IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

EDWARD B. AVERY, SR., 

Case No. 2:18-cv-387

Petitioner, Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

v. 

WARDEN, MARION

CORRECTIONAL INSTITUTION, 

Respondent.

REPORT AND RECOMMENDATION 

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1), Respondent’s Return 

of Writ and Supplemental Memorandum in support (Docs. 32, 45), Petitioner’s Reply (Doc. 44) 

and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS

that this action be DISMISSED.

I. BACKGROUND

A. State Court History

Petitioner challenges his August 4, 1997, convictions after a jury trial in the Marysville 

County Court of Common Pleas on charges of rape, robbery, aggravated burglary, and 

kidnapping with a sexual motivation specification. This case has a lengthy procedural history. 

The Ohio Court of Appeals summarized the facts as follows: 

The facts leading to appellant’s conviction[s] for the above crimes occurred on 

March 14, 1997. That morning appellant returned to an apartment complex in 

Marysville, Ohio, after a long night of drinking, to find himself locked out of the 

apartment where he was staying. While waiting for the other occupants of the 

apartment to return home, appellant sought refuge from the rain on an apartment 

patio belonging to Vicky Johnson, another tenant in the complex. From her patio, 

appellant watched Vicky Johnson and her boyfriend until they left the building. 

While they were gone, appellant entered the apartment through an unlocked door.
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Meanwhile, Johnson drove her boyfriend to work and returned home shortly 

before 6:00 a.m. As Johnson entered her bedroom, she was attacked by appellant. 

A short struggle ensued as appellant covered Johnson’s head with a shirt and 

threw her down on the bed. Appellant proceeded to rape Johnson, using a blanket 

to further blind her and protect his anonymity. At one point, Johnson did catch a 

glimpse of appellant’s fingers and knew her attacker was black. After the rape, 

appellant led Johnson to the bathroom, her head still covered, and told her to 

shower. Although the door to the restroom did not lock, Johnson was able to brace 

her body between the sink and the door to keep appellant from reentering the 

bathroom. Appellant finally left Johnson’s apartment through the patio door, 

picking up $2 from a coffee table before leaving.

Appellant was subsequently arrested and confessed to the events surrounding the 

rape of Vicky Johnson on March 14, 1997. Appellant pled not guilty to the 

charges against him, and his case proceeded to trial. Appellant was subsequently 

found guilty by a jury of rape, aggravated burglary, robbery, and kidnapping, and 

was sentenced by the trial court as described above.

State v. Avery, 709 N.E.2d 875, 878 (Ohio Ct. App. 1998). The trial court sentenced Petitioner 

to an aggregate term of 30 years imprisonment, and adjudicated him a sexual predator. See id. 

Petitioner filed a timely appeal. He asserted the following claims: 

“Appellant was deprived of a fair trial and due process as guaranteed by the Ohio 

and U.S. Constitutions, by the state’s misleading bill of particulars regarding the 

kidnapping charge, as well as by the court’s abuse of discretion in permitting the 

state to constructively amend the indictment and bill of particulars at trial.”

***

“The trial court abused its discretion by failing to instruct the jury that its verdict 

must be unanimous as to the specific kidnapping alternatives available under R.C. 

2905.01, resulting in a violation of defendant’s sixth amendment right to a 

unanimous verdict.”

***

“Appellant was deprived of a fair trial and due process as guaranteed by the Ohio 

and U.S. Constitutions, due to the ineffective assistance of counsel.”

***
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“The sentence is contrary to law, as the record supports neither the consecutive 

maximum sentences, nor the sexual predator classification, which is authorized by 

an unconstitutionally vague statute.”

Id. at 878–84. On April 14, 1998, the appellate court affirmed the judgment of the trial court. 

Id. at 887. Petitioner did not file a timely appeal. On March 7, 2001, the Ohio Supreme Court 

denied Petitioner’s motion for a delayed appeal. State v. Avery, 743 N.E.2d 401 (Ohio 2001). 

On July 23, 1998, Petitioner filed an application for reopening of the appeal pursuant to 

Ohio Appellate Rule 26(B). (Doc. 5, PAGEID # 270). On September 18, 1998, the appellate 

court denied the Rule 26(B) application and subsequently denied Petitioner’s motion for 

reconsideration. (Id., PAGEID # 332, 340). On December 23, 1998, the Ohio Supreme Court 

dismissed the appeal. (See Doc. 5-1, PAGEID # 833). 

On November 23, 2010, the trial court conducted a de novo re-sentencing hearing 

because it had failed to advise Petitioner of the terms of post release control at his initial 

sentencing hearing. 

On November 24, 2010, the trial court resentenced Avery to an aggregate 

sentence of thirty years in prison (with credit for time served) and correctly 

informed him as to PRC. The resentencing entry also included the method of 

conviction, which was lacking in the previous judgment entry. See Crim.R. 32(C); 

State v. Baker, 119 Ohio St.3d 197, 2008–Ohio–3330, 893 N.E.2d 163. 

State v. Avery, 3rd Dist. No. 14-10-35, 2011 WL 3656470, at *1 (Ohio Ct. App. Aug. 22, 2011). 

Petitioner challenged that sentence, but the appellate court affirmed the judgment of the trial 

court. Id. And, on January 18, 2012, the Ohio Supreme Court declined to accept jurisdiction of 

the appeal. State v. Avery, No. 2011-1696, 959 N.E.2d 1056 (Ohio Jan. 18, 2012).1

 1 Petitioner has pursued other state collateral action, but those proceedings do not affect resolution of his claims and 

will not be further detailed here. 
4

B. Prior Federal Habeas Corpus Proceedings

This is Petitioner’s fourth federal habeas corpus petition challenging these same 

convictions. On June 9, 2000, this Court dismissed Petitioner’s first federal habeas corpus 

petition without prejudice at Petitioner’s request. Avery v. Brigano, No. 2:99-cv-459. On 

January 13, 2003, the Court dismissed Petitioner’s second § 2254 action as time-barred. Avery 

v. Wilson, No. 2:02-cv-139. On September 13, 2013, the Court transferred Petitioner’s third § 

2254 action to the United States Court of Appeals for the Sixth Circuit as successive. Avery v. 

Bunting, No. 2:13-cv-00097. 

On May 21, 2014, the Sixth Circuit denied Petitioner authorization for the filing of a 

successive habeas corpus action. (Doc. 5-2, PAGEID # 886). Yet, on February 21, 2018, in 

view of King v. Morgan, 807 F.3d 154 (6th Cir. 2015) and In re Stansell, 828 F.3d 412, 417 (6th 

Cir. 2016), the Sixth Circuit issued an Order denying a second motion for authorization for the 

filing of a successive petition as unnecessary in view of the trial court’s 2010 re-sentencing 

hearing. (Doc. 7-1, PAGEID # 949-51). 

C. Current Habeas Corpus Petition 

Thereafter, on April 25, 2018, Petitioner filed this habeas corpus petition. He asserts that 

his convictions constitute allied offenses of similar import (Claim One); that he was denied a fair 

trial when a dismissed alternate juror remained in the jury room during deliberations (Claim 

Two); that his 1997 sentence was void for lack of a final appealable order (Claim Three); that he 

was denied a fair trial based on improper jury instructions on kidnapping (Claim Four); that he 

was denied the effective assistance of trial counsel (Claim Five); that he was denied his right to a 

speedy trial (Claim Six); that police violated Miranda v. Arizona, 384 U.S. 436 (1966) (Claim 

Seven); that the trial court violated Batson v. Kentucky, 476 U.S. 79 (1986) (Claim Eight); that 
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the trial court issued improper jury instructions on Count 2 of the Indictment (Claim Nine); that 

the trial court issued improper jury instructions on Count 3 of the Indictment (Claim Ten); that 

the trial court issued improper jury instructions on other essential elements of offenses charged 

(Claim Eleven); that he was denied the effective assistance of appellate counsel (Claim Twelve); 

that he was denied due process of law on appeal in relation to Rule 26(B) proceedings (Claim 

Thirteen); that he was denied the effective assistance of trial and appellate counsel because his 

attorneys failed to ensure the record was properly transferred to the Court of Appeals (Claim 

Fourteen); and that the trial court lacked jurisdiction to re-sentence him (Claim Fifteen). 

On July 9, 2019, this Court denied Respondent’s Motion to Dismiss the action as timebarred. (Doc. 27). On August 26, 2019, the Court denied Respondent’s motion for 

reconsideration. (Doc. 39). The case is now ripe for review. Respondent maintains that 

Petitioner’s claims are not cognizable, waived, or otherwise fail to provide a basis for relief.2

 

II. VOLUNTARILY WITHDRAWAL OF CLAIMS

As a threshold matter, the Court notes that Petitioner has withdrawn habeas corpus claims 

three, four, six, seven, eight, and, fourteen, and part of claim five for federal habeas corpus 

review. (Doc. 44, PAGEID # 1786 n.2). The Court therefore will not address those claims. 

