1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

MATHIAS D. PETTY, 

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

- vs - District Judge Sarah D. Morrison 

Magistrate Judge Michael R. Merz 

LYNEAL WAINWRIGHT, WARDEN, 

 Marion Correctional Institution 

 : 

 Respondent. 

SUBSTITUTED REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case is before the Court on Petitioner’s “Secondary Objection and 

Rebuttal” (ECF No. 22) to the Magistrate Judge’s Supplemental Report and Recommendations 

(“Supplemental Report,” ECF No. 21). The District Judge assignment of the case was transferred 

to District Judge Sarah Morrison upon her appointment to the Court (ECF No. 23) and she has 

recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (ECF 

No. 24). 

 So as not to burden the reader with multiple Reports, this Substituted Report contains all 

the analysis the Magistrate Judge believes is appropriate and substitutes to the two prior Reports 

(the “Original Report,” ECF No. 18, and the Supplemental Report). Petitioner may either combine 

his objections in a response to this Substituted Report or rely on his prior filings. 

 Petitioner Mathias D. Petty filed this case pro se in the Northern District of Ohio on May 

24, 2018 (ECF No. 1). On June 11, 2018, the case was transferred here by Order of Chief Judge 

Patricia Gaughan (ECF No. 4) and assigned to District Judge Algenon L. Marbley and Magistrate 
2 

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

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

of Petitioner’s Traverse (ECF No. 16) and was transferred to the undersigned to help balance the 

workload in the District (ECF No. 17).1

Petty pleads the following grounds for relief:

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

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

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

Cir. 1997). 

GROUND TWO: Conviction obtained in violation of Fourteenth 

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

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

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

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

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

process and fundamental fairness where petitioner’s convictions for 

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

were against the manifest weight of the evidence. 

GROUND FOUR: [C]onviction obtained in violation of 

Fourteenth Amendment Due Process Clause, and that of the Federal 

Constitution’s Fifth Amendment Double Jeopardy protections and 

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

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

state statutory and federal constitutional requirements. see: Whalen 

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

U.S. SENTENCING GUIDELINES MANUAL, ch. 1, pt. A(4)(e) (2012). 

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

 

1

 Subsequent to the issuing of the Original and Supplemental Reports, the case was reassigned to from Judge Marbley 

to District Judge Sarah D. Morrison (ECF No. 23)d. 
3 

Litigation History 

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

violation of Ohio Revised Code §2907.02 with the specifications that (1) the victim was less than 

thirteen and (2) that Petty was a repeat violent offender by virtue of his prior conviction for 

aggravated robbery. He was also charged with one count of importuning in violation of Ohio 

Revised Code §2907.07 (State Court Record, ECF No. 12, Ex. 1, PageID 113-14). Petty, through 

counsel, entered a not guilty plea and the case was set for jury trial. Prior to trial, the State of Ohio 

filed a notice of intent to introduce a certified copy of Petty’s prior judgment entry to prove the 

aggravated robbery conviction. Petty waived his right to a jury trial on the repeat violent offender 

specification. Id. at Exs. 4-5, PageID 120-22. Following trial, the jury found Petty guilty of one 

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

violent offender specification. Id. at Ex. 7, PageID 125-26. In September 2015, Petty was 

sentenced to serve an aggregate sentence of fifteen years to life. Id. at Ex. 8, PageID 127-29. 

Petty, through counsel, filed an appeal of his conviction to the Tenth District Court of 

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

to the trial court for resentencing. State v. Petty, 10th Dist. Franklin, Case No. 15AP-950, 2017-

Ohio-1062 (Mar. 23, 2017), appellate jurisdiction declined, 151 Ohio St. 3d 1455, 2017-Ohio8842 (“Petty I”). 

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

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

of fifteen years to life. (State Court Record, ECF No. 12, Ex. 17, PageID 301-03). Petty, through 

counsel, timely appealed the resentence and the Court of Appeals affirmed the trial court’s 
4 

judgment. State v. Petty, 10th Dist. Franklin No. 17AP-385, 2017-Ohio-9200, (Dec. 21, 2017) 

(“Petty II”). Petty did not pursue an appeal to the Supreme Court of Ohio. 

