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. 

SUBSTITUTED REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action is before the Magistrate Judge on recommittal (ECF No. 30). 

Rather than supplement already filed Reports, the Magistrate Judge submits the following 

Substituted Report to enhance judicial economy on review. Except as cited herein, the reader need 

not refer to prior Reports. 

 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 
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admitted by defendant and likewise labelled defendant a sexual 

predator. 

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. 
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Supporting Facts: Trial counsel was ineffective at trial when 

counsel requested a jury instruction for “self-defense” in relation to 

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 
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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 

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, 2nd Dist. Montgomery No. 20789, 

2005-Ohio-6142, 2005 Ohio App. LEXIS 5531, at *2-9 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. A significant part of that history is Henley’s prior 

habeas petition in Case No. 3:07-cv-031. In that case Henley attacked the same conviction1 that 

is at issue here. At the conclusion of that case, District Judge Rice dismissed all of Henley’s claims 

with prejudice, but granted a certificate of appealability on the following issue: 

Was it ineffective assistance of appellate counsel for Defendant’s 

appellate attorney to fail to claim on direct appeal that his trial 

counsel rendered ineffective assistance by failing to make an 

objection to his sentence under Blakely v. Washington, 542 U.S. 

296, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004), when Defendant was 

sentenced several months after Blakely was decided but many 

months before the Ohio Supreme Court applied that decision in Ohio 

by State v. Foster, 109 Ohio St. 3d 1, 845 N.E. 2d 470 (2006)? 

(Decision, ECF No. 27 in 3:07-cv-031, PageID 1848.) 

 Henley appealed and the Sixth Circuit affirmed, concluding 

Of the multiple grounds for relief claimed in the petition, only one 

is at issue in this appeal: Henley’s claim that his appellate counsel 

was constitutionally ineffective for failing to argue that his trial 

 

1

 But not the same judgment on that conviction. 
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counsel erred in not objecting to Henley’s sentence as violating 

Blakely v. Washington, 542 U.S. 296 (2004). 

* * * 

Thus, as of the date of Henley’s sentencing, Ohio sentencing law 

was in a state of flux and his trial counsel’s failure to anticipate the 

application of Blakely in Foster did not constitute ineffective 

assistance of counsel. [footnote omitted] Because his trial counsel 

was not ineffective, Henley’s appellate counsel did not err by not 

raising the ineffectiveness of trial counsel on direct appeal. 

Henley v. Brunsman, No. 08-3288, 379 F. App’x 479, 482 (6th Cir. 2010). Henley filed the instant 

case December 12, 2017, in the Northern District of Ohio, which transferred the case here because 

Henley was convicted in the Montgomery County Court of Common Pleas (Order, ECF No. 4). 

 In denying Henley’s Motion for Stay in this case, the Magistrate Judge found that Common 

Pleas Judge Langer had entered amended termination entries in Henley’s case on October 27, 

2016, and July 18, 2017 (Decision & Order, ECF No. 9, PageID 49, referencing State v. Henley, 

Case No. 04CR01953). 

Analysis 

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. 

 Respondent asserts the Court lacks subject matter jurisdiction to consider this claim at all 
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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). Based on that authority, 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 

improperly classified as a sexual predator, relying on Bevins v. Brunsman, No. 1:08-cv-520, 2009 

WL 5612338 (S.D. Ohio Dec. 17, 2009) (Hogan, Mag. J.), report and recommendations adopted 

at 2010 WL 338086 (S.D. Ohio Jan. 25, 2010) (Dlott, C.J.), quoting Leslie v. Randle, 296 F.3d 

518, 523 (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 can 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). Hensley v. Brunsman, 379 F. App’x at 479. Henley relies on 

Judge Merritt’s dissent in that case in which he opined that Blakely prevented the Ohio courts from 

making the sexual predator determination without submitting the question to the jury. Id. at 483. 

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. 
7 

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

is a new intervening judgment (Reply, ECF No. 20, PageID 1721-22, relying on In re Stansell, 

828 F.3d 412 (6th Cir. 2016)). Henley has reasserted this position in his most recent Objections 

(ECF No. 29, PageID 1825, citing Rose v. Warden, 2017 U.S. Dist. LEXIS 152979 (S.D. Ohio 

Sept. 20, 2017) (Black, J.), and Allen v. Westbrooks, No. 15-5356, 700 F. App’x 406 (6th Cir. un. 

23, 2017, cert. den. 138 S. Ct. 647 (2018)). 

