1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

JOSHUA LANDERS, 

Petitioner, : Case No. 3:18-cv-175 

- vs - District Judge Walter H. Rice 

Magistrate Judge Michael R. Merz 

NORM ROBINSON1

, Warden, 

 London Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action is before the Court for decision on the merits. Upon initial 

consideration of the Petition, the Court ordered the Respondent to file the state court record and a 

return of writ (ECF No. 3) which has been done (ECF Nos. 6, 7, and 8). In the Order for Answer, 

the Court provided that Petitioner could file a reply to the Return not later than twenty-one days 

after the Return was filed (ECF No. 3, PageID 34). Despite having taken an extension of time to 

file a reply, Petitioner has not done so and the extension has expired.2 However, Petitioner 

included significant argument on his grounds for relief as an attachment to his Petition (ECF No. 

1, PageID 20-30). 

 

1

 As of the date of the Return, Robinson was warden at London Correctional Institution and therefore the proper 

Respondent. The caption is amended accordingly. 

2

 The Magistrate Judge notes that Petitioner is confined at one of the Ohio Department of Rehabilitation and Correction 

facilities where a prisoner can file electronically, as he did with his motion for extension of time. 
2 

Procedural History 

 Joshua Landers was indicted by a Greene County grand jury on three counts of rape of a 

child under thirteen years of age and one count of attempted anal rape of the same victim. A first 

trial resulted in a hung jury. At a second trial the State moved to dismiss the attempt charge at the 

close of its case; the trial judge granted a defense motion to have the dismissal be with prejudice. 

The jury acquitted Landers on the first two counts but convicted him of anal rape as charged in 

Count Three. He was then sentenced to ten years to life imprisonment and classified as a Tier III 

sex offender. 

 Landers appealed to the Second District Court of Appeals which affirmed the conviction. 

State v. Landers, 2nd Dist. Greene No. 2015-CA-74, 2017-Ohio-1194 (Mar. 31, 2017), appellate 

jurisdiction declined, 150 Ohio St. 3d 1411, 2017-Ohio-6964. Landers subsequently filed an 

application under Ohio R. App. P. 26(B) to raise claims of ineffective assistance of appellate 

counsel. The Second District denied relief on both procedural and merits grounds (State Court 

Record, ECF No. 6, PageID 191-209, and Landers took no further appeal to the Supreme Court of 

Ohio. 

 On May 21, 2018, Landers filed his Petition in this Court, pleading the following grounds 

for relief: 

Ground One: Petitioner’s right of Double Jeopardy was violated, 

as guaranteed by the 5th and 14th Amendment [sic], United States 

Constitution, because Trial Court granted State’s Rule 29 motion to 

dismiss Count 4-Attempted Anal Rape, and failed to terminate 

prosecution against Petitioner on Count 3-Anal Rape charge. 

Ground Two: Petitioner was deprived of right to Due Process of 

Law and a Fair Trial, as guaranteed by the 5th and 14th Amendment 

[sic], United States Constitution, where the Trial Court granted the 

State’s Rule 29 motion at the conclusion of its case in chief. 
3 

Ground Three: Petitioner was deprived of right to Due Process, as 

guaranteed by the 5th and 14th Amendment [sic], United States 

Constitution, where Trial Court denied Defense motion for lesser 

included offense instruction of Attempted Anal Rape for Count 3 

Anal Rape Charge. 

Ground Four: Petitioner was deprived of right to Due Process, as 

guaranteed by the 5th and 14th Amendment [sic], United States 

Constitution, as State’s evidence insufficient to support conviction. 

Ground Five: Petitioner was deprived of right to Effective 

Assistance of Trial and Appellate Counsel, as guaranteed by the 6th 

Amendment of the United States Constitution, by Counsel’s failure 

to bring constitutional issues to the State’s Courts [sic] attention, 

that resulted in the wrongful conviction of an innocent man. 

Ground Six: Petitioner was deprived of right to Due Process of Law 

and Fair Trial, as guaranteed by the 5th and 14th Amendment [sic], 

United States Constitution, due to Trial Court’s permitting the State 

to introduce “other acts” testimony. 

(Petition, ECF No. 1, PageID 5-14. 

Analysis 

Ground One: Double Jeopardy 

 In his First Ground for Relief, Landers contends his rights under the Double Jeopardy 

Clause were violated when the trial court dismissed Count 4, the attempted anal rape charge, 

without also dismissing Count 3 (Petition, ECF No. 1, PageID 5; ECF No. 1-1, PageID 20-21). 

 Respondent asserts this claim is procedurally defaulted because it could have been raised 

on direct appeal but was not (Return of Writ, ECF No. 7, PageID 250-51). Under Ohio law, a 

claim which can be adjudicated on direct appeal must be raised there or it is barred by res judicata 
4 

from being raised in a subsequent proceeding. State v. Perry, 10 Ohio St. 2d 175 (1967). The 

Sixth Circuit has held that Ohio’s doctrine of res judicata in criminal cases is an adequate and 

independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell 

v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd 

v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994) 

(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001) (Smith, J.). 

 On direct appeal, Landers raised this issue as a fair trial claim. His Second Assignment of 

Error stated “The trial court erred and thereby deprived Landers of a fair trial under the United 

States and Ohio Constitutions when it granted the State’s motion to dismiss Count IV after its case 

in chief.” State v. Landers, 2017-Ohio-1194, ¶ 71. The Second District found no error because 

the State had presented evidence of anal rape – actual penetration – but no evidence of an 

unsuccessful attempt at anal rape. Id. at ¶¶ 72-82. No argument whatsoever was made about 

Double Jeopardy. 

 As his Third Assignment of Error on direct appeal, Landers asserted “the trial court erred 

when it overruled Defendant’s motion for a lesser included instruction.” 2017-Ohio-1194, 

¶ 83. The Second District analyzed this assignment in two steps. The first step was to determine 

that, as Landers contends, attempted anal rape is a lesser included offense of anal rape; the court 

found this conclusion was not disputed. Id. at ¶ 86. The second step was to analyze the testimony 

to see if it supported the instruction. Because the victim testified to successful penetration, a lesser 

included instruction on attempt was not justified. Id. at ¶¶ 87-89. Here again, there is no mention 

of the Double Jeopardy Clause. 

 Nor is it the case that Landers sought relief on Double Jeopardy grounds but the Second 

District missed the issue: Landers’s brief on appeal also includes no mention of the Double 
5 

Jeopardy Clause nor does it cite any federal case law on that issue (State Court Record, ECF No. 

6, PageID 68). 

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must 

be “fairly presented” to the state courts in a way which provides them with an opportunity to 

remedy the asserted constitutional violation, including presenting both the legal and factual basis 

of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 

1506, 1516 (6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 

99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The claim must be fairly 

presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6th

Cir. 2009). 

 Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does 

not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th

Cir. 2006) ; McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe, 

735 F.2d 684, 688-89 (2nd Cir. 1984); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987). Mere 

use of the words “due process and a fair trial by an impartial jury” are insufficient. Slaughter v. 

Parker, 450 F.3d 224, 236 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004) 

(same). “A lawyer need not develop a constitutional argument at length, but he must make one; 

the words ‘due process’ are not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 

1995). 

 If a petitioner’s claims in federal habeas rest on different theories than those presented to 

the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 

2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d 313, 

322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001) (“relatedness” of a claim 
6 

will not save it). 

 “[A] state prisoner ordinarily does not ‘fairly present’ a federal claim to a state court if that 

court must read beyond a petition or a brief (or a similar document)” to find material that will alert 

it to the presence of such a claim. Baldwin v. Reese, 541 U.S. 27, 32 (2004). When a defendant 

does so little to present his claim that it has not been fairly presented, then the presumption under 

Harrington v. Richter that the state court decided the claim on the merits is “fully rebutted.” 

Johnson v. Williams, 568 U.S. 289, 302 n.3 (2013). On the other hand, when a federal claim is 

fairly presented but not addressed, “a federal habeas court must presume that the federal claim was 

adjudicated on the merits . . . .” Ross v. Pineda, No. 11-3454, 549 F. App’x 444, (6th Cir. 2013) 

(emphasis in original, quoting Johnson, 568 U.S. at 300. 

Because Landers did not fairly present a Double Jeopardy claim to the Second District, his 

First Ground for Relief is procedurally defaulted and should therefore be dismissed. 

Ground Two: Dismissal of the Attempted Anal Rape Charge 

 In his Second Ground for Relief, Landers asserts he was denied due process of law when 

the state trial court granted the State’s motion to dismiss the attempt charge at the close of the 

State’s case (Petition, ECF No. 1, PageID 7). As noted above, Landers presented this claim to the 

Second District as his Second Assignment of Error on direct appeal. 

 When the State moved to dismiss Count 4, Landers’ counsel asked that the motion be 

denied or, in the alternative, a lesser included offense instruction be given. Landers, 2017-Ohio-
7 

1194, ¶ 72. The trial court denied both of those requests, although it made the dismissal with 

prejudice at Landers’ request.3 The Second District decided this assignment of error as follows: 

{¶ 73} According to Landers, the trial court erred by removing an 

option for the jury to convict him of a lesser charge. In this vein, 

Landers points to evidence that A.G. did not tell the examining 

doctor or her mother that she had been anally raped, and that A.G.’s 

testimony varied regarding the anal rape. 

* * * 

{¶ 78} The Supreme Court of Ohio has held that “there is sufficient 

evidence of anal intercourse, for purposes of the crime of anal rape 

under R.C. 2907.02, where the trier of fact finds that the defendant 

penetrated, however slightly, the victim's anus with any part of the 

defendant's body, or with any instrument, apparatus, or other object. 

If the evidence shows that the defendant made contact only with the 

victim's buttocks, there is not sufficient evidence to prove the 

defendant guilty of the crime of anal rape. As a corollary, where the 

evidence shows that the defendant attempts to penetrate the victim's 

anus, and, for whatever reason, fails to do so and makes contact only 

with the buttocks, there is sufficient evidence to prove the defendant 

guilty of the crime of attempted anal rape.” State v. Wells, 91 Ohio 

St.3d 32, 34, 2001 Ohio 3, 740 N.E.2d 1097 (2001). 

{¶ 79} We have carefully reviewed A.G.'s testimony, and there is 

no indication of an attempted anal rape, rather than an anal rape. 

Rather than describing an attempt, A.G.'s testimony indicates that 

penetration occurred. See Transcript of Proceedings, Vol. I, pp. 60-

62 (indicating that Landers' penis went “in” her “butt” and went into 

her “butthole,” but not all the way); pp. 70-71 (she yelled after he 

put his penis in her “butthole”); pp. 80-81 (he put his penis inside 

her anus and she yelled out; his penis was actually in her anus at that 

time but it was not in there all the way); and p. 88 (his penis was “in 

her butt,” but not all the way). 

 

{¶ 80} It is true that A.G. did not tell her mother about the anal rape, 

nor did she report it to Dr. Matre at the hospital. However, Dr. Matre 

stated that it is common for children to disclose sexual abuse 

gradually; sometimes they will come in with one complaint and later 

something else will surface. Dr. Matre also did not find any trauma 

 

3

 The request to dismiss with prejudice was apparently made out of an abundance of caution. Since jeopardy had 

already attached on that Count, the State would have been unable, because of the Double Jeopardy Clause, to re-try 

Landers on the attempt count. The hung jury at the first trial did not prevent retrial because a hung jury “interrupts” 

jeopardy. 
8 

to the anus. However, Dr. Matre, who had 37 years of experience 

in this area, stated that he had received histories of anal penetration 

before, and did not usually find any physical findings. The anal 

swabs also contained a partial Y (male) chromosome from which 

Landers' DNA profile could not be excluded. 

{¶ 81} As a result, we find no error in the fact that the trial court 

granted the State's request to dismiss the charge in Count IV for 

attempted anal Rape (sic). The State conceded that it could not 

prove an attempt, and this was true. 

State v. Landers, supra. 

Petitioner did claim on appeal that the dismissal was an unconstitutional denial of a fair 

trial, although he cited no federal case law in this section of his brief. 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, 99-100 (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). 

 Petitioner has presented no Supreme Court case law in his Petition that would show his 

right not to have Count 4 dismissed was clearly established. Instead, he argues this Ground for 

Relief in the Attachment to the Petition as an infringement on his right to indictment by a grand 

jury by way of constructive amendment of the indictment (ECF No. 1-1, PageID 21-23). However, 

the Fifth Amendment right to indictment by grand jury does not apply to the States. Gerstein v. 

Pugh, 420 U.S. 103 (1975); Branzburg v. Hayes,408 U.S. 665, 687-88 n.25 (1972); Hurtado v. 

California, 110 U.S. 516 (1884);. More substantively, a prosecutor does not constructively amend 

an indictment when he dismisses one of its counts because he has not presented sufficient evidence 

to support it. After such a dismissal, the jury cannot return any verdict on the dismissed count. 
9 

 Ground Two should therefore be dismissed. 

Ground Three: Failure to Give a Lesser Included Offense Instruction on Count Three 

 In his Third Ground for Relief, Landers claims he was denied due process when the trial 

court refused to give a lesser included offense instruction as to the anal rape charge, Count 3. 

Although the Second District agreed that attempted anal rape was a lesser included offense of anal 

rape, it found no error in refusing the instruction because the evidence would not have supported 

a conviction for attempted rape. Landers, 2017-Ohio-1194, ¶¶ 83-90. This conclusion is 

consistent with Ohio law and the testimony of the victim as the Second District recounted it. 

 However, even if Ohio law would have supported giving the lesser included instruction, 

the trial court was not constitutionally obliged to do so. There is no constitutional requirement to 

give a lesser included offense instruction in a non-capital case. Campbell v. Coyle, 260 F.3d 531, 

541 (6th Cir. 2001); Bagby v. Sowders, 894 F.2d 792, 795-97 (6th Cir. 1990). 

 Therefore, Ground Three should be dismissed. 

Ground Four: Insufficiency of the Evidence 

 In his Fourth Ground for Relief, Landers asserts he was convicted on insufficient evidence. 

An allegation that a verdict was entered upon insufficient evidence states a claim under the 

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. 

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order 
10 

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a 

reasonable doubt. In re Winship, 397 U.S. at 364. 

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

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

could have found the essential elements of the crime beyond a 

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

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

testimony, to weigh the evidence and to draw reasonable inferences 

from basic facts to ultimate facts. 

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

United States v. Somerset, No. 3:03-po-2, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio Oct. 12, 2007) 

(Rice, J.). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of 

course, it is state law which determines the elements of offenses; but once the state has adopted 

the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra. 

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

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

Stat. 1214) (the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

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

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

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

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

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

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

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

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for 

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th 

Cir. 1993). Thus, even though we might have not voted to convict 

a defendant had we participated in jury deliberations, we must 

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

the defendant guilty after resolving all disputes in favor of the 

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

of fact could not have found a petitioner guilty beyond a reasonable 
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doubt, on habeas review, we must still defer to the state appellate 

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

See 28 U.S.C. § 2254(d)(2). 

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

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

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

541 F.3d 652, 661 (6th Cir. 2008); accord: Parker v. Matthews, 567 U.S. 37, 43 (2012); Davis v. 

Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc);. The standard does not require that all the 

State’s evidence must be internally consistent. Notably, “a court may sustain a conviction based 

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

(6th Cir. 2010). 

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

habeas proceedings because they are subject to two layers of judicial 

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

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

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

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

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

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

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

court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 

federal court instead may do so only if the state court decision was 

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

766, 773, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)). 

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

43 (2012) (per curiam). 

 Landers did not present an insufficiency of the evidence claim to the Second District. 

Instead, his Fourth Assignment of Error asserted his conviction was against the manifest weight 

of the evidence. State v. Landers, 2017-Ohio-1194, ¶¶ 91-98. A weight of the evidence claim is 

not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). 
12 

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

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

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

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

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

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

In addition, a conviction based on legally insufficient evidence 

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

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

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

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

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

nevertheless conclude that the judgment is against the weight of the 

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

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

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

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

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

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

minds, they shall find the greater amount of credible evidence 

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

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

belief." (Emphasis added.) 

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

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

appellate court sits as a “‘thirteenth juror’” and disagrees with the 

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

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

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

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

evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the 

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

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

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

exercised only in the exceptional case in which the evidence weighs 

heavily against the conviction.”). 

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (1st Dist. 1983)(cited approvingly 

by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest weight of the 
13 

evidence claim: 

In considering the claim that the conviction was against the manifest 

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

reviewing the entire record, weighs the evidence and all reasonable 

inferences, considers the credibility of the witnesses and determines 

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

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

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

Martin, 20 Ohio App. 3d 172, paragraph three of the syllabus. The consequences of the distinction 

are important for a criminal defendant. The State may retry a case reversed on the manifest weight 

of the evidence; retrial of a conviction reversed for insufficiency of the evidence is barred by the 

Double Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31, 41 (1982). 

 Because Landers did not present a sufficiency of the evidence claim to the Second District, 

it would be proper to dismiss his Fourth Ground for Relief for lack of fair presentation. However, 

a state court finding that the verdict is not against the manifest weight of the evidence implicitly 

also holds that there is sufficient evidence. Nash v. Eberlin, No. 06-4059, 258 F. App’x 761, (6th

Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio 

May 10, 2011) (White, M.J.); Hughes v. Warden, No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 

(S.D. Ohio Apr. 27, 2011) (Merz, Mag. J.). 

 Landers’s argument on this claim notes inconsistencies in the State’s evidence, but such 

inconsistencies are for the jury to resolve. He also asserts that the State presented perjured 

testimony by the victim, but offers no proof of perjury. Ground Four should therefore be 

dismissed. 

Ground Five: Ineffective Assistance of Trial and Appellate Counsel 
14 

 In his Fifth Ground for Relief, Landers asserts he received ineffective assistance of trial 

counsel and ineffective assistance of appellate counsel “by counsel’s failure to bring constitutional 

issues to the States [sic] courts attention, that resulted in the wrongful conviction of an innocent 

man.” (Petition, ECF No. 1-1, PageID 26.) 

 To the extent Landers claims ineffective assistance of appellate counsel, that claim is 

procedurally defaulted by his failure to appeal to the Supreme Court of Ohio from the Second 

District’s denial of his App. R. 26(B) application. 

 Petitioner also raises three claims of ineffective assistance of trial counsel: (1) failure to 

object to the prosecutor’s misconduct in presenting or failing to correct perjured testimony; (2) 

asking for a lesser included offense instruction on Count 3; and (3) failure to secure “an expert 

Medical and Child Psychologist witness,” allegedly to save the Greene County Public Defender’s 

Office money. 

The governing standard for ineffective assistance of trial counsel, as Landers 

acknowledges, was adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 

(1984): 

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

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

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

performance was deficient. This requires showing that counsel was 

not functioning as the “counsel” guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

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

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

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

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable. 

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

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing 
15 

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

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

Judicial scrutiny of counsel's performance must be highly 

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

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

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

the time. Because of the difficulties inherent in making the 

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

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action "might be 

considered sound trial strategy." 

466 U.S. at 689. 

As to the second prong, the Supreme Court held: 

The defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability 

sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 

313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally

Annotation, 26 ALR Fed 218. 

 As noted above, Ohio’s criminal res judicata rule requires that issues that can be decided 

on the appellate record be raised on direct appeal. This includes claims of ineffective assistance 

of trial counsel if they are shown on the trial court record. On the other hands, claim of ineffective 

assistance of trial counsel which depend on evidence outside the record must be raised by way of 

a petition for post-conviction relief under Ohio Revised Code § 2953.21. 

 In his first subclaim of ineffective assistance of trial counsel, Landers faults his trial 

attorney for not objecting to prosecutorial misconduct in presenting false or perjured testimony. 

However, the only evidence of perjury or falsification to which he refers is the inconsistencies in 
16 

the testimony of State’s witnesses. Inconsistency does not prove perjury. Conversely if the 

inconsistencies are clear enough on the record to prove perjury or falsification, then trial counsel’s 

failure to object could have been raised on direct appeal, but it was not. Therefore, the first 

subclaim of ineffective assistance of trial counsel should be dismissed. 

 In his second subclaim, Landers asserts his trial attorney performed deficiently in asking 

for a lesser included offense instruction (Petition, ECF No. 1-1, PageID 27). This claim is 

completely inconsistent with Landers’ Third Ground for Relief where he claims it was 

unconstitutional to refuse the instruction. His theory seems to be that since the jury at his first trial 

failed to return a verdict at all, he would have received the same result at the second trial if counsel 

had not sought the instruction. But the record is clear that counsel only sought the instruction after 

the State had moved to dismiss Count 4, at which point Landers had no chance of a conviction for 

attempt alone without the lesser included offense instruction. It was not deficient performance to 

seek such an instruction. 

 In his third subclaim, Landers asserts his trial attorney performed deficiently by failing to 

obtain an expert and that his reason for doing so was to save the Greene County Public Defender 

money (Petition, ECF No. 1-1, PageID 28, citing Trial Transcript at pp. 222-23). This claim 

evinces a misreading of the transcript. It is the State through Greene County that pays for expert 

witnesses. It is clear from reading the transcript that the offer was to save the County money, not 

the Public Defender. It is also clear from the transcript that an expert, Dr. Heinig, had been hired 

and the offer was merely to present his testimony by reading it into the record. 

 From the pleading, it appears Petitioner may be complaining of the lack of expert 

qualifications of the State’s expert witnesses, but the Constitution places no such restriction on 

evidence. 
17 

 Ground Five should therefore be dismissed. 

Ground Six: Introduction of “Other Acts” Testimony 

 Over Petitioner’s objection, the State was permitted to introduce evidence of “other bad 

acts” – sexual contact with the victim which the State characterized as “grooming” behavior, and 

which occurred before the sexual conduct for which Landers was indicted. Landers claims that he 

was prejudiced by this evidence on the theory that it was not introduced in his first trial which 

resulted in a hung jury (Petition, ECF No. 1, PageID 14-15). 

 Landers presented this claim to the Second District as his First Assignment of Error, 

complaining: “The Trial Court Erred When It Allowed the State to Use 404(B) Evidence at Trial 

Without a Contemporaneous Limiting Instruction, and This Error Deprived Landers of His Right 

to a Fair Trial Pursuant to the United States and Ohio Constitutions.” Landers, 2017-Ohio-1194, 

¶ 50. The Second District decided the claim as follows: 

{¶ 51} Under this assignment of error, Landers contends that the 

trial court erred in allowing the State to submit evidence of his 

sexual contact with A.G. on or about February 16, 2013. Landers 

was not charged with offenses relating to this conduct, and theState 

asked that the evidence be admitted as evidence that Landers was 

"grooming" A.G. for the acts that occurred on March 2, 2013. 

{¶ 52} Ohio Evid.R. 404(B) provides that: 

Evidence of other crimes, wrongs, or acts is not admissible 

to prove the character of a person in order to show action 

in conformity therewith. It may, however, be admissible 

for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence 

of mistake or accident. 

{¶ 53} R.C. 2945.59 also provides that “[i]n any criminal case in 

which the defendant's motive or intent, the absence of mistake or 
18 

accident on his part, or the defendant's scheme, plan, or system in 

doing an act is material, any acts of the defendant which tend to 

show his motive or intent, the absence of mistake or accident on his 

part, or the defendant's scheme, plan, or system in doing the act in 

question may be proved, whether they are contemporaneous with or 

prior or subsequent thereto, notwithstanding that such proof may 

show or tend to show the commission of another crime by the 

defendant.” 

{¶ 54} Evid.R. 404(B) “is in accord with R.C. 2945.59,” and both 

the rule and statute adopt the common law to “preclude admission 

of other acts evidence to prove a character trait in order [**20] to 

demonstrate conduct in conformity with that trait * * *.” (Citations 

omitted.) State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 

983 N.E.2d 1278, ¶ 16. However, unlike R.C. 2945.59, Evid.R. 

404(B) “contains no reference to materiality.” Id. at ¶ 17. “Rather, 

[Evid.R. 404(B)] precludes the admission of evidence of crimes, 

wrongs, or acts offered to prove the character of an accused in order 

to demonstrate conforming conduct, and it affords the trial court 

discretion to admit evidence of other crimes, wrongs, or acts for 

‘other purposes,’ including, but not limited to, those set forth in the 

rule. Hence, the rule affords broad discretion to the trial judge 

regarding the admission of other acts evidence.” Id. 

{¶ 55} The Supreme Court of Ohio has stressed that “[u]nless the 

trial court has 'clearly abused its discretion and the defendant has 

been materially prejudiced thereby, this court should be slow to 

interfere' with the exercise of such discretion.” State v. Kirkland, 

140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting 

State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). 

{¶ 56} “Generally, evidence of other acts is admissible if it is 

offered for a purpose other than to prove the character of a person in 

order to show action in conformity with that character, Evid.R. 

404(B), it is relevant when offered for that purpose, Evid.R. 401, 

and the danger of unfair prejudice does not substantially outweigh 

its probative value. Evid.R. 403.” Kirkland at ¶ 68, citing Williams

at ¶ 20. 

{¶ 57} In Williams, the court stated that: 

The first step is to consider whether the other acts evidence 

is relevant to making any fact that is of consequence to the 

determination of the action more or less probable than it 

would be without the evidence. Evid.R. 401. The next step 

is to consider whether evidence of the other crimes, 
19 

wrongs, or acts is presented to prove the character of the 

accused in order to show activity in conformity therewith 

or whether the other acts evidence is presented for a 

legitimate purpose, such as those stated in Evid.R. 404(B). 

The third step is to consider whether the probative value of 

the other acts evidence is substantially outweighed by the 

danger of unfair prejudice. 

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, 

at ¶ 20. 

{¶ 58} As was noted, the State's purpose in presenting evidence 

about Valentine's Day weekend was to show that Landers was 

grooming A.G. In Williams, the court observed that “‘[g]rooming 

refers to deliberate actions taken by a defendant to expose a child to 

sexual material; the ultimate goal of grooming is the formation of an 

emotional connection with the child and a reduction of the child's 

inhibitions in order to prepare the child for sexual activity’ * * * .” 

Id. at ¶ 21, quoting United States v. Chambers, 642 F.3d 588, 593 

(7th Cir.2011). 

{¶ 59} The “other acts” evidence concerning Landers' conduct a few 

weeks before the alleged rapes was relevant to this issue, as it 

indicated an attempt to form an emotional connection with A.G. and 

a gradual introduction to sexual activity in order to reduce A.G.’s 

inhibitions. It was also not presented as proof of Landers' character, 

but for a legitimate purpose, to show intent, plan, and preparation. 

{¶ 60} As to the third step, the court in Williams concluded that the 

evidence was “not unduly prejudicial, because the trial court 

instructed the jury that this evidence could not be considered to show 

that [the defendant] had acted in conformity with a character trait.” 

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, 

at ¶ 24. In Williams, the trial court gave the cautionary instruction 

both at the time the witness testified and during its charge at the end 

of the case. Id. at ¶ 8-9. 

{¶ 61} In contrast, the trial court in the case before us refused to give 

a cautionary instruction at the time A.G. testified as to the prior acts; 

instead, the court said it would give a limiting instruction at the time 

of the charge to the jury. Transcript of Proceedings, Vol. I, pp. 24-

25. Consistent with its promise, the court did, in fact, provide a 

limiting instruction when the jury was charged. See Transcript of 

Proceedings, Vol. II, p. 318. As a result, the trial court did not abuse 

its discretion in allowing the evidence as to prior sexual contact 

between Landers and A.G. 
20 

{¶ 62} The Supreme Court of Ohio has indicated that where a 

limiting instruction is given in connection with admission of 404(B) 

evidence, the jury is presumed to have followed the instructions 

given by the trial court. State v. Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677, 984 N.E.2d 948, ¶ 194. Thus, we presume that the jury 

followed the trial court's instructions. 

{¶ 63} In a second issue under this assignment of error, Landers 

argues that the trial court erred by failing to give a contemporaneous 

instruction when A.G. testified about the “other acts” evidence. In 

this regard, Landers relies on our prior decision in State v. Shaw, 2d 

Dist. Montgomery No. 21880, 2008-Ohio-1317. 

{¶ 64} In Shaw, the defendant was charged with 15 counts of Rape 

of a Child Under the Age of Thirteen and 10 counts of Sexual 

Battery in connection with three of his minor daughters. Id. at ¶ 3. 

The trial court allowed “an extensive amount of ‘other acts’ 

testimony,” but failed to give any limiting instruction about the 

evidence. Id. at ¶ 9. In this regard, we observed that “the State 

elicited extensive testimony from the three girls that they had 

endured ongoing sexual abuse by their father. Over the years the 

abuse of each girl was said to have occurred multiple times each 

week. While each of the girls testified to several specific instances 

of abuse, each also repeatedly testified, over ongoing objections, 

that the abuse had happened many other times.” Id. at ¶ 11. 

{¶ 65} In contrast to the situation in Shaw, the “other acts” testimony 

in the case before us was not extensive, and a limiting instruction 

was given. 

{¶ 66} In Shaw, we stated that “[t]he limiting instruction should be 

given at the time the 'other acts' evidence is received, [State v.] 

Lewis, supra [66 Ohio App.3d 37, 583 N.E.2d 404 (2d Dist.1990)], 

and it has been held that the failure to give any limiting instruction 

constitutes plain error.” (Citations omitted.) Id. at ¶ 13. We also 

found no justification for the extensive amount of other acts 

testimony. Id. at ¶ 14. We stressed that “[e]ven if some minimal 

reference to the pattern of abuse as part of the fabric of the victims' 

lives was more relevant than prejudicial, the pervasive nature of the 

testimony precluded Shaw's right to a fair trial. It is also significant 

that the trial court gave no limiting instruction regarding the ‘other 

acts’ testimony, either at the time the testimony was offered or in the 

jury instructions at the close of the trial.” Id. 
21 

{¶ 67} Notably, in Shaw, we did not say that the limiting instruction 

"must" be given at the time of the testimony. We used the terms 

"should" and "either" - meaning that the instruction could be given 

at the time of the testimony or at the end of the trial. See also State 

v. Jordan, 2d Dist. Montgomery No. 26163, 2016-Ohio-603, ¶ 25 

(finding no error where trial court gave the limiting instruction 

during the jury charge, even though “it may have been better if the 

court had given the instruction immediately following the Evid.R. 

404(B) testimony and also reiterated it in the charge to the jury.”) 

{¶ 68} Thus, in the case before us, the trial court did not err in failing 

to give the instruction at the time A.G. testified. Again, the trial 

court did give a limiting instruction, and we presume that the jury 

followed the instruction. 

{¶ 6958} Furthermore, when the Evid.R. 404(B) objection was 

made, Landers only asked that “the Court issue a brief cautionary 

instruction either at this time or after the testimony is rendered; just 

simply tracking the language of 404(B)” Transcript of Proceedings, 

Vol. I, p. 24. The court's action, therefore, was consistent with 

Landers' request. See State v. Robinson, 6th Dist. Lucas No. L-10-

1369, 2012-Ohio-6068, ¶ 66 (noting that "Ohio law does not require 

the trial court to issue contemporaneous limiting instructions where 

none are requested."). 

{¶ 70} Based on the preceding discussion, we conclude that the trial 

court did not abuse its discretion in admitting evidence under 

Evid.R. 404(B). The evidence in question met the criteria for 

admission. Furthermore, the trial court did not err in failing to give 

the jury a limiting instruction at the time the evidence was presented. 

Landers did not request a contemporaneous instruction, and the 

court properly provided limiting instructions during the jury charge. 

Accordingly, the First Assignment of Error is overruled. 

State v. Landers, supra. 

 As can be readily seen, the Second District decided this issue entirely as a matter of Ohio 

evidence law, applying Ohio R. Evid. 404(B) and Ohio Revised Code § 2929.59. It does not 

mention any federal case law at all. This is scarcely surprising since Landers cited no federal case 

law in his brief in support of his First Assignment of Error; all he did was to claim denial of a fair 

trial under the Fifth and Fourteenth Amendments. (Appellant’s Brief, State Court Record, ECF 
22 

No. 6, PageID 75). From one perspective, then, Ground Six could be treated as procedurally 

defaulted for want of fair presentation. 

 On the other hand, Landers did make a barebones federal constitutional claim in his First 

Assignment of Error and the Second District did decide that Assignment on the merits. From this 

perspective, the issue would be whether that decision was contrary to or an objectively 

unreasonable application of clearly established Supreme Court precedent. It was not because the 

Supreme Court has never held that admission of “other bad acts” evidence violates the United 

States Constitution. 

 Evidentiary questions generally do not rise to the constitutional level unless the error was 

so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6th

Cir.1988); Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); Bell v. Arn, 536 F.2d 123 (6th Cir., 

1976); Burks v. Egeler, 512 F.2d 221, 223 (6th Cir. 1975). Where an evidentiary error is so 

egregious that it results in a denial of fundamental fairness, it may violate due process and thus 

warrant habeas relief. Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007); Bugh v. Mitchell, 329 

F.3d 496 (6th Cir. 2003), citing Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2000). Courts 

have, however, “‘defined the category of infractions that violate fundamental fairness very 

narrowly.’” Bugh, 329 F.2d at 512, quoting Wright v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993) 

(quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). “Generally, state-court evidentiary 

rulings cannot rise to the level of due process violations unless they ‘offend[] some principle of 

justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” 

Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000), quoting Montana v. Egelhoff, 518 U.S. 37, 

43 (1996). “[T]he Supreme Court has defined very narrowly the category of infractions that 

violates fundamental fairness.” Bey v. Bagley, 500 F.3d at 522 (6th Cir. 2007) (internal quotation 
23 

marks omitted), citing Dowling v. United States, 493 U.S. 342, 352 (1990) (Identification from a 

trial which resulted in an acquittal could be introduced at second trial for similarities.) “There is 

no clearly established Supreme Court precedent which holds that a state violates due process by 

permitting propensity evidence in the form of other bad acts evidence.” Bugh , 329 F.3d at 512 

(noting that the Supreme Court refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 

(1991)). 

 In this particular case, the other bad acts evidence was particularly relevant to the charges 

on which Landers was indicted. All of the acts in question were sexual acts directed to the victim 

of the indicted counts. They were intended to show that Landers was “grooming” her for eventual 

sexual conduct. “Grooming” of this sort is a well-known phenomenon with respect to lowering 

the inhibitions of intended child sexual victims, of normalizing sexual conduct between the 

intended victim and the offending adult. Landers was not denied a fair trial by admission of this 

other act testimony. 

 Therefore, Ground Six should be dismissed either as procedurally defaulted or because the 

Second District’s decision is neither contrary to nor an objectively unreasonable application of 

Supreme Court precedent. 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the 

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

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

to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be 
24 

permitted to proceed in forma pauperis. 

October 9, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

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

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).