1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

MATHIAS D. PETTY, 

Petitioner, : Case No. 2:18-cv-586 

- vs - District Judge Algenon L. Marbley 

Magistrate Judge Michael R. Merz 

LYNEAL WAINWRIGHT, WARDEN, 

 Marion Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought pro se by Petitioner Mathias D. Petty pursuant to 28 

U.S.C. § 2254, was filed in the Northern District of Ohio on May 24, 2018 (ECF No. 1). On June 

11, 2018, the case was transferred to the Southern District of Ohio, pursuant to Order of Chief 

Judge Patricia Gaughan (ECF No. 4) and assigned to District Judge Algenon L. Marbley and 

Magistrate Judge Kimberly A. Jolson. On Magistrate Judge Jolson’s Order (ECF No. 6), the State 

filed the State Court Record and a Return of Writ (ECF Nos. 12, 13). The case became ripe on the 

filing of Petitioner’s Traverse (ECF No. 16). The reference in the case was recently transferred to 

the undersigned to help balance the workload in the District (ECF No. 17). 

Petty pleads the following grounds for relief:

GROUND ONE: [C]onviction obtained in violation of evidentiary 

rule implicates due process and resulting in a trial that was/is 

fundamentally unfair. see: United States v. Allen, 106 F.3d 695 (6th 

Cir. 1997). 

GROUND TWO: Conviction obtained in violation of Fourteenth 

Amendment’s Due Pro[cess] Clause, wherein the evidence admitted 
2 

at trial was manifestly insufficient to support a conviction. see: In re 

Winship (1970), 397 U.S. 358, 364; 90 S. Ct. 1068; and Jackson v. 

Virginia (1979), 443 U.S. 307, 319, 99 S. Ct. 2781. 

GROUND THREE: [C]onviction obtained in violation of due 

process and fundamental fairness where petitioner’s convictions for 

“repeat violent offender” “use of force” and “rape and importuning” 

were against the manifest weight of the evidence. 

GROUND FOUR: [C]onviction obtained in violation of 

Fourteenth Amendment Due Process Clause, and that of the Federal 

Constitution’s Fifth Amendment Double Jeopardy protections and 

prohibitions where the underlying sentence(s) were/are ‘declared 

void’ by operation of law, contrary to law, and patently exceed both 

state statutory and federal constitutional requirements. see: Whalen 

v. United States (1980), 445 U.S. 684, 689, 100 S. Ct. 1432; and, 

United States Sentencing Guidelines Manual, Chapter 1, Part 

(A)(4)(e) (2012). 

(Petition, ECF No. 1, PageID 14, 18, 27, 29.) 

Litigation History 

In July 2014, Petty was indicted by a Franklin County grand jury on one count of rape with 

specifications in violation of Ohio Revised Code §2907.02 and one count of importuning in 

violation of Ohio Revised Code §2907.07. Petty, through counsel, entered a not guilty plea and 

the case was set for jury trial. 

 Prior to trial, the State of Ohio filed a notice of intent to introduce a certified copy of Petty’s 

prior judgment entry reflecting his previous conviction for aggravated robbery. Petty waived his 

right to a jury trial on the repeat violent offender specification. Following trial, the jury found 

Petty guilty of one count of rape and one count of importuning, and the trial court found him guilty 

of the repeat violent offender specification. In September 2015, Petty was sentenced to serve an 

aggregate sentence of fifteen years to life. (State Court Record, ECF No. 12, PageID 127.) 
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Petty, through counsel, filed an appeal of his conviction to the Tenth District Court of 

Appeals, Franklin County, Ohio. The court of appeals affirmed Petty’s conviction but remanded 

to the trial court for resentencing. State v. Petty, Case No. 15AP-950, 2017-Ohio-1062, 2017 Ohio 

App. LEXIS 1025 (Ohio App. 10th Dist. Mar. 23, 2017). 

Petty, through his appellate counsel, filed an appeal of the Court of Appeals’ Judgment to 

the Supreme Court of Ohio which declined to accept jurisdiction pursuant to S.C.Prac.R. 

