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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

BRIAN DAMONT HENLEY, 

Petitioner, : Case No. 3:17-cv-421 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

DAVID MARQUIS, Warden, 

 Richland Correctional Institution 

 : 

 Respondent. 

SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action is before the Court on Petitioner’s Objections (ECF No. 24) to 

the Magistrate Judge’s Report and Recommendations recommending dismissal of the Petition (the 

“Report,” ECF No. 21). Judge Rose has recommitted the case for reconsideration in light of the 

Objections (ECF No. 25). 

 This is Henley’s second habeas petition attacking this conviction. In Case 3:07-cv-031, 

District Judge Rice dismissed the Petition with prejudice and granted a certificate of appealability 

(ECF No. 27, 28). Henley appealed and the Sixth Circuit affirmed. Henley v. Brunsman, 379 Fed. 

App'x 479, 2010 U.S. App. LEXIS 11224 (6th Cir. June 2, 2010). The instant Petition is not 

“second or successive,” however, because there has been an intervening judgment in the case (State 

Court Record, ECF No. 12, PageID 230). 
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Ground One: Violation of Sixth Amendment Right to Jury Determination of Facts 

In his First Ground for Relief, Petitioner asserts the trial court violated his Sixth 

Amendment right to trial by jury by imposing a sentence and sexual predator designation on facts 

not found by the jury. Because this is Henley’s second habeas corpus petition attacking this 

conviction, the Report discussed the law of the case doctrine at some length, but ultimately 

concluded Ground One was without merit “without parsing the extent to which law of the case 

doctrine may or may not suggest a different answer.” (Report, ECF No. 21, PageID 1783). 

Henley’s First Ground for Relief relies on Blakely v. Washington, 542 U.S. 296 (2004). 

The Magistrate Judge had understood Henley to be challenging, under Blakely, judicial factfinding 

for purposes of Ohio Revised Code §§ 2929.11 and 2929.12 (See Report, ECF No. 21, PageID 

1782), but Henley now says he “made no such challenge as he is quite aware that” those two 

sections of Ohio sentencing law are unaffected by the application of Blakely.” (Objections, ECF 

No. 24, PageID 1800.) 

Instead Henley says that he is challenging judicial factfinding for purposes of Ohio Revised 

Code §§ 2929.14(B), 2929.14(C), and 2929.14(E)(4). Id. at PageID 1800-01. Specifically, he 

asserts the Blakely violations occurred when Common Pleas Judge Langer relied on facts not found 

by the jury 

(1) to exceed the statutorily presumed minimum sentence “by 

finding the minimum prison term would demean the 

seriousness of the offense (Ohio Revised Code § 2929.14(B)); 

(2) to find that Petitioner had the greatest likelihood of recidivism, 

thus allowing a maximum sentence (Ohio Revised Code § 

2929.14(C); and 
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(3) to make several findings supporting the imposition of 

consecutive sentences (Ohio Revised Code § 2929.14(E)(4). 

(Objections, ECF No. 24, PageID 1801). Henley claims these three statutes were found to violate 

Blakely by State v. Foster, 109 Ohio St. 3d 1 (2006). 

 The relevant portions of the syllabus in Foster read: 

1. Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require 

judicial factfinding before imposition of a sentence greater 

than the maximum term authorized by a jury verdict or 

admission of the defendant, they are unconstitutional. 

(Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 

2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed.). 

2. R.C. 2929.14(B) and (C) and 2929.19(B)(2) are capable of 

being severed. After the severance, judicial fact-finding is 

not required before a prison term can be imposed within the 

basic ranges of R.C. 2929.14(A) based upon a jury verdict 

or admission of the defendant. (United States v. Booker

(2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, 

followed.). 

3. Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial 

finding of facts not proven to a jury beyond a reasonable 

doubt or admitted by the defendant before the imposition of 

consecutive sentences, they are unconstitutional. (Apprendi 

v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 

296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed.). 

4. R.C. 2929.14(E)(4) and 2929.41(A) are capable of being 

severed. After the severance, judicial fact-finding is not 

required before imposition of consecutive prison terms. 

(United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 

738, 160 L.Ed.2d 621, followed.). 

* * * 

7. Trial courts have full discretion to impose a prison sentence 

within the statutory range and are no longer required to make 

findings or give their reasons for imposing maximum, 

consecutive, or more than the minimum sentences. 
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Foster, 109 Ohio St. 3d at 1. Thus to the extent the relevant Ohio sentencing statutes required

that certain facts be found before certain sentences could be imposed, the Ohio Supreme Court 

concluded in Foster that the provision for judicial factfinding was unconstitutional under Blakely. 

