make the statement because of Ohio R. Evid. 616(C). 

 Exhibit L (ECF No. 1-2, PageID 110-12) is a Pennington report of an interview with Josh 

and Tracy Wheeler who had employed co-defendants Scott Lewis and Ed Hampton who had a low 

opinion of Lewis and Hampton’s “trustworthiness.” Adams opines that these opinions on 

trustworthiness would have been admissible as character evidence (Memorandum, ECF No. 1-2, 

PageID 54). The Exhibit does include comments about Lewis’s drug activity, suspected thefts, 

and bad temper. It does not contain a direct opinion on reputation for truthfulness. There is no 

indication the Wheelers would have been willing to testify as character witnesses against Lewis; 

Pennington did not ask them that question and indeed recorded his interview covertly. While 
13 

Lewis’ credibility was obviously a key issue, there is no indication any testimony the Wheelers 

would have given would have been anything but remote. It would have been well within sound 

trial strategy to decide not to call them. 

 “Finally,” Adams concludes5, “attached and marked as Exhibit-M [(ECF No. 1-2, PageID 

113)] is a Memorandum drafted by Pennington which describes his findings and the summation 

of his investigation.” (Memorandum, ECF No. 1-2, PageID 55). As to this Report, Adams states 

again that 

Trial counsel should have presented Pennington as a witness as his 

testimony would have been critical in multiple respects including 

but not limited to impeachment of other witness testimony, 

establishing an accurate time line of alleged events and raising a 

reasonable doubt as to the veracity and objectivity of the 

investigation. 

Id. at PageID 56 But Pennington could not have testified to the contents of Exhibit M, which 

contain impressions and evaluations of evidence, because Ohio law does not permit opinion 

evidence of a private investigator of this sort. 

 Thus, upon examination of the materials relied on by Adams and of his arguments for them, 

the Magistrate Judge concludes there would have been multiple sound reasons, based both on 

strategy and on absolute bars in the rules of evidence, why trial counsel would not or could not 

have presented these materials. Therefore, Judge Cooper’s decision that it was not ineffective 

assistance of trial counsel to fail to introduce these materials is not an objectively unreasonable 

application of Strickland. Consequently, it is entitled to deference under 28 U.S.C. § 2254(d). 

 

5

 Adams does not discuss the other items submitted as exhibits. 
14 

Claim Two: Lack of Findings of Fact and Conclusions of Law 

 Adams claims he was denied due process of law when the trial court did not make findings 

of fact and conclusions of law on his post-conviction petition (Traverse, ECF No. 7, PageID 484). 

He recognizes that the requirement for findings of fact and conclusions of law is a matter of state 

statute under Ohio Revised Code § 2953.21, but claims the Ohio Supreme Court has “attached due 

process rights” to this requirement. Id. at PageID 485 citing State v. Hester, 45 Ohio St. 2d 71 

(1976). The opinion in Hester, which was handed down eight years before the federal ineffective 

assistance of trial counsel standard was adopted in Strickland, is largely a discussion of what that 

standard should be. Paragraph 1 of the Syllabus6

 in Hester reads: 

R.C. 2953.21, as amended by the addition of subsection (C), 

mandates the trial court to make and file findings of fact and 

conclusions of law as to the reasons for dismissal of and as to the 

grounds for relief relied upon in a petition for postconviction relief. 

(State v. Lester, 41 Ohio St. 2d 51, approved and followed.) 

However, nothing in the opinion suggests this is a matter of federal or even Ohio constitutional 

law. Rather, it seems to be based on a plain reading of the statute. 

 State courts have the authority, even the duty, to rely on propositions of federal 

constitutional law when relevant questions are presented to them, but it does not appear that the 

defendant in Hester even suggested such a rule. Even if the Ohio Supreme Court had stated that 

findings of fact and conclusions of law were mandated by the Fourteenth Amendment, that would 

not have been sufficient to grant habeas relief, which can be based only on clearly established 

 

6

 The syllabus rule, adopted in 1858, was abolished in 2002 when the Supreme Court of Ohio 

completely revised the Ohio Rules for the Reporting of Opinions. As of July 1, 2012, the relevant 

rule reads “All majority opinions of the Supreme Court shall have the same authority, whether 

issued per curiam or as an opinion authored by a justice and whether or not they have a syllabus.” 
15 

constitutional precedent of the United States Supreme Court. Bell v. Cone, 535 U.S. 685, 693-94 

(2002); Brown v. Payton, 544 U.S. 133, 134 (2005). 

 Adams aptly argues that a violation of state law can rise to the level of a due process violation. 

Habeas relief may be available where a violation of state law “amounts to a fundamental 

miscarriage of justice or a violation of the right to due process in violation of the United States 

Constitution.” Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008), cert denied, 129 S. Ct. 1991 

(2009). “State law errors may warrant habeas relief if the errors ‘rise for some other reason to the 

level of a denial of rights protected by the United States Constitution.’” Hoffner v. Bradshaw, 622 

F.3d 487, 495 (2010), quoting Barclay v. Florida, 463 U.S. 939, 957-58 (1983). 

 But here the error of state law alleged is failure to make findings of fact and conclusions of 

law on a post-conviction petition. The requirement of separately stated findings of fact and con 

conclusions of law is not peculiar to Ohio Revised Code § 2953.21. For example, it is required by 

Fed. R. Civ. P. 52 in federal cases tried to the bench instead of a jury. But the Magistrate Judge is 

unaware of any situation in which that requirement has been imposed as a requirement of due 

process, either within the federal system or as imposed on the States through the Fourteenth 

Amendment. 

 In sum, Adams’s second claim does not state a claim upon which relief can be granted in 

habeas corpus because no decision of the United States Supreme Court commands that result. 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends the Petition 

herein be dismissed with prejudice. Because reasonable jurists would not disagree with this 
16 

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. 

July 12, 2018. 

 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).