1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

LAVON ODEN, 

Petitioner, : Case No. 1:18-cv-420 

- vs - District Judge Susan J. Dlott 

Magistrate Judge Michael R. Merz 

Warden, 

 North Central Correctional Complex, 

 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought pro se by Petitioner Lavon Oden under 28 U.S.C. § 2254, 

is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record 

(ECF No. 4), the Warden’s Return of Writ (ECF No. 5), and Petitioner’s Reply (ECF No. 7). The 

Magistrate Judge reference in this case has been transferred to the undersigned to help balance the 

Magistrate Judge workload in this District (ECF No. 8). 

Litigation History 

 Oden was indicted by a Hamilton County grand jury on charges of aggravated murder, 

murder, aggravated robbery, and having weapons while under a disability. A jury found him guilty 

of all charges except the aggravated murder count and the trial judge imposed a combined sentence 

of sixty-three years to life. 
2 

 2254(3) and Oden appealed with new counsel raising six assignments of error which the Ohio 

First District Court of Appeals overruled. State v. Oden, 2016 Ohio App. LEXIS 3817 (1st Dist. 

Sept. 23, 2016), appellate jurisdiction declined, 148 Ohio St. 3d 1428. Oden filed pro se an 

Application for Reopening under Ohio R. App.26(B), proposing four assignments of error whose 

omission he claimed demonstrated ineffective assistance of appellate counsel. The First District 

denied the Application on the merits. Oden took no appeal to the Supreme Court of Ohio, but later 

sought to supplement his App. R. 26(B) Application. The First District denied that request and 

Oden again did not appeal. 

 Oden filed his Petition by placing it in the prison mail on June 7, 2018 (ECF No. 1, PageID 

26). He pleads the following grounds for relief: 

Ground One: The Trial Court erred as a matter of law by allowing 

hearsay evidence to be admitted in violation of Appellant’s right to 

a fair and impartial trial. 

Supporting Facts1: The Sixth Amendment's Confrontation Clause 

provides a criminal defendant: the right to directly confront adverse 

witnesses; the right to cross- examine adverse witnesses; and the 

right to be present at any stage of the trial that would enable the 

defendant to effectively cross-examine adverse witnesses. 

The Confrontation Clause of the Sixth Amendment may prohibit the 

admission of hearsay evidence against a criminal defendant when 

the defendant lacks the opportunity to cross-examine the out-ofcourt declarant. However, the admission of out-of-court statements 

does not violate the Confrontation Clause if the declarant testifies at 

trial and is subject to cross-examination. 

In this case the declarant, Darryl Craig, (Craig herein), did not testify 

at trial. 

 

1

 Oden’s Petition completely ignores the instructions in the standard habeas form not to argue or cite cases in the 

Supporting Facts. The Court’s copying of Petitioner’s actual words here should not be read as an endorsement of this 

way of proceeding. By including allegations of fact in these statements of supporting fact, Petitioner had not provided 

evidence. The evidence a habeas court can consider is strictly limited by 28 U.S.C. 2254(e) and Cullen v. Pinholster, 

563 U.S. 170 (2011).
3 

In the First District Court of Appeals, Opinion and Journal Entry, the 

court determined that much of the evidence, including: "Craig's outof-court identification of Oden as the shooter[;] and the contents of 

Craig's text messages[;]" was in fact "inadmissible hearsay." 

Further, the court determined, "[they could] not say,[ ... ] that the 

results of the trial would have been different absent its admission, 

and that a reversal is necessary to avoid manifest injustice." 

Usually text messages are considered non-testimonial and are 

therefore not excluded as hearsay. In this case, the text messages 

were used to describe events that occurred immediately before the 

marijuana sale. Further, the text messages were certainly offer [sic] for 

their truth because they discussed: the alleged robbery; shooting; and who was present. 

The State requested Robert Johnson to identify the text messages 

between him and Darryl Craig, these texts are found in Mr. Craig's 

cell phone records that were presented as State's Exhibit 30. Darryl 

Craig texts often, and does not stop until he arrives at the car; this 

car is the very car in which the robbery and subsequent murder took 

place. The texts read like a journal providing all of the details about 

the drug transaction that is about to take place. Upon review of the 

text messages it is clear they are testimonial in nature; because they 

provide Craig's personal perspective of how the events unfolded 

prior to the drug deal, robbery, and murder. See (Tr. Pg. 1280-1283). 

A violation of the Confrontation Clause is subject to harmless error 

analysis[.] Harmless error exists if it is established beyond a 

reasonable doubt that the violation did not contribute to the verdict. 

This court has previously determined, "habeas court should grant 

petition if it has 'grave doubt' about whether trial error had 

substantial and injurious effect or influence upon the jury's verdict." 

It is clear the inadmissible hearsay loaned substantial weight to the 

case that would not otherwise have existed. It is also clear this 

bolstered evidence influenced the jury; guiding them toward a guilty 

verdict, by providing an additional witness to the crime. This 

witness could not be discredited through cross examination. The 

trial court claims there was "significant admissible evidence of 

guilt" but does not address how this evidence was weighed in 

drawing their opinion. 

If we were to ignore the hearsay evidence, the remaining evidence 

would be limited to: (I) the testimony of Curtis Boston; (2) the 

identification by Robert Johnson; (3) the possible location of the 

defendant based on cellular data; and (4) the text message by the 

Appellant allegedly selling a "Ruger." 

While uncorroborated accomplice testimony alone can support a 

conviction, United States v. King, 288 F. App'x 253, 256 (6th Cir. 
4 

2008), the Sixth Circuit warns that this type of testimony should be 

given more caution than other testimony when weighing its 

credibility. See 6th Cir. Pattern Jury Instruction 7 .08. 

First, from the record it is clear that Boston is not the most reliable 

witness. Boston is a self admitted accomplice to the crime. Boston 

testified he was incarcerated for this murder charge as well as a 

separate aggravated robbery from December of 2012 which did not 

involve the petitioner. (Tp. Pgs. 749, 750, 751, 834). Boston sent a 

text message to a friend that said he "fucked up" and needed a place 

to go, this suggests guilt. In another text message to a friend. Boston 

said, "Bra, if l get locked up say Whiteshit [referring to the 

Petitioner,] told you that he robbed them [and] shot." (Tp. Pgs. 802, 

818, 819). Boston testified, he did not want to talk to the police but, 

after he was arrested and talked to his father, he told the police what 

happened. He admitted he did not agree to testify until he was 

offered a 12 year deal. (Tp. Pgs. 824,829, 831, 836); Boston 

demonstrated he had motive to implicate the Petitioner, in this 

crime, when he testified about, The Petitioner and Boston's brother 

being arrested in 2011; in which, his brother pled guilty, but 

Petitioner beat the case. (Tp. Pg. 842); There was also testimony 

from Det. Karaguleff that several Crime Stoppers tips came in 

identifying Boston as the shooter (Tp. Pgs. I 026, I 029-1031 ); See 

also Trial Del Ex. #3. Further, these tips indicated Boston had 

bragged about the incident on Facebook. (Tp. Pg. 1032, 1034); Trial 

De{ Ex. #3. These tips could lead one to believe Boston was in fact 

the shooter. Boston admitted to speaking to Darryl Craig, while in 

lock up about the case which helped him remember some facts. (Tp. 

Pgs. 846-847). When trial counsel made an attempt to delve into the 

conversation between Boston and Craig in order to discern what was 

discussed; the prosecution objected and the court sustained the 

objection. (Tp. Pgs. 847). The questions by trial counselor, James 

Bogens, were reasonable due to Boston's testimony; so the court 

sustaining the objection was clearly an abuse of judicial discretion. 

Second, Robert Johnson's identification was impermissibly 

suggestive; and he was an unreliable witness as demonstrated below. 

See also Ground 5. 

Upon review of Mr. Johnson's testimony and pre-trial statements; 

this court will find he was an unreliable witness. Mr. Johnson 

testified he set up a purchase of marijuana with Boston on January 

30, 2013. (Tp. pgs. 329-330); See also States Ex. #17. Mr. Johnson 

testified that on January 301h, he was driving with Da'Shawn 

Wheeler, in the front passenger seat, and Darryl Craig behind him. 

He picked up Boston and drove to Burton Avenue. Mr. Johnson 
5 

testified, Boston got out of the car and went into an apartment 

building. It was dark at the time. Mr. Johnson testified, he was 

getting very nervous since Boston was gone a long time. (Tp. pgs. 

343, 346, 347, 348, 350, 352, 356, 357). The buyer asked to see the 

marijuana and opened the car door. Mr. Craig showed him the 

marijuana, and then the buyer pulled out a big, black gun while 

Boston stood back. Mr. Johnson admitted he told the police, on the 

night of the incident, that the gun was a silver .40 caliber Glock. (Tp. 

