UNITED STATES DITRICT COURT

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Edward B. Avery, Sr., 

Case No. 2:18-cv-387

Petitioner, 

Judge Michael H. Watson

v. 

Magistrate Judge Kimberly A. Jolson

Warden, Marion 

Correctional Institution, 

Respondent.

OPINION AND ORDER 

On January 31, 2020, the Magistrate Judge issued a Report and 

Recommendation (“R&R”) recommending that the petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254 be dismissed. ECF No. 46. Petitioner 

objects to the R&R. ECF No. 53. Respondent has filed a Response. ECF No. 

54. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. 

For the following reasons, Petitioner’s Objection, ECF No. 53, is OVERRULED. 

The R&R, ECF No. 46, is ADOPTED and AFFIRMED. This case is hereby 

DISMISSED. The Court DECLINES to issue a certificate of appealability. 

This Court has detailed the lengthy procedural history of this case in a prior 

Opinion and Order, ECF No. 27, PAGEID # 1601–03; see also R&R, ECF No. 

46, PAGEID # 2450–2453. Briefly, Petitioner challenges his August 1997 

convictions after a jury trial in the Union County Court of Common Pleas on rape, 

robbery, aggravated burglary, and kidnapping. The appellate court affirmed 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 1 of 10 PAGEID #: 2489
Case No. 2:18-cv-387 Page 2 of 10

Petitioner’s convictions and sentence. Petitioner did not file a timely appeal. The 

Ohio Supreme Court denied his motion for a delayed appeal. The state appellate 

court also dismissed Petitioner’s application for reopening of the appeal pursuant 

to Ohio Appellate Rule 26(B) as untimely. On November 23, 2010, the trial court 

conducted a de novo re-sentencing hearing to advise Petitioner of the terms of 

post release control and issued a new judgment entry of sentence. The 

appellate court affirmed that judgment and the Ohio Supreme Court dismissed 

Petitioner’s subsequent appeal. Petitioner has filed four federal habeas corpus 

petitions pursuant to 28 U.S.C. § 2254 challenging his convictions. On February 

21, 2018, the Sixth Circuit denied Petitioner’s motion for authorization for the 

filing of a successive § 2254 action as unnecessary in view of King v. Morgan, 

807 F.3d 154 (6th Cir. 2015), and In re Stansell, 828 F.3d 412 (6th Cir 2016). 

ECF No. 7-1. Petitioner now raises nine claims for relief.1 He asserts that his 

convictions constitute allied offenses of similar import (claim one); that he was 

denied a fair trial because a dismissed alternate juror remained in the jury room 

during deliberations (claim two); that he was denied the effective assistance of 

trial counsel (claim five); that the trial court issued improper jury instructions on 

Counts 2 and 3 and on other essential elements of offenses charged (claims 

nine, ten, and eleven); that he was denied the effective assistance of appellate 

counsel (claim twelve); that he was denied due process in Rule 26(B) 

1 Petitioner has withdrawn various claims. (ECF No. 44, PAGEID # 1786 n.2.) 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 2 of 10 PAGEID #: 2490
Case No. 2:18-cv-387 Page 3 of 10

proceedings (claim thirteen); and that the trial court lacked jurisdiction to resentence him (claim fifteen). The Magistrate Judge recommended dismissal of 

all of the foregoing claims as procedurally defaulted. Petitioner objects to that 

recommendation. 

Petitioner maintains that this Court should address the merits of his claims, 

because the Sixth Circuit remanded the case indicating that no procedural 

impediments barred the filing of this (his fourth) federal habeas corpus petition. 

ECF No. 7-1, PAGEID # 951. He contends that, because the jury did not find 

him guilty of kidnapping with a sexual motivation specification, but only

kidnapping, his sentence is invalid and res judicata does not apply.

2 Petitioner

also argues that res judicata does bar review of his claims, because the trial 

court conducted a de novo re-sentencing hearing to notify him of the terms of 

post-release control pursuant to State v. Singleton, 124 Ohio St.3d 173 (2009) 

(de novo re-sentencing hearing required for failure properly to impose term of 

post-release control), prior to the Ohio Supreme Court’s decision in State v. 

