1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

DEVINE D. WARD, 

Petitioner, : Case No. 3:17-cv-301 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

MARK HOOKS, Warden, 

 Ross Correctional Institution, 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus action brought pro se by Petitioner Devine D. Ward to obtain 

relief from his convictions in the Montgomery County Common Pleas Court on two counts of 

aggravated robbery and his consequent sentence to twelve years imprisonment, presently being 

served in Respondent’s custody. 

 The case is before the Court for initial review pursuant to Rule 4 of the Rules Governing 

§ 2254 Cases which provides in pertinent part: “[i]f it plainly appears from the petition and any 

attached exhibits that the petitioner is not entitled to relief in the district court, the judge must 

dismiss the petition and direct the clerk to notify the petitioner.” 

 Petitioner pleads the following grounds for relief: 

Ground One: Petitioner is being held in violation of his right to 

effective assistance of counsel guaranteed by the 5th, 6th, and 14th

Amendments to the U.S. Constitution. 
2 

Supporting Facts: Counsel was ineffective for 1) failing to 

challenge venireman Clapp, either for cause or peremptorily; 2) 

failing to renew his Ohio Crim. R. 14 motion for severance, and 3) 

failing to present a complete defense. 

Ground Two: Petitioner is being held in violation of his 5th, 6th, 

and 14th Amendment right to testify in his own defense and in 

violation of due process and equal protection of the law. 

Supporting Facts: The joinder of offenses deprived petitioner of his 

right to testify in his own behalf. 

Ground Three: Petitioner is being held in violation of his 6th

Amendment right to confront the witnesses against him. 

Supporting Facts: The State introduced into evidence a 911 call 

from Erron Daniels, the alleged victim of the Nov. 17, 2014 

robbery, who did not testify at trial. 

Ground Four: Petitioner is being held in violation of his right to 

the effective assistance of counsel on appeal guaranteed by the 5th, 

6th and 14th Amendments to the U.S. Constitution. 

Supporting Facts: Appellate counsel was ineffective for failing 

to argue: 1. that trial counsel was ineffective for: a. informing the 

jury that Petitioner was guilty, b. failing to request a dismissal of 

count two when Erron Daniels failed to show up to court or for 

failing to ask for a continuance, c. failing to call Tritania Knight as 

an alibi witness, d. failing to request dismissal after the state's 

witnesses perjured themselves, e. failing to impeach several 

witnesses with prior inconsistent statements; 2. failing to argue 

petitioner's right to confrontation was violated; 3. failing to argue 

prosecutorial misconduct based upon the prosecutor's knowing use 

of perjury. 

(Petition, ECF No. 3.) 

Procedural History 

 Petitioner Ward was arrested for two armed robberies which occurred on consecutive 

days in November 2014. State v. Ward, 2016-Ohio-5354, ¶ 3, 2016 Ohio App. LEXIS 3218 (2nd
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Dist. Aug. 12, 2016), motion for delayed appeal denied, 147 Ohio St. 3d 1473 (2016). He was 

indicted on two counts of aggravated robbery with firearm specifications and convicted by a jury 

on all counts. The trial court imposed a six-year term for the first robbery, a concurrent fouryear term for the second robbery, and two consecutive three-year terms for the firearm 

specifications. Id. at ¶ 7. Ward took a direct appeal to the Ohio Second District Court of 

Appeals which affirmed the convictions and sentence. Id. As noted, the Ohio Supreme Court 

denied a motion for delayed appeal after no notice of appeal was filed by the due date, forty-five 

days after judgment in the court of appeals. Ward filed a motion to reopen his direct appeal 

under Ohio App. R. 26(B) to present claims of ineffective assistance of appellate counsel which 

was denied as untimely. State v. Ward, Case No. 26773 (2nd Dist. Mar. 17, 2017)(unreported; 

copy available at mcclerkofcourts.org), appellate jurisdiction declined 149 Ohio St. 3d 1408 

(2017). Ward avers he placed his Petition for Writ of Habeas Corpus in the prison mailing 

system on August 4, 2017, but on the same page he says he did not sign the Petition until August 

24, 2017 (ECF No. 3, PageID 18). 