359,363,365, 370; Tp. 370,406). Mr. Johnson testified, "They said, 

'You know what time it is, give me everything." Mr. Johnson 

testified he then took off, and as he did, the buyer fired one shot 

through the back window. (Tp. Pgs. 367-368,372). Mr. Johnson 

admitted he could not tell the build of the shooter, he admitted he 

could not tell if the shooter had facial hair or what hand the shooter 

was holding the gun with. (Tp. pgs. 407, 408,411). Mr. Johnson 

identified Appellant as the shooter, six days after the incident, but 

when he spoke to the police on the night of the incident he could not 

identify the shooter. Mr. Johnson admitted he lied to the police about 

the marijuana deal. He also admitted he lied when he said the shooter 

took them by surprise. He admitted he did not mention that Boston 

was present during either interview. (Tp. 378, 387, 389, 406, 409, 

410). Mr. Johnson testified he selected Appellants photo from 

lineup, and that he was 90% sure it was him. {Tp. Pgs. 390, 393, 

396). Detective K.araguleff testified Mr. Johnson told him the 

shooter was 5'6" or ST' tall, dark skinned black male with a scar on 

his nose. (Tp. Pgs. 949, I 037). This Petitioner does not have a scar 

on his nose. 

Most of the factors that Dr. Berry testified to, about problems with 

identification, happened here. Mr. Johnson did not know the 

shooter, it happened quickly, and there was a weapon involved 

which put Mr. Johnson in an extreme stress situation. This is in 

addition to the fact Mr. Johnson was in the front seat so his ability 

to see the shooter clearly is doubtful. Mr. Johnson could not have 

seen who fired the shot either because the shot was fired after he 

drove off. Mr. Johnson admitted to detectives on that night he could 

not identify the shooter, but six days later he could. This is a concern 

since Dr. Berry testified memory can decay after a period of time, 

and six days is not an ideal length of time. Further, on January 30th 

Mr. Johnson told detectives the gun involved was a silver .40 caliber 

Glock, yet, trial, it was a big, black gun. As Dr. Berry testified, 

memory can still change, even assuming it was properly coded at 

the time. Another significant concern was the fact Mr. Johnson 

never mentioned Boston's involvement to the police during either of 

his police interviews. 
6 

Third, Agent Moledor opined, the Petitioner was in the vicinity of 

the shooting, based upon historic cell phone data, the fact is the 

Petitioner could have been anywhere within a 21 mile radius 

according to the expert testimony from Mr. Schenk. This is also 

assuming the signal went to the closest tower. (Emphasis added). 

This is a big assumption, considering all the factors that could 

interfere and cause the signal to go elsewhere. Both witnesses 

agreed the only way to pinpoint a person's location from cellular 

data is through triangulation; this technique though was not used. 

Even assuming Agent Moledor was correct and the Petitioner was 

in the vicinity, this can be easily explained from testimony that the 

Petitioner's girlfriend lived in the apartment complex near the 

shooting. This could explain why his phone was in the vicinity. 

Further, if the court examined the Petitioner's cellular data; they 

would find the Petitioner often spends time in the vicinity of this 

cellular tower. 

Fourth, Robert Lenhoff, a firearms examiner, testified the bullet 

recovered was consistent with 9 mm Luger ammunition; which 

could have been shot from 30-35 different brands of firearms. Mr. 

Lenhoff testified there were no guns submitted for comparison. (Tp. 

Pgs. 904,919,920,921). 

Detective Karaguleff testified the car door handle was swabbed for 

DNA, a mixture of DNA from three unknown suspects was found 

and the Petitioner was excluded from being a contributor. (Tp. Pg. 

IO 17). This supports the Petitioner's claim that he was not involved. 

If, as testified by Johnson: the shooter opened the door; and the 

Petitioner is the shooter; then the Petitioner's DNA should have been 

a contributor. 

We disagree with the trial courts assessment that the remaining 

evidence was sufficient to support conviction, especially if this court 

were to consider this issue with the other plain errors for cumulative 

error. The cumulative error value clearly demonstrates a necessity 

for relief. 

Ground Two: The trial court erred as a matter of law by overruling 

appellant’s motion for a mistrial. 

Supporting Facts: Pursuant to the manifest necessity doctrine, a 

mistrial should not be declared unless there is a manifest necessity 

for the act, or the ends of public justice would otherwise be defeated. 

The Perez approach abjures the application of any mechanical 

formula by which to judge the propriety of declaring a mistrial in the 

varying and often unique situations arising during the course of a 
7 

criminal trial. Instead, Perez prescribes a case-by-case approach, 

taking into account all the facts and circumstances to determine 

whether there was a manifest (i.e., a high degree of) necessity for 

the mistrial declaration. 

Although trial courts should be accorded deference in making a 

determination of manifest necessity, they must employ sound 

discretion and must consider the defendant's right to end his 

confrontation with the state through a verdict from the particular 

tribunal he faces. Sound discretion exists where the trial judge acts 

responsibly and deliberately rather than irrationally or irresponsibly. 

Absent a showing of prejudice, the plain error rule does not require 

reversal of a conviction where a witness may have violated a 

separation order. 

In this case, Petitioner made a motion for mistrial after hearing 

testimony from Boston that he spoke to the witness Darryl Craig, 

while in lock up. Boston testified Craig helped him remember some 

facts about the case. See (Tr. Pg. 846-847.) The only fact we know 

Craig helped Boston remember was regarding the theft of the 

earring. (Tr. Pg. 845 - 846.) The trial court had earlier established a 

separation order between Boston and Craig; that extended to their 

being separated in the county jail. Boston admitted his testimony 

was influenced by his conversations with Craig. 

It is unclear how Boston's testimony was influenced, because when 

the Petitioner's trial counsel attempted to question Boston about 

what was discussed, the prosecution objected and the trial court 

sustained the objection. When the trial court sustained the objection, 

it was an abuse of judicial discretion because; Boston's own 

testimony demonstrated the line of questioning was necessary to 

determine how Craig influenced his testimony. See (Tr. Pg. 846-

848). It is possible and likely that parts of Boston's testimony were 

not from his personal account of the events; but instead are a direct 

result of his collaboration with Craig. This is a very troubling 

situation because it is difficult to determine what may or may not 

have been influenced expo [sic] facto. 

Further, when the trial court sustained the prosecutions objection 

preventing trial counsel's inquiry into this issue; trial counsel was 

denied adversarial testing to determine if and how Craig influenced 

Boston's testimony. This invokes the third prong of the Cronic 

standard; which "occurs when counsel is placed in circumstances in 

which competent counsel very likely could not render assistance," 

United States v. Cronic, 466 U.S. 648, at 659 (May 14th 1984). The 
8 

court removed counsel's ability to demonstrate any possible 

prejudice to the Petitioner when they prevented the necessary 

questioning to determine if any prejudicial influence occurred to 

Boston's testimony. Since, counsel was prevented from performing 

the necessary "adversarial testing" to determine the possible 

prejudice, prejudice must be presumed pursuant to Cronic. 

Further, the court may attempt to argue that any prejudice was 

removed because Craig did not testify. This is not true because 

Craig's testimony was improperly introduced as hearsay and further 

this would not remove Craig's influence upon Boston's testimony. 

Boston's testimony may have been in part Craig's testimony due to 

their admitted collaboration. 

Since, the Petitioner's convictions were based solely on the 

testimony of these witnesses; the violation of the separation order 

was so significant that a fair trial was no longer possible. The trial 

court therefore abused its discretion by: overruling the motion; and 

preventing counsel's inquiry into Craig and Boston's conversation. 

This issue constitutes a plain error and is subject to cumulative error 

review. 

Ground Three: Appellant was denied effective assistance of 

counsel in violation of his constitutional rights thus prejudicing his 

right to a fair trial. 

Supporting Facts: To establish ineffective assistance of counsel, 

a habeas petitioner must show that his counsel provided deficient 

performance and such deficient performance prejudiced his defense 

so as to render the trial unfair and the result unreliable. Under 

AEDPA, a state court's ruling on ineffective assistance of counsel 

claims will only be disturbed if it is an unreasonable application of 

Strickland. Focusing on the performance component, the U.S. 

Supreme Court explained when a convicted defendant complains of 

the ineffectiveness of counsel's assistance, the defendant must show 

that counsel's representation fell below an objective standard of 

reasonableness. A reviewing court's scrutiny of counsel's 

performance is highly deferential; indeed, counsel is strongly 

presumed to have rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional 

judgment. The reviewing court must also not indulge in hindsight, 

but must evaluate the reasonableness of counsel's performance 

within the context of the circumstances at the time of the alleged 

errors. 
9 

To satisfy the prejudice prong of the Strickland test, a defendant 

must show that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. A habeas 

petitioner is not entitled to a presumption of prejudice unless it can 

be said that his counsel failed meaningfully to oppose the 

prosecution's case. Where one is left with pure speculation on 

whether the outcome of the trial or the penalty phase could have 

been any different, there is an insufficient showing of prejudice. 