Fischer, 128 Ohio St.3d 92 (2010) (holding that res judicata applies to second 

appeal after de novo re-sentencing for notification of post-release control). 

Therefore, Petitioner argues, the appellate court should have granted him a de 

novo review. Additionally, Petitioner argues that the state appellate court 

improperly applied res judicata in view of a change in Ohio’s allied offenses law 

2 On August 4, 1997, the trial court issued a nunc pro tunc judgment entry of 

sentence correcting an apparent clerical error in this regard. 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 3 of 10 PAGEID #: 2491
Case No. 2:18-cv-387 Page 4 of 10

under State v. Ruff, 143 Ohio St.3d 114 (2015). Similarly, he argues that his 

claim of improper participation by a dismissed juror may properly be addressed 

by this Court due to a change in Ohio law under State v. Downour, 126 Ohio 

St.3d 508 (2010). Alternatively, Petitioner asserts that the ineffective assistance 

of appellate counsel establishes cause for any procedural default. As cause for 

his procedural default of that claim, Petitioner now states that he timely delivered 

his Rule 26(B) application to prison officials for mailing, but they waited thirteen 

days to send it. As to his claim that the trial court lacked jurisdiction to resentence him, Petitioner argues this issue may be raised, and properly 

addressed by this Court, at any time.

The Court does not find Petitioner’s arguments to be persuasive. The 

Sixth Circuit indicated that Petitioner faced “no procedural impediment” to filing a 

new § 2254 action in this Court in the context of his request for authorization for 

filing of a successive habeas corpus petition, not in reference to application of 

any potential procedural default. ECF No. 7-1, PAGEID # 949–51. Plainly, the 

Sixth Circuit’s order had no bearing on the issue of procedural default. Further, 

the trial court’s correction of what appears to have been a clerical error in the 

initial judgment entry of sentence, deleting language indicating that Petitioner had 

been convicted of a sexual motivation specification in relation to his kidnapping 

conviction, did not invalidate his convictions or otherwise bar application of res 

judicata to claims that he failed to present to the state appellate court in the first 

instance on direct appeal and did not raise in the Ohio Court of Appeals until 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 4 of 10 PAGEID #: 2492
Case No. 2:18-cv-387 Page 5 of 10

after his re-sentencing hearing. Petitioner refers to, and this Court is aware of, 

no legal authority to support this argument. 

The state appellate court held that Fischer, 128 Ohio St.3d 92, and res 

judicata, barred review in Petitioner’s re-sentencing appeal of all claims that he 

could have raised on direct appeal: 

{¶ 7} Although the issues that Avery raises in this appeal have either 

previously been addressed on appeal, or could have been raised at 

the time of his previous appeals, he again seeks to revisit these issues 

after his new sentencing hearing. However, a recent decision by the 

Supreme Court of Ohio has clarified the extent of review that is 

applicable after a new sentencing hearing is held due to a trial court’s 

failure to properly impose PRC. See State v. Fischer, 128 Ohio St.3d 

92, 2010–Ohio–6238, 942 N.E.2d 332.

{¶ 8} The Ohio Supreme Court abrogated portions of State v. Bezak, 

114 Ohio St.3d 94, 2007–Ohio–3250, 868 N.E.2d 961, and held that 

“the new sentencing hearing to which an offender is entitled under 

Bezak is limited to proper imposition of postrelease control.” Fischer

at ¶ 29, 942 N.E.2d 332. When postrelease control is not properly 

included in a sentence for a particular offense, the sentence for that 

offense is void, but “only the offending portion of the sentence is 

subject to review and correction.” Id. at ¶ 27, 942 N.E.2d 332. The 

new sentencing hearing is limited to the proper imposition of 

postrelease control. Id. at ¶ 29, 942 N.E.2d 332.

{¶ 9} The scope of relief is limited and does not permit a reexamination 

of all the perceived errors at trial or in other proceedings. Id. at ¶ 25, 

942 N.E.2d 332, citing Hill v. United States (1962), 368 U.S. 424, 430, 

82 S.Ct. 468, 7 L.Ed.2d 417. The doctrine of “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.” Id. at paragraph three of the syllabus, 128 Ohio St.3d 92, 

942 N.E.2d 332; State v. Hall, 3d Dist. No. 12–10–11, 2011–Ohio–

659, ¶ 12.