Analysis 

General Objection: The Magistrate Judge’s Reports Are Too Hasty 

 Although the Original Report explains why this case was ripe for decision when Petitioner 

filed his Reply in January 2019, Petitioner objected that the undersigned filed that report April 9, 

2019, “a mere (10) ten days” after the reference was transferred from Magistrate Judge Jolson 

(Objections, ECF No. 19, PageID 1482). In the Supplemental Report, the undersigned explained 

his recall status and specialization in habeas corpus cases as the reason why he was able to work 

on Petitioner’s case immediately upon its transfer (ECF No. 21, PageID 1496-97). Unsatisfied 

with this explanation, Petitioner carried forward the objection in his Secondary Objections, 

asserting again that there has been “the patent lack of adjudication [of] the matter.” (ECF No. 22, 

PageID 1514). Virtually every non-capital habeas corpus case becomes ripe for decision when the 

petitioner files his reply, and this case was treated no differently from other habeas corpus cases. 

He argues that this is a “case of first impression[,]” id. at PageID 1517, “requiring (at a minimum) 

further fact-developing procedures[.]” Id. at PageID 1515. However, he never asked for discovery 

or an evidentiary hearing and the latter would, in any event, be precluded by Cullen v. Pinholster, 

563 U.S. 170 (2011).
5 

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

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

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

observed on a cell phone screen. 

 The Tenth District Court of Appeals stated the background facts of the case as follows: 

{¶ 4} In July 2014, C.A. began communicating through the Badoo 

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

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

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

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

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

oral sex on the app. 

{¶ 5} On July 5, 2014, C.A. and her mother went to the residence of 

C.A.'s aunt, located “[d]own the street,” approximately ten minutes 

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

members and friends were at the residence. 

{¶ 6} C.A. and Thai were sending each other messages that evening. 

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

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

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

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

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

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

II at 184.) 

{¶ 7} At trial, C.A. identified appellant as Thai. Thai arrived at the 

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

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

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

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

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

wanted to - - if I was going to pull it out or if he was. 
6 

(Tr. Vol. II at 191.) 

{¶ 8} C.A. testified that appellant was talking about “[h]is penis.” 

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

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

192.) C.A. put appellant’s penis in her mouth. Appellant “was 

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

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

Petty I, 2017-Ohio-1062. 

As part of the proof of the importuning charge, Columbus Police Officer David Schulz 

testified to being dispatched to the scene of the alleged crime at about 11:30 p.m. on July 5, 2014. 

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

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

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

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

individual.” Petty I, 2017-Ohio-1062, at ¶¶ 14-15 (brackets in original). Defendant’s counsel 

objected but the objection was overruled. Id. at ¶ 18. On appeal, the Tenth District decided this 

claim as follows: 

{¶ 47} On appeal, appellant argues the trial court should have 

excluded evidence concerning the text messages on multiple 

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

hearsay within hearsay and should have been excluded under 

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

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

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

rule pursuant to Evid.R. 1002. 

{¶ 48} As noted, appellant objected during Officer Schulz’s 

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

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

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

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

that statements are not hearsay if: “[t]he statement is offered against 
7 

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

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

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

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

to cross-examination. 

{¶ 49} It was not until after Officer Schulz finished testifying that 

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

objection, however, “must be ‘contemporaneous’ to the alleged 

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

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

an objection on one ground does not preserve for appeal other 

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

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

did not preserve an objection based on lack of foundation. 

{¶ 50} On appeal, appellant appears to argue that his untimely lackof-foundation objection includes an objection based on the best 

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

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

waived all but plain error. 

{¶ 51} Under Crim.R. 52(A), an appellate court may notice plain 

errors affecting substantial rights even though they were not brought 

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

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

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

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

utmost caution, under exceptional circumstances and only to prevent 

a manifest miscarriage of justice.’” Id., quoting State v. Long, 53 

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

{¶ 52} Appellant appears to argue that the outcome of the trial would 

have been different because absent Officer Schulz’s testimony 

regarding the messages, appellant would not have testified at trial. 

Appellant has failed to demonstrate plain error, as the testimony 

regarding the messages was admissible as a party-opponent 

admission. Further, appellant admitted he met C.A. through the 

Badoo app and that they exchanged messages. Appellant’s trial 

counsel noted in opening statement that appellant sent the messages 

and arranged to meet C.A. C.A. also testified regarding the 

messages. 

{¶ 53} Appellant argues that Officer Schulz did not have personal 

knowledge of the name of the application the two used for text 
8 

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

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

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

a matter unless evidence is introduced sufficient to support a finding 

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

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

had personal knowledge regarding what he read. Further, appellant 

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

there is no plain error regarding a lack of foundation. 