(1) Counsel was Ineffective for Failing to Object to Hearsay 

Statements 

In this case, Petitioner argues his trial counsel was ineffective for 

failing to object to the hearsay statements as set forth in Ground 

One, thus limiting this Court's ability to review that plain error. 

Petitioner reminds the court to take in consideration the admitted 

inadmissible evidence, from the appellate court[‘]s decision, thus 

citing: Craig's out-of-court identification of Oden as the shooter; and 

the contents of Craig's text messages. The appellate court 

determined this evidence is inadmissible in their opinion and journal 

entry. See State v. Oden. 2016 Ohio Apo. LEXIS 3817 (Although 

much of this evidence was inadmissible hearsay, we cannot say, in 

light of the significant, admissible evidence of guilt, that the results 

of the trial would have been different absent its admission, and that 

a reversal is necessary to avoid a manifest injustice.) 

It is clear from the facts that counsel's failure to object to the 

evidence was unreasonable considering, the context of the 

circumstances at the time of the alleged errors. Counsel's failure to 

object allowed the state to introduce a third eyewitness, to the jury, 

that was never subject to cross examination. 

"Similarly, if counsel entirely fails to subject the prosecution's case 

to meaningful adversarial testing, then there has been a denial of 

Sixth Amendment rights that makes the adversary process itself 

presumptively unreliable. No specific showing of prejudice was 

required in Davis v. Alaska. 415 U.S. 308 (1974), because the 

petitioner bad been 'denied the right of effective cross-examination' 

which 'would be constitutional error of the first magnitude and no 

amount of showing of want of prejudice would cure it.' Id., at 318 

(citing Smith v. Illinois, 390 U.S. 129, 131 (1968), and Brookhart v. 

Janis. 384 U.S. l, 3 (1966))." quoting United States v. Cronic. 466 

U.S. 648, at 659 (May l4th 1984). 
10 

"Circumstances of that magnitude may be present on some 

occasions when although counsel is available to assist the accused 

during trial, the likelihood that any lawyer, even a fully competent 

one, could provide effective assistance is so small that a 

presumption of prejudice is appropriate without inquiry into the 

actual conduct of the trial." Id at 660. 

"The United States Court of Appeals for the Sixth Circuit recently 

explained that, pursuant to United States v. Cronic. 466 U.S. 648, 

80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), and Bell v. Cone, 535 U.S. 

685, 152 L. Ed 2d 914, 122 S, Ct, 1843 (2002), three types of cases 

warrant Cronic's presumption-of-prejudice analysis rather than 

Strickland's two-prong test of a deficient performance and resulting 

prejudice. Mitchell v. Mason. 325 F.3d 732. 742 (6th Cir. 2003). The 

first type of circumstance that warrants a presumption-of-prejudice 

analysis is the complete denial of counsel at a critical stage of the 

proceedings; the second is when counsel fails to subject the 

prosecution's case to meaningful adversarial testing; and the third 

occurs when counsel is placed in circumstances in which competent 

counsel very likely could not render assistance. Id." Meade v. 

Lavigne, 265 F. Supp. 2d 849 

In the case at hand, the Petitioner was denied the right to crossexamine Darryl Craig which caused a violation of the second and 

third prong of Cronic. resulting in a 'constitutional error' of the 'first 

magnitude' of which no amount of showing of want of prejudice 

could cure. Trial counsel was placed in circumstances in which 

competent counsel very likely could not render assistance, because 

he could not discredit Craig's testimony. The denial of crossexamination caused trial counsel to be unable to subject the 

prosecutions case to adversarial testing. 

If prejudice is to be presumed in a situation denying the Petitioner 

to meaningful adversarial testing, as demonstrated above, then 

prejudice must be presumed in this case. 

As described above, pursuant to Strickland, "[a] habeas petitioner is 

not entitled to a presumption of prejudice unless it can be said that 

his counsel failed meaningfully to oppose the prosecution's case." 

The AEDP A standard, above, ·demonstrates an incorporation of 

Cronic into the Strickland standard; If prejudice is to be presumed 

then the appellate courts application of the Strickland standard in 

requiring the outcome of the trial to be different was in error. The 

appellate court clearly did not review the case taking into 

consideration the Cronic exceptions. See Strickland v. Washington, 
11 

466 U.S. 668, 104 S.Ct. 2052. 80 L.Ed.2d 674 (Mav, 14th 1984) and 

United States v. Cronic, 466 U.S. 648, at 659 (May 14th 1984). 

The appellate court already determined, "much of this [hearsay] 

evidence was inadmissible" this "include[ed) Craig's out-of-court 

identification of Oden as the shooter and the content of Craig's text 

messages." State v. Oden, 2016 Ohio App. LEXIS 3817 at if4. 

Therefore, the first prong requiring: the petitioner to show that the 

counsel's representation fell below a reasonable standard; has 

already been determined and this court can proceed directly to the 

"prejudice" prong. 

The Supreme Court explained that "[a] reasonable probability is a 

probability sufficient to undermine confidence in the outcome." 

Strickland at 698. In evaluating whether a petitioner satisfies the 

prejudice prong, a court must ask "whether counsel's deficient 

performance renders the result of the trial unreliable or the 

proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 

364,372, 122 L. Ed. 2d 180, 113 S. Ct. 838 (1993) (**189) (citing 

Strickland. 466 U.S. at 687); see also Combs, 205 F.3d at 278 

(quoting same); Tucker, 181 F.3d at 754-55; Chandler, 813 F.2d at 

781-82; Jamison v. Collins, 100 F. Supp. 2d 647 at 723-724. 

Prejudice can be demonstrated under the Strickland standard 

because; the hearsay evidence that was introduced influenced the 

jury in drawing the conclusion of guilt. The identification by Darryl 

Craig, see State's Exhibit #11 from Trial, which bolstered Robert 

Johnson's identification and provided the prosecution with a key 

witness that could not be subjected to cross examination. In a similar 

manner Craig's text messages were unable to be subjected to 

adversarial testing because Darryl Craig did not testify. In addition, 

the opportunity for testing of Craig's testimony for credibility and 

reliability was completely removed. Therefore, trial counsel's ability 

to subject this testimony to adversarial testing was completely 

removed In conclusion. the lack of adversarial testing of the hearsay 

evidence by trial counsel rendered the trial proceedings 

fundamentally unfair. When trial proceedings are "fundamentally 

unfair'' prejudice has been demonstrated pursuant to Lockhart. 

Cronic and Strickland. 

Further, if this court were to determine this issue is a harmless error 

under Strickland or Cronic, this issue amounts to a plain error and 

is subject to a cumulative error review. 

(2) Counsel was Ineffective for Failing to Renew the Motion for 

a Mistrial 
12 

Pursuant to the manifest necessity doctrine, a mistrial should not be 

declared unless there is a manifest necessity for the act, or the ends 

of public justice would otherwise be defeated. The Perez approach 

abjures the application of any mechanical formula by which to judge 

the propriety of declaring a mistrial in the varying and often unique 

situations arising during the course of a criminal trial. Instead, Perez 

prescribes a case-by-case approach, taking into account all the facts 

and circumstances to determine whether there was a manifest (i.e., 

a high degree of) necessity for the mistrial declaration. 

Although trial courts should be accorded deference in making a 

determination of manifest necessity, they must employ sound 

discretion and must consider the defendant's right to end his 

confrontation with the state through a verdict from the particular 

tribunal he faces. Sound discretion exists where the trial judge acts 

responsibly and deliberately rather than irrationally or irresponsibly. 

Absent a showing of prejudice, the plain error rule does not require 

reversal of a conviction where a witness may have violated a 

separation order. 

In this case, Petitioner made a motion for mistrial after hearing 

testimony from Boston that he spoke to the witness Darryl Craig, 

while in lock up. Boston testified Craig helped him remember some 

facts about the case. See (Tr. Pg. 846-847.) The only fact we know 

Craig helped Boston remember was regarding the theft of the 

earring. (Tr. Pg. 845 - 846.) The trial court had earlier established a 

separation order between Boston and Craig that extended to their 

being separated in the jail. Boston admitted his testimony was 

influenced by his conversations with Craig. 

