1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

JUSTAN B. CANTRELL, 

Petitioner, : Case No. 3:18-cv-174 

- vs - District Judge Walter H. Rice 

Magistrate Judge Michael R. Merz 

 JEFFREY NOBLE, Warden, 

 London Correctional Institution 

 : 

 Respondent. 

SUBSTITUTED REPORT AND RECOMMENDATIONS 

 

 Petitioner Justan Cantrell brings this habeas corpus action pursuant to 28 U.S.C. § 2254 to 

obtain relief from his conviction in the Montgomery County Common Pleas Court on charges of 

aggravated burglary and having weapons under a disability with a firearm specification for which 

he was sentenced to six years imprisonment in Respondent’s custody. Upon initial review under 

Rule 4, the Magistrate Judge recommended dismissal because the Petition was vague about what 

claims the Petitioner was raising. As an alternative to filing objections, the Magistrate Judge 

offered Petitioner the option of filing an amended petition, which he has now done. Therefore the 

initial Report and Recommendations (ECF No. 3) is WITHDRAWN and the Magistrate Judge will 

analyze the Amended Petition (ECF No. 4) under Habeas Rule 4. 

 The Amended Petition contains four grounds for relief, grouped according to the state court 

proceeding in which they were raised. They will be referred to herein as Direct Appeal Ground 

One and 26(B) Grounds One, Two, and Three. 
2 

Direct Appeal Ground One: The Ohio Court of Appeals decision 

to affirm the trial court's verdict against the Sufficiency and 

Manifest of the evidence in support of Petitioner's Aggravated 

Burglary was an unreasonable Application Well established Federal 

Law. 

Supporting Facts: The facts of this case demonstrate that petitioner 

never used any force to gain entry to the victims home; the evidence 

in this case demonstrates the screen door was open and therefore, 

Petitioner could not have entered with any type of force. The trial 

court's courts force determination was clearly erroneous and should 

not have prevailed on appeal. 

26(B) Ground One: Trial counsel rendered Ineffective assistance 

of counsel by incorrectly stating the petitioner entered the victim 

residence with a gun. 

26(B) Ground Two: Counsel rendered ineffective assistance at 

trial for sure; his failure to advise the court of his ineffective 

misapplying facts; were erroneous to petitioner appeal. 

26(B) Ground Three: Counsel rendered ineffective assistance of 

counsel for failure to file a suppression hearing that would have 

suppressed the weapon in this case. 

Supporting Facts: Petitioner states these claims within his 

[Application for Re Opening] and states the Ohio Court of Appeals 

decision was unreasonable application of well established Federal 

Law when the Ohio Court of appeals reached the same unfair and 

Contrary to Well Established Law as the Trial court did at trial and 

therefore, Petitioner is entitled to relief from counsel's deficient 

decision and assistance in representation of Petitioner. 

Had counsel filed a suppression hearing to suppress the Gun, 

Petitioner would have prevailed at trial as there is no evidence to 

support Petitioner entered the home forcefully with a gun. 

Therefore, the Ohio court of appeals decision was Contrary to Well 

Established Federal Law. 

(Amended Petition, ECF No. 4, PageID 22-23.) 
3 

Procedural History1

 Petitioner was indicted on charges of aggravated burglary with a firearm specification and 

having a weapon while under disability. He waived his right to a jury and the case was tried to the 

bench. The trial judge convicted Cantrell and sentenced him to six years imprisonment, including 

the three-year consecutive term required by the firearm specification. 

 Cantrell appealed, raising only one assignment of error, to wit, that his conviction was not 

supported by legally sufficient evidence and was against the manifest weight of the evidence. The 

Second District Court of Appeals affirmed the conviction. State v. Cantrell, 2016-Ohio-7623, 

2016 Ohio App. LEXIS 4480 (2nd Dist. Nov. 4, 2016), and the Ohio Supreme Court declined 

jurisdiction over a subsequent appeal. State v. Cantrell, 149 Ohio St. 3d 1407 (2017). 

 On February 6, 2017, Petitioner filed an Application for Reopening under Ohio R. App. P. 

26(B) pleading three assignments of error allegedly omitted on direct appeal as a result of his 

attorney’s providing ineffective assistance of appellate counsel: 

First Assignment of Error: Appellate Counsel was ineffective 

when he provided stated incorrect Information within the Statement 

of facts in this case that prejudiced defendant on appeal. 

Second Assignment of Error: Appellate Counsel on appeal was 

the Same as his Trial Counsel, and this Conflict of interest prevented 

Counsel from assigning Ineffective Assistance of counsel on appeal, 

which prejudiced defendant for not ensuring that appellant issued 

were properly raised on his direct appeal. 

Third Assignment of Error: Appellate Counsel was Ineffective 

on appeal for failing to raise reasons why he failed to file a Motion 

to Suppress Evidence of a Gun at trial, Appellate counsel failed to 

raise multiple Motion at trial, and therefore appellant suffered 

prejudiced on direct appeal thereafter. 

 

1

 The facts in this Report are taken from State v. Cantrell, 2016-Ohio-7623, 2016 Ohio App. LEXIS 4480 (2nd Dist. 

Nov. 4, 2016). 
4 

(On file with Montgomery County Clerk of Courts Russell M. Joseph, www.mcclerkofcourts.org. 

Case No. 26975, visited June 5, 2018). The Second District denied the Application on the merits 

(State v. Cantrell, Case No. 26875 (2nd Dist. Mar. 30, 2017)(unreported; copy filed at ECF No. 

5)). The Ohio Supreme Court again declined review. State v. Cantrell, Case No. 2016-1816 (Entry 

of May 17, 2017). Cantrell then filed his habeas Petition in this Court on April 30, 2018.2

Analysis 

Direct Appeal Ground One: Sufficiency of the Evidence 

 In his first ground for relief, Cantrell claims the Second District Court of Appeals erred 

when it found his conviction was supported by sufficient evidence and was not against the manifest 

weight of the evidence. 

 The second part of this claim is not cognizable in federal habeas corpus because a 

conviction against the manifest weight of the evidence does not violate the United States 

Constitution. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). 

 In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Ohio Supreme Court reaffirmed the 

important distinction between appellate review for insufficiency of the evidence and review on the 

claim that the conviction is against the manifest weight of the evidence. It held: 

In essence, sufficiency is a test of adequacy. Whether the evidence 

is legally sufficient to sustain a verdict is a question of law. State v. 

Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. 

In addition, a conviction based on legally insufficient evidence 

constitutes a denial of due process. Tibbs v. Florida (1982), 457 

 

2

 Although the Petition was not received by the Clerk until May 21, 2018, Cantrell is entitled to a filing date of April 

30, 2018, the date he claims he placed it in the prison mailing system. (ECF No. 1, PageID 7.) 
5 

U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing 

Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 

560. Although a court of appeals may determine that a judgment of 

a trial court is sustained by sufficient evidence, that court may 

nevertheless conclude that the judgment is against the weight of the 

evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-

389, 124 N.E.2d at 149. Weight of the evidence concerns "the 

inclination of the greater amount of credible evidence, offered in a 

trial, to support one side of the issue rather than the other. It 

indicates clearly to the jury that the party having the burden of proof 

will be entitled to their verdict, if, on weighing the evidence in their 

minds, they shall find the greater amount of credible evidence 

sustains the issue which is to be established before them. Weight is 

not a question of mathematics, but depends on its effect in inducing 

belief." (Emphasis added.) 

When a court of appeals reverses a judgment of a trial court on the 

basis that the verdict is against the weight of the evidence, the 

appellate court sits as a " 'thirteenth juror' " and disagrees with the 

factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. 

at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin 

(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 

717, 720-721 ("The court, reviewing the entire record, weighs the 

evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new 

trial ordered. The discretionary power to grant a new trial should be 

exercised only in the exceptional case in which the evidence weighs 

heavily against the conviction."). 

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited 

approvingly by the supreme court in Thompkins), Judge Robert Black contrasted the manifest 

weight of the evidence claim: 

In considering the claim that the conviction was against the manifest 

weight of the evidence, the test is much broader. The court, 

reviewing the entire record, weighs the evidence and all reasonable 

inferences, considers the credibility of the witnesses and determines 

whether in resolving conflicts in the evidence, the jury clearly lost 

its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered. ... 

Martin, 20 Ohio App. 3d 172 (paragraph three of the syllabus). 
6 

 On the other hand, an allegation that a verdict was entered upon insufficient evidence states 

a claim under the Due Process Clause of the Fourteenth Amendment to the United States 

Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); 

Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 

1990)(en banc). In order for a conviction to be constitutionally sound, every element of the crime 

must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable inferences 

from basic facts to ultimate facts. 

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); 

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio Oct. 12, 2007). This rule was 

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law that 

determines the elements of offenses; but once the state has adopted the elements, it must then prove 

each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge should 

be assessed against the elements of the crime, not against the elements set forth in an erroneous 

jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S.Ct. 709, 193 L. Ed. 2d 639 

(2016). 

