UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CHARLES F. WARMAN, 

 Case No. 2:18-cv-564

Petitioner, Judge Sarah D. Morrison

 Magistrate Judge Michael R. Merz

v. 

WARDEN, NOBLE 

CORRECTIONAL INSTITUTE,

Respondent.

OPINION AND ORDER

On April 9, 2019, the Magistrate Judge issued a Report and Recommendation (“R&R”) 

recommending that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 be denied. 

(ECF No. 15). After Petitioner filed Objections to the R&R (ECF No. 18), the matter was

recommitted and the Magistrate Judge issued a Supplemental Report and Recommendation 

(“Supplemental R&R”) (ECF No. 20). After Petitioner filed Objections to the Supplemental 

R&R (ECF No. 24), the matter was again recommitted and the Magistrate Judge issued a Second 

Supplemental Report and Recommendation (“Second Supplemental R&R”) (ECF No. 27). 

Petitioner has filed Objections to the Second Supplemental R&R. (ECF No. 32). Pursuant to 28 

U.S.C. § 636(b), the Court has conducted a de novo review. For the following reasons, 

Petitioner’s Objections (ECF Nos. 18, 24, 32) are OVERRULED. The R&R, Supplemental 

R&R, and the Second Supplemental R&R (ECF Nos. 15, 20, 27) are ADOPTED and 

AFFIRMED. The petition is DENIED and this action is DISMISSED. 

The Court further DECLINES to issue a certificate of appealability (“COA”). 

Petitioner’s motion for a COA (ECF No. 25), is DENIED. 
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ANALYSIS

Petitioner alleges four grounds for habeas relief from his state court convictions for

felony domestic violence. The Court addresses them in turn, although not in the order that

Petitioner has raised them. 

 Ground Three – Appellate Counsel’s Failure to Appeal Application to Re-open

In Ground Three, Petitioner alleges that he received ineffective assistance of appellate 

counsel because appellate counsel failed to appeal the state appellate court’s improper 

adjudication of one of his claims in his pro se motion to re-open his appeal. The Magistrate 

Judge concluded that this claim is without merit because Petitioner cannot demonstrate that he 

suffered prejudice under Strickland v. Washington, 466 U.S. 668 (1984). (R&R, ECF No. 15, at 

PAGE ID # 841–42). The Magistrate Judge reasoned that even if appellate counsel failed to 

appeal the state appellate court’s decision about the claim, which appears to have been based on 

a misreading of that claim, Petitioner’s pro se motion to re-open the appeal was granted, 

appellate counsel was appointed to represent him, and Petitioner was permitted to proceed with a 

re-opened appeal. Petitioner does not object to that conclusion, which is supported by the record. 

Accordingly, the Court finds that there is no merit to this ground for relief. 

Ground Four – Trial Counsel’s Failure to Raise Hearsay Objections

In Ground Four, Petitioner alleges that he entitled to relief because he received 

ineffective assistance of trial counsel when trial counsel failed to object to repeated hearsay 

testimony from one of the state’s witnesses. The Magistrate Judge concluded that this claim is 

without merit because the state appellate court reasonably concluded that counsel’s failure to 

object did not constitute deficient performance under Strickland. (Id. at PAGE ID # 845–46). 

The state appellate court held that the challenged testimony did not constitute hearsay under the 
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state’s evidence laws, and thus, counsel did not perform deficiently by failing to raise hearsay 

objections. The Magistrate Judge concluded that this was not an unreasonable application of 

Strickland. The Court agrees. See Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) 

(“Counsel was not required to raise meritless arguments to avoid a charge of ineffective 

assistance of counsel.”); Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013) (“Omitting meritless 

arguments is neither professionally unreasonable nor prejudicial.”). Petitioner does not object to 

this conclusion. Accordingly, the Court finds that there is no merit to this ground for relief. 