It is unclear how Boston's testimony was influenced because when 

the Petitioner's trial counsel attempted to question Boston about 

what was discussed; the prosecution objected and the trial court 

sustained the objection. When the trial court sustained the objection 

it was an abuse of judicial discretion because, Boston's own 

testimony demonstrated the line of questioning was necessary to 

determine how Craig influenced his testimony. See (Tr. Pg. 846-

848). It is possible and likely that parts of Boston testimony were 

not from his account, of the events, but instead are a direct result of 

bis collaboration with Craig. This is a very troubling situation 

because it is difficult to determine what may or may not have been 

influenced expo[sic] facto. 
13 

When the trial court sustained the prosecutions objection preventing 

trial counsel's inquiry into this issue, trial counsel was denied the 

right to subject Boston to adversarial testing in regards to Craig's 

influence on Boston's testimony. This establishes an instance of the 

third prong of the Cronic standard of review which "occurs when 

counsel is placed in circumstances in which competent counsel very 

likely could not render assistance," United States v. Cronic, 466 

U.S. 648, at 659 (May 14th 1984) (emphasis added). The trial court 

removed counsel's ability to demonstrate any possible prejudice to 

the Petitioner both at trial and in the appellate court. They did so, 

when they prevented the necessary questioning to determine if any 

prejudicial influence occurred to Boston's testimony. The appellate 

court addressed this in their opinion, "We overrule[ ... ] because the 

appellant demonstrated neither that Boston had discussed what had 

been testified to in court in violation of the order nor that a fair trial 

was not possible." Oden 2016 Ohio App. LEXIS 3817 at 4. 

Therefore, the appellate court did not come to their decision with 

consideration as to whether prejudice should be presumed. Trial 

counsel, as described above, was prevented from performing the 

necessary "adversarial testing" to demonstrate prejudice; therefore, 

prejudice should be presumed. 

Further, the court may attempt to argue that any prejudice was 

removed because Craig did not testify. This is not true because 

Craig's testimony was improperly introduced as hearsay and further 

this would not remove Craig's influence upon Boston's testimony. 

Boston's testimony due to influence may have been in part Craig's 

testimony. 

Since Petitioner's convictions were based solely on the testimony of 

these witnesses, the violation of the separation order was so 

significant that a fair trial was no longer possible. The trial court 

therefore abused its discretion by overruling the motion and 

preventing counsel's inquiry. 

Had counsel renewed the motion for a mistrial at the conclusion of 

trial; the court may have conducted the necessary inquiries into this 

issue to determine the actual effect on the proceedings. This issue 

could have been better addressed by the court once all of the relevant 

facts were presented; therefore, counsel should have renewed the 

issue at the conclusion of proceedings. 

This issue constitutes a plain error and should be reviewed for 

cumulative error.
14 

Ground Four: Appellant was denied effective assistance of 

appellate counsel by failing to raise the issue that trial counsel 

knowingly during closing argument stated, that the defendant was 

guilty of a lesser charge, without the defendant's approval of this 

tactic, in violation of his constitutional rights thus prejudicing his 

right to a fair trial. 

Supporting Facts: "The presentation of additional facts in the 

federal petition (or in a federal proceeding) does not evade the 

exhaustion requirement the prisoner has presented the substance of 

his claim to the state courts, and supplemental evidence does not 

fundamentally alter the legal claim they considered." Vasguez v. 

Hillery, 414 U.S. 254, 257-58, 106 S. Ct. 6 I 7, 88 L. Ed. 2d 598 

(1986). "Where the legal basis for [petitioner's] claim has remained 

constant, and where the facts developed in the district court merely 

substantiate it, we cannot say that the claim has been so 

'fundamentally alter[ed]' from that presented to the state courts as to 

preclude our review." Richey v. Bradshaw. 498 F.3d 344, 353 (6th 

Cir. 2007). 

Under Strickland's two-part test, the petitioner must overcome the 

strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance by showing: [ l] that trial 

counsel's performance was deficient; and [2] that he was prejudiced 

by the deficient performance. Unless the petitioner makes both 

showings, it cannot be said that the conviction ... resulted from a 

breakdown in the adversary process that renders the result 

unreliable. Appellant must demonstrate that counsel's representation 

was unreasonable under prevailing professional norms and that the 

challenged action could not be considered sound trial strategy. The 

burden rests with Appellant to show that there is a reasonable 

probability that, but for any unprofessional errors by counsel, the 

result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome. When a claim of ineffectiveness of counsel can be 

disposed of on the ground of lack of prejudice, that course should be 

followed. This Court has stated the issue is whether counsel 

exercised the skill, judgment and diligence of a reasonably 

competent defense attorney in light of his overall performance. 

This Court has held the position that a concession of guilt does not 

amount to ineffective assistance of counsel, per se. The Court stated. 

a complete concession of guilt is a serious strategic decision that 

must only be made after consulting with the client and after 

receiving the client's consent or acquiescence. This Court placed the 
15 

burden on the petitioner to show that he was not consulted and that 

he did not agree to or acquiesce in the concession strategy. 

This Petitioner was not at any time consulted by his trial counsel 

about the use of this trial tactic. As stated in the Prosecutions 

response to this claim in the appellate court,[ ... ] "decisions about 

viable defenses are the exclusive domain of defense counsel after 

consulting with the defendant." It is clear questionable trial tactics 

must be discussed with the Petitioner before they are used. This 

Petitioner swears, he did not give trial counsel permission to use this 

tactic and further, this tactic was not discussed with the Petitioner. 

Therefore, trial counsel abused his discretion by using this tactic. 

Counsel's erroneous actions resulted in prejudice to the outcome of 

the proceedings. 

There are two separate instances in which trial counsel conceded to 

the guilt of the Petitioner. 

First, during the questioning of Boston trial counsel stated," [ ... ]I'm 

agreeing that Lavon was the shooter[ ... ][.] (Tp. Pg. 845). This 

statement conceded that the Petitioner was the shooter thereby, 

conceding guilt to the crime of murder or aggravated murder. This 

statement, without: a jury instruction; or limitation to questioning; 

was inappropriate. In stating this, counsel misled the jury to believe 

counsel held the opinion that, "Lavon was the shooter." Trial 

counsel's failure to phrase this statement clearly, as to context was 

obviously improper, amounting to ineffective assistance of counsel. 

Counsel's negligent actions directly influenced the jury to draw an 

assumption of guilt. This was highly prejudicial to the outcome of 

the case; by removing the Petitioner's ability to proclaim his 

innocence. Therefore, trial counsel actions prevented a fair trial 

from being possible and the counselor's statement fell below an 

objective standard of reasonable representation. 

Second, during the closing arguments, which was the Petitioner's 

last opportunity to convince the jury of his innocents, instead of 

defending the Petitioner, trial counsel argued in favor of prosecution 

by stating, "[Boston]'s testimonials shows that whoever did the 

shooting it was not purposeful nor intentional." (Tp. Pgs. 1305-

1306) Petitioner argues that by stating this to the jury, counsel gave 

the jury an alternative, that if they were to consider Petitioners guilt, 

it was not aggravated murder. Trial counsel was instructing the jury 

to find the defendant guilty of the lesser included offense of murder; 

rather than aggravated murder. Counsels' duty during closing is to 

attempt to prove the state has failed to prove the defendants guilt 

beyond a reasonable doubt. It is clear counsel misguided the jury by 
16 

presenting the defendant as the guilty party during his closing 

argument. The jury reacted to trial counsel's suggestion in finding 

the defendant guilty of the lesser included offense of murder. 

Counsel's incompetent statement during closing arguments, 

prejudiced the Petitioner's defense; by removing the plausibility of 

acquittal. This argument fell below an objective standard of 

reasonable representation because, counsel failed to get permission 

for the use of this harmful tactic. 

This issue constitutes a plain error and should be reviewed for 

cumulative error.

Ground Five: Appellate counsel was constitutionally ineffective for 

failing to raise the issue that trial counsel failed to file a motion to 

suppress the identification prior to trial in violation of his 

constitutional rights thus prejudicing his right to a fair trial. 

Supporting Facts: The prosecution is going to claim that the 

petitioner did not present all of the supporting fact for this claim to 

the state court. This is true but, is not the fault of the petitioner. This 

petitioner had to make two separate requests to receive his discovery 

packet. The first request was made immediately after sentencing, on 

May 18th 2015, trial counsel did not disclose discovery. Later, the 

petitioner filed a writ of mandamus requesting an order to disclose 

the documents; this was dismissed by the court. Finally, the 

petitioner wrote trial counsel citing O.R.P.C. rule l .16(d) and 

threated to file a grievance with the Ohio Bar Association. This letter 

resulted in the discovery being mailed to the petitioner on April 17'1\ 

2017. The Petitioner's application was filed on December 14th of 

2016. It is clear the discovery and necessary facts to properly 

support this claim were unavailable at the time of filing. The 

Petitioner made an attempt to later amend his claim and give the 

appellate court a fair opportunity to review this claim. 