Then the court applied a remedy parallel to that used by the United States Supreme Court with the 

United States Sentencing Guidelines in United States v. Booker, 543 U.S. 220 (2005): findings of 

fact of the sort prescribed by the statutes were no longer required to be made by judge or jury and 

the judge could impose a sentence anywhere between the statutory minimum sentence and the 

statutory maximum sentence. 

 Henley was sentenced before Foster was decided and Judge Langer made the findings then 

understood to be required to authorize a greater than minimum sentence, a maximum sentence, 

and consecutive sentences (State Court Record in 3:07-cv-031, ECF No. 6, Exhibits 5, 6, and 7). 

But by applying the Booker severance remedy, the Foster court made these prior findings 

irrelevant because they were no longer required by Ohio law. Blakely error occurring prior to 

Foster is rendered harmless by the Foster decision. Brown v. Moore, Case No. 08-3289, 2008 

U.S. App. LEXIS 27094 (6th Cir. Sept. 19, 2008). 

 The Objections accuse the Magistrate Judge of not recognizing that Alleyne v. United 

States. 570 U.S. 99 (2013), overruled Harris v. United States, 536 U.S. 545 (2002). But the Report 

actually cites Alleyne for overruling Harris (ECF No. 21, PageID 1782). 

The Report also cites Arias v. Hudson, 589 F.3d 315 (6thCir. 2009), for the proposition that 

Blakely is not applicable to judicial factfinding that in support of a sentence above the mandatory 

minimum. Id. Henley discounts Arias on the ground that Arias waived his Sixth Amendment 

rights and Henley never did (Objections, ECF No. 24, PageID 1801). That misreads Arias. 

Petitioner there was convicted by a jury. 589 F.3d at 316. Blakely was decided while the Arias
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case was on appeal, but the state courts decided Arias had procedurally defaulted, not waived, his 

Blakely claim. While the District Court granted habeas relief, the Sixth Circuit reversed, finding 

Blakely did not require jury factfinding to impose consecutive sentences. The only waiver in Arias

was of a jury finding not relevant in this case. 

Henley also argues that Oregon v. Ice, 555 U.S. 160 (2009), is inapplicable to Ohio’s 

sentencing scheme because the Ohio Supreme Court so held in State v. Hodge, 128 Ohio St. 3d 1 

(2010). What that court actually held was that Ice, decided after Foster, did not revive the 

factfinding requirements in Ohio Revised Code § 2929.14(E)(4) and 2929.41(A) which had been 

severed in Foster. Thus, after Ice there were both Ohio Supreme Court (Foster) and United States 

Supreme Court (Ice) holdings that jury factfinding was not necessary for imposition of consecutive 

sentences. 

Petitioner’s Objections to the Report as to Ground One are without merit. 

Ground Two: Ineffective Assistance of Appellate Counsel 

In his Second Ground for Relief, Henley claims he received ineffective assistance of 

appellate counsel when his appellate attorney did not raise the Blakely claim made in Ground One 

and did not raise a claim of judicial bias on the part of the trial judge. 

 The Report concluded that the law of the case governed the first sub-claim because it had 

been before the Sixth Circuit on the prior appeal (Report, ECF No. 21, PageID 1783). As to the 

judicial bias claim, Henley asserted this Court had failed to follow the Sixth Circuit’s mandate on 

remand of the prior case and the Report concluded there no such mandate. Id. at PageID 784. 

 Henley objects that the law of the case doctrine does not absolutely bar reconsideration of 
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issues decided on a prior appeal, citing Allen v. Westbrooks, 700 Fed. Appx. 406 (6th Cir. 2010), 

and Rose v. Warden, Case No. 1:15-cv-353, 2017 U.S. Dist. LEXIS 152979 (S.D. Ohio Sept. 20, 

2017)(Black, J.). 

The only holding in Allen is that the second-or-successive doctrine did not bar Allen’s 

challenge in light of King v. Morgan, 807 F. 3d 154 (6th Cir. 2015). The language about law of 

the case probably not applying in subsequent habeas cases where the second-or-successive bar 

does not apply is quoted from King, but does purport to speak to habeas practice generally. King, 

however, did not have a prior federal circuit opinion on the merits of the question presented a 

second time; the Sixth Circuit had denied a certificate of appealability on King’s first attempted 

appeal. 807 F.3d at 156. In this case the prior Sixth Circuit opinion is directly on the merits of 

Henley’s claim that it was ineffective assistance of appellate counsel not to raise a Blakely claim 

on direct appeal. 

 Judge Sutton wrote the language about the law of the case “likely” not applying on a second 

habeas petition. But it was also Judge Sutton, writing directly on the import of the law of the case, 

who said, “If it is important for courts to treat like matters alike in different cases, it is indispensable 

that they ‘treat the same litigants in the same case the same way throughout the same dispute.’” 

United States v. Charles, 843 F.3d 1142, 1145 (6th Cir. 2016)(Sutton, J.), quoting Bryan A. Garner, 

et al., The Law of Judicial Precedent 441 (2016). 

 Judge Black in Rose does not engage in discussion of law of the case. 

 The Report quotes the following Sixth Circuit opinion on law of the case: 

The doctrine of law of the case provides that the courts should not 

"reconsider a matter once resolved in a continuing proceeding." 18B

CHARLES ALAN WRIGHT, ARTHUR R. MILLER, AND EDWARD H.

COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND 

RELATED MATTERS § 4478 (4th ed. 2015). "The purpose of the lawof-the-case doctrine is to ensure that 'the same issue presented a 
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second time in the same case in the same court should lead to the 

same result.'" Sherley v. Sebelius, 689 F.3d 776, 780, 402 U.S. App. 

D.C. 178 (D.C. Cir. 2012) (quoting LaShawn A. v. Barry, 87 F.3d 

1389, 1393, 318 U.S. App. D.C. 380 (D.C. Cir. 1996)). For a prior 

decision to control, the prior tribunal must have actually decided the 

issue. WRIGHT ET AL., supra, § 4478. "A position that has been 

assumed without decision for purposes of resolving another issue is 

not the law of the case." Id. "An alternate holding, however, does 

establish the law of the case." Id. Unlike claim preclusion, the law 

of the case does not apply to issues that a party could have raised, 

but did not. Id. The law-of-the-case doctrine is a prudential practice; 

a court may revisit earlier issues, but should decline to do so to 

encourage efficient litigation and deter "indefatigable diehards." Id. 

Howe v. City of Akron, 801 F.3d 718, 739-40 (6th Cir. 2015). 

 Treating law of the case as a prudential doctrine and not an “inexorable command” in this 

case, Henley has offered no good reason that this Court should not reach the same conclusion on 

his Blakely ineffective assistance of appellate counsel claim as it did before. The Blakely claim is 

still without merit. Raising it on direct appeal would not have resulted in a different outcome and 

it was therefore, considered de novo, not ineffective assistance of appellate counsel to fail to raise 

it. 

 Henley’s second claim of ineffective assistance of appellate counsel is that his attorney 

failed to raise a claim of judicial bias on Judge Langer’s part. He asserts this sub-claim was not 

before the Sixth Circuit on the prior appeal and therefore should be considered here de novo under 

Coley v. Bagley706 F.3d 741 (6th Cir. 2013). In his Reply, Henley had asserted “both this Court 

[presumably meaning the Magistrate Judge] and the District Court failed to comply with the Sixth 

Circuit mandate [in that they] failed to analyze the underlying claim of ‘judicial bias’ in relation 

to the claim that appellate counsel was ineffective in failing to challenge trial counsel’s 

ineffectiveness in not challenging the judicial bias.” (Reply, ECF No. 20, PageID 1736.) The 

Report rejected this claim because there was no such mandate (Report, ECF No. 21, PageID 1784. 
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The Objections do not argue that point, but assert the underlying judicial bias claim must be 

analyzed to determine if it was ineffective assistance of appellate counsel not raise it on direct 

appeal. 

 In the prior case the undersigned found the claim of judicial bias was procedurally 

defaulted because it was not raised on direct appeal and not “resurrected” by pleading it as a claim 

underlying the ineffective assistance of appellate counsel claim relating to it. Henley v. Moore,

Case No. 3:97-cv-031, 2007 U.S. Dist. LEXIS 96373 at*29 (S.D. Ohio June 28, 2007). In his 

Reply, Henley argued District Judge Rice had rejected that point because the Second District Court 

of Appeals had addressed this claim on the merits (ECF No. 20, PageID 1736, citing Henley v. 

Moore, Case No. 3:07-cv-031, 2008 U.S. Dist. LEXIS 8371 *3 (S.D. Ohio Feb. 5, 2008). Judge 

Rice did find, however, that the Second District’s rejection of this claim on the merits was entitled 

to deference under the AEDPA. Id. 

 The relevant opinion of the Second District is State v. Henley, Case No. 20789 (Ohio App. 

2nd Dist. Apr. 10, 2006)(unreported; copy at State Court Record, ECF No. 6-14 in Case No. 3:07-

cv-031, PageID 186, et seq.). The phrase “judicial bias” is not mentioned in the opinion. Henley’s 

Application for Reopening is at ECF No. 6-2 in the prior case at Exhibit 23. At page three of his 

Application, Henley accuses Judge Langer of inappropriately relying on other bad acts to enhance 

the sentence, but makes no accusation of judicial bias or of ineffective assistance of appellate 

counsel for failing to claim that it was ineffective assistance of trial counsel not to make the bias 

accusation. 

 After the Sixth Circuit’s decision in his first case, Henley very explicitly raised the issue 

of judicial bias as reflect in the State Court Record filed in this case (ECF No. 12). He filed an 

Affidavit of Disqualification in the Supreme Court of Ohio. Id. at PageID 71-77. The Chief 
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Justice, to whom such matters are committed, denied the Application because it was filed almost 

seven years after the relevant facts became known to Henley. Id. at PageID 78-79. He filed another 

Affidavit of Disqualification in the Common Pleas Court that Presiding Judge Barbara Gorman 

denied for lack of jurisdiction. Id. at PageID 83-90. Judge Langer denied a motion to recuse on 

the same basis. Id. at PageID 111. 

 Finally on July 21, 2016, Henley filed his Motion to Vacate a Void Judgment, claiming 

Judge Langer had failed to notify him of mandatory post-release control. Id. at PageID 224-29. 

In response Judge Langer entered the Amended Termination Entry that prevents the instant habeas 

Petition from being second or successive. Id. at PageID 230-33. On appeal Henley raised judicial 

bias as his Seventh Assignment of Error . Id. at PageID 245. The Second District denied that 

Assignment of Error because it was not raised in Henley’s Motion to Vacate Void Judgment filed 

July 21, 2016, and because it was barred by res judicata because it could have been raised on the 

original direct appeal but was not. State v. Henley, 2017-Ohio-5828 ¶¶ 31-33 (Ohio App. 2nd Dist. 

Jul. 14, 2017). 

 Considering the question de novo, then, Henley’s claim of judicial bias is barred by 

Henley’s procedural default detailed by the Second District. It is also barred by the Ohio doctrine 

of res judicata in criminal cases by Henley’s failure to raise it on the first appeal. Finally, it is 

barred by the independent procedural default found by Chief Justice O’Connor when she found 

his Affidavit of Disqualification was very untimely. 

 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 
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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). Absent 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)(citation omitted); 

Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. 

 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 

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

he was actually prejudiced by the alleged constitutional error. 
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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). A habeas petitioner 

can overcome a procedural default by showing cause for the default and prejudice from the asserted 

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015). 

 With respect to each of these defaults, Ohio has a relevant procedural rule: (1) a court of 

appeals will not consider an issue not raised in the trial court, (2) res judicata bars consideration 

at a later stage of criminal proceedings of a matter which could have been raised on direct appeal, 

and (3) issues of disqualification must be raised promptly after the defendant becomes aware of 

the relevant facts. The record recited above shows the Ohio courts enforced these rules against 

Henley. All three rules are well recognized in Ohio law. In particular, Ohio’s doctrine of res 

judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an adequate 

and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); 

Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); 

Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 

1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). 

 Ground Two should therefore be dismissed with prejudice. 

Ground Three: Denial of Confrontation and Compulsory Process 

 In his Third Ground for Relief, Henley claims his constitutional rights to confront witnesses 

against him and compel witnesses in his behalf was violated in the manner in which the trial court 

restricted the testimony of Barbara Pettiford. 

 This claim was presented in the prior case and denied on the merits by Judge Rice; the 
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Sixth Circuit denied an expansion of the certificate of appealability to consider this issue. 

Therefore, the Report recommended dismissing this claim pursuant to the law of the case (Report, 

ECF No. 21, PageID 1786). 

 Henley objects that the law of the case is not applicable here (Objections, ECF No. 24, 

PageID 1803). But even considering the question de novo, Judge Langer committed no error, 

much less error rising to a constitutional level. The question of admissibility of a hearsay statement 

claimed to be an excited utterance is a question for the trial judge; it is not a question of 

“credibility” for the jury. There is no decision of the United States Supreme Court which 

establishes a right to have hearsay claimed to be an excited utterance admitted on the basis of that 

claim alone. 

 Ground Three should be dismissed. 

Ground Seven:1 Double Jeopardy 

 In his Seventh Ground for Relief, Petitioner asserts the trial court violated his right to 

protection against being placed twice in jeopardy when it refused to merge the rape and kidnapping 

offenses and the assault offenses under Ohio Revised Code § 2941.25. 

 The Report found that this claim had been raised in the prior case, decided against Henley 

by Judge Rice, and denied appealability by the circuit court (ECF No. 21, PageID 1787). It 

concluded the law of the case would bar this claim considered under Ohio Revised Code § 2941.25. 

Because the Sixth Circuit has held that Ohio appellate rulings on § 2941.25 claims are dispositive 

of Double Jeopardy claims, the Report also recommended dismissing this portion of Ground 

 

1

 As noted in the Report, Henley has expressly waived Grounds for Relief Four, Five, Six, Eight, and Ten (ECF No. 

21, PageID 1775, citing Reply, ECF No. 20, PageID 1723). 
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Seven. Finally, the Report recommends dismissing that portion of Ground Seven which argues 

that Henley’s felonious assault and attempted felonious assault convictions should be merged 

because the Second District’s conclusion that these were separate acts was completely reasonable. 

 The Second District rejected the claim that the rape and kidnapping convictions should 

merge because that issue, although meritorious, was not raised in the trial court and did not rise to 

the level of plain error. State v. Henley, 2005-Ohio-6142 ¶¶ 38-43 (Ohio App. 2nd Dist. Nov. 18, 

2005). Henley asserts in his Objections that this Court should overlook that finding and decide 

the convictions should merge. 

However, failure to raise an issue in the trial court is a procedural default and a ruling by 

an Ohio court of appeals that no plain error is involved is an enforcement of that procedural default. 

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 v. Mitchell, 320 

F.3d 604 (6th Cir. 2003). A federal district court is not authorized to overlook a procedural default 

that has been properly enforced by a state appellate court. 

Regarding merger of the felonious assault and attempted felonious assault convictions, the 

Second District held they were separate acts. State v. Henley, supra, at ¶ 44. Henley argued the 

appellate court should have applied the comparison-of-elements test of State v. Rance, 85 Ohio St. 

3d 632 (1999). The Report rejected this argument because, as the Second District found, the two 

crimes were separate in time. Under Ohio Revised Code § 2941.25 if a person commits a felonious 
14 

assault at one point in time and then later commits an attempted felonious assault on the same 

person, under Ohio Revised Code § 2941.25, it does not matter and never has, that the elements 

are the same: committing a felonious assault on a victim does not give a defendant a free pass to 

do it again under Ohio Revised Code § 1942.25 or the Double Jeopardy Clause. 

Ground Seven should be dismissed. 

Ground Nine: Ineffective Assistance of Appellate Counsel 

 This claim relates to defense counsel’s failure to assert that the four rape convictions should 

have been merged and appellate counsel’s failure to assert trial counsel’s ineffectiveness in this 

respect. The Second District held the four rape offenses were separate acts: vaginal intercourse, 

anal intercourse, analingus, and cunnilingus. State v. Henley, Case No. 20789 (2nd Dist. Apr. 10, 

2006)(unreported; copy at State Court Record ECF No. 16, PageID 721). The Report 

recommended deferring to that decision and Henley’s Objections fall back on Rance, which is 

unavailing for the same reasons given as to Ground Seven. 

 Although the Second District apparently misread the concurrent sentences for the two 

felonious assault convictions as showing the offenses were merged, the Report found no prejudice 

in failing to raise this claim on direct appeal because it was “far from the strongest argument 

available on appeal.” (Report, ECF No. 21, PageID 1795.) In his Objections, Henley disagrees 

with this conclusion in summary fashion, but does not suggest why this argument would have been 

stronger than others that were made (Objections, ECF No. 24, PageID 1805). 

 Ground Nine should also be dismissed. 
15 

Conclusion 

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

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

conclusion, Petitioner should be denied a certificate of appealability. Henley claims reasonable 

jurists would disagree about the applicability of Blakely, but cites no such reasonable jurists 

(Objections, ECF No. 24, PageID 1805). 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. 

August 14, 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).