 In ordering an answer in this case after initial review under Habeas Rule 4, the Magistrate 

Judge initially concluded that 

although this is Petitioner’s second-in-time habeas application 

relating to the same state court conviction, it is not a second-orsuccessive application subject to the restrictions of 28 U.S.C. § 

2244(b) because Petitioner was re-sentenced in 2016. Magwood v. 

Patterson, 561 U.S. 320 (2010); King v. Morgan, 807 F.3d 154, 156 

(6th Cir. 2015); In re Stansell, 828 F.3d 412 (6th Cir. 2016). 

(Order, ECF No. 6, PageID 37.) Although this was a preliminary holding, the Respondent has not 

challenged it. Instead, Respondent relies on expiration of custody as precluding review of the rape 

and kidnapping convictions, while conceding jurisdiction as to the felonious assault and attempted 

felonious assault convictions (Return, ECF No. 13, PageID 430). That defense is unavailing. 

Garlotte, supra.

 Whatever may be its impact on other Grounds for Relief, the law of the case doctrine does 

not bar consideration of Petitioner’s Ground One, because this claim was not before either this 

Court or the Sixth Circuit in the prior case. In that case, the Sixth Circuit held it was not ineffective 

assistance of Henley’s appellate counsel to fail to claim ineffective assistance of his trial counsel 

for failure to raise a Blakely claim in the trial court. Here, Henley raises a straight Blakely claim: 

it was unconstitutional for the trial judge to make the findings required by Ohio Revised Code §§ 
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2929.14(B), 2929.14(C), and 2929.14(E)(4) instead of submitting those issues to the jury. 

Considering that claim de novo2, it is without merit; it is also barred by Henley’s procedural default 

in presenting it to the Ohio courts. 

Merits 

 Judge Langer did in fact make separate “Findings in Support of a Greater than Minimum 

Sentence,” Findings in Support of a Maximum Sentence,” and “Findings in Support of 

Consecutive Sentences” as required by Ohio law at the time of sentencing (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, as compared 

with a mandatory minimum. 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). Henley argues Arias is not good law because it 

relied on Harris, which was overruled by Alleyne (Objections, ECF No. 29, PageID 1826). 

Actually, Judge Sutton, in Arias, distinguished Harris by noting that it upheld judicial factfinding 

that increased a fixed minimum sentence. 589 F.3d at 317-318. It was that portion of Harris that 

Alleyne overruled, not its more general conclusion. 

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

 

2

 Henley correctly argues (Reply, ECF No. 20, PageID 1730-32) that merits review here is to be de novo since there 

is no state court opinion on the merits of his Blakely claim to which this Court could give deference under 28 U.S.D. 

§ 2254(d). 
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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 the 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. 

 In his most recent Objections, Henley asserts the Magistrate Judge “finally 

acknowledge[ed] that Petitioner’s Blakely rights were violated when the state applied” the relevant 

statutes. (Objections, ECF No. 29, PageID 1826.) Not so. Henley was sentenced before the 

Supreme Court of Ohio decided State v. Foster, 109 Ohio St. 3d 1 (2006). Foster severed portions 

of Ohio sentencing law under Blakely, including those applied by Judge Langer, and thus rendered 

his findings irrelevant. That is why the Sixth Circuit decided “any Blakely error that may have 

occurred was harmless in light of State v. Foster, 109 Ohio St. 3d 1, 2006[-]Ohio[-]856, 845 

N.E.2d 470, 498 (Ohio 2006), which held that judicial fact-finding is no longer required before the 

imposition of maximum sentences or consecutive prison terms.” Brown v. Moore, No. 08-3289, 

2008 U.S. App. LEXIS 27094 at *3-4 (6th Cir. Sept. 19, 2008). Henley asserts that this is mere 

dictum, but does not say why (Objections, ECF No. 29, PageID 1826-27). As the Magistrate Judge 

reads Brown, this was an alternative holding in denying a certificate of appealability on Brown’s 

Blakely claim. And the effect of the holding was to deny Brown a certificate of appealability, 

concluding that his Blakely claim was not even debatable among reasonable jurists, which is the 

same conclusion this Court reached in Brown’s case. 

 Henley also relies on Smith v. Moore, No. 08-4494, 415 F. App’x 624 (6th Cir. 2011), for 
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the proposition that a Blakely error is not made harmless by the fact that the trial judge might 

impose the same sentence on remand. But Smith was a case in which there was in fact a Blakely

error by exceeding the maximum allowed by the jury’s verdict. Judge Langer committed no 

Blakely error in the first place. 

Procedural Default 

 Apart from the fact that Henley’s Blakely claim is without merit, it is also procedurally 

defaulted. Any Blakely claim Henley ever had would have been obvious on the fact of the direct 

appeal record but was not raised on direct appeal. Henley asserts that the Respondent 

acknowledges he raised the claim in a timely direct appeal (Objections, ECF No. 29, PageID 1725, 

citing Return, ECF No. 13, PageID 413). What Respondent actually acknowledges is that Henley 

filed a timely Ohio App. R. 26(B) Application making the ineffective assistance of appellate 

counsel claim that the Sixth Circuit rejected in Henley’s first habeas case. Later in the Return, the 

Warden does assert procedural default (Return, ECF No. 13, PageID 443). 

 Henley made his “straight” Blakely claim to the Second District Court of Appeals in his 

appeal from resentencing where he asserted Judge Langer had violated his rights by not permitting 

him to raise challenges to his undisturbed conviction. The Second District rejected that claim, 

following State v. Fischer, 128 Ohio St.3d 92 (2010): 

“Although the doctrine of res judicata does not preclude review of 

a void sentence, res judicata still applies to other aspects of the 

merits of a conviction, including the determination of guilt and the 

lawful elements of the ensuing sentence. Fischer at paragraph three 

of the syllabus. Contrary to Henley’s argument, a resentencing in 

order to properly impose post-release control does not permit a 
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defendant to raise new challenges to his underlying convictions that 

could have been raised in his original appeal. 

State v. Henley, 2nd Dist. Montgomery No. 27326, 2017-Ohio-5828, (Jul. 14, 2017). 

 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 

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

Wainwright, 433 U.S. at 87; Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000) (citation omitted). 

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). 
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First the court must determine that there is a state procedural rule 

that is applicable to the petitioner's claim and that the petitioner 

failed to comply with the rule. 

 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of Ulster 

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 

(1979). 

Third, the court must decide whether the state procedural forfeiture 

is an "adequate and independent" state ground on which the state 

can rely to foreclose review of a federal constitutional claim. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

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

he was actually prejudiced by the alleged constitutional error. 

Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting 

Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002) (“Maupin test”). A habeas petitioner can 

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

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

 The relevant state court rule is that claims which can be raised and decided on direct appeal 

must be raised in that manner or are later barred by res judicata. Ohio’s doctrine of res judicata in 

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

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

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

v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994) 

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

Here, the Second District enforced the Perry rule by refusing to allow Henley to present his Blakely

claim on resentencing. 
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 Henley argues the Perry res judicata rule was not regularly enforced by the Ohio courts 

with respect to Blakely claims (Reply, ECF No. 20, PageID 1727, citing Smith v. Moore, No. 08-

4494, 415 F. App’x 624 (6th Cir. 2011). In Smith, the Sixth Circuit found that 

In the wake of Foster, the Ohio Supreme Court remanded numerous 

cases for re-sentencing, regardless of defendants' waiver of their 

Blakely arguments. See, e.g., State v. Payne, 114 Ohio St. 3d 502, 

2007 Ohio 4642, 873 N.E.2d 306, 309 (Ohio 2007). Therefore, 

waiver on appeal of a Blakely challenge is not a procedural bar that 

the state of Ohio regularly enforced. According to Maupin’s second 

prong, Petitioner's Sixth Amendment jury trial claim was not 

procedurally defaulted, and is properly before this Court. 

Id. at 628. 

 Analysis of the regularly-enforced requirement for state procedural rules must be time 

sensitive. Rules that are not regularly enforced at one point in time may become regularly enforced 

over time and thus qualify under Maupin. For example, Ohio R. App. P. 26(B) requires that an 

application for reopening to raise an ineffective assistance of appellate counsel claim be filed 

within ninety days of judgment. However, in capital cases, the Supreme Court of Ohio did not 

enforce the rule, but instead ruled on the merits of these claims for some period of time. In Franklin 

v. Anderson, 434 F 3d 412 (6th Cir. 2006), the court held that it did not qualify for the period in 

question as a regularly-enforced state procedural rule. However, that changed. 

Furthermore, as of January 1996, “the time constraints of Rule 26(B) 

were firmly established and regularly followed.” Parker v. Bagley, 

543 F.3d 859, 861 (6th Cir. 2008) (discussing Fautenberry v. 

Mitchell, 515 F.3d 614, 641 (6th Cir. 2008)) (emphasis omitted). 