Analysis 

Ground One: Ineffective Assistance of Trial Counsel 

 In his First Ground for Relief, Ward claims his trial attorney provided ineffective 

assistance of trial counsel when he did not challenge venireman Clapp for cause or peremptorily, 
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when he did not renew the motion to severe the two offenses, and when he did not present a 

“complete defense.” 

 Ward’s First Assignment of Error on direct appeal raised the claim of ineffective 

assistance of trial counsel regarding Juror Clapp. The Second District decided the claim as 

follows: 

 [*P8] In his first assignment of error, Ward contends his trial 

counsel provided ineffective assistance by failing to challenge a 

particular juror either for cause or peremptorily. The juror in 

question stated during voir dire that he worked as a delivery driver 

for a beer distributor and knew people in his profession who had 

been robbed at gunpoint. He agreed that the nature of Ward's case 

gave him "some pause for concern." He believed the fact that 

Ward's case involved the robbery of delivery drivers would make it 

difficult for him to sit as a juror. When asked whether he could set 

aside his feelings and judge the case solely based on the evidence, 

he responded: "I would like to think that I would, but I'm not sure." 

The juror explained that he had observed the emotional impact 

being robbed had taken on other drivers. When asked whether that 

would affect his ability to sit as a juror, he responded: 

I would like to say I would be fair. But I'm saying past 

experiences and sympathizing with the people and the 

stuff that's happened to them, knowing what happened to 

them even though there wasn't a physical thing, mentally 

and what it's done to their lives up until now, it makes it 

really hard to, you know, sit on one—and witness going 

through this again. You know what I'm saying? You 

know, there's—it's—just for example, there was an older 

lady that was pistol whipped to give money away and was 

severely injured and had to spend a year off work. And I 

was really close to her. And I tell you what, if I'd have got 

my chance to get a hand on that guy, I would have 

lobbied some justice. You know? 

So I'm just saying, it's—being—you know, I'm 

sympathetic to the carry out people that it's happened to. 

And through thirty-five years I've had a number of 

occasions to be close to people that it's happened to. And 

like I said, just having a—I'm—actually, in my line of 

work I've had a pistol pointed in front of me. I know the 

feeling, you know. * * * 
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(Tr. at 169-170). 

 [*P9] To prevail on an ineffective-assistance claim, a defendant 

must show deficient performance and resulting prejudice. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984). To show deficiency, a defendant must show 

that trial counsel's representation fell below an objective standard 

of reasonableness. Id. Prejudice exists and a reversal is warranted 

only where a defendant shows a reasonable probability that but for 

counsel's deficient performance the result of the proceeding would 

have been different. State v. Bradley, 42 Ohio St.3d 136, 142, 538 

N.E.2d 373 (1989). 

 [*P10] We find no ineffective assistance of counsel here. We 

cannot know, of course, why defense counsel failed to challenge 

the juror at issue, either for cause or through a peremptory 

challenge. But even if we assume arguendo that defense counsel 

provided deficient representation by not seeking to have the juror 

stricken from the pool, Ward cannot demonstrate prejudice. HN2

"When a defendant bases an ineffective-assistance claim on an 

assertion that his counsel allowed the impanelment of a biased 

juror, the defendant 'must show that the juror was actually biased 

against him.'" (Citations omitted.) State v. Mundt, 115 Ohio St.3d 

22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67. 

 [*P11] In this case, the juror in question never stated that he 

could not be fair or that he was actually biased against Ward 

personally, as is required to establish prejudice. State v. Pickens, 

141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 213. The 

juror expressed unease and conveyed his belief that the nature of 

the cause would make it difficult for him to be objective. This is 

not the same as admitting or acknowledging a personal [**8] bias 

against Ward, who the juror acknowledged remained innocent in 

his eyes. We note too that HN3 the use of peremptory challenges 

"is inherently subjective and intuitive," meaning that the record 

rarely will reveal ineffective assistance. (Citations omitted) Id. at ¶ 

214. Ward's case is one where the record does not. His first 

assignment of error is overruled. 

State v. Ward, supra. 

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

federal habeas court, the federal court must defer to the state court decision unless that decision 
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is contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 

S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 

693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

The governing standard for ineffective assistance of trial counsel is found in Strickland v. 

Washington, 466 U.S. 668 (1984): 

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

defective as to require reversal of a conviction or death sentence 

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

performance was deficient. This requires showing that counsel 

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

the Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

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

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

defendant makes both showings, it cannot be said that the 

conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable. 

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

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

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

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

Judicial scrutiny of counsel's performance must be highly 

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

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

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

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that 

counsel's conduct falls within a wide range of reasonable 

professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action 

"might be considered sound trial strategy." 
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466 U.S. at 689. 

As to the second prong, the Supreme Court held: 

The defendant must show that there is a reasonable probability 

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

proceeding would have been different. A reasonable probability is 

a probability sufficient to overcome confidence in the outcome. 

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

F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally

Annotation, 26 ALR Fed 218. 

 Here the Second District decided the ineffective assistance of trial counsel sub-claim 

regarding excuse of Juror Clapp by applying the correct federal standard, stated in Strickland, 

supra, It concluded that even if deficient performance were presumed, there had been no 

showing of prejudice. This was not an objectively unreasonable application of Strickland. 

 Ward’s second sub-claim of ineffective assistance of trial counsel is for counsel’s failure 

to renew at trial the motion for severance. This was his Second Assignment of Error on direct 

appeal which the Second District decided as follows: 

 [*P12] In his second assignment of error, Ward asserts ineffective 

assistance of counsel based on his attorney's failure to renew a 

Crim.R. 14 motion for severance of the two aggravated-robbery 

charges during trial. 

 [*P13] The record reflects that Ward's attorney filed a pretrial 

motion to have the two aggravated-robbery charges tried 

separately. The trial court overruled the motion, and defense 

counsel did not renew the request during trial. Ward argues that his 

attorney's failure to renew the motion resulted in the waiver of all 

but plain error and constituted prejudicially deficient performance. 

We disagree. As explained more fully in our analysis of Ward's 

third assignment of error below, joinder of the two offenses for 

trial was appropriate and severance was not required. Because the 

trial court's denial of the pretrial motion for severance was 

proper, and we see nothing that would have changed the result if 
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the motion had been renewed at trial, defense counsel did not 

provide ineffective assistance by failing to renew the motion. The 

second assignment of error is overruled. 

State v. Ward, supra.

 This too was a not unreasonable application of Strickland. Because nothing changed 

between the pretrial denial of severance and trial, nothing would have been gained by renewing 

the motion and therefore it was not deficient performance to fail to do so. In particular Ward did 

not suffer the prejudice he claimed of being limited to plain error review on appeal. 

 Ward’s third sub-claim of ineffective assistance of trial counsel is that his trial attorney 

failed to present a “complete defense.” The Petition does not explain what a “complete defense” 

would have been, but he presented this claim to the Second District on direct appeal as his Fourth 

Assignment of Error which that court decided as follows: 

 [*P19] In his fourth assignment of error, Ward alleges ineffective 

assistance of counsel based on his attorney's failure to present a 

complete defense. Specifically, he contends counsel provided 

ineffective assistance by (1) identifying Tationna Knight in a 

pretrial notice as an alibi witness with regard to the Dragon City 

robbery but not the Submarine House robbery and (2) subsequently 

not calling her as a trial witness at all. 

 [*P20] On the record before us, Ward cannot possibly 

demonstrate ineffective assistance of counsel on either of the 

foregoing grounds. The appellate record does not reflect why 

defense counsel did not identify Knight as an alibi witness for the 

Submarine House robbery or why defense counsel did not call her 

as a trial witness at all. With regard to the former issue, Knight 

may have been unable to provide an alibi for the robbery of the 

Submarine House driver. Because the record does not establish that 

Knight had any alibi testimony to provide about that robbery, 

Ward cannot show prejudicially deficient representation in 

counsel's failure to list her as an alibi witness. With regard to 

counsel's failure to call Knight to provide alibi testimony in 

connection with the Dragon City robbery, counsel's decision likely 

was influenced by the fact that Ward already had admitted 

committing that offense. In light of Ward's confession, defense 

counsel reasonably could have concluded that calling Knight as an 
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alibi witness would be counterproductive. The fourth assignment 

of error is overruled. 