 Ground One – Trial Counsel’s Failure to Impeach Victim’s Perjured Testimony

In Ground One, Petitioner alleges that he received ineffective assistance of trial counsel 

because trial counsel failed to impeach the victim with perjured testimony. The Magistrate 

Judge concluded that this claim was procedurally defaulted because it was not raised by appellate 

counsel in Petitioner’s re-opened appeal.1

 The Magistrate Judge further concluded that 

Petitioner could not establish cause and prejudice to excuse that default. Specifically, the 

Magistrate Judge concluded that Petitioner could not establish that appellate counsel’s failure to 

raise the ineffective assistance of trial counsel claim constituted ineffective assistance of 

appellate counsel that could excuse default of the ineffective assistance of trial counsel claim. 

The Magistrate Judge correctly explained that in order to evaluate an ineffective assistance of 

appellate counsel claim, a court must assess the strength of the claim that appellate counsel failed 

to raise on appeal. See Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011) (citing Wilson v. 

Parker, 515 F. 3d 682, 707 (6th Cir. 2008)). The Magistrate Judge then examined the underlying 

ineffective assistance of trial counsel claim and found that it was not compelling. Petitioner 

 1 Nor did Petitioner raise the claim in a timely petition for post-conviction relief under 

Ohio Rev. Code § 2953.21, even though that was an option available to him. 
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concedes that this claim is procedurally defaulted but objects to the Magistrate Judge’s

conclusion that the ineffective assistance of counsel claim was not compelling, and by extension, 

that appellate counsel did not perform deficiently by failing to raise it. (ECF No. 32, at PAGE 

ID # 947). 

The Court finds that this claim is procedurally defaulted. The Court further agrees with 

the Magistrate Judge’s conclusion that the merit of the ineffective assistance of trial counsel 

claim was not so compelling that appellate counsel performed deficiently by failing to raise it. 

The Court initially notes that the cross-examination of witnesses falls within the area of tactics or 

strategy that courts typically do not attempt to second guess. “The cross-examination of a 

witness is a delicate task; what works for one lawyer may not be successful for another. Courts 

generally entrust cross-examination techniques, like other matters of trial strategy, to the 

professional discretion of counsel.” Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997). 

Further, “[i]mpeachment strategy is a matter of trial tactics, and tactical decisions are not 

ineffective assistance of counsel simply because in retrospect better tactics may have been 

available.” Dell v. Straub, 194 F. Supp. 2d 629, 651 (E.D. Mich. 2002). Impeachment of a 

victim is particularly delicate.

In any event, the Court agrees with the Magistrate Judge’s conclusion that Petitioner’s

claim rests on a stilted reading of the trial transcripts. Petitioner contends that the victim lied 

when she testified that he “beat” her when both of them visited their friend at a house “out on 

Fairbanks Avenue” because he only threatened her when they were at that location. Petitioner 

insists that trial counsel should have confronted the victim about this falsehood and that he 

performed deficiently by failing to do so. It appears, however, that the victim’s reference to 
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Petitioner beating her while “out on Fairbanks Avenue” was a shorthand reference that came up 

while the state was trying to establish a timeline during the victim’s direct examination: 

Q: Okay, so on November 19th you went back home.

A: I think I went home around the twelfth.

Q: The twelfth. How long did you stay at – stay there?

A: I was home until he beat me that second day out on Fairbanks Avenue 

and the police took me back home and I packed my stuff to leave again. 

(Trial Transcript, ECF No. 9-1, at PAGEID # 576–77). When explicitly testifying on direct 

about the day that the victim and Petitioner were at Fairbanks Avenue, however, the victim 

clearly indicated that Petitioner punched her in the nose while helping a friend move sometime 

earlier that day, and that he had been “smacking,” “punching,” “pulling [her] hair,” and “hitting” 

her while they drove to Fairbanks Avenue, but that he ceased doing so upon their arrival. (Id. at 

PAGE ID # 578–80). Indeed, the victim testified that after they arrived at Fairbanks Avenue, 

Petitioner confronted their friend before turning his attention back to her; ordering her to get out 

of the car they had driven there; chasing her around the car while brandishing a tool as a weapon; 

and telling her that he was going to beat her with it. (Id.). As a result, the Court is not convinced 

that the reference to being “beat” while “out on Fairbanks Avenue” constitutes false testimony. 

