1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

DANIEL L. BARNES,. III, 

Petitioner, : Case No. 2:18-cv-948 

- vs - District Judge Michael H. Watson 

Magistrate Judge Michael R. Merz 

MARK HOOKS, Warden, 

 Ross Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case, brought by Petitioner Barnes with the assistance of counsel, is 

before the Court for decision on the merits. The relevant documents are the Petition (ECF No. 1), 

the State Court Record (ECF No. 6), the Return of Writ (ECF No. 7), and Petitioner’s Reply (ECF 

No. 17). 

 Barnes seeks relief from his convictions by a jury and consequent sentences in the 

Muskingum County, Ohio Court of Common Pleas on counts of aggravated robbery with a firearm 

specification, felonious assault with a firearm specification, and having weapons under disability; 

he was acquitted on two kidnapping counts. (Judgment Entry, State Court Record ECF No. 6, Ex. 

3, PageID 57-58.) He was sentenced to twenty-eight years imprisonment. Id. at Ex. 6, PageID 

68-70). Those convictions and sentence remain were affirmed on direct appeal. State v. Barnes, 

5th Dist. Muskingum No. CT2015-0013, 2016-Ohio-1168 (. Mar. 17, 2016); appellate jurisdiction 

declined, 146 Ohio St.3d 1430 (2016). They remain in place after a good deal of appellate and 
2 

post-conviction practice. Because the litigation history is complex, it will be adverted to as needed 

in this Report, rather than repeated at length. 

 Barnes timely filed his Petition in this Court, pleading the following Grounds for Relief: 

Ground One: Petitioner was deprived of the effective assistance of 

counsel contrary to the Sixth Amendment to the federal constitution 

made applicable to the States by the Fourteenth Amendment and by 

Strickland v. Washington and its progeny. 

Ground Two: The trial court erred in answering a question from the 

jury during deliberations without the presence of Appellant thereby 

depriving him of a fair trial as guaranteed by the State and federal 

constitutions. 

Ground Three: The trial court made statements regarding 

Petitioner that were untrue in violation of his right to due process 

protected by the Fifth Amendment made applicable to the States by 

the Fourteenth. 

(Petition, ECF No. 1, PageID 7, 14, 19). 

Analysis 

 Ground One: Ineffective Assistance of Trial Counsel 

 In his First Ground for Relief, Barnes asserts he received ineffective assistance of trial 

counsel in the following ways: 

(Sub-claim 1) Failure by the attorney to object to a question on redirect that was 

leading and beyond the scope of cross (T.P., Vol 1, at page 213) 

(Sub-claim 2) Failed to object to the testimony of Patrolman Andrews as hearsay 

(T.P. Vol 1, at pages 228-232) 
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(Sub-claim 3) Failed to object to Patrolman Groves who testified what Patrolman 

Andrews told him. Hearsay without exception. (T.P., Vol 1, at page 258[)] 

(Sub-claim 4) Failed to cross examine George Guy. This witness gave conflicting 

accounts of the timing of when this incident allegedly occurred and could not 

initially identify petitioner. 

(Sub-claim 5) Failed to object to the Detective’s testimony regarding the amount 

of damage to Martin’s vehicle. This was speculation and prejudicial. (T.P., Vol II, 

at page 322-323) 

(Sub-claim 6) Failed to request lesser included offenses of assault and theft. 

(Sub-claim 7) Failed to insist his client be present during a question by the jury

(Sub-claim 8) Failure to call corroborating witnesses 

(Petition, ECF No. 1, PageID 9-10; Reply, ECF No. 17, PageID 1420-21). These sub-claims have 

been numbered 1-8 by the Magistrate Judge for precision in analysis.) 

 Barnes presented his claims of ineffective assistance of trial counsel to the Fifth District 

Court of Appeals as his Second Assignment of Error and that court decided the issue as follows: 

{¶ 33} In the second assignment of error, Appellant argues he was 

denied the effective assistance of trial counsel. 

{¶ 34} The standard for reviewing claims for ineffective assistance 

of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ohio adopted this standard 

in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373(1989). These cases require a two-pronged analysis in reviewing 

a claim for ineffective assistance of counsel. 

{¶ 35} First, we must determine whether counsel\s assistance was 

ineffective; i.e., whether counsel's performance fell below an 

objective standard of reasonable representation and violates any of 

his essential duties to the client. If we find ineffective assistance of 

counsel, we must then determine whether the defense was actually 

prejudiced by counsel's ineffectiveness such that the reliability of 

the outcome of the trial is suspect. This requires a showing there is 

a reasonable probability but for counsel's unprofessional error, the 

outcome of the trial would have been different. We apply the 

Strickland test to all claims of ineffective assistance of counsel, 
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either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. 

No.2005—CA—41, 2006-Ohio-5214. 