State v. Ward, supra. As the Second District held, the record on direct appeal did not establish a 

number of facts which would have made Ms. Knight a viable witness, particularly what she 

would have said about the Submarine House delivery driver robbery. Ward did not attempt to 

establish these facts by filing a petition for post-conviction relief. Here, again the Second 

District’s decision is not an objectively unreasonable application of Strickland, supra. 

Ground Two: Improper Joinder 

 In his Second Ground for Relief, Ward claims he was denied his right to testify in his 

own defense by the trial court’s refusal to sever the two offenses for trial. Ward raised this claim 

as his Third Assignment of Error on direct appeal. The Second District decided the claim as 

follows: 

[P14] In his third assignment of error, Ward argues that the 

joinder of both aggravated-robbery offenses for trial deprived him 

of his right to testify on his own behalf. He asserts that he wanted 

to testify about the robbery of the Submarine House delivery driver 

but not the robbery of the Dragon City driver. According to Ward, 

he did not wish to testify about the second robbery because he 

already had confessed to it. He maintains that the trial court's 

failure to sever the two robberies for separate trials deprived him 

of the opportunity to make this choice, effectively forcing him not 

to testify at all. 

 [*P15] Upon review, we find Ward's argument to be 

unpersuasive. "The law favors joinder to prevent successive trials, 

to minimize the possibility of incongruous results in successive 

trials before different juries, to conserve judicial resources, and to 

diminish the inconvenience to witnesses." State v. Broadnax, 2d 

Dist. Montgomery No. 21844, 2007-Ohio-6584, ¶ 33. Here the two 
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aggravated robberies were permitted to be joined for trial 

because [**10] they were "of the same or similar character," as 

required by Crim.R. 8(A). The virtually identical crimes occurred 

on consecutive days in the same location. They both involved the 

armed robbery of a delivery driver by a perpetrator who fled in a 

small black car. Under these circumstances, joinder undoubtedly 

was proper. Id. at ¶ 34 ("Joinder was proper in this case because all 

of the offenses at issue were of the same or similar character, being 

aggravated robberies, all were committed within a six day period. 

All of the offenses involved a similar modus operandi and were 

committed the same way, and all of the offenses involved a 

common scheme, plan or course of criminal conduct."). 

 [*P16] When offenses are joined, a defendant still may seek 

severance under Crim.R. 14. To prevail on a claim that the trial 

court erred in denying severance, Ward must demonstrate that his 

rights were prejudiced. "To affirmatively show that his rights have 

been prejudiced by the joinder, the defendant must furnish the trial 

court with information sufficient to allow the court to weigh the 

considerations favoring joinder against the defendant's right to a 

fair trial, and the defendant must demonstrate that the court abused 

its discretion in refusing to separate the charges for trial." Id. at ¶ 

37. A defendant normally cannot establish prejudice, however, 

where either (1) the evidence of each of the crimes joined at trial is 

simple and direct or (2) the State could have introduced evidence 

of one offense in a separate trial of the other offense had severance 

been granted. State v. Franklin, 62 Ohio St.3d 118, 122, 580 

N.E.2d 1 (1991). 

 [*P17] Here Ward has not demonstrated prejudice resulting from 

the trial court's failure to sever the charges against him. This court 

rejected an argument quite similar to his in Broadnax, reasoning: 

To show that he was prejudiced by the joinder of these 

aggravated robbery offenses for trial, Defendant 

complains that he wanted to testify as to the Trotwood 

Speedway robbery while remaining silent as to the 

Harrison Township robberies. Defendant claims that, as to 

the Trotwood robbery, he wanted to provide the jury with 

the same explanation he gave to police for why he was in 

the Buick Regal they stopped just five minutes after the 

Speedway station was robbed, and why he ran from 

police. Defendant further claims that as to the Harrison 

Township robberies, he intended to present an alibi 

defense for those offenses, and he wanted to avoid 

exposing his prior criminal record to the jury.
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Defendant has not made a convincing showing that he had 

important testimony to give concerning one charge and a 

strong need to refrain from testifying concerning the 

others. State v. Roberts (1980), 62 Ohio St.2d 170, 176, 

405 N.E.2d 247. The mere possibility that a defendant 

might desire to testify on one count and not the other is 

insubstantial, speculative, and insufficient to show 

prejudice. * * * Further, the prejudice Defendant suggests 

is not in the jury's confusion of the facts concerning the 

multiple alleged offenses, but in disbelieving his alibi 

defenses if his testimony concerning other offenses 

caused the jury to reject his credibility. That is merely a 

tactical concern, not one relating to the fairness of 

Defendant's trial. 

More importantly, Defendant was not prejudiced by the 

joinder of these robbery offenses for trial because the 

evidence pertaining to each offense is simple and direct. * 

* * All of the robberies involve different stores and 

different witnesses. Witnesses in each of the robberies 

independently identified Defendant as the robber. We find 

the evidence as to each offense is straight-forward and 

uncomplicated. Under those circumstances, it is 

improbable that the trier of facts would confuse the 

evidence or improperly consider the testimony concerning 

one offense as corroborative of the other offenses. * * * 

Defendant fails to affirmatively demonstrate prejudice 

resulting from the joinder of these offenses for trial. We 

cannot find that the trial court abused its discretion when 

it denied Defendant's motion to sever the charges. 

Broadnax at ¶ 39-41. 

 [*P18] We reach the same conclusion in Ward's case for at least 

three independent reasons. First, he has not made a convincing 

showing that he had important testimony to give concerning the 

robbery of the Submarine House driver and a strong need to refrain 

from testifying about the robbery of the Dragon City driver. Ward 

has not identified what his testimony would have been with regard 

to the first robbery. Furthermore, it is unclear why his confession 

to the second robbery created a strong need for him to refrain from 

testifying in that case. He simply could have admitted to the jury 

what he had admitted to the police while still maintaining his 

innocence with regard to the first robbery. Indeed, his willingness 

to admit one of the robberies seemingly would have made his 

denial of the other one more credible. Second, the motion for 
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severance Ward filed below failed to cite his desire to testify in just 

one of the two cases as a basis for finding prejudice. (See Doc. 

#28, 35). Because Ward did not even mention this argument 

below, he necessarily failed to provide the trial court with 

information sufficient to allow it to weigh the considerations 

favoring joinder against his right to a fair trial. Third, our review of 

the record convinces us that Ward was not prejudiced by the 

joinder in any event because the evidence pertaining to each 

offense was simple and direct, and the evidence from one would 

have been admissible in the other. Accordingly, his third 

assignment of error is overruled. 

State v. Ward, supra. Because Ward presented no basis to show he would be prejudiced by 

failure to sever and particularly how joinder prevented him from testifying about the Submarine 

House robbery, the Second District’s decision that there was no constitutional violation involved 

is not an objectively unreasonable application of clearly established Supreme Court precedent. 

Ground Three: Violation of Right to Confrontation as to Witness Erron Daniel 

 In his Third Ground for Relief, Ward claims his right to confront witnesses was violated 

when the trial court admitted an out-of-court statement of witness Erron Daniel. Ward raised this 

claim as his Fifth Assignment of Error on direct appeal and the Second District decided the claim 

as follows: 

 [*P21] In his fifth assignment of error, Ward contends the trial 

court violated his Sixth Amendment confrontation rights by 

allowing the State to introduce into evidence a partial recording of 

the 911 call from Erron Daniel, the victim of the Dragon City 

robbery, who did not testify at trial. 

 [*P22] Ward objected to the recording being admitted, arguing 

that Daniel's statements on the recording were testimonial in 

nature. Over Ward's objection, the trial court admitted a portion of 

the recorded call into evidence, concluding that the primary 
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purpose of Daniel's statements was to address an ongoing 

emergency and, therefore, that the statements were nontestimonial. That being so, the trial court found no Sixth 

Amendment violation. 

 [*P23] On appeal, Ward asserts that no emergency was in 

progress and no immediate threat existed when Daniel made his 

911 call. To the contrary, Ward contends that Daniel and the 

perpetrator both had left the scene of the robbery when the call was 

made. Ward notes too that Daniel said he was unharmed during the 

call. Daniel also had spoken with his employer before dialing 911. 

Under these circumstances, Ward asserts that Daniel's statements 

on the 911 recording were testimonial, making their use at trial in 

his absence a violation of his confrontation rights. 