 In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 

Stat. 1214)(the “AEDPA” codified at 28 U.S.C. § 2254), two levels of deference to state decisions 

are required: 

In an appeal from a denial of habeas relief, in which a petitioner 
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challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to groups 

who might view facts differently than we would. First, as in all 

sufficiency-of-the-evidence challenges, we must determine 

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, 

re-evaluate the credibility of witnesses, or substitute our judgment 

for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 

(6th Cir. 1993). Thus, even though we might have not voted to 

convict a defendant had we participated in jury deliberations, we 

must uphold the jury verdict if any rational trier of fact could have 

found the defendant guilty after resolving all disputes in favor of the 

prosecution. Second, even were we to conclude that a rational trier 

of fact could not have found a petitioner guilty beyond a reasonable 

doubt, on habeas review, we must still defer to the state appellate 

court's sufficiency determination as long as it is not unreasonable. 

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to 

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); 

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based 

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 

(6th Cir. 2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial 

deference. First, on direct appeal, "it is the responsibility of the jury 

-- not the court -- to decide what conclusions should be drawn from 

evidence admitted at trial. A reviewing court may set aside the jury's 

verdict on the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 

1, [2], 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). And 

second, on habeas review, "a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 
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federal court instead may do so only if the state court decision was 

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. 

___, ___, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43 

(2012) (per curiam). 

 In evaluating the evidence at trial, the Judge Hall wrote for the Second District: 

[*P9] On appeal, Cantrell challenges the "force, stealth, or 

deception" element of his aggravated-burglary conviction. 

* * * 

[*P12] With the foregoing standards in mind, we conclude that 

Cantrell's aggravated-burglary conviction is supported by legally 

sufficient evidence and is not against the weight of the evidence. As 

set forth above, the primary basis for the trial court's finding of a 

trespass by force was the testimony of Lillia Arnold. The trial court 

found her testimony to be the most credible, noting that she had "no 

dog in this fight, and was simply an unfortunate witness of the events 

which unfolded at Ms. Cranford's apartment." (Doc. # 61 at 3). The 

trial court specifically credited Arnold's testimony "that she saw the 

Defendant opening the screen door and enter Ms. Cranford's 

apartment." (Id. at 4). This testimony was legally sufficient to 

establish the "force" element of aggravated burglary. See, e.g., State 

v. McWilliams, 2d Dist. Greene No. 2000 CA 89, 2001-Ohio-1452, 

2001 WL 1203395, *3 (Oct. 12, 2001) (recognizing that HN3 

opening a closed but unlocked door is sufficient to constitute the use 

of force). 

State v. Cantrell, 2016-Ohio-7623. 

 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 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, 98 

(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). 
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 The Second District’s decision on the sufficiency of the evidence is clearly a reasonable 

application of Jackson v. Virginia, 443 U.S. 307 (1979). The trial judge heard direct eyewitness 

testimony from a disinterested witness about the degree of force used by Cantrell to enter 

Cranford’s apartment. That testimony was corroborated by Cranford herself. Cantrell did not 

testify himself to contradict Lillia Arnold’s testimony. The Second District compared the 

testimony on the amount of force used with its own precedent describing the amount of force 

needed to satisfy the force element of the aggravated burglary statute. 

 Because the Second District’s decision is a reasonable application of Supreme Court 

precedent, Petitioner’s Direct Appeal Ground One is without merit. 

26(B) Ground One: Misstatement of Facts Regarding Gun 

 Cantrell next claims he received ineffective assistance of appellate counsel when his 

appellate attorney recited in the statement of facts that he entered the Cranford residence with a 

gun. In his Application for Reopening, Cantrell stated this as a claim that he had never admitted 

carrying a gun into the residence. 

 The Second District rejected this claim on the merits. It found that 

The victim and an eyewitness neighbor both testified that he entered 

the apartment brandishing a gun. No one testified that Cantrell did 

not have a gun, and he opted not to testify in his own behalf. 

Therefore, we see no possible ineffective assistance from appellate 

counsels’ concession that Cantrell had a gun. The record contains 

no evidence to the contrary. 

State v. Cantrell, Case No. CA 26975 (2nd Dist. Mar. 30, 2017)(copy at ECF No. 5, PageID 

27.)(“Cantrell 26(B)”). 
10 

The governing standard for ineffective assistance of trial counsel was adopted by the 

Supreme Court 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." 

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 
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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. 

A criminal defendant is entitled to effective assistance of counsel on appeal as well as at 

trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey, 

469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 

(6th Cir. 2008). 

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 

(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of 

appellate counsel, then, the court must assess the strength of the claim that counsel failed to raise. 

Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th

Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective assistance only if 

a reasonable probability exists that inclusion of the issue would have changed the result of the 

appeal. Id., citing Wilson. If a reasonable probability exists that the defendant would have 

prevailed had the claim been raised on appeal, the court still must consider whether the claim's 

merit was so compelling 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, 751-52 (1983)("Experienced advocates 

since time beyond memory have emphasized the importance of winnowing out weaker arguments 

on appeal and focusing on one central issue if possible, or at most on a few key issues." 463 U.S. 

751-52.) Effective appellate advocacy is rarely characterized by presenting every non-frivolous 

argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Williams v. 
12 

Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005); see Smith v. Murray, 

477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those presented will the 

presumption of effective assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876 

F.3d 248, 257 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008). 

However, failure to raise an issue can amount to ineffective assistance. McFarland v. Yukins, 356 

F.3d 688, 710 (6th Cir. 2004), citing Joshua v. Dewitt, 341 F.3d 430, 441 (6th Cir. 2003); Lucas v. 

O’Dea, 179 F.3d 412, 419 (6th Cir. 1999); and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 

1999). 

The Second District’s decision on this claim is clearly a reasonable application of 

Strickland. By the time of the appeal, Cantrell had already been convicted of the firearm 

specification and having a weapon under disability. Possession of a firearm was an element of 

each of these two charges. Thus the trial judge had already decided beyond a reasonable doubt 

that Cantrell possessed the gun and no appeal was taken either on the specification or the weapons 

conviction. Counsel’s concession that Cantrell had a gun cannot possibly have had an impact on 

the outcome of the appeal. Therefore the 26(B) Ground One should be dismissed on the merits. 

26(B) Grounds Two and Three: Conflict of Interest 

 

 In his second and third 26(B) grounds for relief, Cantrell argues his attorney had a conflict 

of interest – he had also been trial counsel -- and the conflict prevented him from raising claims of 

ineffective assistance of trial counsel. In rejecting these claims, the Second District wrote: 

Simply having the same attorney at trial and on direct appeal does 

not per se raise a colorable claim of ineffective assistance of 

appellate counsel. Cantrell still must identify something that his 

attorney did, or failed to do, that arguably constituted prejudicially 
13 

deficient representation. As set forth above, Cantrell complains 

about his trial counsel's failure to file a suppression motion. 

Specifically, he contends his attorney should have sought to 

suppress evidence of him having a gun. He has failed, however, to 

identify any legal basis on which such evidence should have been 

suppressed. Absent a showing by Cantrell that a motion to suppress 

would have had potential merit, the failure to seek suppression, or 

appellate counsel's failure to raise this on appeal, did not constitute 

ineffective assistance. 

Cantrell's claim about his attorney telling him a bench trial would 

involve a three-judge panel does not justify reopening his direct 

appeal because it is not supported by the record. We reach the same 

conclusion with regard· to Cantrell's claims about his trial counsel 

failing to mention the victim being addicted to crack cocaine and 

owing him money. If Cantrell raised these issues in a reopened 

appeal, they would fail because the record contains no evidence that 

the victim was addicted to crack or that she owed him money. "Any 

allegations of ineffectiveness based on facts not appearing in the 

record should be reviewed through the postconviction remedies of 

RC. 2953.21." State v. Coleman, 85 Ohio St.3d 129, 134, 707 

N.E.2d 476 (1999). Finally, even assuming arguendo that defense 

counsel provided deficient representation by not impeaching the 

victim based on the foregoing matters, we see no genuine issue as to 

whether Cantrell was prejudiced by counsel's actions. In finding him 

guilty, the trial court relied on the testimony of the victim's neighbor, 

not the testimony of the victim. The trial court expressly stated that 

it believed the neighbor's testimony about seeing Cantrell open a 

closed screen door and enter the victim's apartment. Impeaching the 

victim about drug addiction and a debt would not affect the trial 

court's reliance on the neighbor's testimony. Failure to raise these 

issues on appeal does not constitute ineffective assistance. 

State v. Cantrell, supra, copy at ECF No. 5, PageID 27-28. 

 The Second District’s decision of these claims is clearly a reasonable application of 

Strickland. As to the possibility of suppressing the gun, Cantrell has not shown how that could 

have been done. The gun itself was not introduced in evidence. Thus there could not have been a 

Fourth Amendment claim about the seizure of the weapon, the usual basis for a motion to suppress. 

 As the Second District pointed out, there was no evidence of record to show the victim was 

addicted to crack cocaine or that she owed Cantrell money. If those facts were material to proving 
14 

his trial attorney was ineffective for not using them in cross-examination, they could have been 

introduced in a proceeding for post-conviction relief under Ohio Revised Code § 2953.21, but 

Cantrell never filed such a petition and the time for doing so has long since expired. The same is 

true of any evidence about misadvice about a three-judge panel. A court comprising three 

Common Pleas judges is only available as an alternative to trial by jury in a capital case, so advice 

that Cantrell could get a three-judge panel here would have been wrong. But there is no evidence 

of record that the trial attorney ever gave such advice. The 26(B) Grounds for Relief Two and 

Three are without merit. 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge 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. 

June 5, 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 
15 

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).