Although we have, in prior cases, found Rule 26(B) not to be an 

adequate and independent ground on which to find procedural 

default, those precedents are not applicable here because Rule 26(B) 

was firmly established and regularly followed by June 2006. See id.

at 862 (applying the “firmly established and regularly followed” 

requirement “as of the time Rule 26(B) was to be applied”). Thus, 

we conclude that Hoffner has procedurally defaulted his claims of 

ineffective assistance of appellate counsel. Nevertheless, even if 
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Hoffner's claims were not defaulted, each fails on the merits. See 

Fautenberry, 515 F.3d at 642 (analyzing the merits of a procedurally 

defaulted claim in the alternative). 

Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010). 

Smith is not binding precedent because it is not published. But even if it were binding, it 

would apply only to the non-enforcement of the Perry rule in Blakely cases at the relevant time 

period, i.e., in the “wake of Foster[,]” which was decided in 2006. The Second District’s 

enforcement of the res judicata bar as to Henley’s claim occurred in 2017 and Henley has made 

no showing that the Perry rule was not being regularly enforced by 2017. 

 Henley also claims the Second District misapplied its own procedural rule by finding that 

he had “waived” his Blakely claim. He cites to State v. Henley, 2nd Dist. Montgomery No. 20789, 

2005-Ohio-6142, 2005 Ohio App. LEXIS 6631 (Nov. 18, 2015), where, on the direct appeal, the 

court noted that Henley had raised a straight Blakely error claim, but held: “We need not address 

this issue since it was not raised at the trial court level.” Id. at ¶ 55. The court does not use the 

word “waived3,” and its analysis is perfectly consistent with the Perry rule of forfeiture and res 

judicata. Henley is correct that the record does not show a “waiver” of his Blakely claim in the 

sense of a knowing, intelligent, and voluntary relinquishment of a known right. See Johnson v. 

Zerbst, 304 U.S. 458, 464 (1938). But it does show a forfeiture of that claim by failure to raise it 

in the trial court prior to direct appeal. 

Should Henley argue that his procedural default is excused by the ineffective assistance of 

his appellate counsel, that claim has already been decided adversely to him in his first habeas case, 

and he has shown no reason to depart from that analysis. 

 

3

 Henley makes a lengthy argument on the distinction between waiver and forfeiture (Reply, ECF No. 20, PageID 

1727-29). The concepts are distinct, but the words are often used imprecisely by the courts. Kontrick v. Ryan, 540 

U.S. 443, 458, n. 13 (2004); United States v. Olano, 507 U.S. 725, 733 (1993). 
15 

 Therefore the First Ground for Relief should be dismissed with prejudice. 

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. 

 As noted above, Henley raised an ineffective assistance of appellate counsel claim in his 

first petition, but it was not the same claim of ineffective assistance of appellate counsel he makes 

here. There he asserted his appellate attorney provided ineffective assistance in not asserting 

ineffective assistance of trial counsel for trial counsels’ failure in thirteen different ways, none of 

them mentioning the alleged bias of the trial judge (Report and Recommendations in Case No. 

3:07-cv-031, ECF No. 14, PageID 1708-10). That claim was squarely decided against Henley in 

the first case, but there is no law of the case on the instant issue. 

 Henley argues that the Sixth Circuit requires that “to determine if appellate counsel was 

ineffective in not challenging trial counsels’ ineffectiveness in failing to challenge judicial bias, a 

court must analyze the underlying claim of judicial bias.” (Objections, ECF No. 29, PageID 1827, 

citing Coley v. Bagley, 706 F.3d 741 (6th Cir. 2013)). But before the Court reaches that question, 

it must determine if the issue has been preserved for habeas review by being presented to the state 

courts. 

 Henley asserts that “he clearly raised this issue alleging judicial bias in his 26(B) 

application to reopen his direct appeal, . . .” (Reply, ECF No. 20, PageID 1739). That document 
16 

is Exhibit 23 in the State Court Record (ECF No. 16, PageID 659, et seq.) The omitted assignments 

of error which supposedly show ineffective assistance of appellate counsel are as follows: 

1. “Trial counsel was ineffective thus violating this Petitioner’s 

rights as guaranteed by the 5th, 6th, 8th, and 14th Amendment” in ways 

A through O. None of them mention failure to object to judicial 

bias. 

2. “Trial court error,” in ways A through D, none of which 

mention failure to recuse because of bias. 

3. “Insufficient evidence.” 

Having pleaded his ineffective assistance of appellate counsel claims in this way, Henley 

complains that the “2nd District did not address his specific claim of judicial bias.” (Reply, ECF 

No. 20, PageID 1739). But he did not make any such specific claim. He does assert trial court 

error in sentencing in relying on “so-called other acts,” but judicial error is not the same as judicial 

bias. More to the point, claiming judicial error is not the same as claiming judicial bias. 

 Henley’s Second Ground for Relief – ineffective assistance of appellate counsel for failing 

to raise ineffective assistance of trial counsel for failing to claim judicial bias – is procedurally 

defaulted by Henley’s failure to present it in his 26(B) application. 

 Because the claim is procedurally defaulted, the Court is not obliged to reach the merits by 

Coley. In that case the Sixth Circuit found Coley’s ineffective assistance of trial counsel claim 

related to judicial bias was procedurally defaulted. 706 F.3d at 749. It went on to analyze the 

merits of the claim, but never indicated that a district court is obliged to make both procedural 

default and merits analyses. Coley is a capital habeas case, which probably explains the court’s 

thoroughness. See also Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir. 2001), quoting Amos v. 

Scott, 61 F.3d 333, 342 (5th Cir. 1995) (“[A]n occasional act of grace by a state court in excusing 

or disregarding a state procedural rule does not render the rule inadequate.”). The Magistrate Judge 
17 

declines to engage in an alternative merits analysis, but notes that Henley has not attempted to 

show why a claim of ineffective assistance of appellate counsel for failure to raise a claim of 

ineffective assistance of trial counsel for failure to claim judicial bias would have been stronger 

than any of the claims of ineffective assistance of trial counsel Henley actually pleaded in his 26(B) 

application. 

 The Second Ground for Relief should be dismissed with prejudice. 

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 

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. 
18 

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 

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, No. 3:07-cv-31, 2007 U.S. Dist. LEXIS 96373, *40-42 (S.D. Ohio June 28, 
19 

2007) (Merz, Mag. J.). Thus Henley received de novo consideration of this claim in his prior case. 

District Judge Rice, to whom the prior case was assigned, adopted this conclusion on Ground Two 

and denied a certificate of appealability on this Ground. 2008 U.S. Dist. LEXIS 8371 (S.D. Ohio 

Feb. 5, 2008) (Rice, J.). 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. 

 Henley asserts that the law of the case doctrine does not apply here because of the intervening 

state court judgment in which Henley was resentenced (Reply, ECF No. 20, PageID 1751). While 

this Court has agreed that In re Stansell, 828 F.3d 412 (6th Cir. 2016), prevents the instant Petition 

from being second-or-successive, Stansell says nothing on the subject of law of the case doctrine. 
20 

Judge Sutton, the author of Stansell, has said of law of the case, “[i]f 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), quoting BRYAN A. GARNER, ET AL., THE LAW OF JUDICIAL PRECEDENT 441 

(2016). That rationale for applying law of the case here is completely persuasive. 

 Ground Three should be dismissed with prejudice. 

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 Jun. 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 
21 

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 

Second District decided the claim as follows: 

{¶ 38} 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. 

{¶ 39} 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: 

{¶ 40} "(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; 

{¶ 41} "(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 
22 

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

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

{¶ 42} 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 

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. 

{¶ 43} 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, 2nd Dist. Montgomery No. 20789, 2005-Ohio-6142, 2005 Ohio App. LEXIS 5531 

(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 need to show plain error. 2005-Ohio-6142, 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 
23 

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.” Id. at 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-Ohio-321. Based on the foregoing, it is respectfully 
24 

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: 

{¶ 44} 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, 2nd Dist. Montgomery No. 20789, 2005-Ohio-6142, 2005 Ohio App. LEXIS 5531 

(Nov. 18, 2005). Henley argues the Second District should have applied the comparison-ofelements 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 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 
25 

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 

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 
26 

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. 

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 Rule 26(B) Application of the failure to merge the two 

counts of felonious assault. The Second District found, “given that [the] 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, 2nd Dist. Montgomery 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 
27 

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, 

(2009) (per curiam); Strickland, 466 U.S. at 693. Instead, Strickland asks whether it is “reasonably 

likely” the result would have been different. Id., at 696. This does not require a showing that 

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. The likelihood of a different result must be substantial, not just 

conceivable. Harrington v. Richter, 562 U.S. 86, 111-112 (2011); Strickland, 466 U.S. at 693. 

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); 
28 

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 

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.”). 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), 

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 
29 

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 

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. 

September 13, 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).