7.08(B)(4). State v. Petty, 151 Ohio St. 3d 1455 (2017). 

Pursuant to the remand, on April 26, 2017, the trial court made the required proportionality 

findings as dictated by the Court of Appeals and resentenced Petty to serve an aggregate sentence 

of fifteen years to life. (State Court Record, ECF No. 12, PageID 301) 

Petty, through counsel, timely appealed the resentence and the Court of Appeals affirmed 

the trial court’s judgment. State v. Petty, Case No. 17AP-385, 2017-Ohio-9200, 2017 Ohio App. 

LEXIS 5617 (Ohio App. 10th Dist. Dec. 21, 2017). Petty did not pursue an appeal to the Ohio 

Supreme Court. 

Analysis 

Ground One: Denial of Due Process and a Fair Trial by Violation of Evidence Rules 

 In his First Ground for Relief, Petty claims he was denied due process and a fair trial when 

Police Officer David Schulz was permitted to testify about the content of a written message he 

observed on a cell phone screen. 
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 The Tenth District Court of Appeals stated the background facts of the case as follows: 

[*P4] In July 2014, C.A. began communicating through the Badoo 

app with a particular individual whose screen name was "T-h-a-i." 

They began talking about "[g]iving head, sex, stuff that shouldn't 

have been talking about." (Tr. Vol. II at 178.) C.A. did not tell this 

individual how old she was, and C.A. did not know the age of the 

other individual. C.A. testified that Thai first brought up the topic of 

oral sex on the app. 

[*P5] On July 5, 2014, C.A. and her mother went to the residence 

of C.A.'s aunt, located "[d]own the street," approximately ten 

minutes walking distance from their home. (Tr. Vol. II at 180.) Other 

family members and friends were at the residence. 

[*P6] C.A. and Thai were sending each other messages that evening. 

Later that evening, C.A. went outside "[b]ecause that person texted 

me saying, Oh, I want to come over, and I said okay." (Tr. Vol. II at 

183.) In response to the nature of the messages, C.A. testified "[h]e 

was asking me the address. He was asking me if I was going to do it 

then. I needed to do it, and if I wasn't, then he doesn't have to come." 

She defined "it" as he wanted her to "[p]erform oral sex." (Tr. Vol. 

II at 184.) 

[*P7] At trial, C.A. identified appellant as Thai. Thai arrived at the 

address that evening and C.A. described the events, as follows: 

I sat there for a minute, and I was just texting. And he said, 

You look pretty occupied, and I said okay. * * * Then he 

said, If you're not going to do it, I can just leave. * * * I 

said okay, and I stopped texting. * * * He asked me if he 

wanted to - - if I was going to pull it out or if he was. 

(Tr. Vol. II at 191.) 

[*P8] C.A. testified that appellant was talking about "[h]is penis." 

He unzipped his pants. "He took it out, and I got down on my knees, 

and I started sucking - - I started giving oral sex." (Tr. Vol. II at 

192.) C.A. put appellant's penis in her mouth. Appellant "was 

moving my head" with his hand. (Tr. Vol. II at 193.) C.A. was on 

the porch with him for "[t]en, fifteen minutes." (Tr. Vol. II at 198.) 

State v. Petty, 2017-Ohio-1062. 

As part of the proof of the importuning charge, Columbus Police Officer David Schulz 
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testified to being dispatched to the scene of the alleged crime at about 11:30 p.m. on July 5, 2014. 

He was given the victim’s cell phone. Although he did not keep the phone, he testified to the 

content of text messages between Petitioner and the victim, C.A., transmitted through an 

application called Badoo which were “trying to establish a basic contact and, specifically for that 

day, trying to set up a meeting day or meeting time and place between [C.A.] and the other 

individual.” State v. Petty at ¶¶ 14-15. Defendant’s counsel objected but the objection was 

overruled. On appeal, the Tenth District decided this claim as follows: 

[*P47] On appeal, appellant argues the trial court should have 

excluded evidence concerning the text messages on multiple 

grounds, including that (1) the content of the messages constituted 

hearsay within hearsay and should have been excluded under 

Evid.R. 805, (2) the messages lacked proper foundation because the 

witness lacked personal knowledge, pursuant to Evid.R. 602, and 

(3) the evidence should have been excluded under the best evidence 

rule pursuant to Evid.R. 1002. 

