1 

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. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action is before the Court for decision on the merits on the Petition 

(ECF No. 1), the State Court Record (ECF No. 12, 16 & 19), the Return of Writ (ECF No. 13) and 

Petitioner’s Reply (ECF No. 20). 

 Petitioner pleads the following grounds for relief: 

Ground 1: Trial court erred in imposing sentence which violates 

6th and 14th Am. right to jury trial in U.S. Const. 

Supporting Facts: Trial court relied upon facts that were neither 

admitted by defendant or found by a jury when the trial court 

imposed the sentence and labelled defendant as a sexual predator. 

Ground 2: Appellate counsel was ineffective in violation of 6th and 

14th Am. of U.S. Const. 

Supporting Facts: Appellate counsel failed to challenge trial 

counsel’s failure to: challenge trial court bias at sentencing and 

sexual classification hearing when the trial court accused defendant 

of having committed several rapes not supported by the record; trial 

court imposed sentence based on facts not found by the jury or 

admitted by defendant and likewise labelled defendant a sexual 

predator; 
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Ground 3: Trial court violated defendant’s federal rights to 

confrontation and compulsory process. 

Supporting Facts: Trial court arbitrarily restricted the testimony of 

a key defense witness. (Barbara Pettiford). (Due process violation 

of the 14th Am. to the U.S. Constitution). 

Ground 4: Trial court violated defendant’s state and federal right to 

challenge conviction and sentence. 14th Am. U.S. Const. 

Supporting Facts: At my resentencing hearing held on October 27, 

2016, the trial court refused to allow me to raise challenges to my 

underlying convictions and sentences in violation of my federal and 

state rights to due process. 14th Am. U.S. Const. 

Ground 5: The sentence imposed in this case is void in violation of 

petitioner’s state and federal rights to due process. 

Supporting Facts: The trial court relied upon unconstitutional 

statutes when imposing the sentence. 

Ground 6: Appellate counsel was ineffective in failing to raise trial 

counsel’s failure to object to prosecutor misconduct. 6th and 14th 

Am. U.S. Constitution. 

Supporting Facts: The prosecutor remarked to the jury, during 

summation, that petitioner’s presence at his own trial allowed him 

to hear all of the evidence and then tailor his story to fit into that 

evidence. 

Ground 7: The trial court violated defendant’s state and federal 

rights against being put twice in jeopardy for the same offense. 5th 

and 14th Am. U.S. Const. 

Supporting Facts: The trial court failed to merge the rape and 

kidnap counts 1-5 and the court failed to merge the multiple 

felonious assault and attempted felonious assault counts 6-8 when 

the offenses are clearly allied offenses of similar import in violation 

of state and federal double jeopardy prohibitions. 

Ground 8: Trial counsel was ineffective in violation of petitioner’s 

6th and 14th Am. rights to the effective assistance of counsel. U.S. 

Con. 6th and 14th Am. 

Supporting Facts: Trial counsel was ineffective at trial when 

counsel requested a jury instruction for “self-defense” in relation to 
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the attempted felonious assault charge when petitioner never 

claimed to have committed attempted felonious assault in selfdefense and, in fact, petitioner denied having committed attempted 

felonious assault at all. 

Ground 9: Appellate counsel was ineffective in failing to raise trial 

counsel’s ineffectiveness in not challenging a sentence imposed for 

allied offenses and allied offenses of similar import in violation of 

appellant’s state and federal rights to the effective assistance of 

counsel where the sentences imposed violate state and federal 

double jeopardy prohibitions. 

Supporting Facts: The trial court imposed multiple sentences for 

offenses that were clearly ‘allied’ in violation of state and federal 

double jeopardy prohibitions. The multiple rape counts should have 

merged with the kidnap counts and the multiple felonious assault 

counts should have merged with each other as well as with the 

attempted felonious assault count. Appellate counsel should’ve 

challenged trial counsel’s failure to raise this issue. 

Ground 10: The evidence at trial was insufficient to sustain the 

conviction of ‘attempted felonious assault’ in violation of 

petitioner’s state and federal rights to due process. 

Supporting Facts: There was absolutely no evidence presented at 

trial to prove that petitioner ‘attempted’ to suffocate his accuser with 

a pillow. 

(Petition, ECF No. 1, PageID 5-16.) 

 Petitioner has expressly waived Grounds for Relief Four, Five, Six, Eight, and Ten (Reply, 

ECF No. 20, PageID 1723) and they will not be considered further. 

Underlying Offense Conduct 

 On September 28, 2004, a jury in Montgomery County, Ohio convicted Henley of one 

count of kidnapping, four counts of rape, two counts of felonious assault, and one count of 

attempted felonious assault. The convictions stemmed from an incident occurring on the morning 
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of May 24, 2004, when Henley offered the victim a ride home after her restaurant shift. On the 

pretext of needing to use the restroom, Henley gained access to her apartment. Henley raped the 

victim multiple times, after binding her mouth and hands with duct tape. He held a knife against 

her, threatening to kill her, and then attempted to suffocate her with a pillow. When she tried to 

escape, he also choked her and stabbed her. See State v. Henley, No. 20789, 2005-Ohio-6142, 

2005 Ohio App. LEXIS 5531, at *2-9 (2nd Dist. Nov. 18, 2005). 

 There is an extended procedural history in this case which will be referred to as necessary 

as it relates to particular grounds for relief. 