{¶ 36} A reviewing court “need not determine whether counsel's 

performance was deficient before examining the prejudice suffered 

by the defendant as a result of the alleged deficiencies.” Bradley at 

143, quoting Strickland at 697. 

{¶ 37} Appellant maintains his trial counsel was ineffective in 

failing to object to witness testimony presented at trial. Appellant 

cites the testimony offered by James Ricket on cross-examination. 

Specifically, Appellant argues the State's questioning was leading 

and beyond the scope of direct examination. During the testimony, 

Ricket testifies he heard Appellant demand "stuff" from Martin, and 

then Appellant took it. Tr. at 213. However, upon review of the 

transcript cited supra in our analysis and disposition of the first 

assignment of error, Ricket had testified on direct examination there 

were words exchanged between Appellant and Martin, and 

Appellant had told Martin to give him his money and to get out of 

the car. Tr. at 200. Therefore, the testimony elicited on crossexamination by the State was not beyond the scope of direct 

examination. We do not find trial counsel was ineffective for failing 

to object to the testimony. Further, Appellant has not demonstrated 

prejudice as a result of any alleged error. 

{¶ 38} Appellant further cites testimony offered by Patrolman 

Andrews as to events Martin had told him, which should have been 

objected to as hearsay. Appellant maintains the testimony of the law 

enforcement officer bolstered allegations made by Martin. 

{¶ 39} Patrolman Andrews testified at trial as to Martin opening the 

door of his cruiser and relating the incident to him. The evidence 

was not offered for the truth of the matter asserted, but rather as 

cumulative evidence to the testimony offered by Martin and Ricket 

previously as cited above. Therefore, Appellant has not 

demonstrated prejudice as a result of the testimony. 

{¶ 40} In addition, Appellant maintains his trial counsel failed to 

object to testimony offered by Patrolman Groves regarding 

statements made by Patrolman Andrews, which he asserts also 

constituted hearsay. Patrolman Groves testified Patrolman Andrews 

radioed him and informed him the subject who assaulted Martin was 

Appellant. 

{¶ 41} Upon review of the record, and as set forth above, Patrolman 

Groves testified he responded to a call of an assault with a handgun 
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with his K-9 officer. He observed a suspect run between two houses, 

and exited his vehicle to chase on foot, following the human scent. 

His K-9 alerted to something dropped by the suspect, which later 

was identified as a Glock 23 handgun with a laser. Patrolman 

Andrews testified Martin was on foot, and entered his cruiser. 

Martin told him he had been robbed by Appellant and assaulted. 

Andrews reported the incident to Groves. 

{¶ 42} We find the information was not offered for the truth of the 

matter asserted but offered to demonstrate the reasoning as to why 

Patrolman Groves chased a suspect. Moreover, the information was 

cumulative to the testimony of Martin who testified at trial he told 

Patrolman Andrews he had been assaulted by Appellant. Therefore, 

Appellant has not demonstrated, but for the alleged error, the 

outcome of the trial would have been otherwise, pursuant to the 

second prong of Strickland. 

{¶ 43} In addition, Appellant notes his counsel elected not to crossexamine George Guy, a witness at trial, despite the discrepancy in 

his testimony as to the time of day. Appellant argues his counsel 

could have shown the jury Guy could not have seen Appellant get 

out of the car after the alleged incident since the incident occurred 

two hours after Guy testified the two persons exited the vehicle. 

{¶ 44} Upon review of Guy's testimony, he testified he was walking 

his dog and observed two males exit the vehicle, one with braids. He 

testified it was around eleven in the evening, as when he returned 

the news was coming on. He called 9-1-1. Patrolman Barnhart 

responded to the call, and testified at trial. 

{¶ 45} Upon review of the entire record, we find Appellant has not 

demonstrated, but for any presumed error, the outcome of the trial 

would have been otherwise. Therefore, Appellant has not met the 

second prong of Strickland. 

{¶ 46} Further, Appellant maintains his counsel failed to object to 

speculative testimony offered by Detective Moore regarding how 

the damage occurred to Martin's vehicle. Martin testified the door 

could have been pushed too far in one direction. Tr. at 322-323. 

Appellant maintains hearing the testimony from a law enforcement 

official on behalf of the State permitted the jury to lend truth and 

value to the testimony. 

{¶ 47} Appellant has not demonstrated but for the alleged error, the 

outcome of the trial would have been otherwise. Damage to the car 

door was not an issue at trial, and both parties stipulated a fight took 
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place between them. Appellant has not demonstrated prejudice as a 

result of the testimony and therefore has not satisfied the second 

prong of Strickland. 

{¶ 48} Appellant also argues his trial counsel erred in not requesting 

a jury instruction on the lesser included offenses of assault and theft. 