"The presentation of additional facts in the federal petition (or in a 

federal proceeding) does not evade the exhaustion requirement the 

prisoner has presented the substance of his claim to the state courts, 

and supple mental evidence does not fundamentally alter the legal 

claim they considered." Vasquez v. Hillery. 414 U.S. 254, 257-58, 

106 S. Ct. 617, 88 L.Ed. 2d 598 (1986). "Where the legal basis for 

[petitioner's] claim has remained constant, and where the facts 

developed in the district court merely substantiate it, we cannot say 

that the claim has been so 'fundamentally alter[ed]' from that 

presented to the state courts as to preclude our review." Richev v. 

Bradshaw, 498 F.3d 344, 353 (61b Cir. 2007). 
17 

To establish ineffective assistance of counsel, a habeas petitioner 

must show that his counsel provided deficient performance and such 

deficient performance prejudiced his defense so as to render the trial 

unfair and the result unreliable. Under AEDPA, a state court's ruling 

on ineffective assistance of counsel claims will only be disturbed if 

it is an unreasonable application of Strickland. Focusing on the 

performance component, the U.S. Supreme Court explained when a 

convicted defendant complains of the ineffectiveness of counsel's 

assistance, the defendant must show that counsel's representation 

fell below an objective standard of reasonableness. A reviewing 

court's scrutiny of counsel's performance is highly deferential; 

indeed, counsel is strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise of 

reasonable professional judgment. The reviewing court must also 

not indulge in hindsight, but must evaluate the reasonableness of 

counsel's performance within the context of the circumstances at the 

time of the alleged errors. 

To satisfy the prejudice prong of the Strickland test, a defendant 

must show that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. A habeas 

petitioner is not entitled to a presumption of prejudice unless it can 

be said that his counsel failed meaningfully to oppose the 

prosecution's case. Where one is left with pure speculation on 

whether the outcome of the trial or the penalty phase could have 

been any different, there is an insufficient showing of prejudice. 

In this case, petitioner argues trial counsel was ineffective for failing 

to file the motion to suppress the identification by Robert Johnson 

prior to trial. Further, appellate counsel was ineffective for failing to 

raise the issue on appeal. It is clear from the manifest weight claim 

presented on appeal; that appellate counsel recognized that there 

was a problem with Robert Johnson's identification. Appellate 

Counsel attacked Johnson's identification in the brief while she was 

addressing the manifest weight claim. This was a moot act because, 

the standard of review for this claim requires the evidence be viewed 

in the light most favorable to the prosecution. Had appellate counsel 

presented this claim as a separate plain error; then the court could 

have considered the cumulative error value of these claims; and had 

this been done, it is likely the outcome of the appeal would have 

been different. 
18 

A motion to suppress may be raised for the first time on appeal only 

if the admission of the identification evidence constituted plain 

error that affected substantial rights of the defendant. 

This court uses a two-step analysis when considering whether a 

pretrial identification procedure raises a "very substantial likelihood 

of irreparable misidentification": first determining whether the 

identification procedure was impermissibly suggestive, and if it was, 

then looking to the totality of the circumstances to decide whether 

the identification was still reliable. 

At the first step, the court considers whether the photo array [or 

photo line-up] included, as far as was practicable, a reasonable 

number of persons similar in appearance to the suspect. In this case, 

the Petitioner claims the photo array [or photo line-up] was 

impermissibly suggestive because four of six photos did not 

resemble defendant. Similar to Berry v. Berghuis, 2011 U.S. Dist. 

LEXIS 50392. The police authorities were required to make every 

effort reasonable under the circumstances to conduct a fair and 

balanced presentation of alternative possibilities for identification. 

The police were not required to search for identical twins. 

The second step is the totality-of-the-circumstances analysis, the 

Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 

L. Ed. 2d 401 (1972), enumerated the five factors for consideration: 

(1) the opportunity of the witness to view the criminal at the time of 

the crime; (2) the witness' degree of attention to the crime; (3) the 

accuracy of the witness' prior description of the defendant; (4) the 

level of certainty demonstrated by the witness at the confrontation; 

and (5) the length of time between the crime and confrontation. 

Dr. Melissa Berry, a psychologist, testified and prepared a report 

regarding memory and eyewitness identification. (Tp. Pgs. 1065, 

1068, 1069; see also, Def. Ex. #6). 

In regards to the first Biggers factor, the opportunity of the witness 

to view the criminal at the time of the crime, Dr. Berry testified, that 

brief exposure is associated with less accuracy. In this case, the 

crime occurred at night and it was dark. Further, the crime occurred 

quickly. Mr. Johnson's position in the vehicle was also not optimum 

to witness the crime: Mr. Johnson was in the front drivers' seat; and 

allegedly the shooter was on the outside of the car, on the right back 

passenger side so his ability to see the shooter clearly is doubtful. 

Mr. Johnson could not have seen who fired the shot either because 

the shot was fired after he drove off. 
19 

In regards to the second Biggers factor, the witness' degree of 

attention to the crime, Dr. Berry testified: if a weapon is involved, 

people tend to focus on the weapon [versus] the face of the 

perpetrator; extreme stress, such as being in a life threatening 

situation, is detrimental to memory encoding and recall; memory 

can still change even if it is properly encoded; [and] memory decays 

over time. From Mr. Johnson's testimony of January 30th, 2013 

stating, "I, Like, I was just thinking like, he might kill us all, if we, 

if we stayed there and I, and he was pointing the gun at everybody'' 

we can see he felt his life was in danger. Therefore, we can conclude 

he was under "extreme stress" as described by Dr. Berry. Further, as 

Mr. Johnson stated the shooter, was "pointing the gun at everybody." 

Therefore, Johnson's focus was likely on the weapon as Dr. Berry 

described; this fact is supported by his own statement. 

Further, in Johnson's statement on February 5, 2013 he stated," ... I 

don't remember seeing CJ" this clearly demonstrates that Johnson 

was not paying attention to the perpetrators as they approached the 

vehicle. Johnson claimed, "So, while me and Dashawn sitting there 

laughing, the, the, uh, the dude opened up the door[,]" dude is a 

reference to the shooter. Boston claimed at trial that he opened the 

door. (Tp. 843). Clearly these claims are contradictory. It is clear 

Johnson's degree of attention was questionable. 

In regards to the third Biggers factor which assesses the accuracy of 

the witness' prior description of the defendant. Detective Karaguleff 

testified Mr. Johnson told him the shooter was 5'6" or 57' tall, dark 

skinned black male with a scar on his nose. (Tp. Pgs. 949, 1037). On 

January 301h Mr. Johnson had little to say in regard to describing 

the shooter. In his initial description he said, "I have no idea. He was 

a black guy. He had on a brown coat like a Carhartt." Later he 

described the shooters haircut as, "a regular haircut" and when 

questioned if it could be, "a fade or something" he conceded it could 

have. He guessed: the shooters' age to be "24 [or] 25[;]" and the 

shooters' height as "about 5'6", 5'7." He could not give a description 

as to a physical build because "he had on a big coat." 

When asked, "ls there anything that stood out about him to you, 

whether, it be voice, movement, face, something about his skin, his 

face, anything that make him stand out from, like if you look at a 

group of people, he stands out because of(?)" Johnson replied, "No, 

sir. No, sir." When questioned about facial hair he said, "I couldn't, 

I couldn't really tell." He claimed the shooter has "dark skin." He 

further stated, he had "never seen him before" referring to the 

shooter. When asked, "Do you believe that if you saw a picture of 
20 

him again you would recognize him?" Mr. Johnson responded, 

"Maybe. I don't." 

When questioned about the gun Mr. Johnson described the weapon 

as a large, silver, semi automatic weapon possibly a "40 [caliber] 

Glock or something like that." At trial, Johnson changed his 

testimony and described the weapon as "a bid [sic] black gun." As 

Dr. Berry testified, memory can still change, even assuming it was 

properly coded at the time. When Johnson was asked, "Um. And 

you can't remember what hand he had [the gun in], right?" Johnson 

stated, "No; sir." and then claimed, "But, I think it was the right. I 

think." 

In regards to the fourth Biggers factor which is the level of certainty 

demonstrated by the witness at the confrontation. Initially during the 

January 30th interview, when asked, "Do you believe if you saw a 

picture of [the shooter] again you would recognize him?" Johnson 

responded, "Maybe. I don't." Later at the February 5th interview 

Johnson said, "Some days I feel like I will know if I see a picture, 

but I don't, I don't know." 

Sergeant Grant testified he was the blind administrator of the photo 

lineup shown to Robert Johnson. Grant testified he had shown Mr. 