Analysis 

Ground One: Violation of Right to Jury Determination 

 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. 

 Respondent asserts the Court lacks subject matter jurisdiction to consider this claim 

because Henley is no longer in custody on his rape and kidnapping convictions. Petitioner replies 

with controlling precedent, Garlotte v. Fordice, 515 U.S. 39 (1995). The Magistrate Judge 

concludes the Court has subject matter jurisdiction over Ground One. 

 Respondent asserts this Court lacks authority to grant relief on Henley’s claim that he was 
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improperly classified as a sexual predator, relying on Bevins v. Brunsman, 2009 WL 5612338 

(S.D. Ohio Dec. 17, 2009), quoting Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002). Leslie holds 

the restrictions on liberty of a classified sexual offender do not rise to the level of placing or 

keeping the offender in custody. 296 F.3d at 522-23. Under Garlotte, because Henley remains in 

custody on a consecutive sentence, he could attack in habeas the underlying rape conviction, but 

not the sexual predator classification. 

 In his appeal from denial of his prior habeas petition, Henley made the claim that it was 

ineffective assistance of appellate counsel to fail to argue that his trial attorney provided ineffective 

assistance by not objecting that the sexual predator classification violated the rule in Blakely v. 

Washington, 542 U.S. 296 (2004). Henley relies on Judge Merritt’s dissent in the case in which 

he opined that Blakely prevented the Ohio courts from making the sexual predator determination 

without submitting the question to the jury. But it is the majority opinion in the prior appeal that 

binds this Court; we are not free to follow the dissent. Henley points to no authority since his prior 

appeal that has adopted Judge Merritt’s position. 

 Respondent relies on the majority decision in the prior appeal, as well as other prior rulings 

in the first case, to assert Ground One is barred by the law of the case doctrine (Return, ECF No. 

13, PageID 431-33). Henley responds that law of the case doctrine does not apply because there 

is a new intervening judgment, relying on In re Stansell, 828 F.3d 412 (6th Cir. 2016). Stansell

holds that the intervening judgment resets the AEDPA one-year statute of limitations in habeas 

corpus and also prevents a new habeas petition from being second or successive and therefore 

requiring permission from the circuit court to proceed. But Stansell does not control application 

of the law of the case doctrine. 
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 Under the doctrine of law of the case, findings made at one point in the litigation become the 

law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d 

1419, 1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As 

most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a 

rule of law, that decision should continue to govern the same issues in subsequent stages in the 

same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal Practice 

¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of 

Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “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). 

 "Law of the case directs a court's discretion, it does not limit the tribunal's power." Id., citing 

Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436 (1912); 

see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir. 1995). 

While the “law of the case” doctrine is not an inexorable command, 

a decision of a legal issue establishes the “law of the case” and must 

be followed in all subsequent proceedings in the same case in the 

trial court or on a later appeal in the appellate court, unless the 

evidence on a subsequent trial was substantially different, 

controlling authority has since made a contrary decision of the law 

applicable to such issues, or the decision was clearly erroneous and 

would work a manifest injustice. 

White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Association of Frigidaire 

Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995). 

 The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled 

issues; and (2) to assure compliance by inferior courts with the decisions of superior courts. United 

States v. Todd, 920 F.2d 399 (6th Cir. 1990), citing Moore's Federal Practice. A generally liberal 
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view is expressed in Gillig v. Advanced Cardiovascular Systems, Inc. 67 F.3d 586 (6th Cir. 1995). 

“We generally will not disturb these [prior holdings] unless there is 

'(1) an intervening change of controlling law; (2) new evidence 

available; or (3) a need to correct a clear error or prevent manifest 

injustice.'" Entm't Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 742 

(6th Cir. 2013), cert. denied, 134 S.Ct. 906, 187 L.Ed.2d 778 (2014) 

(quoting Louisville/Jefferson Cnty. Metro Gov't v. Hotels.com, L.P., 

590 F.3d 381, 389 (6th Cir. 2009)). 

Howe v. City of Akron, 801 F.3d 718, 741 (6th Cir. 2015). 

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 

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. 

Id. at 739-740.

 The law of the case doctrine is not an appropriate basis for denying relief when the statement 

of the law in an appellate opinion is both dictum and in error. Landrum v. Anderson, 813 F.3d 330 

n.1 (6th Cir. 2016), citing United States v. McMurray, 653 F.3d 367 (6th Cir. 2011). 

 Petitioner relies on Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003)(en banc), where 

the Sixth Circuit expressed doubts about the straightforward application of law of the case doctrine 

to successive habeas corpus cases involving the same petitioner. 
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[I]t is not at all clear to us that the law-of-the-case doctrine should 

apply to successive habeas petitions. "Law-of-the-case rules have 

developed to maintain consistency and avoid reconsideration of 

matters once decided during the course of a single continuing 

lawsuit." 18B Charles Alan Wright, Arthur R. Miller & Edward H. 

Cooper, Federal Practice and Procedure § 4478 (2d ed. 2002). 

Whether successive habeas petitions constitute stages in a single, 

continuing lawsuit is a question that should be carefully considered. 

See Lacy v. Gardino, 791 F.2d 980, 984-85 (1st Cir.), cert. denied, 

479 U.S. 888, 93 L. Ed. 2d 259, 107 S. Ct. 284 (1986). Although we 

do not decide the question, we, like the First Circuit, think it likely 

that each habeas petition is a separate and distinct case. See id.; see 

also McCleskey v. Zant, 499 U.S. 467, 479-85, 113 L. Ed. 2d 517, 

111 S. Ct. 1454 (1991) (explaining that the "abuse of the writ" 

doctrine arose because, "at common law, res judicata did not attach 

to a court's denial of habeas relief. [A] refusal to discharge on one 

writ [was] not a bar to the issuance of a new writ." (quotation 

omitted)); but cf. Shore v. Warden, Stateville Prison, 942 F.2d 1117, 

1123 (7th Cir. 1991), cert. denied, 504 U.S. 922, 118 L. Ed. 2d 573, 

112 S. Ct. 1973 (1992) ("The law of the case doctrine is applicable 

to habeas proceedings."); Raulerson v. Wainwright, 753 F.2d 869, 

875 (11th Cir. 1985) (applying the law of the case doctrine to a 

successive habeas petition). 

Id. at 398. 

 It is certainly correct that decisions on a prior habeas application attacking the same 

underlying convictions are not binding in the way a prior civil judgment is binding under res 

judicata doctrine. Res judicata traditionally does not apply in habeas, so a district court is free to 

re-think its own decisions on prior points of law in the same controversy. Nevertheless, Judge 

Sutton’s observation in Charles, supra, is pertinent: we ought to ‘treat the same litigants in the 

same case the same way throughout the same dispute.’” Although this is a “new” habeas case 

attacking a “new” sentencing entry, it is the same dispute the Court previously litigated. This 

Court should follow the decisions it previously made on points of law in this dispute unless one of 

the parties offers persuasive argument for a different result, e.g., that there is new controlling law 

from the circuit court or the Supreme Court. 
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 A particular, more binding, part of law of the case is the so-called mandate rule. The basic 

tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the 

court of appeals. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). The mandate rule 

is a distinct concept which preserves the hierarchy of the court system. Scott v. Churchill, 377 

F.3d 565, 570 (6th Cir. 2004). 

The law of the case doctrine provides that "when a court decides 

upon a rule of law, that decision should continue to govern the same 

issues in subsequent stages in the same case." Scott v. Churchill, 377 

F.3d 565, 569-70 (6th Cir. 2004) (quoting Arizona v. California, 460 

U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)). The 

doctrine precludes a court from reconsideration of issues "decided 

at an early stage of the litigation, either explicitly or by necessary 

inference from the disposition." Hanover Ins. Co. v. Am. Eng'g Co., 

105 F.3d 306, 312 (6th Cir. 1997) (quoting Coal Res., Inc. v. Gulf & 

Western Indus., Inc., 865 F.2d 761, 766 (6th Cir. 1989)). Pursuant 

to the law of the case doctrine, and the complementary "mandate 

rule," upon remand the trial court is bound to "proceed in accordance 

with the mandate and law of the case as established by the appellate 

court." Id. (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 

(6th Cir.), cert. denied, 414 U.S. 859, 94 S. Ct. 71, 38 L. Ed. 2d 110 

(1973)). The trial court is required to "implement both the letter and 

the spirit" of the appellate court's mandate, "taking into account the 

appellate court's opinion and the circumstances it embraces." Brunet 

v. City of Columbus, 58 F.3d 251, 254 (6th Cir. 1995). 

Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006). 

Denial of a certificate of appealability becomes the law of the case, binding in subsequent 

stages of the litigation. Dillingham v. Jenkins, Case No. 17-3813 (6th Cir. Nov. 8, 2017) 

(unreported; copy at ECF No. 65 in 3:13-cv-468), citing Moore v. Mitchell, 848 F.3d 774, 776 (6th 

Cir. 2017). 

 Henley’s First Ground for Relief relies on Blakely, supra. In that case the Supreme Court 

held that any fact which increases the sentence beyond a legislatively mandated guideline, even if 

within a statutory maximum for the offense, must be pleaded as an element in the indictment and 

proved to the jury beyond a reasonable doubt. Construing Henley’s pro se petition liberally, the 
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Magistrate Judge reads Ground One as pleading two possible Blakely violations, to wit, (1) that 

the sentence was improper and (2) the sexual predator classification was improper. 

 As to the first of these claims, Common Pleas Judge Dennis Langer made separately the 

findings required by Ohio law (Ohio Revised Code § 2929.11 and 2929.12) for imposing more 

than the minimum sentence, for imposing the maximum sentence, and for imposing consecutive 

sentences (State Court Record, ECF No. 16, PageID 481-85). It did not violate Blakely to have 

the trial judge make these findings. None of them were necessary to impose a mandatory minimum 

sentence. Compare Alleyne v. United States. 570 U.S. 99 (2013), overruling Harris v. United 

States, 536 U.S. 545 (2002). Blakely is not applicable to judicial factfinding that increases the 

minimum sentence. Arias v. Hudson, 589 F.3d 315 (6th Cir. 2009), citing McMillan v. 

Pennsylvania, 477 U.S. 79 (1986); United States v. Harris, 536 U.S. 545, 568 (2002); Chontos v. 

Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009). 

Blakely has never been held applicable to factfinding required by state law to justify a 

maximum sentence so long as it is within the range provided by statute. Imposition of consecutive 

sentences for multiple offenses, based on facts found by the court rather than the jury, does not 

violate constitutional right to jury trial, since the jury historically played no role in determining 

consecutive or concurrent sentences and state had sovereign authority to administer its penal 

system. Oregon v. Ice, 555 U.S. 160 (2009). Thus nothing Judge Langer did in imposing a 

sentence for the crimes of conviction violates the rule in Blakely. 

 Henley also asserts that classifying him as a sexual predator required jury fact finding under 

Blakely. But classification as a sexual offender is not a punishment, but rather a collateral 

consequence of conviction of certain offenses. Further classification as a sexual predator does 
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require a judicial finding as was done here, but Henley cites no authority for the proposition that 

such a finding must be made by a jury. Indeed, as the Sixth Circuit noted in Leslie, supra, the 

Ohio Supreme Court has held that the sexual predator statute is remedial as opposed to punitive in 

nature. 296 F.3d at 522-23, citing State v. Cook, 83 Ohio St. 3d 404 (1998). 

 Considering the matter de novo and without parsing the extent to which law of the case 

doctrine may or may not suggest a different answer, the Magistrate Judge concludes Ground One 

is without merit and should be dismissed. 

Ground Two: Ineffective Assistance of Appellate Counsel 

 In his Second Ground for Relief, Henley asserts his appellate counsel provided ineffective 

assistance when he failed to claim trial counsel was ineffective in failing to challenge judicial bias 

at sentencing and the Blakely error asserted in Ground One. 

 Respondent asserts this Court lacks jurisdiction to consider this claim because Henley is 

no longer in custody on the relevant charges and is barred under the law of the case doctrine 

(Return, ECF No. 13, PageID 432-33). For the reasons given as to Ground One, the Magistrate 

Judge concludes the Court has jurisdiction because Henley continues to serve a consecutive 

sentence. 

 However, the Magistrate Judge also concludes the law of the case is applicable to this claim 

because it is precisely the same claim that was before the Sixth Circuit on Henley’s appeal from 

dismissal of his first case. The Sixth Circuit holding that Henley did not suffer ineffective 

assistance of appellate counsel as alleged here is directly in point. 
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 Henley asserts “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). No such mandate exists. The Sixth Circuit in Henley v. Brunsman, 

supra, merely ruled that “we affirm the district court’s decision.” There was no remand for any 

purpose. 

 Ground Two is without merit and should be dismissed. 

Ground Three: 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. 

 Respondent asserts there is applicable law of the case on this claim because it was 

previously pleaded as Ground Two in the prior case (Return, ECF No. 13, PageID 432). This 

claim was indeed made as part of Ground Two and the Magistrate Judge recommended deciding 

it as follows: 

Ground 2(a): Exclusion of Part of the Testimony of Barbara 

Pettiford 

After his sexual encounter with the victim and his alleged encounter 

with another male in the victim's apartment, Henley went to the 

apartment of his girlfriend, Barbara Pettiford. What he then said to 

Pettiford at her apartment was admitted in evidence, when elicited 
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from Pettiford at trial, under the excited utterance exception to the 

hearsay rule. Henley and Pettiford then drove to the Dayton Mall 

where Henley made additional statements about what happened; 

these were excluded by the trial court as no longer meeting the 

excited utterance exception. 

Henley preserved this claim for federal review by raising it as his 

First Assignment of Error on direct appeal. The Ohio Court of 

Appeals did not decide the constitutional claim, leaving it for this 

Court to consider de novo. 

A fair opportunity to present a defense in a criminal case is of course 

a constitutional right. Baze v. Parker, 371 F.3d 310 (6th Cir. 2004), 

citing Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. 

Ed. 2d 636 (1986). Presenting relevant evidence is integral to that 

right. Taylor v. Illinois, 484 U.S. 400, 409-09, 108 S. Ct. 646, 98 L. 