We find Appellant has not demonstrated ineffective assistance of 

counsel in not requesting the lesser included offenses because 

Appellant completely denied not only having a firearm but also 

completely denied committing any theft offense. Therefore, we find 

it was a tactical decision of trial counsel to pursue an outright 

acquittal on the charges rather than attempting to mitigate the 

seriousness of the offenses. 

{¶ 49} As to the failure to request the instructions, a trial court must 

give all instructions which are relevant and necessary for the jury to 

weigh evidence and discharge its duty as the trier of fact. State v. 

Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990). Even though an 

offense may be statutorily defined as a lesser-included offense of 

another, a charge on such a lesser-included offense is required only 

where the evidence presented at trial would reasonably support both 

an acquittal on the crime charged and a conviction upon the lesserincluded offense. State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 

286 (1988). The court must view the evidence in a light most 

favorable to the defendant. State v. Smith, 89 Ohio St. 3d 323, 2000 

Ohio 166, 731 N.E.2d 645 (2000). 

{¶ 50} Nevertheless, an instruction is not warranted every time any 

evidence is presented on a lesser-included offense. There must be 

sufficient evidence to allow a jury to reasonably reject the greateroffense and find the defendant guilty on the lesser-included offense. 

State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, 842 N.E.2d 

996. 

{¶ 51} Here, had the jury accepted Appellant's presentation of the 

facts stating Martin engaged him in a fight over damage to the car 

door, during which neither he, nor Martin, possessed a firearm,1 

the jury would not have convicted Appellant on the lesser-included 

offenses of theft or assault. We do not find trial counsel ineffective 

in failing to request the instructions on the lesser-included offenses 

of theft and assault. 

{¶ 52} Appellant also maintains the trial court's instruction to the 

jury following the jury's question as to whether or not they could 

have a transcript of the recorded interview of Appellant by Detective 

Hill was prejudicial error. Specifically, the trial court instructed the 
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jury they must rely on their collective memories, and the court 

instructed the jury without Appellant being present in the courtroom. 

{¶ 53} Pursuant to our analysis and discussion of Appellant's fourth 

assignment of error, we find counsel's failure to object error, but 

harmless error. Appellant had a right to be present in the courtroom, 

but the trial court's instruction to the jury was not substantive; 

therefore, Appellant was not prejudiced by the trial court's 

instruction. 

{¶ 54} Finally, Appellant maintains trial counsel failed to offer 

witnesses at trial to corroborate the testimony as to how Appellant 

knew Roberta Jones. Appellant testified on direct examination he 

knew June Jones as he stayed right next door to her daughter. Tr. at 

488. He testified he knew her granddaughter also. Tr. at 488. He 

testified he knew Ms. Jones for a "long period" and she's elderly. Tr. 

at 488. Appellant introduced testimony as to his knowledge and 

familiarity with Ms. Jones at trial. Any witnesses offered to 

corroborate his testimony would merely be cumulative. 

{¶ 55} Further, we find any presumed error on behalf of trial counsel 

would be harmless error. Appellant has not demonstrated but for the 

alleged error, the outcome of the trial would have been otherwise. 

Appellant was able to offer evidence of his relationship and 

knowledge of Ms. Jones at trial through his own testimony and the 

jury could consider the information. 

{¶ 56} The second assignment of error is overruled. 

State v. Barnes, supra. 

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

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

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

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 99-100 

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

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). The Fifth District expressly applied 

Strickland, supra, to Barnes’s claims of ineffective assistance of trial counsel. The question before 

this Court, then, is whether that application was objectively unreasonable. 
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 Although Barnes presented all eight of his ineffective assistance of trial counsel sub-claims 

in his Petition and repeated them in his Traverse, he actually argues only Sub-claims 7, 4, 2, and 

3, in that order. Because they have not been argued, sub-claims 1, 5, 6, and 8 are deemed 

abandoned. The remaining sub-claims will be analyzed seriatim. 

Sub-claim 7: Failure to Insist that Defendant be Present During a Question from the Jury 

 During deliberations the jury communicated to the court the following “We would like to 

request a transcript from Detective Hill and Mr. Barnes’[s] interview.” State v. Barnes, supra. ¶ 

58. The question was presented to both counsel outside the presence of the jury and of Barnes. 

Id.. The court proposed to answer the question as follows: “You must rely upon your collective 

memories as to what the evidence was or was not.” Id.. Both counsel agreed with instructing the 

jury as proposed and counsel lodged no objection as to Barnes’s absence. Id. 

 In considering this sub-claim, the Fifth District found it was error not to object to Barnes’s 

absence, but harmless error. In doing so it applied three Supreme Court of Ohio decisions 

concluding that even and ex parte communication by the judge with the jury would be harmless 

error if the communication was not “substantive.” Id. at ¶ 59 (citations omitted). As the Fifth 

District found, the trial judge’s response to the question was plainly not substantive. 