Johnson the individual photographs, and he selected #4 saying he 

was 90% sure. Mr. Johnson did not look at photos #5 or #6. See (Tp. 

Pgs. 723, 724, 733-735; emphasis added). 

In addition, there is reason to believe Johnson may have seen a photo 

of the Petitioner before the blind administration occurred and was 

therefore, poisoned. During the February 5th interview Johnson 

spontaneously says, "That's him." See February 5th 2013 Interview 

pg.15. The officer was not supposed to be showing Johnson the 

photo line-up when this occurred. It was unreasonable for the officer 

to have had a photo of the Petitioner in the interview room before 

the blind administration. The fact that Johnson "did not look at 

photos #5 or #6" becomes significant because, it supports that 

Johnson's identification may have been poisoned. This is so because, 

he had seen a photo of the perpetrator before he made his 

identification to Sergeant Grant from the photo line-up. It is unclear 

from the evidence available to the Petitioner at this time, what 

photos from the line-up Johnson could see when he made his 

"spontaneous statement". Therefore, we are not sure if he was seeing 

one singular photo of the Petitioner or several photos. It is 

impossible, at this time, to truly know if the criminal at the time of 

the crime; (2) the witness' degree of attention to the crime; (3) the 

accuracy of the witness' prior and/or how the identification was 

poisoned. Did Johnson see a group of photos or was it only a single 
21 

photo of the Petitioner when he made his statement; this may only 

be answered by review of video footage of the interview, if at all. 

The facts heavily suggest the identification was poisoned before it 

was made; if this is true, the identification is completely invalid. 

During Johnson's February 5th interview he mentioned rumors he 

had heard about possible suspects stating, "I heard Spud and they 

say he was short, muscular. I think that's the shooter. And I. But I 

also heard that his name starts with a 'D,"' and "And I heard that he 

was, he, was, um, he was on the, on the West Side, like toward 

English Woods. I don't, I don't know. But that, that's just what I'm 

hearing." This demonstrates that Johnson was unsure of who may 

have been involved other than CJ; it also shows that he believed that 

"Spud" may have been the shooter. Based on Johnson's statements 

before the identification it is highly unreasonable for him to claim a 

"90%" certainty after the confrontation. 

Detective Karaguleff testified Mr. Johnson told him the shooter was 

5'6" or 5'7" tall, dark skinned black male with a scar on his nose. 

(Tp. Pgs. 949, 1037). In fact, Johnson did not mention a scar on the 

shooter's nose. Johnson commented about his identification saying, 

"I think, I think it's his scars and his nose." February 5th 2013 

Interview pg. 15. This strongly suggests the identification was made 

based solely on the Petitioner's nose and scars, as seen in the lineup. Detective Karaguleff's assumption that the scars were on the 

shooter's nose is incorrect. Johnson did not state where the scars 

resided on the shooter. His testimony implies that he recognized 

scars in the photo that he believed matched scars he, all of a sudden, 

could remember the shooter had. When asked if the shooter had 

anything that makes him stand out, Johnson never mentioned any 

scars. It should be noted: the Petitioner has no scars on his nose; and 

no scars that could be seen in a photograph. 

In regards to the fifth Biggers factor which addresses the length of 

time between the crime and confrontation. Mr. Johnson admitted to 

the detectives on January 30th , the night of the incident, that he 

could not identify the shooter, but six days later he suddenly could. 

This is a concern since Dr. Berry testified memory can decay after a 

period of time, and six days is not an ideal length of time between 

the crime and confrontation. 

Courts may consider the strength of other evidence against the 

defendant when making a reliability determination. 

This issue constitutes a plain error and should be reviewed for 

cumulative error. 
22 

Ground Six: Appellant was denied effective assistance of appellate 

counsel for failing to raise the issue that prosecutorial misconduct 

rendered defendant-appellant’s trial fundamentally unfair, in 

violation of the constitutional right to a fair trial. 

Supporting Facts: "The presentation of additional facts in the 

federal petition (or in a federal proceeding) does not evade the 

exhaustion requirement the prisoner has presented the substance of 

his claim to the state courts, and supple mental [sic] evidence does 

not fundamentally alter the legal claim they considered." Vasguez v. 

Hillery, 474 U.S. 254, 257-58, 106 S.Ct. 617. 88 L. Ed. 2d 598 

(1986). "Where the legal basis for [petitioner's] claim has remained 

constant, and where the facts developed in the district court merely 

substantiate it, we cannot say that the claim has been so 

'fundamentally alter[ed]' from that presented to the state courts as to 

preclude our review." Richey v. Bradshaw, 498 F.3d 344. 353 (611, 

Cir. 2007). 

The United States Supreme Court has stated that prosecutors must 

"refrain from improper methods calculated to produce a wrongful 

conviction." To prevail on a claim of prosecutorial misconduct, a 

habeas petitioner must demonstrate that the prosecutor's remarks "so 

infected the trial with unfairness as to make the resulting conviction 

a denial of due process." Factors to be considered in weighing the 

extent of a prosecutor's misconduct are: the degree to which the 

remarks complained of have a tendency to mislead the jury and to 

prejudice the accused; whether they are isolated or extensive; 

whether they were deliberately or accidentally placed before the 

jury, and the strength of the competent proof to establish the guilt of 

the accused. 

A prosecutor may not argue or refer to facts not on the record. The 

prosecutor is, however, entitled to comment on the evidence and to 

draw reasonable inferences from it. "The prosecutor may not ask the 

jury to convict the defendant on the basis of the prosecutor's 

personal knowledge and the prestige of his office rather than on the 

evidence." It is not misconduct warranting reversal for a prosecuting 

attorney to express his individual belief in the guilt of an accused if 

such belief is based solely on evidence introduced and if jury is not 

led to believe there is other evidence which is known to prosecutor 

but which has not been introduced, justifying that belief. However, 

it is well established that the personal opinion of counsel has no 

place at trial. It is unprofessional for counsel to express a personal 

belief or opinion in the truth or falsity of any testimony. It is also 

unprofessional for counsel to make personal attacks on opposing 
23 

counsel. On the other hand, counsel must be given leeway to argue 

reasonable inferences from the evidence. Where there is conflicting 

testimony, it may be reasonable to infer, and accordingly to argue, 

that one of the two sides is lying. Even if the prosecutor's comments 

were improper, "a criminal conviction is not to be lightly overturned 

on the basis of a prosecutor's comments standing alone, for the 

statements or conduct must be viewed in context; only by so doing 

can it be determined whether the prosecutor's conduct affected the 

fairness of the trial." Young, 410 U.S. at 11. 

When reviewing claims of prosecutorial misconduct, a court must 

determine first whether the statements were improper. If they appear 

improper, then the court must look to see if they were flagrant and 

warrant reversal. To determine flagrancy, the standard set by the 

United States Court of Appeals for the Sixth Circuit is: (I) whether 

the statements tended to mislead the jury or prejudice the defendant; 

(2) whether the statements were isolated or among a series of 

improper statements; (3) whether the statements were deliberately 

or accidentally before the jury; and (4) the total strength of the 

evidence against the accused. A petitioner is not entitled to habeas 

relief unless the prosecutorial misconduct is so pronounced and 

persistent that it permeated the entire atmosphere of the trial, or so 

gross as to probably prejudice the defendant. 

Improper vouching occurs when a jury could reasonably believe that 

a prosecutor was indicating a personal belief in a witness' credibility. 

Improper vouching also occurs when the prosecutor argues evidence 

not in the record, or when the prosecutor supports the credibility of 

a witness by expressing a personal belief in the truthfulness of a 

witness's testimony, thereby placing the prestige of the office of the 

prosecuting attorney behind that witness. 

Improper vouching occurs when a prosecutor supports the 

credibility of a witness by indicating a personal belief in the 

witness's credibility thereby placing the prestige of the office of the 

United States Attorney behind that witness. Improper vouching 

involves either blunt comments or comments that imply that the 

prosecutor has special knowledge of facts not in front of the jury. 

Mr. Tharp introduced false testimony by stating, "Historical cell data 

points to the defendant being contacted over and over with Boston's 

phone prior to the robbery clearly trying to convince the jury that 

this proves beyond a doubt the petitioner was involved which 

mislead and convinced the jury with false testimony. 

During the opening arguments Prosecutor Ms. Trantor falsely 

claimed, "And a very important point, you're going to see texts from 
24 

the defendant 20 minutes after the shooting trying to get rid of a gun. 

Trying to get rid of a Ruger." (Tp. Pg. 287). Upon review of State's 

Exhibit 14A, this court will find the claimed time frame of"20 

minutes" does not coincide with the record. The actual time frame 

is significantly greater than the prosecution led the jury to believe. 

The prosecutions misleading statement(s) gave this evidence 

substantially more weight than it merited, by creating a link 

between: the text; and the murder; that was unmerited. 

During Mr. Tharps closing statement he said, "Robert Johnson, 

[Darryl] Craig, Curtis Boston, Da'Shawn Wheeler, Officer Brians, 

Sergeant Mcshane, Sergeant Howard, David Landesberg, 

Criminalist Steve Alexander, Criminalist Ed Deters, Detective 

Karaguleff; Gus, Paula Papke, Cincinnati Bell, Agent Bob Moledor 

from Columbus FBI, doctor Ed Ralston and Shannon Wheeler, 

Cunis Boston. I think that's sixteen witnesses. Sixteen witnesses all 

got up and told you the same story. Everyone got up and testified, 

and all of their pieces fit together. They are all corroborated and they 

point to the defendant being guilty." This statement is misleading in 

claiming that all "sixteen" witnesses told that same story. This 

statement would lead one to believe that all of these witnesses 

testified the same thing. This is not true their testimony only 

corroborates the eye witness testimony. The other witness testimony 

only contributes supporting interpretations of information and 

restated testimony of the eye witnesses. Further, the claim that 

Da'Shawn Wheeler testified is completely false, he could not testify 

as he was deceased. The introduction of his last word through 

Johnson does not amount to testifying because they can not be 

verified. The prosecution made this claim in an attempt to make it 

appear like the witnesses testimony should be treated with more 

weight than it merited and that there were more eye witnesses than 

existed. (Tp. Pg. 1251) 

In the closing argument Mr. Tharp stated,"[ ... ] and we know from 

Lavon Oden himself that he was involved." (Tp. Pg. 1263) This 

statement is highly misleading; it leads one to believe that the 

Petitioner conceded his involvement in the crime. Upon review of 

the entire record this court would find that at no time did, "Lavon 

Oden", this Petitioner, admit or concede to his involvement in the 

crime. There was no concession: accidental; or otherwise; and no 

statement(s) by the Petitioner could reasonably be interpreted as 

such concession. Therefore, this statement was a blatant lie and 

could mislead the jury to believe the Petitioner was guilty of the 

crime by his own concession. The damage caused to the Petitioner's 

case by this statement is plain, apparent, and undeniable. 
25 

Later in closing Mr. Tharp states, "[The Petitioner] bas contact over 

and over, telephone calls prior to the robbery, to the murder - the 

robberies I should say to the murder and afterwards, and you heard 

that from Curtis Boston." (Tp. Pg. 1264). Upon review of the cell 

phone data: the Petitioner's State's Exhibits 11,13, 14, 14A(texts); and 

Boston's State's Exhibits, 16A, 16, 17; this court will find, that the 

Petitioner had no contact on the day of the crime prior to the robbery 

and murder with Curtis Boston as Tharp suggested. This is not to 

say the Petitioner did not speak with Boston on the phone in days 

prior to the crime. Mr. Tharp's testimony would lead one to believe 

that calls were made, between Boston and Oden, very near the time 

of the crime. This is not true and misleading. The statement by the 

prosecution was presented as the truth in the matter. This statement 

also misleads the jury to the conclusion that these alleged 

conversations were how the drug purchase was arranged. The 

statement established a false link between Oden and the crime. This 

provided additional evidence that Oden was involved, which the 

record does not, in fact, support. 

During closing Mr. Tharp stated, "I would ask you to ask yourself, 

why didn't [Darryl Craig] testify? Well, ladies and gentlemen, if you 

leave the Ohio Department of Corrections and you come down and 

you leave he said, and you testify in a trial and you go back to the 

Ohio Department of Corrections, hey, guys, how are you all? Where 

did you go, [Darryl]? Well, I took a trip down to Cincinnati. I was 

testifying for the police in a trial, you guys want to play 

Backgammon? I would say it doesn't go over real well. He refused 

to testify." (Tp. Pg. 1279-1280). This above statement is a 

fabrication by the prosecution and has no place in trial proceedings. 

This fabricated explanation of why Craig refused to testify provided 

a legally insufficient reason. This statement was an attempt to 

provide the jury with an excuse as to why the state did not present 

Craig after introducing his testimony. It was an attempt to distract 

from the fact that Craig's testimony was hearsay. It also led the jury 

to believe that Craig would be at risk of imminent harm had he 

testified. The record does not support this nor did the State provide 

evidence to support this claim. The statement is mere conjecture and 

had no place at trial. 

In order for the prosecution to explain to the jury, why a witness is 

refusing to testify, the explanation must be a reasonable conclusion 

from: facts drawn from the record; or statements made by the 

witness. Further, the explanation must be legally sufficient to excuse 

the witness from testifying. Otherwise, the state is required to make 
26 

sufficient efforts to present the witness. In this case, the state did not 

make the appropriate effort to present the witness and the statement 

is an attempt to hide this fact from the jury. 

Later, in the closing, Mr. Tharp states, "[Darryl] may not want to 

testify, we do know he's on community control, and [Darryl] is the 

kind of guy that has weed." (Tp. Pg. 1282). This statement is another 

suggested excuse as why Craig would not want to testify. The 

statement suggests: the prosecution assumed Craig did not want to 

testify; and thus, did not give Craig the option to testify. It is clear 

that the prosecution gained a significant advantage by introducing 

Craig's testimony and not having him testify because, it denied the 

defense adversarial testing. If the prosecution: introduced Craig's 

testimony; and intentionally withheld him from the defense; this 

suggests the denial of adversarial testing was a tactical strategy. 

Thus, the denial of confrontation was intentional. This issue is 

directly linked to the above hearsay claim. See, generally, Ground 

One. The prosecutions handling: of witness Darryl Craig; and his 

testimony caused the proceedings to be fundamentally unfair and 

denied the Petitioner due process. 

In the closing argument, Mr. Tharp stated, "And the defendant says 

Curtis put him up to this." (Tp. Pg. 1287) This statement is highly 

misleading; it leads one to believe that the Petitioner conceded his 

involvement in the crime. Upon review of the entire record this court 

would find that at no time did, "the defendant", a.k.a. Petitioner, 

admit or concede to his involvement in the crime. There was no 

concession: accidental; or otherwise; and no statement(s) by the 

Petitioner could reasonably be interpreted as such concession. The 

Petitioner never made a statement to this effect. The alleged 

statement is a lie and misleads the jury to believe the Petitioner was 

guilty of the crime by his own concession. The damage caused to 

the Petitioner's case by this statement is plain, apparent, and 

undeniable. 

Federal courts on habeas review of constitutional trial errors must 

determine whether the error had substantial and injurious effect or 

influence in determining the jury's verdict. Consequently, federal 

courts are to use and follow Brecht when reviewing habeas petitions 

of constitutional trial errors based on state court determinations of 

harmless error. Furthermore, the harmless error standard announced 

in Brecht applies even if a federal habeas court is the first to review 

for harmless error. 

To reverse a conviction, a claim of prosecutorial misconduct 

requires proof of improper conduct by the prosecutor that, taken in 
27 

the context as a whole, violated the defendant's due process rights. 

The above statements made by the prosecution were so detrimental 

to the Petitioner's guilt; the jury was lead to believe: damaging lies; 

and misstatements of fact; from the prosecution in an attempt to 

prove the petitioner's involvement and guilt in the crime. Further, 

trial counsel failed to object to these lies which rendered the 

petitioner's trial fundamentally unfair. 

(Petition, ECF No. 1, PageID 5-22.) 

Analysis 

Ground One: Trial Court Error in Admitting Hearsay Evidence 

 In his First Ground for Relief, Oden claims the trial court erred in admitting hearsay 

evidence. The Warden defends Ground One by pointing out that state evidence law claims are not 

cognizable in federal habeas. Respondent also argues lack of proper exhaustion, procedural 

default, and lack of merit (Return, ECF No. 5, PageID 1857). 

 Oden raised his inadmissible evidence claim on direct appeal as his second assignment of 

error. The First District Court of Appeals decided that claim as follows: 

In his second assignment of error, Oden argues that plain error 

occurred at trial when the trial court admitted hearsay evidence, 

including Craig's out-of-court identification of Oden as the shooter 

and the content of Craig's text messages. Although much of this 

evidence was inadmissible hearsay, we cannot say, in light of the 

significant, admissible evidence of guilt, that the results of the trial 

would have been different absent its admission, and that a reversal 

is necessary to avoid a manifest injustice. See State v. Long, 53 Ohio 

St.2d 91, 372 N.E.2d 804 (1978), paragraphs two and three of the 

syllabus. Thus, we overrule the second assignment of error. 

Oden, 2016-Ohio App. LEXIS 3817 at *4. In his Brief on Appeal, Oden admitted that no objection 

had been made to the admission of the hearsay evidence he complained of (Appellant’s Brief, State 
28 

Court Record, ECF No. 4, PageID 126). Thus the First District reviewed this claim only for plain 

error. 

 Ohio has a procedural rule which requires contemporaneous objection to trial court error. 

The rule requires that parties must preserve errors for appeal by calling them to the attention of the 

trial court at a time when the error could have been avoided or corrected. State v. Glaros, 170 

Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 

162 (1998). The Sixth Circuit has repeatedly held that this is an adequate an independent state 

court ground for decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith 

v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 

2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 

(6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 

604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 

209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour 

v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 

2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010). 

Although the First District reviewed the evidence claims for plain error, the Sixth Circuit 

has held that plain error review is not a waiver of the contemporaneous objection rule, but an 

enforcement of it. Reservation of authority to review in exceptional circumstances for plain error 

is not sufficient to constitute application of federal law. Cooey v. Coyle, 289 F.3d 882, 897 (6th

Cir. 2002); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000). An Ohio state appellate court’s review 

for plain error is enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 

F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. 

Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); 
29 

Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), 

citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)(plain error review does not constitute 

a waiver of procedural default); accord, Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003). 

 Oden likewise made no mention in his appeal brief of the Confrontation Clause which 

forms part of his sub-claims under Ground One. Although he cited State v. Hinkston, 2015-Ohio3851 (1st Dist. Sept. 23, 2015), it was not for any Confrontation Clause issue, but as precedent for 

the proposition that the content of text messages, if offered for the truth of the content, constitutes 

hearsay under Ohio law. Thus no Confrontation Clause claim was fairly presented to the First 

District on direct appeal. 

 Therefore Oden’s First Ground for Relief should be dismissed as procedurally defaulted. 

Ground Two: Trial Court Error in Failing to Declare a Mistrial 

 In his Second Ground for Relief, Oden claims the trial court committed error in denying a 

mistrial over an asserted violation of the trial judge’s separation of witnesses order. Oden raised 

this issue as his third assignment of error on direct appeal and the First District decided it as 

follows: 

We overrule the third assignment of error, which challenges the trial 

court's denial of a mistrial that was requested due to Boston's alleged 

violation of the separation order in the case, because the appellant 

demonstrated neither that Boston had discussed what had been 

testified to in court in violation of the order nor that a fair trial was 

not possible. See Evid.R. 615; State v. Franklin, 62 Ohio St.3d 118, 

127, 580 N.E.2d 1 (1991). 

Oden, 2016 Ohio App. LEXIS 3817 at *4. 

 When a state court decides on the merits a federal constitutional claim later presented to a 
30 

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, 131 S. 

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination 

of the facts in light of the evidence presented in the State court proceedings. 

 Because of the Double Jeopardy implications, the Constitution requires a mistrial only in 

cases of manifest necessity. The Supreme Court first enunciated the manifest necessity doctrine 

in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824)(Story, J.), where it said that a mistrial 

based on manifest necessity must be declared only “with the greatest caution, under urgent 

circumstances, and for very plain and obvious causes. See also Arizona v. Washington, 434 U.S. 

497 (1978). 

 The First District’s decision is a reasonable application of the federal standard. It held first 

of all that it had not been clearly proved that a violation of the separation order occurred. That is, 

it had not been proven that Boston told Craig what testimony had been given in court. In any event 

Craig never testified so that none of his testimony was affected by what Boston told him. 

 Oden has not shown that the First District’s decision on this claim is an objectively 

unreasonable application of the manifest necessity doctrine. Ground Two should therefore be 

dismissed on the merits. 
31 

Ground Three: Ineffective Assistance of Trial Counsel 

 In his Third Ground for Relief, Oden claims he suffered from ineffective assistance of trial 

counsel in various respects. 

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

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

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

defective as to require reversal of a conviction or death sentence has 

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

performance was deficient. This requires showing that counsel was 

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

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

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

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

defendant makes both showings, it cannot be said that the conviction 

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable. 

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

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

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

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

Judicial scrutiny of counsel's performance must be highly 

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

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel’s challenged 

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

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 
32 

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 

sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland, 

supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v. 

Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of 

a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 

379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011). 

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, 130 S. Ct. 383, 175 L. Ed. 2d 328 

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052, 

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably 

likely” the result would have been different. Id., at 696, 104 S. Ct. 

2052, 80 L. Ed. 2d 674. 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 moreprobable-than-not standard is slight and matters “only in the rarest 

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The 

likelihood of a different result must be substantial, not just 

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674. 

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
33 

 Counsel’s performance is measured by “prevailing professional norms” at the time of the 

alleged errors. Strickland, supra, at 690; Maryland v. Kulbicki, 577 U.S. ___, 136 S. Ct. 2, *; 193 

L. Ed. 2d 1 (2015); Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997). 

 Oden raised ineffective assistance of trial counsel as his fourth assignment of error on direct 

appeal and the First District decided the claim as follows: 

In his fourth assignment of error, Oden argues that he was denied 

the effective assistance of counsel due to counsel's failure to object 

to the admission of hearsay evidence and to renew the motion for a 

mistrial at the conclusion of the trial. But the record fails to disclose 

a reasonable probability that, but for the alleged omissions of trial 

counsel, the results of Oden's trial would have been different. See 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 

(1989). 

Oden, 2016 Ohio App. LEXIS 3817 at *4-5. Thus the First District cited the controlling Supreme 

Court precedent, Strickland, and the Ohio Supreme Court case, Bradley, recognizing Strickland’s

authority in Ohio. 

 The Magistrate Judge reads the First District’s decision as a denial that Oden suffered any 

prejudice from trial counsel’s failure to object or to move again for a mistrial, thus applying the 

second prong of the Strickland analysis without discussing the deficient performance prong. This 

application of Strickland is not objectively unreasonable as to the mistrial motion: because a 

mistrial was not manifestly necessary in any event, failure to renew the motion at the close of the 

evidence was not prejudicial. 

 As to the hearsay, counsels’ failure to object constituted a procedural default under the 

contemporaneous objection rule which required the First District to review only for plain error. In 

his Brief on Appeal, Oden incorporated by reference in his fourth assignment of error the hearsay 

objections he had raised in the second assignment of error. In that assignment, he complained of 
34 

allowing admission of the content of Darryl Craig’s text messages (Appellant’s Brief, State Court 

Record, ECF No. 4, PageID 125-26). In addition, “Sergeant Grant was permitted to testify that 

Darryl Craig identified Appellant as the shooter.” Id. at 126. 

 Although the state courts did not discuss the issue, Craig’s out of court statements were 

probably admissible under Ohio R. Evid. 804(B)(3) as statements potentially subjecting Craig to 

criminal liability. Craig was clearly unavailable as he refused to testify. See Ohio R. Evid. 

804(A)(2). Thus an objection by trial counsel to this hearsay would properly have been overruled. 

It is not deficient performance to fail to make an objection that would not have been upheld. 

 Oden’s Third Ground for Relief should be dismissed because the First District’s decision 

on ineffective assistance of trial counsel is not an objectively unreasonable application of 

Strickland. 

Grounds Four, Five, and Six: Ineffective Assistance of Appellate Counsel 

 In his Fourth, Fifth, and Sixth Groun for Relief, Oden claims he received constitutionally 

ineffective assistance of appellate counsel when his appellate attorney did not complain of trial 

counsel’s concession in closing argument that Oden was guilty of a lesser included offense when 

Oden did not approve of the concession, of trial counsels’ failure to file a motion to suppress 

identification testimony, and of prosecutorial misconduct. 

 The Warden asserts Oden procedurally defaulted this claim by not appealing from the First 

District’s denial of his App. R. 26(B) application to the Ohio Supreme Court. Failure to appeal 

would in fact constitute a procedural default barring habeas relief. Bonilla v. Hurley, 370 F.3d 

494, 497 (6th Cir. 2004).
35 

 Oden admits that he did not appeal, but asserts he has cause to excuse that failure because 

he was unaware of the final judgment rendered by the First District on his 26(B) application. He 

asserts this is because either the Clerk of Courts did not mail it to him or because the prison staff 

at North Central Correctional Complex failed to deliver the mail (Objection/Reply, ECF No. 7, 

PageID 1893-94). However, Oden offers no proof to support either of these hypotheses. Oden 

cannot rely on his own speculation to prove failure to these officials to get the opinion to him. 

Proof of facts to support a claim of cause to excuse procedural default would be admissible despite 

Pinholster, supra, but Oden has not offered any admissible evidence. 

Conclusion 

 In accordance with the foregoing analysis, it is respectfully recommended 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. 

November 29, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 
36 

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 Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).