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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

BRANDON WARD, 

Petitioner, : Case No. 2:18-cv-734 

- vs - Chief Judge Edmund A. Sargus, Jr. 

Magistrate Judge Michael R. Merz 

DAVID GRAY, Warden, 

 Belmont Correctional Institution, 

 

 : 

 Respondent. 

 REPORT AND RECOMMENDATIONS 

 

 This is an action brought pro se by Petitioner Brandon Ward under 28 U.S.C. § 2254 to 

obtain relief from his conviction in the Delaware County Court of Common Pleas for sexual 

battery. The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF 

No. 6), and the Return of Writ (ECF No. 7). When ordering an answer, Magistrate Judge Chelsey 

M. Vascura set a deadline of twenty-one days after the Return for Petitioner to file a reply (Order, 

ECF No. 2). Since the Return was filed November 21, 2018, Petitioner’s deadline for his reply 

was December 15, 2018,1 but he has neither filed a reply nor sought or received an extension of 

time to do so. 

 The Magistrate Judge reference in this case was recently transferred to the undersigned to 

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

 

1

 Petitioner was entitled to an additional three days because he was served with the Return by mail. 
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Litigation History 

 On August 5, 2016, a Delaware County, Ohio, grand jury indicted Petitioner on two counts 

of rape, two counts of sexual battery, and one misdemeanor count of petty theft (State Court 

Record, ECF No. 6, Ex. 1, PageID 31-34). He pleaded guilty to the theft charge and was convicted 

of the sexual battery charges, but acquitted of the rape charges. Id. at Exs. 4-5, PageID 43-46. The 

trial judge merged the sexual battery counts under Ohio Revised Code § 2941.25 and sentenced 

Ward to fifty-four months imprisonment, concurrent with six months on the theft charge. Id. at 

Ex. 6, PageID 48. 

 Ward appealed and the judgment was affirmed. State v. Ward, 5th2 Dist. Delaware No. 16 

CAA 12 0055, 2017-Ohio-4284 (Jun. 13, 2017), appellate jurisdiction declined, 151 Ohio St. 3d 

1427 (2017). On September 19, 2017, Ward filed an application to reopen the direct appeal to 

raise one claim of ineffective assistance of appellate counsel (State Court Record, ECF No. 6, Ex. 

16, PageID 183-98). The Fifth District declined to reopen the appeal on procedural grounds and 

Ward did not further appeal to the Supreme Court of Ohio. Id. at Ex. 20, PageID 206. Ward filed 

a petition for post-conviction relief under Ohio Revised Code § 2953.21, id. at Ex. 21, PageID 

207-13, which the trial court denied on February 15, 2018, id. at Ex. 24, PageID 223-25; his appeal 

was denied for want of prosecution. Id. at Ex. 27, PageID 235. On April 16, 2018, Ward filed a 

successive petition for post-conviction relief. Id. at Ex. 28, PageID 236-45. The trial court denied 

the petition and Ward did not appeal. Id. at Ex. 32, PageID 251-52. On July 18, 2018, he filed his 

Petition here, pleading the following grounds for relief: 

 

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 The Return incorrectly states the appeal was to the Eighth District Court of Appeals. 
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Ground One: Petitioner’s conviction for two counts of sexual 

battery was not supported by sufficient evidence. 

Supporting Facts: The State of Ohio unreasonably applied federal 

law to the facts of petitioner’s case. The State of Ohio failed to find 

the essential elements of sexual battery. 

Ground Two: Ineffective assistance of counsel. 

Supporting Facts: Petitioner argued that his counsel, was 

ineffective for failing to move to a criminal rule 29 motion for 

acquittal at the close of appellant’s case in chief and at the close of 

appellant’s case in chief based on insufficiency of the evidence. 

Ground Three: Ineffective assistance of counsel. 

Supporting Facts: Trial counsel was ineffective in failing to 

vigorously cross examine Amy Zoller, who was a registered nurse. 

Trial counsel failed to examine her on the absence of bruising, tears, 

DNA and or other specimens. 

(Petition, ECF No. 1, PageID 6-9). 

Analysis 

Ground One: Insufficient Evidence 

 In his First Ground for Relief, Ward claims his conviction for sexual battery is not 

supported by constitutionally sufficient evidence. Respondent defends this Ground for Relief on 

the merits. 

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 
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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, 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 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, 397 U.S. at 364. 

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, and then to the 

appellate court’s consideration of that verdict, as commanded by AEDPA. Parker v. Matthews, 

567 U.S. 37, 43 (2012) (per curiam); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en 

banc);Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008) . 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, ___, 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. 

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

Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam); accord Matthews, 567 U.S. at 43 . 

 Ward raised insufficiency of the evidence as his first assignment of error on direct appeal 

and the Fifth District decided it as follows: 

{¶ 53} Appellant, in the case sub judice, was convicted of sexual 

battery in violation of R.C. 2907.03(A)(2) and (A)(3). R.C. 2907.03 

states, in relevant part, as follows: (A) No person shall engage in 

sexual conduct with another, not the spouse of the offender, when 

any of the following apply:... 
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{¶ 54} (2) The offender knows that the other person's 

ability to appraise the nature of or control the other person's 

own conduct is substantially impaired. 

{¶ 55} (3) The offender knows that the other person 

submits because the other person is unaware that the act is 

being committed. 

{¶ 56} R.C. 2907.01(A) defines “sexual conduct” as follows: “(A) 

‘Sexual conduct’ means vaginal intercourse between a male and 

female; anal intercourse, fellatio, and cunnilingus between persons 

regardless of sex; and, without privilege to do so, the insertion, 

however slight, of any part of the body or any instrument, apparatus, 

or other object into the vaginal or anal opening of another. 

Penetration, however slight, is sufficient to complete vaginal or anal 

intercourse.” R.C. 2901.22(B) provides as follows: 

(B) A person acts knowingly, regardless of purpose, when 

the person is aware that the person’s conduct will probably 

cause a certain result or will probably be of a certain nature. 

A person has knowledge of circumstances when the person 

is aware that such circumstances probably exist. When 

knowledge of the existence of a particular fact is an 

element of an offense, such knowledge is established if a 

person subjectively believes that there is a high probability 

of its existence and fails to make inquiry or acts with a 

conscious purpose to avoid learning the fact. 

{¶ 57} Appellant specifically contends that there was not sufficient 

credible evidence that M.W. was substantially impaired at the time 

of the sexual activity or that he knew that she was substantially 

impaired and unable to appraise the nature of or control her own 

conduct. 

{¶ 58} In the case sub judice, M.W. testified that while she was 

watching a movie with appellant, she laid down and ended up falling 

asleep while fully clothed. When asked what she remembered next, 

she testified that she “remembered waking up and feeling—well, my 

pants were down and he was behind me and kind of over top of me.” 

Trial Transcript at 260. She further testified that appellant's penis 

was inside of her vagina. According to M.W., the two of them never 

discussed having sex that night. While there was no evidence that 

M.W. was intoxicated or under the influence of drugs, the Eighth 

District Court of Appeals "has held that sleep constitutes a mental 

or physical condition that substantially impairs a person from 

resisting or consenting to sexual conduct." Clark, ¶ 21, citing 
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Graves. When a person is unconscious, she is not in a mental 

condition to resist or consent to the sexual conduct." State v. Jones, 

8th Dist. Cuyahoga No. 98151, 2012-Ohio-5737 at paragraph 30. 

(Citations omitted). See also State v. Adams, 9th Dist. Lorain No. 

05CA008685, 2005-Ohio-4360, in which the court held that the 

evidence was sufficient to support defendant's sexual battery 

conviction. In such case, the victim had testified that, on two 

occasions, the defendant fondled her and digitally penetrated her 

while she was sleeping. We find that there was credible evidence 

that M.W. was substantially impaired at the time of the sexual 

offense. 

{¶ 59} Appellant also asserts that there is no evidence that he knew 

that M.W. was asleep and unable to appraise the nature of or control 

her own conduct. However, as noted by appellee, M.W. testified that 

she fell asleep while fully clothed while appellant was sitting near 

her feet and that she later woke up with her shorts pulled down and 

appellant’s penis in her vagina. Her testimony, if believed, 

establishes that M.W. was asleep during the sexual assault. As noted 

by appellee, appellant would have had to move from his position on 

M.W.’s bed, pull her shorts down and begin having sexual 

intercourse with her “all while she did not move and did not respond 

verbally in any way. It would be impossible for someone to have 

engaged in sexual conduct with M.W. in that manner and not have 

been aware that she was asleep.” 

{¶ 60} Based on the foregoing, we find that appellant's conviction 

for sexual battery is not against the sufficiency. We find that any 

rational trier of fact, after viewing the evidence in a light most 

favorable to the prosecution, could have found that appellant 

committed sexual battery beyond a reasonable doubt. 

Ward, 2017-Ohio-4284. 

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

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100 

(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); 

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. § 
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2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceedings. Harrington, 562 U.S. at 100. 

 Ward has offered no argument as to why this decision is an objectively unreasonable 

application of Supreme Court precedent. Independently reviewing it, the Magistrate Judge 

concludes that it is not. Therefore, Petitioner’s First Ground for Relief should be denied on the 

merits. 

Grounds Two and Three: Ineffective Assistance of Trial Counsel 

 In his Second Ground for Relief, Ward asserts he received ineffective assistance of trial 

counsel when his defense counsel did not move for a judgment of acquittal at the close of the 

State’s case and again at the close of all the evidence. In his Third Ground for Relief, Ward argues 

his trial attorney did not cross examine Nurse Amy Zoller vigorously enough. 

 Respondent argues these claims are procedurally defaulted because, although they were 

raised on direct appeal, Ward did not include them as issues in his direct appeal to the Ohio 

Supreme Court (Return, ECF No. 7, PageID 849-50). Ward has made no response to this defense 

and it is well taken. Failure to present an issue to the state supreme court on discretionary review 

constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (citations 

omitted). 

Respondent alternatively defends against these two Grounds for Relief on the merits. As 

Respondent notes, the governing standard for ineffective assistance of trial counsel was adopted 

by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984): 
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A convicted defendant’s claim that counsel’s assistance was so 

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

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

performance was deficient. This requires showing that counsel was 

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

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires showing 

that counsel’s errors were so serious as to deprive the defendant of 

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

both showings, it cannot be said that the conviction or death 

sentence resulted from a breakdown in the adversary process that 

renders the result unreliable. 

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

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

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

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

Judicial scrutiny of counsel's performance must be highly 

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

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

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

the time. Because of the difficulties inherent in making the 

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

conduct falls within a wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption 

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). 
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 In deciding the issue raised in the First Ground for Relief, the Fifth District reasonably held 

that, because sufficient evidence was presented, Ward suffered no prejudice from failure to dismiss 

for lack of sufficient evidence, which is the substance of a motion for judgment of acquittal under 

Ohio Crim.R. 29. As to the Second Ground for Relief, the Fifth District explained how defense 

counsel’s cross-examination of Ms. Zoller fit with his trial strategy: 

{¶ 67} Appellant also maintains that trial counsel was ineffective in 

failing to vigorously cross-examine Amy Zoller, who was a 

registered nurse who performed a sexual assault examination on 

M.W. Appellant argues that trial counsel failed to cross-examine her 

on the absence of bruising, tears, DNA, and/or other specimens of 

appellant that would otherwise be present if a sexual battery had 

occurred. We note that at trial, Zoller testified that there was an 

indication of an abrasion to the bottom entry of the vagina. 

Moreover, whether or not M.W. had any type of physical injury was 

not relevant as to whether or not she was asleep at the time of the 

sexual conduct. As for DNA, since appellant admitted to engaging 

in sexual conduct with M.W., the presence or absence of his DNA 

was irrelevant. 

{¶ 68} During cross-examination, appellant's defense counsel 

elicited testimony from Zoller that M.W. told her that she had 

difficulty relating a history of events, that M.W. spoke slowly and 

was tearful and that M.W. did not make eye contact with her during 

the examination. During closing arguments, defense counsel used 

such testimony in arguing that M.W.'s testimony was not credible 

and that M.W. “couldn’t tell it straight because she was trying to 

cover up the truth, and the truth was she voluntarily consented to 

sexual activity with [appellant]....” Trial Transcript at 456. We find 

that trial counsel was not ineffective, but rather exercised sound trial 

strategy because this case boiled down to a credibility determination 

between M.W. and appellant. 

Ward, 2017-Ohio-4284. In other words, Ms. Zoller was able to provide the testimony that was 

most useful to the defense – the tentativeness of the victim’s narration – without any more 

“vigorous” cross examination. Any DNA evidence was irrelevant, given Ward’s admission of the 

sexual conduct. The issue was not whether Ward had sufficiently violent sex with the victim to 

leave evidence of that violence – tears, bruising, etc. Rather, the issue was whether or not she 
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consented. It was the victim’s credibility that was at issue, not Ms. Zoller’s. The Fifth District’s 

decision of this assignment of error was a reasonable application of Strickland, both as to the 

deficient performance prong and as to prejudice. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

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

proceed in forma pauperis. 

June 4, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

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

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

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

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

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

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

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

appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).