{¶ 54} Finally, appellant argues that the trial court should have 

excluded the testimony regarding the messages under the “best 

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

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

recording, or photograph is required, except as otherwise provided 

in these rules or by statute enacted by the General Assembly not in 

conflict with a rule of the Supreme Court of Ohio.” When there is 

other evidence sufficient to sustain a conviction, a best evidence 

error is harmless because the outcome of the proceedings would not 

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

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

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

{¶ 55} Here, even assuming that admission of the testimony 

regarding the contents of the text messages violated the best 

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

Appellant described the text messages and admitted he solicited 

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

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

Even without the testimony regarding the messages and appellant's 

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

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

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

overruled. 

Petty I, 2017-Ohio-1062. 

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

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

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

(citing Fed.R.Evid. 602, 805, 1002). 
9 

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

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

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

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

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

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

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

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

152, 160 (1825) (Marshall C. J.); Bickham v. Winn, 888 F.3d 248, 253 (6th Cir. 2018) (Thapar, J., 

concurring). 

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

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

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

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

of any of those state evidence rules also violates the Constitution. Failure to abide by state law is 

not itself a constitutional violation. Roberts v. City of Troy, 773 F.2d 720, 726 (6th Cir. 1985). 

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

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

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

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

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

overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995). Therefore, 

Petty’s claim that the trial court violated his due process and fair trial rights by admitting this 
10 

testimony fails to state a claim upon which habeas corpus relief can be granted. 

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

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

described by the Supreme Court as follows: 

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

in state court pursuant to an adequate and independent state 

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

the prisoner can demonstrate cause of the default and actual 

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

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

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

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

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

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

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

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

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

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

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

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

court denied based on an adequate and independent state procedural 

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

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

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

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

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

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

presenting his federal claims has deprived the state courts of an 

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

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

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

same comity, finality, and federalism interests advanced by the 
11 

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

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

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

 The United States Court of Appeals for the Sixth Circuit requires a four-part analysis when 

the State alleges a habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 

286, 290 (6th Cir. 2010) (en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. 

Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 

1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 

417 (6th Cir. 2001). 

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

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

failed to comply with the rule. 

 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of Ulster 

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

(1979). 

Third, the court must decide whether the state procedural forfeiture 

is an “adequate and independent” state ground on which the state 

can rely to foreclose review of a federal constitutional claim. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

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

he was actually prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d at 138; accord: Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), 

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

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

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

that rule against Petty by reviewing these two sub-claims only for plain error. An Ohio state 
12 

appellate court’s review for plain error is enforcement, not waiver, of a procedural default. 

Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 

(6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell, 431 

F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. Randle,

271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (plain 

error review does not constitute a waiver of procedural default); accord: Mason v. Mitchell, 320 

F.3d 604 (6th Cir. 2003). 

 Ohio’s contemporaneous objection rule — that parties must preserve errors for appeal by 

calling them to the attention of the trial court at a time when the error could have been avoided or 

corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus— is 

an adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 

(6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 

632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. 

Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason 

v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); 

Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). 

See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 

315 (6th Cir. 2011). 

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

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

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

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

hearsay rule under Ohio R. Evid. 801(D). Officer Schulz satisfied Ohio R. Evid. 602 because he 
13 

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

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

admitted to having texted the victim. Petty I, 2017-Ohio-1062, at ¶¶ 52-55/ 

 Ground One should therefore be dismissed with prejudice. 

Ground Two: Insufficient Evidence to Convict 

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

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

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

District decided it as follows: 

{¶ 56} By his second assignment of error, appellant contends the 

evidence was insufficient to establish the repeat violent offender 

specification attached to the rape count. Appellant argues there was 

a lack of sufficient probative evidence involving the use of force 

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

verdict on the repeat violent offender specification. 

{¶ 57} When a defendant challenges the sufficiency of the evidence, 

an appellate court “‘construes the evidence in favor of the 

prosecution and determines whether such evidence permits any 

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

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

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

conducts such a review, it “‘does not engage in a determination of 

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

testified truthfully and determines if that testimony satisfies each 

element of the crime.’” Id., quoting Hill at ¶ 41. 

{¶ 58} According to R.C. 2929.01(CC), repeat violent offender 

means a person about whom both of the following apply: 

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

complicity in committing any of the following: 
14 

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

first or second degree that is an offense of violence, 

or an attempt to commit any of these offenses if the 

attempt is a felony of the first or second degree; 

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

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

substantially equivalent to an offense described in 

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

(2) The person previously was convicted of or pleaded 

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

of this section. 

{¶ 59} We note that the parties stipulated to appellant’s prior 

conviction of aggravated robbery. Appellant argues the evidence 

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

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

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

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

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

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

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

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

of violence.”). Appellant’s second assignment of error is overruled. 

State v. Petty, 2017-Ohio-1062. 

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

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

2929.12(C), somehow creates an additional element of the crime of conviction (Secondary 

Objections, ECF No. 22, PageID 1521-22). The trial court imposed a sentence of ten years to life 

on the rape count. Petty I, 2017-Ohio-1062, at ¶ 40. The Tenth District specifically held that the 

sentencing statute applied by the trial court was the correct one under the facts of this case. Id. at 

¶ 71. Petty’s reference to the penalty mitigation factors of Ohio Revised Code § 2929.12(C) is 

irrelevant where, as here, the General Assembly has mandated a particular sentence for a particular 

crime. Petitioner’s argument that no actual act of violence was shown to have occurred is also 
15 

irrelevant because the General Assembly has determined that sexual conduct with a person under 

thirteen constitutes a crime of violence—and the United States Constitution does not prohibit the 

State of Ohio from doing so. 

 In his Objections, Petty argues that the sentence imposed on him was improper without 

additional judicial fact findings (ECF No. 19, PageID 1486-90). He cites a number of Ohio cases 

having to do with the proper sentence for murder. Id.at PageID 1487-88, citing State v. Houston, 

8th Dist. Cuyahoga No. 107538, 2019-Ohio-355; State v. Smith, 8th Dist. Cuyahoga No. 106893, 

2019-Ohio-155, ___ N.E.3d ____ (Jan. 17, 2019), appellate jurisdiction declined at 155 Ohio St. 

3d 1438, 2019-Ohio-1536. He also cites the Court to Ohio Rev. Code § 2971.03(B)(1) ,which he 

says “makes manifest that for the offense of rape (as charged herein) the court shall impose either: 

(1) ‘an indefinite prison term consisting of the following . . .a minimum term of ten year[s] and a 

maximum term of life imprisonment.’” Id. at PageID 1486. In contrast, he claims, 

Section 2971.02(B)[2] clearly distinguishes and provides for: “... an 

offender under division (A)(1)(b) of this section “shall be sentenced 

to a prison term (meaning a singular ‘definite’ prison term);[””] or, 

... “term of life imprisonment,” contemplates two distinctly different 

sentences of which such ambiguity must be “liberally construed” in 

petitioner's favor, and “strictly construed” against the respondentstate. See: O.R.C. Section 2904.01. 

Id. at PageID 1487. 

The Indictment charged Petty with engaging in sexual conduct with a twelve-year-old 

person having previously been convicted of aggravated robbery, in violation of Ohio Rev. Code § 

2907.02 (State Court Record, ECF No. 12, Ex. 1, PageID 113-14). Ohio Rev. Code § 

2907.02(A)(1)(b) is the statute that classifies sexual conduct with a person under thirteen as rape. 

The trial court found that Ohio Rev. Code § 2971.03(A), which relates to sexually violent 

offenders, was not applicable to this case (Judgment Entry, State Court Record, ECF No. 12, Ex. 
16 

8, PageID 128). She imposed an indefinite term of ten years to life for the rape count, twenty-four 

months for the importuning count, and three years for the repeat violent offender specification. Id. 

All three terms were to be served consecutively. Id. The term imposed on the rape count is the 

sentenced required by Ohio Rev. Code § 2971.03(B)(1)(a): an indefinite term of ten years to life 

if life without parole is not imposed. There is no ambiguity in the statute and Petty was sentenced 

precisely to the sentence required by that statute, as the Tenth District found. Petty I, 2017-Ohio1062, at ¶ 71. The statute does not require ten years or life imprisonment, it mandates “a minimum 

term of ten years and a maximum term of life imprisonment.” Ohio Rev. Code § 2971.03(B)(1)(a). 

Petty’s further objection that the State was required to prove use of actual force is incorrect 

as a matter of state law which defines rape as a violent offense. Petty I, 2017-Ohio-1062 at ¶ 59, 

citing Ohio Rev. Code § 2901.01(A)(9). 

 Petty’s claim that this is a case of first impression relates to his argument that the victim 

committed fraud that induced him into having her perform oral sex on him while deceiving him 

about her age. At the time he filed his Petition, Petty provided the Court with Russell Christopher 

and Kathryn Christopher, Adult Impersonation: Rape by Fraud As a Defense to Statutory Rape, 

101 N.W. L. REV. 75 (2007) (filed at Addendum, ECF No. 2-1, PageID 43-91.) The article itself 

suggests that this would be a new defense. Ohio has never adopted that defense, nor has the United 

States Supreme Court ever held that Ohio or any State must recognize such a defense in a “statutory 

rape” case. Claiming such a defense is indeed a “case of first impression,” but a District Court 

considering a habeas corpus case does not have the authority to recognize a defense such as this in 

the first instance. That recognition must come first from the United States Supreme Court. 

 Ground Two should therefore be dismissed. 
17 

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

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

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

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

 In his Objections, Petty asserted that this claim was intended to raise an insufficiency of 

the evidence claim under Jackson v. Virginia, 443 U.S. 307 (1979) (ECF No. 19, PageID 1491, 

citing Jackson, 443 U.S. at 309). As explained in the Supplemental Report, a claim that a verdict 

is against the manifest weight of the evidence is different from a claim that a verdict is not 

supported by sufficient evidence. The Petition expressly claims “[P]etitioner’s convictions . . . 

were against the manifest weight of the evidence (ECF No. 1, PageID 27), so the Magistrate Judge 

analyzed it as it was pleaded. 

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 
18 

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 386-87. Having emphasized the distinction between a manifest weight claim 

and an insufficiency claim, the Supplemental Report went on to analyze how the evidence was 

sufficient to convict (Supplemental Report, ECF No. 21, PageID 1504-11). The Tenth District 

Court of Appeals had considered an insufficiency claim on direct appeal and found that the 

evidence was more than sufficient: 

{¶ 60} By his third assignment of error, appellant contends that his 

convictions were against the manifest weight of the evidence. Under 

Ohio law, “[t]he weight of the evidence concerns the inclination of 

the greater amount of credible evidence offered to support one side 

of the issue rather than the other.” State v. Boone, 10th Dist. No. 

14AP-87, 2015-Ohio-2648, ¶ 49, citing State v. Thompkins, 78 Ohio 

St.3d 380, 387, 1997 Ohio 52, 678 N.E.2d 541 (1997), superseded 

by constitutional amendment on other grounds as stated in State v. 

Smith, 80 Ohio St.3d 89, 1997 Ohio 355, 684 N.E.2d 668 (1997). In 

considering a manifest weight challenge, “an appellate court may 

not merely substitute its view for that of the trier of fact.” Id. The 

appellate court must “review the entire record, weigh the evidence 

and all reasonable inferences, consider the credibility of witnesses 

and determine whether in resolving conflicts in the evidence, the 
19 

trier of fact clearly lost its way and created such a manifest 

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

trial ordered.” Id. Reversing a conviction as against the manifest 

weight of the evidence “must be exercised with caution,” and such 

a reversal “is granted only in the most ‘exceptional case in which 

the evidence weighs heavily against the conviction.’” State v. 

Brown, 8th Dist. No. 98881, 2013-Ohio-2690, ¶ 27, quoting State v. 

Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717 

(1st Dist.1983). 

{¶ 61} R.C. 2907.02(A)(1) defines rape in part as follows: “No 

person shall engage in sexual conduct with another who is not the 

spouse of the offender * * * when any of the following applies: * * 

* (b) The other person is less than thirteen years of age, whether or 

not the offender knows the age of the other person.” R.C. 

2907.07(A) defines importuning as follows: “No person shall solicit 

a person who is less than thirteen years of age to engage in sexual 

activity with the offender, whether or not the offender knows the age 

of such person.” 

{¶ 62} Appellant argues that since there was conflicting testimony 

throughout the trial, the convictions for rape and importuning were 

against the manifest weight of the evidence. Appellant contends that 

the two different versions C.A. [the victim] presented of the events, 

first denying anything improper occurred and then changing her 

story after L.A. [the victim’s mother] hit her and influenced her 

story, impugn her credibility. Appellant also argues that L.A. 

presented conflicting testimony regarding whether or not appellant 

was facing her as she looked through the front door and stepped onto 

the porch. Further, appellant contends that the lack of DNA evidence 

and the failure of officers to obtain C.A.’s cell phone with the Badoo 

messages contribute to the fact that the evidence does not support 

the convictions. According to appellant, his testimony was 

consistent with C.A.’s original version of events. 

{¶ 63} While there was conflicting testimony presented at trial, “an 

accused is not entitled to a reversal on manifest weight grounds 

merely because inconsistent evidence was presented at trial.” State 

v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. The 

trier of fact, in this case, the jury, may take into consideration 

conflicting testimony from a witness in determining credibility and 

the persuasiveness of the account by either discounting or resolving 

the discrepancies. State v. Taylor, 10th Dist. No. 14AP-254, 2015- 

Ohio-2490, ¶ 34, citing Midstate Educators Credit Union, Inc. v. 

Werner, 175 Ohio App.3d 288, 2008-Ohio-641, 886 N.E.2d 893 

(10th Dist.). “The finder of fact at trial is in the best position to 
20 

weigh the credibility of testimony by assessing the demeanor of the 

witnesses and the manner in which they testify, their connection or 

relationship with the parties, and their interest, if any, in the 

outcome. The finder of fact can accept all, part or none of the 

testimony offered by a witness, whether it is expert opinion or 

eyewitness fact, and whether it is merely evidential or tends to prove 

the ultimate fact.” State v. Mullins, 10th Dist. No. 16AP-236, 2016- 

Ohio-8347, ¶ 39, 75 N.E.3d 1008. 

{¶ 64} On review, there was sufficient, competent, credible evidence 

provided at trial to permit reasonable minds to find appellant guilty 

of both offenses. Appellant admitted that he solicited C.A. for oral 

sex. As to the rape charge, C.A. testified that in July 2014, she was 

12 years of age. According to C.A., appellant unzipped his pants, 

“[h]e took it out, and I got down on my knees, and I started sucking 

- - I started giving oral sex.” (Tr. Vol. II at 192.) C.A. put his penis 

in her mouth. Appellant “was moving my head” with his hand. (Tr. 

Vol. II at 193.) C.A.’s mother also testified that she saw her daughter 

on her knees “performing oral sex on him” and identified appellant 

at trial as the man on the porch. She saw his penis. She also observed 

appellant zip up his pants. 

{¶ 65} Appellant also contends that his conviction for the repeat 

violent offender specification is against the manifest weight of the 

evidence. Similar to his sufficiency argument, previously addressed 

under the second assignment of error, appellant contends there was 

a lack of sufficient probative evidence involving the use of force. 

{¶ 66} Sufficiency of the evidence and manifest weight of the 

evidence are distinct concepts; they are “quantitatively and 

qualitatively different.” Thompkins at 386. “When a court of appeals 

reverses a judgment of a trial court on the basis that the verdict is 

against the manifest weight of the evidence, the appellate court sits 

as a ‘thirteenth juror’ and disagrees with the factfinder's resolution 

of the conflicting testimony.” Id. at 387, quoting Tibbs v. Florida, 

457 U.S. 31, 32, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). In order 

for an appellate court to reverse the judgment of a trial court on 

manifest weight grounds, the appellate court must unanimously 

disagree with the jury's resolution of the conflicting evidence. Id. 

{¶ 67} In the second assignment of error, we determined that 

plaintiff-appellee, the State of Ohio, was not required to demonstrate 

violence as an element of rape in order to classify rape as an offense 

of violence for purposes of the repeat violent offender specification. 

“Offense of violence” is defined in R.C. 2901.01(A)(9), and 

includes 2907.02, rape, and 2911.01, aggravated robbery. Thus, 
21 

appellant was convicted of a felony of the first degree that is an 

offense of violence (R.C. 2929.01(CC)(1)(a)) and was previously 

convicted of a felony of the first degree that was an offense of 

violence (R.C. 2929.01(CC)(2)); as such, he met the definition of a 

repeat violent offender. 

{¶ 68} Based on this court's review of the record, we find that the 

jury could have reasonably believed the state's version of events. 

Furthermore, appellant admitted that he talked about oral sex with 

C.A. and that he solicited C.A. to perform oral sex on him. The state 

presented sufficient, competent, credible evidence to permit 

reasonable minds to find appellant guilty beyond a reasonable doubt 

of rape, importuning, and the repeat violent offender specification. 

We find the jury did not lose its way and create a manifest 

miscarriage of justice. Thus, the verdicts are not against the manifest 

weight of the evidence. Appellant's third assignment of error is 

overruled. 

Petty I, 2017-Ohio-1062. 

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, 131 S. 

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination 

of the facts in light of the evidence presented in the State court proceedings. 

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 
22 

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 

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); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc);Tucker v. Palmer, 541 

F.3d 652, 656 (6th Cir. 2008);. 

Considered as a sufficiency of the evidence claim, Petty’s Ground Three is without merit. 

The test, as set out above, is whether there was evidence from which a reasonable juror could have 

found Petty guilty beyond a reasonable doubt. The victim not only testified she performed oral 

sex on Petty, but her mother testified she caught them at it. There is no doubt that oral sex is sexual 

conduct within the meaning of Ohio law, or that the victim was actually twelve years old at the 

time. 

 In his Secondary Objections, Petty argues that somehow mitigation facts must enter into 

deciding this claim (ECF No. 22, PageID 1523). However, as the Tenth District found, the 

sentence prescribed by law for the offense of which Petty was convicted is mandatory. Petty I, 
23 

2017-Ohio-1062, at ¶ 71. 

Ground Three should therefore be dismissed for failure to state a claim upon which habeas 

corpus relief can be granted insofar as it raises a manifest weight claim, and on the merits insofar 

as it raises a sufficiency of the evidence claim. 

Ground Four: Invalid Sentence 

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

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

2929.14 (Petition, ECF No. 1, PageID 32).2

 This is a question of state law which the Tenth District 

definitively decided against Petty. Although it remanded for a proportionality finding under Ohio 

Revised Code § 2929.14(C)(4), Petty I, 2017-Ohio-1062, at ¶¶ 93, 95, it otherwise overruled 

Petty’s assignment of error regarding sentencing. 

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

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

Revised Code § 2941.25 (Petition, ECF No. 1, PageID 30-32). The Tenth District considered this 

claim under both the Double Jeopardy Clause and Ohio Revised Code § 2941.25 and found no 

violation of either. It affirmed the trial court’s findings that the act of importuning was completed 

before the rape began, involved separate conduct, and occasioned separate harm to the victim. 

Petty I, 2017-Ohio-1062, at ¶¶ 72-79. 

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

affords a defendant three basic protections: 

 

2

 Petty also refers to the United States Sentencing Commission Sentencing Manual (Petition, ECF No. 1, PageID 29). 

That Manual only applies to cases that are originally filed in federal court, and does not apply to state criminal cases. 
24 

[It] “protects against a second prosecution for the same offense after 

acquittal. It protects against a second prosecution for the same 

offense after conviction. And it protects against multiple 

punishments for the same offense.” 

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

(1969), abrogated in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). The Double 

Jeopardy Clause was held to be applicable to the States through the Fourteenth Amendment in 

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

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

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

509 U.S. 688, 696 (1993), citing Blockburger v. United States, 284 U.S. 299, 304 (1932) (the 

“Blockburger test”). An Ohio court of appeals decision of a double jeopardy claim which is limited 

to the application of Ohio Rev. Code § 2941.25, is entirely dispositive of the federal double 

jeopardy claim. Jackson v. Smith, 745 F.3d 206, 210 (6th Cir. 2014), citing State v. Rance, 85 Ohio 

St. 3d 632, 705 (1999), overruled by State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, itself 

abrogated in part by State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 16. 

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

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

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

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

Blockburger and its progeny. In his original Objections, Petty did not take issue with this proposed 

analysis of the Double Jeopardy claim. 

The Objections do, however, take issue with this Court’s analysis under Ohio Revised Code 

§ 2941.25, the Ohio allied offenses statute (ECF No. 19, PageID 1492-93). The Supplemental 

Report noted that this was purely a question of state law on which a federal habeas court is bound 
25 

by state court interpretation (ECF No. 21, PageID 1511; accord Railey v. Webb, 540 F.3d 393 (6th

Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a 

state court’s interpretation of state law, including one announced on direct appeal of the challenged 

conviction, binds a federal court sitting in habeas corpus.”); Maldonado v. Wilson, 416 F.3d 470 

(6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 

731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). 

Therefore, Ground Four should be dismissed. 

Conclusion 

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

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

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

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

permitted to proceed in forma pauperis. 

July 8, 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 
26 

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).