[*P48] As noted, appellant objected during Officer Schulz's 

testimony, but parts of the transcript are marked as inaudible with 

respect to the supporting argument. The nature of the objection is 

hearsay based on an argument that the messages only showed onehalf of the conversation between C.A. and appellant. Initially, we 

note these messages are not hearsay. Evid.R. 801(D)(2) provides 

that statements are not hearsay if: "[t]he statement is offered against 

a party and is (a) the party's own statement, in either an individual 

or a representative capacity." Here, appellant admitted he sent the 

text messages through the Badoo app and that he solicited C.A. 

Further, C.A. testified regarding the messages and she was subject 

to cross-examination. 

[*P49] It was not until after Officer Schulz finished testifying that 

defense counsel articulated a lack-of-foundation objection. Such an 

objection, however, "must be 'contemporaneous' to the alleged 

error." State v. Copley, 10th Dist. No. 04AP-511, 2005-Ohio-896, ¶ 

32, citing State v. Murphy, 91 Ohio St.3d 516, 532(2001). Moreover, 

an objection on one ground does not preserve for appeal other 

grounds. State v. Luc Tan Vu, 10th Dist. No. 09AP-606, 2010-Ohio4019, ¶ 30, citing State v. Gulertekin, 10th Dist. No. 97APA12-

1607, 1998 Ohio App. LEXIS 5641 (Dec. 3, 1998). Thus, appellant 

did not preserve an objection based on lack of foundation. 
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[*P50] On appeal, appellant appears to argue that his untimely lackof-foundation objection includes an objection based on the best 

evidence rule. Appellant, however, made no objection based on the 

best evidence rule. Having failed to object on this ground, appellant 

waived all but plain error. 

[*P51] Under Crim.R. 52(A), an appellate court may notice plain 

errors affecting substantial rights even though they were not brought 

to the attention of the trial court. An alleged error constitutes plain 

error only if the error is obvious and, but for the error, the outcome 

of the trial clearly would have been different. State v. Barnes, 94 

Ohio St.3d 21, 27 (2002). Notice of plain error is taken "'with the 

utmost caution, under exceptional circumstances and only to prevent 

a manifest miscarriage of justice.'" Id., quoting State v. Long, 53 

Ohio St.2d 91, paragraph three of the syllabus. 

[*P52] Appellant appears to argue that the outcome of the trial 

would have been different because absent Officer Schulz's 

testimony regarding the messages, appellant would not have 

testified at trial. Appellant has failed to demonstrate plain error, as 

the testimony regarding the messages was admissible as a partyopponent admission. Further, appellant admitted he met C.A. 

through the Badoo app and that they exchanged messages. 

Appellant's trial counsel noted in opening statement that appellant 

sent the messages and arranged to meet C.A. C.A. also testified 

regarding the messages. 

[*P53 Appellant argues that Officer Schulz did not have personal 

knowledge of the name of the application the two used for text 

messages, that he did not confirm the owner of the phone, and that 

he was told by a third party that appellant was a party to the text 

messages. Evid.R. 602 provides that "[a] witness may not testify to 

a matter unless evidence is introduced sufficient to support a finding 

that the witness has personal knowledge of the matter." Here, 

Officer Schulz testified to what he read on the phone, and the officer 

had personal knowledge regarding what he read. Further, appellant 

and his counsel admitted appellant sent the messages. On review, 

there is no plain error regarding a lack of foundation. 

[*P54] Finally, appellant argues that the trial court should have 

excluded the testimony regarding the messages under the "best 

evidence rule." Evid.R. 1002 requires that "[t]o prove the content 

of a writing, recording, or photograph, the original writing, 

recording, or photograph is required, except as otherwise provided 

in these rules or by statute enacted by the General Assembly not in 
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conflict with a rule of the Supreme Court of Ohio." When there is 

other evidence sufficient to sustain a conviction, a best evidence 

error is harmless because the outcome of the proceedings would not 

be different. State v. Salaam, 1st Dist. No. C-150092, 2015-Ohio4552, ¶ 11. If a defendant has not demonstrated prejudice, any 

violations of the best evidence rule do not require reversal. State v. 