Rather, it appears to be a general reference to the day when the victim and Petitioner travelled 

there and spent time at that location. At most, the reference could be construed as an 

inconsistency in the victim’s testimony.

Further, the Court agrees with the Magistrate Judge that even if this reference represents 

an inconsistency, it was not so material that trial counsel performed deficiently by failing to

challenge it. The victim had already testified on direct that Petitioner physically hit and punched 

her before and during their travel to Fairbanks Avenue rather than when they were at Fairbanks 
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Avenue. Trial counsel’s decision not to question the victim more closely about the victim’s 

reference to the being beat “out on Fairbanks Avenue” when the state was establishing a timeline 

may have been a sound trial strategy given that a more vigorous cross-examination on this minor 

inconsistency may have alienated the jury or provoked sympathy for the victim, who alleged that 

she had been repeatedly beaten by her husband for at least several months. Moreover, the Court 

agrees with the Magistrate Judge’s conclusion that counsel conducted a vigorous crossexamination of the victim about other inconsistencies and misstatements, including that she had 

made inconsistent statements to police and others and that she had recanted certain abuse 

allegations, although she further testified that she did so under duress. (Id. at PAGE ID # 597–

98). For these reasons, the Court concludes that trial counsel did not perform deficiently by 

failing to challenge the inconsistency. 

Petitioner contends that the Magistrate Judge underestimates the import of this particular 

inconsistency. Read liberally, Petitioner appears to contend that count one of the indictment 

charged him with domestic violence that took place on or around November 22, 2015, and that 

count two of the indictment charged him with one count of domestic violence that took place on 

or between November 19, 2015, and November 22, 2015. (ECF No. 32, PAGEID #950; ECF 

No. 9, PAGE ID # 73–75). He further contends that the victim testified that no domestic 

violence incidents occurred between November 12, 2015, and November 21, 2015, (Trial 

Transcript, ECF 9-1, at PAGE ID # 577), and thus, the state needed to prove that two domestic 

violence incidents took place on or around November 22, 2015, in order to sustain his 

convictions for counts one and two. He asserts that the victim’s inaccurate statement that she 

was beaten “out on Fairbanks Road” likely misled the jury into finding that there was evidence to 

support both counts given that he only beat the victim during the drive to Fairbanks Road but not 
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after they arrived. Nevertheless, the jury heard that Petitioner beat and hit the victim while they 

traveled to Fairbanks Road. (Id. at PAGE ID # 577–78). The jury also heard that after arriving 

at Fairbanks Road, Petitioner chased the victim around a car while swinging a tool at her and 

threatening to beat her with it. (Id. at PAGE ID # 578–80). The jury may have concluded that

the physical altercation during the drive and the threats after arrival constituted separate incidents 

of domestic violence given that Ohio law defines domestic violence as knowingly causing or 

attempting to cause physical harm to a family member. Ohio Rev. Code § 2919.25(A) (emphasis 

added). A jury could conclude that chasing someone while swinging a tool at them and 

threatening to beat them with it constitutes an attempt to cause physical harm. Thus, as the 

Magistrate Judge explained, even if this inconsistency had been challenged, the jury could have 

reached the same conclusion in light of other evidence that was presented. For that reason,

Petitioner would not be able to demonstrate that counsel’s failure to challenge this inconsistency 

prejudiced him under Strickland. 

In sum, the Court concludes that the ineffective assistance of trial counsel claim in 

Ground One was procedurally defaulted. In addition, that claim was not so compelling that 

appellate counsel performed deficiently by failing to raise it, and therefore, appellate counsel’s 

failure to do so does not constitute cause to excuse its default.

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Ground Two – Prosecutorial Misconduct for Knowing Use of False Testimony

In Ground Two, Petitioner alleges prosecutorial misconduct for the state’s knowing use 

of and failure to correct false testimony. The Magistrate Judge concluded that this claim was 

also procedurally defaulted for the same reasons that Petitioner’s ineffective assistance of trial 

 2 Although the Court finds that Petitioner’s ineffective assistance of trial counsel claim is 

procedurally defaulted, given that it has assessed the strength of that underlying claim, the Court 

would deny this ground for relief even if it were to reach its merits. 
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counsel claim was defaulted (i.e., the claim was not raised on appeal, and appellate counsel’s 

failure to raise it did not constitute ineffective assistance of appellate counsel such that it excused

the default). Petitioner concedes that this claim is also procedurally defaulted but again objects

to the Magistrate Judge’s cause and prejudice determination. (ECF No. 32, at PAGE ID # 952). 

Specifically, the Magistrate Judge examined the prosecutorial misconduct claim and found that it 

was not so compelling that appellate counsel performed deficiently by failing to raise it, and 

thus, failing to raise it did not excuse the default. Petitioner objects to this finding by 

challenging the Magistrate Judge’s assessment of the strength of the underlying prosecutorial 

misconduct claim. 

The Court finds that this claim is also procedurally defaulted. Specifically, the Court 

agrees that the claim’s merit was not compelling. As the Magistrate Judge explained, this claim 

also hinged on Petitioner’s characterization of the victim’s reference to Petitioner beating her 

“out on Fairbanks Avenue” as a falsehood that the prosecution knew was false and failed to 

correct. Again, however, that contention is predicated upon a stilted reading of the trial 

transcripts. The victim testified that Petitioner physically accosted her while they traveled to 

Fairbanks Avenue, and that after they arrived, he ordered her out of the car, chased her, and 

threatened her with a tool. Her reference to being beat “out on Fairbanks Avenue” at a different 

point during her direct examination appears to generally describe the day that they travelled to 

and visited Fairbanks Avenue. Moreover, the Court agrees with the Magistrate Judge’s 

conclusion that at most, this reference constituted an inconsistency in the victim’s testimony 

rather than a falsehood. As explained by the Magistrate Judge, however, there is a difference 

between inconsistencies in testimony, even from the state’s key witness, and the state’s knowing 

use of perjury. See Monea v. United States, 914 F.3d 414, 421 (6th Cir. 2019) (explaining that 
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“mere inconsistencies” in testimony are not enough to establish that a defendant’s due process 

rights were violated by use of perjured testimony; defendant must prove that the testimony was 

“indisputably false”).

In sum, the Court finds that the prosecutorial misconduct claim in Ground Two was 

procedurally defaulted. In addition, the claim was not so compelling that appellate counsel 

performed deficiently by failing to raise it, and therefore, appellate counsel’s failure to do so 

does not constitute cause to excuse its default.

CONCLUSION

For all these reasons, the Court concludes that Petitioner’s objections are without merit. 

CERTIFICATIONS

Petitioner has also moved for COA. (ECF No. 25). A state prisoner who seeks a writ of 

habeas corpus in federal court does not have an automatic right to appeal a district court’s 

adverse decision unless the court issues a COA. 28 U.S.C. § 2253(c). When a claim has been 

denied on the merits, a COA may be issued only if the petitioner “has made a substantial 

showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make such a showing, a 

petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues presented were 

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has been 

denied on procedural grounds, a COA may be issued if the petitioner establishes that jurists of 

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

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

was correct in its procedural ruling. Id.
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With regard to Grounds Three and Four, Petitioner has waived the right to file an appeal 

by failing to file objections to the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir 1981). With regard to Grounds One 

and Two, the Court is not persuaded that reasonable jurists could debate whether the Court is 

correct that these grounds are procedurally barred. Accordingly, the Court DECLINES to issue 

a COA on all grounds raised in the petition.

The Court also CERTIFIES that an appeal would not be in good faith and that an 

application to proceed in forma pauperis would be DENIED. 

IT IS SO ORDERED.

/s/ Sarah D. Morrison____________ 

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE