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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. 

SUPPLEMENT TO SUBSTITUTED REPORT AND 

RECOMMENDATIONS 

 

 This habeas corpus action is before the Court on Petitioner’s Objections (ECF No. 34) to 

the Magistrate Judge’s Substituted Report and Recommendations (“Report,” ECF No. 31). Judge 

Rose has recommitted the case for reconsideration in light of the Objections (ECF No. 36). 

 The Petitioner pleaded ten Grounds for Relief, but expressly waived Grounds Four, Five, 

Six, Eight and Ten (ECF No. 20, PageID 1723). Report recommended dismissing the remaining 

grounds with prejudice and denying a certificate of appealability (ECF No. 31). 

Ground One: Violation of Sixth Amendment Right to Jury Determination (Blakely claims) 

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

Amendment right to trial by jury by imposing (1) a sentence and (2) a sexual predator designation 

based on facts not found by the jury. 
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 The Report concluded Ground One did not state a constitutional claim as to the sexual 

predator classification. In his Objections, Henley presents no new authority holding a sexual 

predator classification sufficiently restrains a person’s liberty to create habeas corpus jurisdiction. 

He continues to rely on the dissent of Circuit Judge Gilbert S. Merritt, Jr., in his prior appeal, but 

does not suggest how this Court could ignore the majority opinion and other circuit law on the 

question. 

 As to Henley’s non-minimum, maximum, and consecutive sentences, the Report concluded 

on the merits that there was no Blakely error in Judge Langer’s making the then-required findings, 

rather than submitting the questions to the jury (ECF No. 31, PageID 1840-42). The Report relied 

on Arias v. Hudson, 589 F.3d 315 (6th Cir. 2009), and Chontos v. Berghuis, 585 F.3d 1000 (6th Cir. 

2009), for the proposition that Blakely v. Washington, 542 U.S. 296 (2004) is not applicable to 

judicial factfinding that increases a sentence above the statutory mandatory minimum. Henley 

cites Anderson v. Wilkinson, which he argues reaches the opposite result (Objections, ECF No. 34, 

Page ID 1865, citing No. 09-3533 396 F. App’x 262 (6th Cir. 2010)). However, Arias and Chontos

are published cases from 2009, whereas Anderson is a later, unpublished decision. As the Sixth 

Circuit has recently reminded us, a published opinion cannot be overruled by a later unpublished 

opinion and the district courts are bound by the published precedent. Issa v. Bradshaw, No. 15-

4147, --- F.3d ----, 2018 U.S. App. LEXIS 27131, * 11 n.2 (6th Cir. Sept. 21, 2018), , citing Salmi 

v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).

 The Report also recommended dismissing the First Ground for Relief as procedurally 

defaulted (ECF No. 31, PageID 1842-47). Henley objects: 

Astonishingly, the magistrate now claims that Petitioner never made 

a Blakely claim on direct appeal from his 2005 conviction and 

sentence. . . . This is factually incorrect and Petitioner is yet again 
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perplexed as to why the magistrate would so blatantly disregard the 

record and misstate the facts. 

(Objections, ECF No. 34, PageID 1866-67). To prove that he did, in fact, raise a Blakely claim on 

direct appeal, Henley cites his Appellant’s Brief; therein, Blakely is cited, although no claim under 

Blakely was assigned as error (State Court Record ECF No. 16, at PageID 526). The Third 

Assignment of Error on direct appeal was a general claim of error in sentencing, including 

violations of the allied offenses statute. In dealing with the Blakely issue, the Second District Court 

of Appeals found “[w]e need not address this issue since it was not raised at the trial court level.” 

State v. Henley, 2nd Dist. Montgomery Case No. 20789, 2005-Ohio-6142, ¶ 55 (Nov. 18, 2005), 

copy at State Court Record, ECF No. 16, PageID 614). The Report is thus incorrect in asserting 

that no Blakely claim was made on direct appeal. Although the claim was made, the Second District 

found it was forfeited because it was not raised in the trial court. This is an additional basis on 

which the First Ground for Relief is procedurally defaulted. 

Ground Two: Ineffective Assistance of Appellate Counsel 

 In his Second Ground for Relief, Henley claims his appellate attorney provided ineffective 

assistance when he failed to challenge the trial judge’s bias in his sentencing findings and in 

labeling Henley a sexual predator. The Report found this claim was procedurally defaulted by 

Henley’s failure to include it in his 26(B) Application (Report, ECF No. 31, PageID 1847-49). 

 Henley finds this conclusion “shocking,” because he says the Magistrate Judge recognized 

in Henley’s prior habeas case that Henley raised “an underlying claim of judicial bias in the state 

courts.” (Objections, ECF No. 34, pid1868). In Ground for Relief (1)(2) in the prior case, Henley 

raised a claim of ineffective assistance of trial counsel for failure to object to judicial bias and 
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abuse of discretion which the Magistrate Judge found procedurally defaulted because it could have 

been but was not raised on direct appeal. Henley v. Moore, No. 3:07-cv-31, 2007 U.S. Dist. LEXIS 

96373, *29 (S.D. Ohio Jun. 28, 2007) (Merz, Mag. J.), report and recommendations adopted in 

part and rejected on other grounds at 2008 U.S. Dist. LEXIS 8371 (S.D. Ohio Feb. 5, 2008) (Rice, 

J.). At the same place, the Magistrate Judge held that such a claim would not have been resurrected 

by including it in a 26(B) application because those applications can only be used to raise 

ineffective assistance of appellate counsel claims. When one examines the text of the 26(B) 

application, one finds this claim is not omitted. Henley claim judicial bias by Judge Dennis J. 

Langer in the state courts, but he did not claim it was ineffective assistance of appellate counsel to 

fail to raise that claim on direct appeal. That is the assertion made in Ground Two. 

Ground Three: Confrontation and Compulsory Process 

 No further analysis is warranted on this claim. 

Ground Seven: Double Jeopardy 

 No further analysis is warranted on this claim. 

Ground Nine: Ineffective Assistance of Appellate Counsel 

 No further analysis is warranted on this claim. 
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Conclusion 

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

the Petition 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. 

October 1, 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. 

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).