Ed. 2d 798 (1988). Few rights are more fundamental than that of an 

accused to present witnesses in his own defense. Chambers v. 

Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 

(1973). However, a defendant must comply with established rules 

of procedure and evidence designed to assure both fairness and 

reliability in the ascertainment of guilt and innocence. Id. The right 

to present relevant evidence is not unlimited, but subject to 

reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308, 

118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998), and may bow to 

accommodate other legitimate interests in the criminal trial process. 

Rock v. Arkansas, 483 U.S. 44, 55, 107 S. Ct. 2704, 97 L. Ed. 2d 37 

(1987). 

The hearsay rule is a long-standing rule of evidence both at English 

common law and in the United States. There is no doubt that the 

evidence Henley attempted to present through Pettiford was 

hearsay: an out-of-court statement that Henley made to Pettiford, 

offered to prove the truth of the content of the statement, to wit, that 

Henley was himself the victim of attempted robbery by the victim's 

male accomplice. See Ohio R. Evid. 801. Petitioner presents no law 

establishing a constitutionally-mandated [sic] hearsay exception for 

criminal defendants. In fact, hearsay restrictions are often more 

rigidly enforced in criminal cases to protect defendants. See, e.g, 

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 

2d 177 (2004). One purpose of the hearsay rule is to subject hearsay 

declarants to cross-examination. Therefore, exclusion of hearsay 

which constitutes justificatory narrative spoken by a criminal 

defendant is particularly well suited to make trial results reliable, 

since a defendant cannot be compelled to take the stand and be 

cross-examined himself on any explanation he may have given to a 
14 

third party. There was no violation of Petitioner's constitutional right 

to present a defense in the trial court's exclusion of part of the 

hearsay offered through Pettiford. Ground for Relief 2 (a) is without 

merit. 

Henley v. Moore, 2007 U.S. Dist. LEXIS 96373, *40-42 (S.D. Ohio June 28, 2007). Thus Henley 

received de novo consideration of this claim in his prior case. Although District Judge Rice, to 

whom the prior case was assigned, rejected the Magistrate Judge’s Rule 26(B) analysis, he adopted 

this conclusion on Ground Two and denied a certificate of appealability on this Ground. Henley 

v. Moore, 2008 U.S. Dist. LEXIS 8371 (S.D. Ohio Feb. 5, 2008). Henley sought an expansion of 

the certificate of appealability from the Sixth Circuit which that court declined to grant. Henley v. 

Moore, Case No. 08-3288 (Order of Oct. 7, 2008)(unreported; available from the Sixth Circuit). 

The determination to deny a certificate of appealability means the Sixth Circuit decided the issues 

not certified were not even debatable among jurists of reason. As noted above, a decision denying 

a certificate of appealability becomes part of the law of the case. Dillingham, supra. 

 Having reconsidered the question in light of Petitioner’s Reply, the Magistrate Judge 

remains persuaded of the correctness of his prior recommendation. It is within the function of an 

Ohio trial judge, as it is with federal trial judges, to make an initial determination of the 

admissibility of proffered evidence. Here Judge Langer accepted what Henley first said to 

Pettiford as an excited utterance, but declined to find the later statements were excited utterances. 

No authority cited by Henley compels the admission of a defendant’s own hearsay statements to 

another person when made outside the traditional parameters of excited utterance. There is 

therefore no reason to depart form the law of the case on this issue. Ground Three is without merit 

and should be dismissed. 
15 

Ground Seven: 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. 

 Respondent asserts there is applicable law of the case on this claim, stating it was Ground 

2(d) in the original petition (Return, ECF No. 13, PageID 432). In the prior case, Henley argued 

this solely as a claim under the Ohio Revised Code and not as a Double Jeopardy violation. On 

that basis the Magistrate Judge recommended dismissal because claims under Ohio Revised Code 

§ 2941.25 are not cognizable as federal habeas claims. Henley v. Moore, 2007 U.S. Dist. LEXIS 

96373 *43-44 (S.D. Ohio June 28, 2007). Judge Rice accepted this portion of the Report and the 

Sixth Circuit denied a certificate of appealability. The law of the case would therefore bar this 

claim as it is made under Ohio Revised Code § 2941.25. 

 Henley’s Reply spends time discussing the allied offenses issue, which is not by itself a 

question of federal constitutional law (Reply, ECF No. 20, PageID 1759-61). That is, not every 

violation of Ohio Revised Code § 2941.25 will also violate the Double Jeopardy Clause. But 

Henley is correct that the Sixth Circuit has held that a state court decision that solely considers and 

rejects a § 2941.25 challenge is dispositive of the Double Jeopardy claim. Jackson v. Smith, 745 

F.3d 206 (6th Cir. 2014). 

 On direct appeal to the Ohio Court of Appeals for the Second District, Henley raised the 

failure to merge the rape and kidnapping charges as part of his Third Assignment of Error. The 
16 

Second District decided the claim as follows: 

[*P38] First, Henley contends that the trial court erred by failing to 

merge the offenses of Rape and Kidnapping as allied offenses of 

similar import. Henley concedes that we must review this issue 

under the plain error standard since he failed to bring the error to the 

attention of the trial court. 

[*P39] In this case, we find that the trial court did err by failing to 

merge these two offenses. However, we cannot say that this failure 

rises to the level of plain error. "To be 'plain' within the meaning of 

Crim.R. 52(B), an error must be an 'obvious' defect in the trial 

proceedings." State v. Barnes (2002), 94 Ohio St.3d 21, 27, 2002 

Ohio 68, 759 N.E.2d 1240. The issue of whether a kidnapping 

offense merges with a rape offense when the two offenses are 

committed during the same general course of conduct is inherently 

fact-sensitive and difficult. The Ohio Supreme Court has adopted 

the following guidelines: 

[*P40] "(a) Where the restraint or movement of the victim is 

merely incidental to a separate underlying crime, there exists 

no separate animus sufficient to sustain separate convictions; 

however, where the restraint is prolonged, the confinement is 

secretive, or the movement is substantial so as to demonstrate 

a significance independent of the other offense, there exists a 

separate animus as to each offense sufficient to support 

separate convictions; 

[*P41] "(b) Where the asportation or restraint of the victim 

subjects the victim to a substantial increase in risk of harm 

separate and apart from that involved in the underlying crime, 

there exists a separate animus as to each offense sufficient to 

support separate convictions." State v. Logan (1979), 60 Ohio 

St.2d 126, 397 N.E.2d 1345, syllabus. 

[*P42] The cases cited by the parties in the case before us are a 

testament to the fineness with which these distinctions are made. 

The State cites State v. Logan, supra, State v. Collins (4th District), 

2002 Ohio 3212, and State v. Payton (5th District), 2005 Ohio 737. 

In the first two of these cases, the Kidnapping and Rape offenses 

were merged; in the third, they were not merged. Although the State 

argues that these cases are readily distinguishable, and that the case 

before us is more like State v. Payton, supra, where the offenses 

were not merged, in our view the three cases are difficult, if not 

impossible, to distinguish on their facts. Taken together, they 

demonstrate, to our satisfaction, that the trial court's error, in the case 
17 

before us, in failing to merge the Kidnapping and Rape offenses on 

the facts before us, was anything but obvious. Fortunately for 

Henley, the sentences for these two offenses were ordered to be 

served concurrently, rather than consecutively. 

[*P43] Although we conclude that the trial court did err by failing 

to merge the Kidnapping and Rape offenses, we conclude that this 

error is not sufficiently obvious to constitute plain error. 

State v. Henley, 2005-Ohio-6142, 2005 Ohio App. LEXIS 5531 (2nd Dist. Nov. 18, 2005). 

 Henley, satisfied with the Second District’s conclusion that rape and kidnapping in this 

case were allied offenses of similar import, wants this Court to accept that finding but overrule the 

Second District’s conclusion that it was not plain error (Reply, ECF No. 20, PageID 1760). This 

Court should not do so for two reasons. First of all, the Second District found as a matter of fact 

that Henley had conceded the needed to show plain error. Id. at ¶ 38. This state court finding of 

fact is binding on us unless Henley can show it is erroneous by clear and convincing evidence, 

which he has not attempted to do. Second, the question whether this was plain error is a question 

of state law under Ohio R. Crim. P. 52 on which we are bound by state court rulings. 

 Henley argues that the Second District’s finding that there was no plain error implies a 

finding of harmlessness (Reply, ECF No. 20, PageID 1762). This is incorrect. These are separate 

considerations and the Second District said nothing about harmlessness. 

 Henley claims under this Ground for Relief that his two felonious assault convictions, to 

wit, for causing serious physical harm under Ohio Revised Code § 2903.11(A)(1) and for use of a 

deadly weapon under Ohio Revised Code § 2903.11(A)(2) should be merged (Reply, ECF No. 20, 

PageID 1763-65). Henley asserts the Second District “was silent and failed to address this 

particular issue of the two felonious assault counts being merged with each other.” (Reply, ECF 
18 

No. 20, PageID 1764). However, Henley did not raise this issue on direct appeal. His Brief 

addresses only merger of felonious assault convictions with the attempted felonious assault 

conviction, but not with each other: 

Next, it is respectfully submitted that the trial court erred in 

sentencing Mr. Henley for the offenses of felonious assault and 

attempted felonious assault. Upon a review of the elements of the 

aforementioned charges, this Court will see that the trial court erred 

in sentencing Mr. Henley for both offenses fo [sic] felonious assault 

and attempted felonious assault. As previously set forth herein, 

undersigned counsel would request this Court review the standard 

as set forth in State v. Jones (1997), 78 Ohio St.3d 12, wherein it 

was indicated that Courts should assess, by aligning the elements of 

each crime the abstract, whether the statutory elements of the crimes 

"correspond to such a degree that the commission of one crime will 

result in the commission of the other.” Jones, supra. It is 

respectfully submitted that there is no better example of allied 

offenses of similar import than in the case of felonious assault and 

attempted felonious assault. Specifically, it is submitted that this 

very charge may be even more compelling than most statutes 

inasmuch as the felonious assault statute has the "attempt” language 

already set forth in the body of the statute. Therefore, based on the 

foregoing, it is clear that these offenses, which are found in Counts 

six, seven and eight of the indictment are allied offenses of similar 

import. Additionally, under the standards as set forth herein, it is 

respectfully submitted that it is clear that the charges against Mr. 

Henley (as in the case of Collins) arose from a single incident and 

therefore, he did not commit the offenses separately. See; State v. 

Collins 2002-0hio-321. Based on the foregoing, it is respectfully 

submitted that the trial court erred in determining that Mr. Henley 

could be convicted of and sentenced consecutively for the offenses 

of felonious assault and attempted felonious assault. 

(Appellant’s Brief, State Court Record, ECF No. 16, PageID 520-21.) This issue of the merger of 

the convictions under Ohio Revised Code § 2903.11(A)(1) and (A)(2) is plainly available on the 

face of the appellate record, but was not raised and is therefore procedurally defaulted. 

 As just quoted, Henley did raise on direct appeal his claim that the felonious assault 

conviction and the attempted felonious assault conviction should have been merged. The Second 

District rejected this claim on the merits: 
19 

[*P44] Next, Henley contends that the trial court committed plain 

error by failing to merge the offenses of Felonious Assault and 

Attempted Felonious Assault. We find no support for this argument. 

Henley's act of attempting to suffocate the victim with a pillow -- 

Attempted Felonious Assault -- is distinct and separate from his act 

of stabbing the victim -- Felonious Assault. We conclude that each 

of these two acts could reasonably be considered as having a 

separate and distinct animus. Thus, we find no error, and certainly 

no plain error, in the trial court's failure to merge these counts. 

State v. Henley, 2005-Ohio-6142, 20015 Ohio App. LEXIS 5531 (2nd Dist. Nov. 18, 2005). 

 Henley argues the Second District should have applied the comparison-of-elements test of 

State v. Rance, 85 Ohio St. 3d 632 (1999), in deciding this issue (Reply, ECF No. 20, PageID 

1768). The Supreme Court of Ohio has abandoned the Rance approach to determining legislative 

intent in State v. Johnson, 128 Ohio St. 3d 153 (2010). Rance would have been the controlling 

precedent at the time Henley’s case was before the Second District. This fact is unavailing to 

Henley, however, because a comparison of elements is immaterial. Under Ohio Revised Code § 

2941.25, the first question is whether one is dealing with the same “conduct” or “act” of a 

defendant. In Rance, for example, there was only one act of the defendant which was charged 

both as involuntary manslaughter and aggravated robbery. In this case as the Second District 

recounted the testimony, the attempted suffocation occurred during the rape after the victim 

accidentally urinated. The stabbing occurred later after the victim free her hands, broke out the 

bedroom window to cry for help, and then grabbed Henley in the genitals. The Second District 

decided these were separate acts with distinct animus. Id. 

 Under Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014), this constitutes a decision on the 

merits of Henley’s Double Jeopardy claim which is entitled to deference under the AEDPA unless 

it is an objectively unreasonable application of clearly established United States Supreme Court 
20 

precedent. Henley has not shown that it is. 

 Ground Seven should therefore be dismissed with prejudice. 

Ground Nine: Ineffective Assistance of Appellate Counsel 

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

appellate counsel when his appellate attorney failed to claim his trial counsel provided ineffective 

assistance of trial counsel when he did not object to sentences imposed in violation of Ohio Revised 

Code § 2941.25 and the Double Jeopardy Clause. 

 Respondent notes that Henley raised this claim in his Application to Reopen his direct 

appeal under Ohio R. App. P. 26(B). In that pleading he complained of the failure to merge the 

four rape counts. The Second District decided that these four counts were for separate offenses: 

Henley was convicted of four counts of Rape. Specifically, he was 

convicted of committing Rape by vaginal intercourse, anal 

intercourse, insertion of his tongue into the anal cavity and Insertion 

of his tongue into the vaginal cavity. Each of these offenses have 

distinct elements that do not correspond to such a degree that 

commission of one crime will result in commission of the other 

crime. In other words, the commission of oral Rape does not 

constitute commission of vaginal Rape, and neither of those 

constitute anal Rape. The argument Henley seeks to make has been 

rejected by this court, as well as the Ohio Supreme Court. See, State 

v. Burgess, 162 Ohio App. 3d 291, 2005-Ohio-3747, ¶¶ 33-36; State 

v. Nicholas (1993), 66 Ohio St.3d 431. 

State v. Henley, Case No. 20789 (2nd Dist. Apr. 10, 2006)(unreported; copy at State Court Record 

ECF No. 16, PageID 721). Thus the Second District decided that, because these four rapes were 

separate offenses, it was not ineffective assistance of trial counsel to fail to move to merge them, 

and not ineffective assistance of appellate counsel to fail to complain of trial counsel’s omission. 
21 

Henley has not demonstrated this is an objectively unreasonable application of Strickland v. 

Washington, 466 U.S. 668 (1984), as it applies to appellate counsel. 

 Henley also complained in his 26(B) Application of the failure to merge the two counts of 

felonious assault. The Second District found “given that trial court merged the convictions and 

sentences for these two offenses, we fail to see how Henley has been prejudiced by the failure to 

raise the matter on direct appeal.” State v. Henley, Case No. 20789 (2nd Dist. Apr. 10, 

2006)(unreported; copy at State Court Record ECF No. 16, PageID 722). Henley argues that this 

is a misreading of the trial court record and that, instead, the trial court ordered the sentences on 

Counts 6 and 7 to be served concurrently and did not merge them (Reply, ECF No. 20, PageID 

1764). The Amended Termination Entry of November 24, 2004, reflects concurrent sentences for 

Counts 6 and 7 (State Court Record, ECF No. 16, PageID 489). 

 This factual error by the Second District does not entitle Henley to habeas corpus relief, 

however. The cited decision on the 26(B) application constitutes a ruling on the merits of this 

particular claim. Under Harrington v. Richter, 562 U.S. 86, 103 (2011), this Court must defer to 

that decision unless it is not supportable by any reasonable theory on which the Second District 

could have relied. 

In assessing prejudice under Strickland, the question is not whether a court can be certain 

counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt 

might have been established if counsel acted differently. See Wong v. Belmontes, 558 U.S. 15, 27, 

130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam); Strickland, 466 U.S., at 693, 104 S.Ct. 2052, 

80 L.Ed.2d 674. Instead, Strickland asks whether it is “reasonably likely” the result would have 

been different. Id., at 696, 104 S.Ct. 2052, 80 L.Ed.2d 674. This does not require a showing that 
22 

counsel's actions “more likely than not altered the outcome,” but the difference between 

Strickland's prejudice standard and a more-probable-than-not standard is slight and matters “only 

in the rarest case.” Id., at 693, 697, 104 S.Ct. 2052, 80L.Ed. 2d 674. The likelihood of a different 

result must be substantial, not just conceivable. Id., at 693, 104 S.Ct. 2052, 80 L.Ed.2d 

674.Harrington v. Richter, 562 U.S. 86, 111-112 (2011). 

Recognizing the duty and ability of our state-court colleagues to 

adjudicate claims of constitutional wrong, AEDPA erects a 

formidable barrier to federal habeas relief for prisoners whose 

claims have been adjudicated in state court. AEDPA requires “a 

state prisoner [to] show that the state court’s ruling on the claim 

being presented in federal court was so lacking in justification that 

there was an error . . . beyond any possibility for fairminded 

disagreement.” Harrington v. Richter, 562 U.S. [86, 103,] 131 S.Ct. 

770, 178 L.Ed.2d 624, 641 (2011). “If this standard is difficult to 

meet”—and it is—“that is because it was meant to be.” Id., at [102], 

131 S.Ct. 770, 178 L.Ed.2d 624, 641. We will not lightly conclude 

that a State’s criminal justice system has experienced the “extreme 

malfunctio[n] [sic]” for which federal habeas relief is the remedy. 

Id., . . . , 131 S.Ct. 770, 178 L.Ed. 2d 624, 641 (internal quotation 

marks omitted). 

Burt v. Titlow, 571 U.S. 12, 19-20 (2013). 

 In assessing an ineffective assistance of appellate counsel claim, the Strickland standard of 

deficient performance and prejudice is applicable. Smith v. Robbins, 528 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. Henness 

v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing 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., citing 

Wilson. 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 
23 

that the failure to raise it amounted to ineffective assistance of appellate counsel. Id., citing Wilson. 

The attorney need not advance every argument, regardless of merit, urged by the appellant. Jones 

v. Barnes, 463 U.S. 745, 751-752 (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), cert. denied, 544 U.S. 1003 (2005); 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). 

 Ineffective assistance of trial counsel for failure to argue for merger of Henley’s two 

felonious assault convictions was far from the strongest argument available on appeal. For 

example, Henley’s Blakely argument regarding sexual predator classification was strong enough 

to draw a dissent on appeal from Judge Merritt. The assignment of error about excluding part of 

the testimony of Barbara Pettiford also seems stronger. Because appellate counsel did not perform 

deficiently in omitting this claim, the Second District’s rejection of this claim of ineffective 

assistance of appellate counsel is not objectively unreasonable. Ground Nine should be dismissed 

as without merit. 

Conclusion 
24 

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

July 23, 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).