Rogan, 94 Ohio App.3d 140 (2d Dist.1994). 

[*P55] Here, even assuming that admission of the testimony 

regarding the contents of the text messages violated the best 

evidence rule, any error in admitting that testimony was harmless. 

Appellant described the text messages and admitted he solicited 

C.A. In addition to Officer Schulz, C.A. testified regarding the 

messages, and both witnesses were subject to cross-examination. 

Even without the testimony regarding the messages and appellant's 

admission, C.A. testified that appellant solicited her when he arrived 

on the porch. Accordingly, appellant has failed to demonstrate plain 

error. Based on the foregoing, appellant's first assignment of error is 

overruled. 

State v. Petty, 2017-Ohio-1062. 

 In arguing his First Ground for Relief, Petty asserts Office r Schulz’s testimony about the 

content of the text messages should have been excluded because they “clearly constitute[d] hearsay 

within hearsay” and “lacked any and all proper foundation.” Petition, ECF No. 1, PageID 16. 

 Respondent argues this First Ground is not cognizable in habeas because it raises only 

questions of state evidence law. Federal habeas corpus is available only to correct federal 

constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010); Lewis 

v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 

463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court 

determinations on state law questions. In conducting habeas review, a federal court is limited to 

deciding whether a conviction violated the Constitution, laws, or treaties of the United States." 

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 

152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, 
8 

J., concurring). 

On appeal to the Tenth District, Petty’s claims were that admission of the content of the 

texts violated the rule against hearsay, violated the rule requiring a witness have personal 

knowledge of the matter to which he testifies, and violated the best evidence rule. Petty points to 

no authority from the Supreme Court or indeed any other federal authority holding that violation 

of any of those state evidence also violates the Constitution. Failure to abide by state law is not 

itself a constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985). Violation 

by a state of its own procedural rules does not necessarily constitute a violation of due process. 

Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 

F.2d 222, 228 (6th Cir. 1976). “A state cannot be said to have a federal due process obligation to 

follow all of its procedures; such a system would result in the constitutionalizing of every state 

rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. 

denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516 

U.S. 99 (1995). Therefore, Petty’s claim that the trial court violated his due process and fair trial 

rights by admitting this testimony fails to state a claim upon which habeas corpus relief can be 

granted. 

 Furthermore, Petty procedurally defaulted the second and third parts of this claim by not 

making a contemporaneous objection. The procedural default doctrine in habeas corpus is 

described by the Supreme Court as follows: 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 
9 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights 

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 

U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “[A]bsent cause and prejudice, ‘a federal 

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal 

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v. 

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 

456 U.S. at 110; Wainwright, 433 U.S. at 87. 

[A] federal court may not review federal claims that were 

procedurally defaulted in state court—that is, claims that the state 

court denied based on an adequate and independent state procedural 

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 

L.Ed.2d 417 (2009). This is an important “corollary” to the 

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 

S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which 

a state prisoner fails to exhaust state remedies, a habeas petitioner 

who has failed to meet the State’s procedural requirements for 

presenting his federal claims has deprived the state courts of an 

opportunity to address” the merits of “those claims in the first 

instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115 

L.Ed.2d 640. The procedural default doctrine thus advances the 

same comity, finality, and federalism interests advanced by the 

exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 

S.Ct. 1454, 113 L.Ed.2d 517 (1991). 

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). 

 The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a 

habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 

2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 

345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott 

v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001). 

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

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

failed to comply with the rule. 
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 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of Ulster 

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

(1979). 

Third, the court must decide whether the state procedural forfeiture 

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

can rely to foreclose review of a federal constitutional claim. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

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

he was actually prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). 