{¶ 10} The three assignments of error raised by Avery do not pertain 

to the imposition of PRC. Therefore, they are barred by the doctrine 

of res judicata and are not subject to another appellate review.

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 5 of 10 PAGEID #: 2493
Case No. 2:18-cv-387 Page 6 of 10

***

{¶ 15} Avery's new judgment entry of sentencing, which corrected the 

portion of the sentence pertaining to PRC and specified the method 

of conviction, cannot be used as a vehicle to reopen all of the other 

aspects of his case. Avery's appeal from that judgment is limited to 

the subject of postrelease control. Res judicata is still applicable to the 

issues Avery has raised today. 

State v. Avery, 3rd Dist. No. 14-10-35, 2011 WL 3656470, at *2–4 (Ohio Ct. App. 

Aug. 22, 2011). Petitioner thereby has committed a procedural default. See 

Washington v. Turner, No. 1:18-cv-709, 2020 WL 1983066, at *8 (S.D. Ohio Apr. 

27, 2020). Further, this Court is bound by a state court’s interpretation of state 

law. See Dukles v. Chuvalas, No. 1:17-cv-2164, 2017 WL 3447830, at *7 (N.D. 

Ohio July 5, 2017) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Allen v. 

Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Petitioner refers to no legal authority 

to support this argument that the state appellate court erred. Ohio courts have 

applied Fischer to cases pending when the Ohio Supreme Court issued its 

decision in Fischer. See, e.g., State v. Pugh, 5th Dist. No. 2010CA00173, 2011 

WL 662650 (Ohio Ct. App. Feb. 22, 2011); State v. Wren, 9th Dist. No. 25616, 

2011 WL 5301774 (Ohio Ct. App. Nov. 2, 2011). The Ohio Supreme Court has 

stated that “[a] new judicial ruling may be applied [] to cases that are pending on 

the announcement date.” See Ali v. State, 104 Ohio St.3d 328, 329 (2004). 

As to Petitioner’s claim that the trial court lacked jurisdiction to re-sentence 

him on sentences already served, Petition, ECF No. 1, PAGEID # 21, Petitioner 

waived this claim by failing to raise it on appeal. See R&R, ECF No. 46, PAGEID 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 6 of 10 PAGEID #: 2494
Case No. 2:18-cv-387 Page 7 of 10

# 2457–58. Again, none of the cases referred to by Petitioner support his 

argument to the contrary. Moreover, the record does not support his claim. The 

trial court conducted the re-sentencing hearing solely for the purpose of 

appropriate imposition of the term of post-release control. See State v. Avery, 

10th Dist. No. 14-10-35, 2011 WL 3656470, at *2 (Ohio Ct. App. Aug. 22, 2011).3 

Petitioner’s claim that the Ohio Court of Appeals unconstitutionally 

dismissed his Rule 26(B) application as untimely, see PAGEID # 20, does not, in 

any event, provide him a basis for relief. A petitioner’s claim “must directly

dispute the fact or duration” of his confinement in order to provide a basis for 

relief. See Ysreal v. Warden, Chillicothe Corr. Inst., No. 1:13-cv-34, 2014 WL 

7185264, at *6 (S.D. Ohio Dec. 16, 2014) (citing Kirby v. Dutton, 794 F.2d 245, 

248 (6th Cir. 1986) (citing Prieser v. Rodriguez, 411 U.S. 475, 500 (1973)). “A 

ground for relief that challenges the correctness of a state judicial proceeding 

and does not dispute the detention itself is not cognizable. Id. (citing Kirby, 794 

F.2d at 247–48). Moreover, “‘the writ [of habeas corpus] is not the proper means 

by which prisoners should challenge errors or deficiencies in state postconviction proceedings . . . because the claims address collateral matters and 

not the underlying state conviction giving rise to the prisoner’s incarceration.’” 

3 The appellate court rejected Petitioner’s claim that his judgment was void and 

that the trial court lacked jurisdiction for failing to comply with Ohio law. Avery, 

2011 WL 3656470, at *2–3. However, Petitioner does not raise that same 

argument here. Petition, ECF No. 1, PAGEID # 21. 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 7 of 10 PAGEID #: 2495
Case No. 2:18-cv-387 Page 8 of 10

Cassano v. Bradshaw, No. 1:03-cv-1206, 2018 WL 3455531 (N.D. Ohio July 18, 

2018) (quoting Kirby, 794 F.2d at 247) (following Preiser v. Rodriguez, 411 U.S. 

475 (1973)). 

Petitioner’s argument that he is entitled to review of the merits of his claims 

in view of a change in Ohio law likewise fails. Nothing prevented Petitioner from 

raising his claim that his convictions constituted allied offenses of similar import

or that the trial court’s failure to dismiss an alternate juror during deliberations 

denied him a fair trial on direct appeal. By failing to do so, Petitioner has waived 

his right to review of these claims here. Further, the Ohio Supreme Court did not 

issue its decision in Ruff until March 25, 2015, and long after conclusion of 

Petitioner’s re-sentencing appeal. In any event, neither Ruff nor Downour, 

referred to by the Petitioner, provide a basis for consideration of the merits of 

claims that Petitioner could have raised on direct appeal. Russell v. Bunting, 722 

F. App’x 539 (6th Cir. 2018), also referred to by Petitioner, likewise does not 

assist him. Russell involved application of the law-of-the-case doctrine in Rule 

26(B) proceedings and whether it precluded review of a claim of ineffective 

assistance of counsel where there had been an intervening change in law. 

These are not the circumstances here. 

The record does not support that Petitioner can establish cause for his 

procedural default. Petitioner did not raise in Rule 26(B) proceedings any issue 

regarding allied offenses of similar import, ineffective assistance of trial counsel,

or the presence of an alternate juror during deliberations. ECF No. 5, PAGEID 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 8 of 10 PAGEID #: 2496
Case No. 2:18-cv-387 Page 9 of 10

# 278–84. Thus, the ineffective assistance of appellate counsel cannot establish 

cause for these underlying claims. Edwards v. Carpenter, 529 U.S. 446, 451 

(2000). Moreover, the record simply does not support Petitioner’s claim that the 

trial court issued improper or inadequate jury instructions omitting essential 

elements of the offenses charged in regard to his convictions. Transcript, ECF 

No. 45, PAGEID # 2300–19; PAGEID # 2335–39. The record does not support 

Petitioner’s claim of ineffective assistance of counsel. Strickland v. Washington, 

466 U.S. 668 (1984). Petitioner therefore cannot establish cause for his 

procedural defaults on this basis.

For the foregoing reasons, and for the reasons detailed in the Magistrate 

Judge’s R&R, Petitioner’s Objection, ECF No. 53, is OVERRULED. The R&R, 

ECF No. 46 is ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the 

United States District Courts, the Court now considers whether to issue a 

certificate of appealability. “In contrast to an ordinary civil litigant, a state 

prisoner who seeks a writ of habeas corpus in federal court holds no automatic 

right to appeal from an adverse decision by a district court.” Jordan v. Fisher, 

135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a habeas 

petitioner to obtain a certificate of appealability in order to appeal).

When a claim has been denied on the merits, a certificate of appealability 

may issue only if the petitioner “has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of 

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 9 of 10 PAGEID #: 2497
Case No. 2:18-cv-387 Page 10 of 10

the denial of a constitutional right, a petitioner must show “that reasonable jurists 

could debate whether (or, for that matter, agree that) the petition should have 

been resolved in a different manner or that the issues presented were ‘adequate 

to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). 

When a claim has been denied on procedural grounds, a certificate of 

appealability may issue if the petitioner establishes that jurists of reason would 

find it debatable whether the petition states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling. Id.

The Court is not persuaded that reasonable jurists would debate the 

dismissal of Petitioner’s claims as procedurally defaulted or without merit. The 

Court therefore DECLINES to issue a certificate of appealability. 

The Court certifies that the appeal would not be in good faith and that an 

application to proceed in forma pauperis on appeal should be DENIED.

IT IS SO ORDERED. 

_/s/ Michael H. Watson_______________

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

Case: 2:18-cv-00387-MHW-KAJ Doc #: 55 Filed: 05/05/20 Page: 10 of 10 PAGEID #: 2498