 Barnes had a right to be present during this colloquy with counsel about the jury’s request. 

However, he has made no showing of any prejudice from his failure to be present. He does not 

suggest any way in which the trial judge’s response was incorrect or any way in which he was 

prejudice by it. It is very unlikely the trial judge would have stayed the proceedings to have a 

transcript prepared and Barnes does not suggest any way that would have helped his case. Under 
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those circumstances, Barnes has failed to show prejudice from his attorney’s failure to object and 

his Seventh Sub-claim should be denied on the merits. 

Sub-claim Four: Failure to Cross-Examine George Guy 

 In his Fourth Sub-claim, Petitioner argues his attorney provided ineffective assistance 

when he failed to cross-examine State’s witness George Guy. Barnes alleges that a thorough crossexamination would have shown Guy’s testimony inconsistent as to the time of day when the 

incident happened. 

 The Fifth District rejected this claim, concluding nothing material would have been added 

by cross-examination of Guy. State v. Barnes, supra, ¶¶ 43-45. Barnes’s entire argument in his 

Traverse is “[t]his witness gave conflicting statements regarding the timing of this incident and 

that [sic] he could not initially identify the Petitioner. This is not based on some strategy that relied 

upon a deep and thorough investigation. Had there been any investigation, cross examination 

would have occurred.” (ECF No. 17, PageID 1422). 

 From the account of facts in the Fifth District’s opinion, it is clear that Guy was not a key 

witness and was also apparently not a witness with any interest in this case such that crossexamination might have revealed a bias. Nor does Barnes provide this Court with any suggestion 

about what facts useful to his case would have some out if cross-examination had occurred. When 

a witness has testified to facts which are not particularly harmful, cross-examination may result in 

having the testimony reinforced rather than discredited. Under these circumstances, Barnes has 

not shown it was deficient performance to fail to cross-examine Guy. 
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Subclaims Two and Three: Failure to Object to Hearsay 

 In his Second and Third Sub-claims, Barnes asserts he received ineffective assistance of 

trial counsel when his attorney did not object to two instances of hearsay testimony. The Fifth 

District decided these two sub-claims as follows: 

{¶ 38} Appellant further cites testimony offered by Patrolman 

Andrews as to events Martin had told him, which should have been 

objected to as hearsay. Appellant maintains the testimony of the law 

enforcement officer bolstered allegations made by Martin. 

{¶ 39} Patrolman Andrews testified at trial as to Martin opening the 

door of his cruiser and relating the incident to him. The evidence 

was not offered for the truth of the matter asserted, but rather as 

cumulative evidence to the testimony offered by Martin and Ricket 

previously as cited above. Therefore, Appellant has not 

demonstrated prejudice as a result of the testimony. 

{¶ 40} In addition, Appellant maintains his trial counsel failed to 

object to testimony offered by Patrolman Groves regarding 

statements made by Patrolman Andrews, which he asserts also 

constituted hearsay. Patrolman Groves testified Patrolman Andrews 

radioed him and informed him the subject who assaulted Martin was 

Appellant. 

{¶ 41} Upon review of the record, and as set forth above, Patrolman 

Groves testified he responded to a call of an assault with a handgun 

with his K-9 officer. He observed a suspect run between two houses, 

and exited his vehicle to chase on foot, following the human scent. 

His K-9 alerted to something dropped by the suspect, which later 

was identified as a Glock 23 handgun with a laser. Patrolman 

Andrews testified Martin was on foot, and entered his cruiser. 

Martin told him he had been robbed by Appellant and assaulted. 

Andrews reported the incident to Groves. 

{¶ 42} We find the information was not offered for the truth of the 

matter asserted but offered to demonstrate the reasoning as to why 

Patrolman Groves chased a suspect. Moreover, the information was 

cumulative to the testimony of Martin who testified at trial he told 

Patrolman Andrews he had been assaulted by Appellant. Therefore, 

Appellant has not demonstrated, but for the alleged error, the 
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outcome of the trial would have been otherwise, pursuant to the 

second prong of Strickland. 

State v. Barnes, supra.

 Although nominally the Fifth District decided that each of these failures to object was not 

prejudicial, it reached that conclusion by holding the testimony was not hearsay in the first place. 

Hearsay, both classically and under Ohio Rule of Evidence 801, is an out-of-court statement 

offered in evidence to prove the truth of its content. The Fifth District determined as a matter of 

Ohio law that these two statements were not offered to prove the truth of their content and gave a 

cogent explanation of the admissibility of the statements for other purposes. It cannot be 

ineffective assistance of trial counsel to fail to proffer a hearsay objection to non-hearsay 

testimony. Thus, these two sub-claims fail on both prongs of Strickland. 

 Based on this analysis, the Magistrate Judge concludes the Fifth District’s decision on 

Barnes’s ineffective assistance of trial counsel claims is not an objectively unreasonable 

application of Strickland. Ground One should therefore be denied on the merits. 

Ground Two: Trial Court Error in Responding to a Jury Question in the Absence of 

Petitioner 

 In his Second Ground for Relief, Barnes claims he was denied a fair trial by the trial judge’s 

responding to the jury’s transcript request without having him present. Barnes raised this claim as 

his Third Assignment of Error on direct appeal and the Fifth District decided it as follows: 

{¶ 57} In the third assignment of error, Appellant maintains the trial 

court erred in answering a question from the jury without the 

presence of Appellant. 

{¶ 58} During deliberations, the jury questioned the trial court as to 

whether they could review a transcript of the recorded interview of 

Appellant by Detective Hill. The record reflects: 
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Thereupon, the jury had a question at 4:42 p.m. and the 

following occurs outside their presence. 

- - - 

THE COURT: We would like to request a transcript from 

Detective Hill and Mr. Barnes'’ interview. 

 

Answer: You must rely upon your collective memories as 

to what the evidence was or was not. 

MR. SAMS: Yep, I agree. 

MR. LITLE: (Nods affirmatively.) Sounds fine with me. 

Tr. at 605. 

{¶ 59} The Ohio Supreme Court has held that a communication 

concerning instructions between the judge and jury without the 

presence of the defendant or his counsel does not constitute grounds 

for reversal where the defendant’s right to a fair trial was not 

prejudiced by the communication and the error was harmless 

beyond a reasonable doubt. See State v. Abrams (1974), 39 Ohio 

St.2d 53, 313 N.E.2d 823. If the communication is not “substantive,” 

the error is harmless. State v. Jenkins (1984), 15 Ohio St.3d 164, 

236-237, 15 Ohio B. 311, 473 N.E.2d 264. In Bostic v. Connor

(1988), 37 Ohio St.3d 144, 150, 524 N.E.2d 881, the court held that 

the trial court’s ex parte communication with the jury was harmless 

error because there was no "possibility that the jury's conclusion was 

influenced by the court's reply." 

{¶ 60} Here, the trial court instructed the jury they would have to 

rely on their collective memories regarding the interview Detective 

Hill conducted of Appellant. We find, the trial court's instruction to 

the jury was not substantive, and there was no possibility the jury's 

conclusion was influenced by the court's reply. Therefore, any 

presumed error was harmless beyond a reasonable doubt. 

{¶ 61} The third assignment of error is overruled. 

State v. Barnes, supra. 

 In his Traverse, Barnes argues the trial court’s proceeding in his absence deprived him of 

both his Sixth and Fourteenth Amendment rights (ECF No. 17, PageID 1423-27). 

A defendant is guaranteed the right to be present at any stage of the criminal proceeding 
13 

that is critical to the outcome if his presence would contribute to the fairness of the procedure, i.e., 

be useful in ensuring a more reliable determination. Buell v. Mitchell, 274 F.3d 337, 363 (6th Cir. 

2001), citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987). In Stincer the Supreme Court rejected 

both Confrontation Clause and Due Process objections to a defendant’s exclusion from the 

competency examinations of two minor female victims. However, following its decision in), the 

Court held a criminal defendant “has a due process right ‘to be present in his own person whenever 

his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend 

against the charge.’” Stincer, 482 U.S. at 745, quoting Snyder v. Massachusetts, 291 U.S. 97, 105-

106 (1934). “[T]his privilege of presence is not guaranteed ‘when presence would be useless, or 

the benefit but a shadow.’” Stincer, again quoting Snyder. The Court concluded that “a defendant 

is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its 

outcome if his presence would contribute to the fairness of the procedure.” Id. 

The Fifth District did not cite any United States Supreme Court precedent in deciding this 

assignment of error, but relied on three Ohio Supreme Court decisions. Two of them preceded 

Stincer, but one was handed down the next year, Bostic v. Connor, 37 Ohio St. 3d 144 (1988), 

superseded by statute on other grounds as discussed in State v. DePietro, 10th Dist. Franklin No. 

09AP-202, 2009-Ohio-5854, ¶ 16. Bostic is not a criminal case, so it did not involve the same Due 

Process right that is involved with a criminal defendant’s right to be present at critical stages. 

Instead it relied on the general rule proscribing ex parte communications between a judge and jury. 

This case, of course, does not involve any ex parte communications; the record shows Barnes’s 

counsel was present for the response to the jury. The Magistrate Judge concludes the relevant 

United States Supreme Court case against which the Fifth District’s decision must be measured is 

Stincer. 
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The Fifth District’s decision is not an objectively unreasonable application of Stincer. The 

state court reasonably found that nothing of substance occurred at the response to jury question 

and that there was nothing Barnes could have contributed, i.e., this was not a proceeding about any 

part of the case where Barnes knew more than his lawyer. 

Barnes attempts to rebut this point by asserting: 

The recording that the state provided as an exhibit was of such poor 

quality that the jurors could not possibly interpret what was being 

said. This transcript is the only way for the jury to sift through the 

interview and get a clear understanding of it. The court allowed this 

recording to be played to the jury. 

Had the Petitioner been allowed to hear the jury’s question he would 

have brought up the substandard quality of the recording, the lack of 

the transcript and the fact the jury should not rely solely upon the 

testimony of the Detective. 

(Traverse, ECF No. 17, PageID 1426.) 

 The claim that the recording was unintelligible is completely outside the record. Barnes 

did not claim on direct appeal on direct appeal that it was error not to transcribe the interview, but 

only that it was error to respond to the jury in his absence. (See Appellant’s Brief, State Court 

Record, ECF No. 6, Ex. 10, PageID 107-108). He cannot now obtain relief on an assignment of 

error he did not make in the state courts. Nor, indeed, does he offer any proof that the recording 

was in fact unintelligible. If the recording as played to the jury was unintelligible, his lawyer knew 

that as well as Barnes did. 

 The Fifth District concluded its discussion of this Assignment of Error by finding that “any 

presumed error was harmless beyond a reasonable doubt.” State v. Barnes, supra at ¶ 60. Barnes 

claims the Supreme Court of Ohio has improperly determined “that a criminal defendant must 

prove beyond a reasonable doubt that he was harmed in a substantive way, other than being 

blocked from a hearing, at a critical stage of his trial.” (Traverse, ECF No. 17, PageID 1426, 
15 

adverting to State v. Abrams, 39 Ohio St. 2d 53 (1974) (Celebrezze, J., dissenting)). Petitioner’s 

counsel misreads Abrams. The syllabus holds only that the judge’s error of communicating ex 

parte to the jury was in this case harmless beyond a reasonable doubt, not that a defendant must 

prove such a constitutional error is harmful beyond a reasonable doubt. Justice Celebrezze did not 

dissent from any new standard for proof of harm, but rather from the finding that the error in this 

case was not harmless. Abrams, 39 Ohio St. 2d at 57. 

 Be that as it may, the constitutional standard for evaluating harm from a constitutional error 

is not set by state law. Rather, constitutional error in a habeas case is not required to be harmless 

beyond a reasonable doubt as is required on direct appeal by Chapman v. California, 386 U.S. 18, 

24 (1967). Rather, constitutional error is harmless if the habeas court is satisfied it did not have a 

substantial and injurious effect or influence in determining the verdict. Brecht v. Abrahamson, 

507 U.S. 619, 623 (1993), adopting standard from Kotteakos v. United States, 328 U.S. 750 (1946), 

and rejecting standard from Chapman. A federal court may grant habeas relief only if a 

constitutional violation “had substantial and injurious effect or influence in determining the jury’s 

verdict.| Williams v. Bauman, 759 F.3d 630, 637 (6th Cir. 2014), quoting Brecht, 507 U.S. at 631. 

 The Magistrate Judge is not persuaded that the trial court committed any constitutional 

error by proceeding to respond to the jury without Barnes present. The response was not made ex 

parte, but with the concurrence of counsel for both parties. Most of the case law cited by Petitioner 

speaks to cases of judicial communication with a deliberating jury, which is completely (and 

acceptably) ex parte. 

 But even if it was a constitutional error to proceed as the trial court did, it was harmless 

error to do so. The judge’s response was perfectly appropriate and is very common under these 

circumstances since few judges wish to stall jury deliberations while having a transcript prepared. 
16 

Petitioner makes no suggestion that the response was inappropriate, except for his claim that the 

recording was unintelligible, which he never presented to the state courts. 

 Therefore, Ground Two should be dismissed. 

Ground Three: Judicial Bias 

 In his Third Ground for Relief, Barnes claims the trial judge was biased against him as 

demonstrated by an untrue statement made at sentencing. The statement to which exception is 

taken occurs in the transcript of sentencing. Judge Mark C. Fleagle is noting relevant facts reported 

in the presentence investigation report and says: “By the time you were an adult, you had amassed 

burglary with a felonious assault being shot – shooting Deon Draugh[a]n, a possession felony case, 

unauthorized use of a motor vehicle, assault, and numerous other charges as a juvenile.” (State 

Court Record, ECF No. 6-3, PageID 1325). 

 The claim that this statement was untrue and evidenced judicial bias was not raised on 

direct appeal. Petitioner claims he raised this issue as part of his Ohio R. App. P. 26(B) Delayed 

Application to Reopen (Traverse, ECF No. 17, PageID 1428). Petitioner’s counsel makes no 

record citation, but the document in question is Exhibit 49 in the State Court Record, ECF No. 6-

1, PageID 548, et seq., and the allegation appears at Claim V: 

The Judge used false, incorrect and totally unsubstantiated claims 

that this Appellant shot a man in the past. This falsified allegation 

was used to give the appearance that the maximum sentence 

imposed was substantiated. Not only did Appellant never shoot the 

man in question, that man has filed an affidavit that not only did 

Appellant never shoot him, but that he has never been shot. 

Appellate counsel was ineffective for failing to include this claim as 

a component of the assignment of error challenging the sentence and 

had appellate counsel included this false, misleading and prejudicial 
17 

action by the Judge the outcome of the appeal process would have 

been different. 

Id. at PageID 554. There is no affidavit of Deon Draughan attached to this 26(B) application. 

Petitioner’s counsel avers that it exists, but gives no record reference (Traverse, ECF No. 17, 

PageID 1428-29). The Fifth District denied this 26(B) Application as untimely. State v. Barnes, 

Case No. CT2015-013 (5th Dist. Dec. 5, 2016)(copy at State Court Record, ECF No. 6-1, PageID 

562-63). 

No such affidavit is mentioned in Barnes’s Sentencing Memorandum, which was 

presumably filed after the presentence investigation report from which Judge Fleagle derived the 

information about the shooting (State Court Record, ECF No. 6, Ex. 5, PageID 66-67). The 

supposed shooting of Draughan is also not mentioned in the State’s Sentencing Memorandum, 

which recites the following regarding recidivism: 

In the case at bar, the Defendant has a lengthy and serious criminal 

record. including a 2013 conviction for Trafficking in cocaine, and 

for the manufacturing of cocaine. Before that he served 6 years in 

prison for trat1icking in drugs from 2006, possessed a firearm in 

violation of law in 2006, did 2 years for Possession a felony-two 

quantity of drugs in 200l and 2002, as well as a number of 

misdemeanor offenses. 

Id. at Ex. 4 PageID 62. 

 After his direct appeal, Barnes was resentenced. At the hearing his attorney referenced 

affidavits from two eyewitnesses, one of whom testified at trial, but nothing from Draughan 

(Transcript, State Court Record ECF No. 6-3, PageID 1341.) Neither his attorney nor Barnes in 

his allocution said anything about Draughan. Id. The judge did not advert to the Draughan 

shooting in the re-sentencing, but said he had reviewed the presentence investigation and that 

Barnes’s “history of criminal conduct demonstrates that consecutive sentences are necessary to 
18 

protect the public from future crime.” Id. at 1350. Barnes was thirty-five at the time of resentencing, and therefore not a youthful offender. 

 Barnes did not raise a claim of judicial bias on his direct appeal from re-sentencing (State 

Court Record, ECF No. 6-1, Ex. 42, PageID 451). Barnes filed a pro se App. R. 26(B) Application 

to Reopen (“Second 26(B) Application”) that appeal and raised the same claim of judicial bias he 

had raised in his First 26(B) Application. He again claims that an affidavit from Draughan exists, 

but gives no record reference to it1

. Id. at Ex. 57, PageID 606-07.) 

 The Fifth District dismissed Barnes’s First 26(B) Application because it was untimely filed. 

It considered Barnes’s Second 26(B) Application on the merits as to the first two omitted 

assignments of error and held: “Appellant's first and second proposed assignments of error again 

contest his maximum consecutive sentence, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E. 3d 659. This court has reviewed appellant’s sentence twice. We do not find 

any evidence of prejudice regarding this issue.” State v. Barnes, Case No. CT2016-0024 (5th Dist. 

Aug. 28, 2017) (copy at State Court Record, ECF No. 6-1, Ex. 58, PageID 615-16). 

 A criminal defendant is undoubtedly entitled to an unbiased judge as a matter of due 

process. Williams v. Pennsylvania, 579 U.S. ___, 136 S. Ct. 1899 (2016); Tumey v. Ohio, 273 

U.S. 510 (1927), Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). However, the source 

of disqualifying bias must ordinarily be extrajudicial. Liteky v. United States, 510 U.S. 540 (1994). 

Since the decision in Liteky, “federal courts have been uniform in holding that § 455(a) cannot be 

satisfied without proof of extrajudicial bias, except in the most egregious cases.” Flamm, Judicial 

Disqualification 2d § 25.99, citing In re Antar, 71 F.3d 97 (3rd Cir. 1995), overruled on other 

grounds Smith v. Berg, 247 F.3d 532, 534 (3rd Cir. 2001). 