 Ohio does indeed have a relevant procedural rule requiring a contemporaneous objection 

to trial error to allow the trial court to correct the error if possible. The Tenth District enforced 

that rule against Petty by reviewing these two sub-claims only for plain error. 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); 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). 

 Ohio’s contemporaneous objection rule — 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, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see 
11 

also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground 

of 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). 

 Finally, Petty has not established cause and prejudice to excuse the lack of a 

contemporaneous objection. If these objections had clear merit, it would have been ineffective 

assistance of trial counsel to fail to raise them. But, as the Tenth District held on appeal, they did 

not have merit. Admissions of a party opponent, such as Mr. Petty, are excepted from the hearsay 

rule under Ohio R. Evid. 801(D). Officer Schulz satisfied Ohio R. Evid. 602 because he actually 

saw the messages and was testifying about what he saw. The Tenth District did not decide the best 

evidence question, but found any failure to satisfy it was harmless because Petty himself admitted 

to having texted the victim. 

 Ground One should therefore be dismissed with prejudice. 

Ground Two: Insufficient Evidence to Convict 

 In his second Ground for Relief, Petitioner asserts he was convicted on insufficient 

evidence, specifically that it was not shown that the instant rape was an offense of violence. 

 Petty raised this claim as his second assignment of error on direct appeal and the Tenth 
12 

District decided it as follows: 

[*P56] By his second assignment of error, appellant contends the 

evidence was insufficient to establish the repeat violent offender 

specification attached to the rape count. Appellant argues there was 

a lack of sufficient probative evidence involving the use of force 

and, therefore, there was insufficient evidence to support the guilty 

verdict on the repeat violent offender specification. 

[*P57] When a defendant challenges the sufficiency of the 

evidence, an appellate court "'construes the evidence in favor of the 

prosecution and determines whether such evidence permits any 

rational trier of fact to find the essential elements of the offense 

beyond a reasonable doubt.'" State v. Watkins, 10th Dist. No. 16AP142, 2016-Ohio-8272, ¶ 31, quoting State v. Hill, 10th Dist. No. 

07AP-889, 2008-Ohio-4257, ¶ 41. When an appellate court 

conducts such a review, it "'does not engage in a determination of 

witness credibility, rather it essentially assumes the state's witnesses 

testified truthfully and determines if that testimony satisfies each 

element of the crime.'" Id., quoting Hill at ¶ 41. 

[*P58] According to R.C. 2929.01(CC), repeat violent offender 

means a person about whom both of the following apply: 

(1) The person is being sentenced for committing or for 

complicity in committing any of the following: 

(a) Aggravated murder, murder, any felony of the 

first or second degree that is an offense of violence, 

or an attempt to commit any of these offenses if the 

attempt is a felony of the first or second degree; 

(b) An offense under an existing or former law of this 

state, another state, or the United States that is or was 

substantially equivalent to an offense described in 

division (CC)(1)(a) of this section. 

(2) The person previously was convicted of or pleaded 

guilty to an offense described in division (CC)(1)(a) or (b) 

of this section. 

[*P59] We note that the parties stipulated to appellant's prior 

conviction of aggravated robbery. Appellant argues the evidence 

failed to demonstrate that the rape was an offense of violence. The 

term "offense of violence" is defined in R.C. 2901.01(A)(9) as a 

violation of a number of sections of the Ohio Revised Code, 
13 

including R.C. 2907.02, rape. Thus, it is not necessary to prove that 

a rape was committed with violence in order to qualify as an offense 

of violence. State v. Tayse, 9th Dist. No. 23978, 2009-Ohio-1209, ¶ 

32 ("Under Ohio law, such conduct [sexual conduct with another 

person who is less than 13 years of age] is defined as rape, an offense 

of violence."). Appellant's second assignment of error is overruled. 

State v. Petty, 2017-Ohio-1062. 

 While continuing to insist in his Petition on the argument he made before the Tenth District, 

Petty elaborates on it by claiming that the relevant sentencing statute, Ohio Revised Code § 

2929.12(C), somehow creates an additional element of the crime of conviction. The trial court 

imposed a sentence of ten years to life on the rape count. Id. at ¶ 40. The Tenth District specifically 

held that the sentencing statute applied by the trial court was the correct one under the facts of this 

case. Id. at ¶ 71. Petty’s reference to the penalty mitigation factors of Ohio Revised Code § 

2929.12(C) is irrelevant where, as here, the General Assembly has mandated a particular sentence 

for a particular crime. Petitioner’s argument that no actual act of violence was shown to have 

occurred is also irrelevant because the General Assembly has determined that sexual conduct with 

a person under thirteen constitutes a crime of violence and the Federal Constitution does not 

prohibit the State from doing so. 

 Ground Two should therefore be dismissed. 

Ground Three: Convictions Against the Manifest Weight of the Evidence. 

 In this Third Ground for Relief, Petty asserts that his convictions are against the manifest 

weight of the evidence. A manifest weight of the evidence claim is not a federal constitutional 

claim. Johnson v. Havener, 534 F.2d 1232, 1234 (6th Cir. 1986). Ground Three should therefore 

be dismissed for failure to state a claim upon which habeas corpus relief can be granted. 
14 

Ground Four: Invalid Sentence 

 In his Fourth Ground for Relief, Petty urges his sentence is invalid because the trial court 

imposed sentence without exercising the discretion allegedly conferred by Ohio Revised Code § 

2929.14.1 This is a question of state law which the Tenth District definitively decided against 

Petty. Although it remanded for a proportionality finding under Ohio Revised Code § 

2929.14(C)(4), it otherwise overruled Petty’s assignment of error regarding sentencing. 

 Petty also argues the sentence is invalid because the trial court should have found that the 

rape and importuning were allied offenses of similar import, not separately punishable under Ohio 

Revised Code § 2941.25. 

 The Tenth District considered this claim under both the Double Jeopardy Clause and Ohio 

Revised Code § 2941.25 and found no violation of either. It affirmed the trial court’s findings that 

the act of importuning was completed before the rape began, involved separate conduct, and 

occasioned separate harm to the victim. State v. Petty, 2017-Ohio-1062, ¶¶ 72-79. 

 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, 100 

(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 

 

1

 Petty also refers to the United States Sentencing Commission Sentencing Manual. That Manual only applies to cases 

that are originally filed in federal court and does not apply to state criminal cases. 
15 

in light of the evidence presented in the state court proceedings. 

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution 

affords a defendant three basic protections: 

It protects against a second prosecution for the same offense after 

acquittal. It protects against a second prosecution for the same 

offense after conviction. And it protects against multiple 

punishments for the same offense. 

Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717 

(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth 

Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969). 

The test for whether two offenses constitute the same offense for Double Jeopardy purposes 

is “whether each offense contains an element not contained in the other.” United States v. Dixon, 

509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). An Ohio court 

of appeals decision of a double jeopardy claim which is limited to the application of Ohio Rev. 

Code § 2941.25 is entirely dispositive of the federal double jeopardy claim. Jackson v. Smith, 745 

F.3d 206, 210 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632, 705 (1999), overruled by 

State v. Johnson, 128 Ohio St. 3d 153 (2010), itself abrogated in part by State v. Ruff, 143 Ohio 

St.3d 114, 119 (2015). 

Petitioner has not demonstrated that his convictions for rape and importuning violate the 

Double Jeopardy Clause. On their face the two crimes involved different elements: asking for a 

sexual act, and getting it. Petty has not demonstrated that the Tenth District’s decision on this 

question is an objectively unreasonable application of relevant Supreme Court precedent, 

Blockburger and its progeny. Therefore, Ground Four should be dismissed. 
16 

Conclusion 

 In accordance with the foregoing analysis, it is respectfully recommended that the Petition 

herein be dismissed with prejudice. Because reasonable jurists would not disagree with this 

conclusion, Petitioner should be denied a certificate of appealability and the Court should certify 

to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be 

permitted to proceed in forma pauperis. 

April 9, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

A party may respond to another party=s objections within fourteen days after being served with a 

copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 

U.S. 140, 153-55 (1985).