III. PROCEDURAL DEFAULT

Respondent asserts that Petitioner has procedurally defaulted his remaining claims. 

A. Standard

Congress has provided that state prisoners who are in custody in violation of the 

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of 

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to 

 2 Respondent again argues that this action is time-barred under the provision of 28 U.S.C. § 2244(d); however, this 

Court has already rejected this argument and will not address it again. 
6

protect the constitutional rights of criminal defendants, and in order to prevent needless friction 

between the state and federal courts, a state criminal defendant with federal constitutional claims 

is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). 

If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition 

is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 

6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a 

petitioner has failed to exhaust claims but would find those claims barred if later presented to the 

state courts, “there is a procedural default for purposes of federal habeas.” Coleman v.

Thompson, 501 U.S. 722, 735 n.1 (1991).

The term “procedural default” has come to describe the situation where a person 

convicted of a crime in a state court fails (for whatever reason) to present a particular claim to 

the highest court of the State so that the State has a fair chance to correct any errors made in the 

course of the trial or the appeal before a federal court intervenes in the state criminal process. 

This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts 

before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 

2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly 

presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives 

the state courts a fair opportunity to rule on the federal law claims being asserted. That means 

that if the claims are not presented to the state courts in the way in which state law requires, and 

the state courts therefore do not decide the claims on their merits, neither may a federal court do 

so. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding that “contentions of federal law 

which were not resolved on the merits in the state proceeding due to respondent’s failure to raise 
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them there as required by state procedure” also cannot be resolved on their merits in a federal 

habeas case—that is, they are “procedurally defaulted”).

To determine whether procedural default bars a habeas petitioner’s claim, courts in the 

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); 

see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part 

analysis of Maupin). “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.” 

Maupin, 785 F.2d at 138. “Second, the court must determine whether the state courts actually 

enforced the state procedural sanction.” Id. (collecting cases). “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.” Id. Finally, if “the court 

determines that a state procedural rule was not complied with and that the rule [has] an adequate 

and independent state ground, then the petitioner” may still obtain review of his or her claims on 

the merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or 

she was actually prejudiced by the alleged constitutional error. Id.

Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner 

must show that “some objective factor external to the defense impeded counsel’s efforts to 

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). 

Constitutionally ineffective counsel may constitute cause to excuse a procedural default. 

Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective 

assistance of counsel claim generally must “‘be presented to the state courts as an independent 

claim before it may be used to establish cause for a procedural default.’” Edwards, 529 U.S. at 

452 (quoting Murray, 477 U.S. at 479). That is because, before counsel’s ineffectiveness will 
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constitute cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment, 

and therefore must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 

411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to 

“satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.” 

Edwards, 529 U.S. at 450–51. 

If, after considering all four factors of the Maupin test, the court concludes that a 

procedural default occurred, it must not consider the procedurally defaulted claim on the merits 

unless “review is needed to prevent a fundamental miscarriage of justice, such as when the 

petitioner submits new evidence showing that a constitutional violation has probably resulted in 

a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 

2013) (citing Murray, 477 U.S. at 495–96).

B. Application 

Applying the Maupin test here demonstrates that Petitioner has procedurally defaulted 

Claims One, Two, Five, Nine, Ten, Eleven, and Fifteen.

3

 First, Ohio’s doctrine of res judicata

requires claims appearing on the face of the record to be made on direct appeal, and Petitioner

failed to comply with that rule here. See Teitelbaum v. Turner, No. 2:17-cv-583, 2018 WL 

2046456, at *15 (S.D. Ohio May 2, 2018) (citing Hill v. Mitchell, No. 1:98-CV-452, 2006 WL 

2807017, at *43 (S.D. Ohio Sept. 27, 2006)) (“It is well-settled that ‘[c]laims appearing on the 

face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine 

of res judicata.’”). Second, Ohio courts consistently enforce the doctrine of res judicata and 

refuse to review the merits of procedurally barred claims. See, e.g., State v. Cole, 443 N.E.2d 

 3 In Claim One, Petitioner asserts that his convictions on rape and kidnapping violate the Double Jeopardy Clause. 

(See Reply, Doc. 44, PAGEID # 1786). In Claim Two, Petitioner asserts that the trial court violated his right to a 

fair trial by permitting a juror who had been dismissed to participate in deliberations. (PAGEID # 1788). In Claims 

Five, Nine, Ten, and Eleven, Petitioner asserts that he was denied a fair trial by improper jury instructions. 

(PAGEID # 1789). In claim Fifteen, asserts that the trial court lacked jurisdiction to re-sentence him.
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169 (Ohio 1982). Third, the Sixth Circuit has held that Ohio’s doctrine of res judicata is an 

independent and adequate ground for denying federal habeas relief. See, e.g., Lundgren v.

Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 

2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 

521–22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). And in this 

context, Ohio’s doctrine of res judicata does not rely on or otherwise implicate federal law. As a 

result, the first three Maupin factors are satisfied here.

According to the Petitioner, however, he has preserved his claim regarding the improper 

participation of a dismissed juror during deliberations by raising the claim on appeal after his resentencing hearing. Petitioner further argues that, because the re-sentencing hearing re-started 

the clock for statute of limitations purposes, application of res judicata does not bar this claim 

from review. (Doc. 44, PAGEID # 1788). Petitioner contends that claim fifteen, in which he 

asserts that the trial court lacked jurisdiction may be raised at any time. (Id., PAGEID # 1790). 

This Court is not so persuaded. Petitioner has not cited, and this Court has not found, any 

authority to support the arguments. Moreover, the state appellate court explicitly refused to 

address these issues when Petitioner raised them on appeal after his re-sentencing hearing, 

concluding that they were barred under Ohio’s doctrine of res judicata. See Avery, 2011 WL 

3656470, at *3–4. 

In sum, the Undersigned finds that Petitioner has procedurally defaulted Claims One, 

Two, Five, Nine, Ten, Eleven, and Fifteen.

C. Cause

Petitioner, however, may still obtain review of his claims on the merits, if he establishes 

cause for his procedural defaults as well as actual prejudice. “[P]etitioner has the burden of 
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showing cause and prejudice to overcome a procedural default.” Hinkle v. Randle, 271 F.3d 239, 

245 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation 

omitted)). A petitioner’s pro se status, ignorance of the law, or ignorance of procedural 

requirements are insufficient bases to excuse a procedural default. Bonilla, 370 F.3d at 498. 

Instead, in order to establish cause, a petitioner “must present a substantial reason that is external 

to himself and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th 

Cir. 2007). 

As cause for his procedural defaults, and in claims twelve and thirteen, Petitioner asserts 

the ineffective assistance of appellate counsel. (Doc. 44, PAGEID # 1785). Constitutionally 

ineffective assistance of counsel indeed may constitute cause to excuse a procedural default. 

Edwards, 529 U.S. at 453. “[B]efore counsel’s ineffectiveness will constitute cause, ‘that 

ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be 

both exhausted and not procedurally defaulted.’” Johnson v. Turner, No. 2:14-cv-1908, 2017 

WL 2633188, at *2 (S.D. Ohio June 19, 2017) (citing Burroughs, 411 F.3d at 668).

Here, the state appellate court denied Petitioner’s Rule 26(B) application as untimely, for 

exceeding page limitations, and, alternatively, for failure to raise an issue of ineffective 

assistance of appellate counsel. (Doc. 5, PAGEID # 332–33). Petitioner has offered no 

explanation for not filing his Rule 26(B) application timely. Thus, Petitioner has procedurally 

defaulted his claim of denial of the effective assistance of appellate counsel. See Scuba v. 

Brigano 527 F.3d 479, 488 (6th Cir. 2007) (enforcing procedural default based on untimely Rule 

26(B) application). Moreover, any alternative dismissal on the merits by the state appellate court 

does not assist the Petitioner. See Brisco v. Pickaway Corr. Inst., 2019 WL 1512543, at *1 (S.D. 

Ohio Apr. 8, 2019) (citing Brinkley v. Houk, 866 F. Supp. 2d 747, 779 (N.D. Ohio 2011) 
11

(“[E]ven where the state appellate court ‘bases its ruling both on the merits and alternatively on a 

procedural ground, the procedural ground ruling prevails.’”). This also means that the the denial 

of the effective assistance of counsel cannot constitute cause for Petitioner’s procedural default

of Claims One, Two, Five, Nine, Ten, Eleven, and Fifteen.

D. Actual Innocence

One final point. The actual innocence exception to procedural default allows a petitioner 

to pursue his constitutional claims if it is “more likely than not” that new evidence—i.e., 

evidence not previously presented at trial—would allow no reasonable juror to find him guilty 

beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). But Petitioner makes 

no argument that this exception applies, (see generally Docs. 1, 44), and nothing in the record 

suggests that Petitioner could meet the actual innocence standard here.

IV. RECOMMENDED DISPOSITION

For the foregoing reasons, the Undersigned RECOMMENDS that this action be 

DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

in part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
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The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue.

Date: January 31, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE