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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

ANTHONY CLARK, 

Petitioner, : Case No. 3:18-cv-266 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

THOMAS SCHWEITZER, Warden, 

 Lebanon Correctional Institution 

 : 

 Respondent. 

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 15) to the 

Magistrate Judge’s Supplemental Report and Recommendations (ECF No. 10). Judge Rose has 

recommitted the matter for reconsideration in light of the Objections (ECF No. 16). 

 Clark’s Third Ground for Relief reads: 

Ground Three: Petitioner was denied due process when the trial 

court failed to merge counts 4 and 5 with 1, 2, and 3. 

Supporting Facts: Petitioner’s convictions for felonious assault 

and having weapons under disability are allied offense[s] that should 

have been merged. 

(Petition, ECF No. 1.) 

 Clark asserts this is a double jeopardy claim, although the words “double jeopardy” are 

never used. The Supplemental Report pointed this out and noted Clark had cited “no authority for 

the idea that one can raise a double jeopardy claim in federal court without ever using those words.” 
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(ECF No. 10, PageID 77.) Clark objects that under the liberal construction standard of Haines v. 

Kerner, 404 U.S. 519, 520-21 (1972), he is entitled to have his claim of a due process violation 

read as including a Double Jeopardy violation (Objections, ECF No. 15, PageID 87). The 

Magistrate Judge accepts this position and has offered an analysis of Ground Three when it is 

construed as a Double Jeopardy claim (Supplemental Report, ECF No. 10, PageID 77-78). 

 The Supporting Facts for Ground Three reads, “Petitioner’s convictions for felonious 

assault and having weapons under disability are allied offenses that should have been merged.” 

(Petition, ECF No. 1, PageID 9.) In the Supplemental Report, the Court read that allegation 

literally, applied the well-established Blockburger test, and found that those two offenses have 

different elements. Therefore, there was no basis for finding a Double Jeopardy violation. 

 Clark objects that this is not his position. Rather, he says, he has argued all along that his 

weapons under disability convictions should be merged with one another and his felonious assault 

convictions should also be merged with one another (Objections, ECF No. 15, PageID 88-91). But 

examining the decision of the Ohio Second District Court of Appeals shows Clark argued 

something different to that court on direct appeal. That court’s opinion states the background facts 

on which Clark was indicted and its resolution of the assignment of error: 

I. Background 

[*P2] Kimber Baker was friends with Beth Ann Adams and knew 

Adams's boyfriend, Clark. According to Baker, in April or May 

2016, she learned that Adams and Clark were having relationship 

problems. It seems that Adams had met Baker's step-brother and that 

the two of them now had some sort of a relationship. One day, near 

the end of May, Clark came to Baker's house, put a gun through the 

mail slot and started asking her where Beth was. Baker begged him 

to leave, and eventually he did. Afterwards, Adams stopped being 

friendly with Baker and became angry. 
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[*P3] On May 30, about a week after the gun-through-the-mail-slot 

incident, Baker left her house to pick up her sister-in-law. Baker had 

her three-year-old nephew and her one-year-old son with her. 

According to Baker, while she was stopped at a red light, Adams 

pulled up next to her and started yelling and swearing at her. Adams 

then jumped out of her car and came towards Baker's truck. Baker 

took off, running a red light to get away. She turned around and went 

back home. She parked in front of her house and was getting the 

children out when Baker saw Adams coming up the street behind 

her. Baker quickly shepherded the children into the front seat and 

drove away. 

[*P4] She turned into an alley to cut across to another street. But 

just as Baker reached the end of the alley, Clark suddenly pulled up 

from the right and stopped in front of her at an angle, almost noseto-nose with her truck, facing the truck's passenger side. Baker 

watched as he pointed a handgun and fired three times—first at the 

truck's tires and then twice more, with the last shot aimed right at 

Baker. Adams then pulled into the alley behind Baker. Clark and 

Adams were out of their cars when Baker hit the gas, driving over 

the left curb to get around Clark's car. She drove straight to her 

father's house where she called the police. 

[*P5] Dayton police officers Mitchell Olmstead and Christopher 

Fogle responded. When the officers met with Baker, she appeared 

very upset and scared. Baker told them what had happened and 

identified Clark as the shooter. While Olmstead spoke with Baker, 

Fogle looked over Baker's truck. He saw a bullet hole in the 

passenger-side fender behind the tire and glancing strikes on the 

hood and windshield. Later, Dayton police homicide detective 

Nathan Via examined the truck and also saw the bullet hole and the 

two glancing strikes. He interviewed Clark, and Clark denied any 

involvement in the incident. 

[*P6] In July 2016, Clark was indicted on three counts of seconddegree felonious assault (deadly weapon), under R.C. 

2903.11(A)(2), each of which included a three-year and five-year 

firearm specification and a repeat-violent-offender specification; 

one count of third-degree discharge of a firearm on or near 

prohibited premises, over a public road or highway when there is a 

substantial risk of physical harm to any person or serious physical 

harm to property, under R.C. 2923.162(A)(3) and (C)(2), along with 

a three-year firearm specification; one count of third-degree having 

weapons under disability (prior drug conviction), under R.C. 

2923.13(A)(3); and another count of third-degree having weapons 
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under disability (prior offense of violence), under R.C. 

2923.13(A)(2). 

[*P7] A jury trial was held on the felonious-assault and dischargeof-a-firearm offenses, and the two having-weapons-under-disability 

offenses were tried to the court. Clark was found guilty on all counts 

and specifications. At sentencing, when all was said and done as to 

merger and consecutive service, Clark's total prison sentence is 23 

years. 

* * * 

C. Merger 

[*P29] The third assignment of error alleges that the trial court erred 

by not merging the offenses of having weapons under disability with 

the offenses of felonious assault under R.C. 2941.25. 

[*P30] Under R.C. 2941.25, "an accused may be convicted and 

sentenced for multiple offenses when '(1) the offenses are dissimilar 

in import or significance—in other words, each offense caused 

separate, identifiable harm, (2) the offenses were committed 

separately, or (3) the offenses were committed with separate animus 

or motivation.'" State v. Williams, 148 Ohio St.3d 403, 2016-Ohio7658, 71 N.E.3d 234, ¶ 18, quoting State v. Ruff, 143 Ohio St.3d 

114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. The defendant must 

prove entitlement to merger. State v. Grissom, 2d Dist. Montgomery 

No. 25750, 2014-Ohio-857, ¶ 44. 

[*P31] We have said that to prove that the offenses of felonious 

assault and having weapons under disability merge, the defendant 

must show that he acquired the weapon with an immediate, virtually 

simultaneous intent to fire it at the victim and had no other reason 

for possessing the weapon. Id. Here, the evidence shows only that 

Clark acquired the gun some time before shooting it at Baker. There 

is no evidence that Clark acquired the gun with an immediate intent 

to shoot it at Baker and that he had no other reason for acquiring it. 

So it can only be concluded that Clark's choice to possess the 

handgun while under disability was separate and distinct from his 

choice to fire it at Baker and the children, and therefore the offenses 

do not merge. 

[*P32] The third assignment of error is overruled. 

State v. Clark, 2017-Ohio-7633 (2nd Dist. Sept. 15, 2017). 
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 Thus, it is plain from the Second District’s decision that Clark did not claim in that court 

that his felonious assault convictions should merge with one another. In his initial Objections, 

Clark asserted that he had made that claim on direct appeal (ECF No. 8, PageID 46), but the Second 

District’s opinion belies that claim – nothing about merging the felonious assault convictions with 

one another appears in that opinion. Therefore, the claim that the felonious assault convictions 

should merge with one another is procedurally defaulted because it could have been raised on 

direct appeal and was not. Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. 

Perry, 10 Ohio St. 2d 175 (1967), is an adequate and independent state ground of decision. Durr 

v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); 

Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 

2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 

127 F. Supp. 2d 899, 913 (S.D. Ohio 2001). 

 Even if this particular claim were not procedurally defaulted, it would be without merit. 

As the Second District’s opinion makes clear, there were three separate victims at whom Clark 

shot. Where there are separate victims, Ohio Revised Code § 2941.25 does not require merger. 

State v. Cabrales, 118 Ohio St. 3d 54 (2008) (paragraph one of the syllabus). 

 The Double Jeopardy Clause also does not prohibit separate convictions for the two 

offenses of having weapons while under disability with which Clark was charged because those 

two offenses have different elements. One of them required proof he had a weapon after being 

convicted of a drug offense (Ohio Revised Code § 2923.13(A)(3)) and the other required proof 

that he had previously been convicted of an offense of violence (Ohio Revised Code § 

2923.13(A)(2)). 
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Conclusion 

 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 (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). 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, 639 (1999), overruled by State v. Johnson, 128 

Ohio St. 3d 153 (2010)(syllabus). 

 Clark’s Double Jeopardy claim is without merit and the Petition should therefore 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. 

October 25, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 
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NOTICE REGARDING OBJECTIONS 

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

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

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

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

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

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

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

appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 

U.S. 140, 153-55 (1985).