 

1

 If Petitioner files objections to this Report, he is ORDERED to include a reference to the purported Draughan 

Affidavit in the State Court Record or to attach a copy showing when it was filed in the Common Pleas Court. 
19 

 Barnes presents no evidence of extrajudicial bias. Judge Fleagle obviously took his 

observation about the Draughan shooting from the presentence investigation report2

. It is not 

evidence of bias for a judge to rely on facts presented in a presentence investigation (“PSI.”) If 

the PSI was incorrect about this shooting, Barnes had an obligation to raise the error before or at 

sentencing, but it is not mentioned in the Sentencing Memorandum or in the oral transcript. Since 

the judge’s reliance on the prior shooting appears of record, Barnes was obliged to raise it on direct 

appeal or face the res judicata bar of State v. Perry, 10 Ohio St. 2d 175 (1967). It could have been 

properly raised as an omitted assignment of error on the First 26(B) Application, as it was, but that 

Application was untimely. Because failure to file such an Application on time is an adequate and 

independent state ground of decision, this claim could have been procedurally defaulted on the 

basis of the dismissal of the First Application. Hoffner v. Bradshaw, 622 F.3d 487, 504-05 (6th

Cir. 2010). 

 However, the Fifth District did not treat the claim as procedurally defaulted, but decided it 

on the merits when presented in the Second 26(B) Application, effectively waiving Barnes’s 

failure to present it on the first direct appeal and his untimeliness on the First 26(B) Application. 

Of course, a Rule 26(B) application preserves for habeas review only the ineffective 

assistance of appellate counsel arguments, “not the underlying substantive arguments.” 

Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), citing Lott v. Coyle, 261 F.3d 594, 612 

(6th Cir. 2001). Technically, what the Fifth District was deciding as to the Second 26(B) 

Application is that Barnes did not receive ineffective assistance of appellate counsel on direct 

appeal from resentencing when the claim was not raised there, although this is done without 

mentioning that a Rule 26(B) Application is limited to ineffective assistance of appellate counsel 

 

2

 That report is not part of the State Court Record and would not ordinarily be furnished to a hebas court. 
20 

claims. 

A criminal defendant is entitled to effective assistance of counsel on appeal as well as at 

trial, counsel who acts as an advocate rather than merely as a friend of the court. Penson v. Ohio, 

488 U.S. 75 (1988); Evitts v. Lucey, 469 U.S. 387 (1985); Mahdi v. Bagley, 522 F.3d 631, 636 (6th

Cir. 2008). Counsel must be appointed on appeal of right for indigent criminal defendants. United 

States v. Cronic, 466 U.S. 648 (1984); Anders v. California, 386 U.S. 738 (1967); Douglas v. 

California, 372 U.S. 353 (1963). The right to counsel is limited to the first appeal as of right. Ross 

v. Moffitt, 417 U.S. 600 (1974). The Strickland test applies to appellate counsel. Smith v. Robbins, 

528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). “To evaluate a claim of 

ineffective assistance of appellate counsel, then, the court must assess the strength of the claim 

that counsel failed to raise.” Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011), citing Wilson 

v. Parker, 515 F.3d 682, 707 (6th Cir. 2008). “Counsel's failure to raise an issue on appeal amounts 

to ineffective assistance only if a reasonable probability exists that inclusion of the issue would 

have changed the result of the appeal.” Id., citing Wilson, 515 F.3d at 707.

Petitioner’s counsel does not argue the Third Ground for Relief as an ineffective assistance 

of appellate counsel claim, but directly on the merits of the judicial bias issue. Because the Fifth 

District reached the merits of the judicial bias issue, this Court can also reach the merits. 

The only way Judge Fleagle apparently knew about the Draughan shooting was from the 

PSI. It is not evidence of judicial bias that a judge relies for sentencing on facts reported to him 

or her by the court’s probation department. Barnes’s claim appears to be that Judge Fleagle 

persisted in relying on that prior crime even after it was pointed out to him that Draughan 

disclaimed the shooting. But when was the Draughan Affidavit presented to Judge Fleagle? No 

time reference is given in the Traverse or indeed in any of the state court filings on this issue. 
21 

Moreover, a judge cannot be shown to have been biased by relying on a presentence investigation 

report in the face of a later affidavit challenging the facts in the PSI. An affidavit, after all, is 

hearsay testimony, inadmissible for proof of the truth of its content. 

As noted above, the Fifth District decided this issue of judicial bias on the merits. Although 

the holding is cursory, it counts as a holding on the merits under Harrington. 562 U.S. at 103. A 

habeas court is required to defer to such a state court holding unless it is contrary to or an 

objectively unreasonable application of clear Supreme Court precedent. Barnes has not shown 

that the decision of the Fifth District on the judicial bias issue is contrary to or an objectively 

unreasonable application of the Supreme Court precedent on judicial bias cited above. Therefore, 

the Third Ground for Relief should be dismissed. 

Conclusion 

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

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

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

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

proceed in forma pauperis. 

February 6, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 
22 

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. 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).