 [*P24] Upon review, we find Ward's argument to be 

unpersuasive. "The U.S. Supreme Court has recognized that a 

defendant's Sixth Amendment right to confront witnesses against 

him is violated when an out-of-court statement that is testimonial 

in nature is admitted into evidence without the defendant having 

had the opportunity to cross-examine the declarant." State v. 

Eicholtz, 2d Dist. Clark No. 2012-CA-7, 2013-Ohio- 302, ¶ 26, 

citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 

158 L.Ed.2d 177 (2004). Testimonial statements include 

statements "'that were made under circumstances which would lead 

an objective witness reasonably to believe that the statement would 

be available for use at a later trial.'" State v. Kelley, 2d Dist. Clark 

No. 2011 CA 37, 2012-Ohio-1095, ¶ 58, quoting Crawford at 52. 

"'[S]tatements are nontestimonial when made in the course of 

police interrogation under circumstances objectively indicating that 

the primary purpose of interrogation is to enable police assistance 

to meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later criminal 

prosecution.'" Eicholtz at ¶ 26, quoting Davis v. Washington, 547 

U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), paragraph one 

of the syllabus. "Typically, 911 calls made to report an ongoing 

emergency that requires police assistance to resolve that 

emergency are not 'testimonial' in nature and therefore the 

Confrontation Clause does not apply." (Citations omitted.) State v. 

Mc Daniel, 2d Dist. Montgomery No. 24423, 2011-Ohio-6326, ¶ 

24. 

 [*P25] The portion of the 911 call played for the jury is one 

minute and twenty seconds long. Daniel can be heard telling the 
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911 operator that he had "just" been robbed at gunpoint near 

Arlene Avenue and Prescott Avenue while making a delivery. He 

reported the direction that the perpetrator had fled. He also 

described the perpetrator as a black male in a black hoodie who 

had fled in a small, black Mazda or Toyota. Finally, he gave the 

operator his own name. Elsewhere in the full recording of the 911 

call, Daniel reported that he was unharmed and that the robbery 

had occurred no more than two minutes earlier. The tone and 

volume of his voice suggested that he remained under the stress 

and excitement of the incident. 

 [*P26] In rejecting Ward's confrontation argument, the trial court 

reasoned: 

In the first place the Court would start as I've listened to 

the part of the tape with counsel that the State intends to 

play, it's clear to me that Mr. Daniel['s] utterances are 

excited based on his voice and the nature of the call and 

listening to it. It's clear to me that it's certainly a present 

sense impression. It happened within moments of the call. 

So those two hearsay exceptions would put it in. 

And then you get to the primary purpose. And what is the 

primary purpose? And I believe, again, as [defense 

counsel] accurately states, you got to look at the totality 

of the circumstances but I think objectively the primary 

purpose was to deal with an ongoing emergency, that is, 

an armed guy that just robbed somebody at gunpoint and 

whether they're still in the proximity. And I think that's an 

emergency. 

And I will also say, listening to the tape, I think there's 

virtually a complete absence of interrogation by law 

enforcement. Almost entirely what's on the tape is what's 

being volunteered on this call. 

Now, so therefore, the Court's going to rule that this is 

nontestimonial in nature. It was a call made in response to 

an emergent situation that had not been resolved. To 

suggest that once the person flees there's no longer an 

emergency I think is a much too narrow drawing of the 

exception or what's emergent versus non-emergent and 

I'm not going to do it. * * *. 

(Tr. at 335-336). 

 [*P27] We agree with the trial court. Although Ward has not 

raised a hearsay argument on appeal, we harbor no doubt that 
15 

Daniel's statements qualified as excited utterances and, therefore, 

were admissible under the Ohio Rules of Evidence. With regard to 

the Confrontation Clause, we note that "whether an emergency 

exists and is ongoing is a highly context-dependent inquiry." 

Michigan v. Bryant, 562 U.S. 344, 363,131 S.Ct. 1143, 179 

L.Ed.2d 93 (2011). The mere fact that Daniel was unharmed and 

that the perpetrator had fled the immediate location did not negate 

the existence of an ongoing emergency. "An assessment of 

whether an emergency that threatens the police and public is 

ongoing cannot narrowly focus on whether the threat solely to the 

first victim has been neutralized because the threat to the first 

responders and public may continue." Id. 

 [*P28] The primary purpose of the 911 call here was to assist 

police in apprehending a dangerous criminal who had just robbed 

Daniel at gunpoint before fleeing into the night. These 

circumstances presented a continuing emergency situation. See 

United States v. Hayden, 612 Fed.Appx. 381, 384 (7th Cir.2015)

("[T]he 911 call at issue and statements to police were nontestimonial because their primary purpose was to provide police 

officers with basic information to address an ongoing emergency. 

The statements occurred within minutes of the robbery while an 

armed suspect was still fleeing the scene and they provided only 

basic information that might enable police to capture the suspect. 

The content of the call was limited to informing police that a 

robbery had occurred; the location of the robbery; that the robber 

wore a gray and black striped shirt; that the robber was armed; and 

that the robber fled in a certain direction. For this reason, the 

statements were clearly non-testimonial and it was proper for the 

trial court to allow them into evidence."); see also Cleveland v. 

Merritt, 8th Dist. Cuyahoga No. 103275, 2016-Ohio-4693, ¶ 10, 19

(recognizing that an ongoing emergency situation can exist after 

the perpetrator has left the scene if a potential threat to the police 

or the public remains). 

 [*P29] Finally, nothing in the 911 recording indicates that Daniel 

had traveled far from the scene of the robbery, if he had left it at all 

when he made his 911 call, and the fact that he had spoken to his 

employer before calling 911 was inconsequential. The full 911 

recording reflects that Daniel's boss called him just before he 

called 911, which resulted in him hanging up to place the 

emergency call. Based on the foregoing reasoning, we overrule 

Ward's fifth assignment of error. 

State v. Ward, supra. 
16 

 The analysis of the Second District carefully tracks the distinction between testimonial 

and emergency communications with law enforcement which the Supreme Court has recognized 

in the wake of Crawford v. Washington, supra. See Michigan v. Bryant, 562 U.S. 344 (2011). 

Ground Four: Ineffective Assistance of Counsel on Direct Appeal 

 In his Fourth Ground for Relief, Ward claims he received ineffective assistance of 

appellate counsel in several respects. Ward presented these claims to the Second District Court 

of Appeals in his Application for Reopening under Ohio R. App. P. 26(B). Under Ohio law that 

is the proper, and only, forum for raising claims of ineffective assistance of appellate counsel. 

State v. Murnahan, 63 Ohio St. 3d 60 (1992). Manning v. Alexander, 912 F.2d 878 (6th Cir. 

1990), which had said Ohio Revised Code § 2953.21 was available, explicitly disapproved. “In 

Ohio, claims of ineffective assistance of appellate counsel are not cognizable in the normal 

course of post-conviction proceedings, and must be raised through an application to reopen the 

direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B).” Carter v. Mitchell, 693 F.3d 

555, 564 (6th Cir. 2012). 

 However, Ward’s 26(B) Application was filed outside the time allowed for such motions 

under Ohio law. His claims of ineffective assistance of appellate counsel are therefore 

procedurally defaulted. 

 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 
17 

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. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 

391 (1963). Coleman, 501 U.S. at 724. 

 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. 
18 

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. 

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

357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). 

In noncapital cases, the timeliness rule for filing a 26(B) application is an adequate and 

independent state ground of decision. Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008)(noting that 

Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir. 2007)(distinguishing 

holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002); Tolliver v. Sheets, 

594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th Cir. 2009). 

 Since 1996, "Ohio law has provided sufficient guidance on what constitutes a 'good 

cause' for a late filing under Rule 26(B)," and "'the time constraints of Rule 26(B) [have been] 

firmly established and regularly followed.'" Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir. 

2012), quoting Hoffner v. Bradshaw, 622 F.3d 487, 504-05 (6th Cir. 2010) (quoting Parker v. 

Bagley, 543 F.3d 859, 861 (6th Cir. 2008)). Thus, Rule 26(B) is an adequate and independent 

ground on which to find procedural default. Id. 

 Here the Second District enforced against Ward the ninety-day time limit for filing, 

concluding he had not shown good cause for being late. Ward has offered in his Petition no 

suggested cause to excuse this procedural default. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein 
19 

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. 

September 1, 2017. 

 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).