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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. 

SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 8) to the 

Magistrate Judge’s recommendation on initial review that the case be dismissed with prejudice 

(Report and Recommendations, ECF No. 5, the “Report”). Judge Rose has recommitted the case 

for further consideration in light of the Objections (ECF No. 9). 

 The Petition in this case contains six grounds for relief: (1) conviction against the manifest 

weight of the evidence; (2) ineffective assistance of trial counsel for failure to object to object to 

Kim Baker’s testimony and to allowing a lay witness to testify as an expert; (3) failure to merge 

counts 4 and 5 with counts 1, 2, and 3; (4) trial court failure to consider sentencing factors in Ohio 

Revised Code § 2929.14(C)(4); (5) denial of impeachment of witness Baker; and (6) denial of a 

continuance (Report, ECF No. 5, PageID 23). The Report recommended dismissing all six 

grounds for relief either on the merits or because they did not state a claim under the Constitution 

on which habeas corpus relief can be granted. 
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 Petitioner devotes the first four pages of his Objections to arguing he can show cause and 

prejudice to excuse his late filing in the Supreme Court of Ohio (ECF No. 8, PageID 39-42). But 

the Magistrate Judge did not recommend finding him in procedural default on any of his Grounds 

for Relief.1 

 Petitioner devotes the balance of his Objections to arguing that his double jeopardy claim 

(Ground Three) was fairly presented to the Second District Court of Appeals by his assignment of 

error claiming the weapons under disability counts should have been merged with the felonious 

assault counts under Ohio Revised Code § 2941.25 (ECF No. 8, PageID 43-47). The Report did 

not recommend dismissing the claim for lack of fair presentation, but rather read is as raising only 

a state law claim under Ohio Revised Code § 2941.25, which is not cognizable in habeas corpus 

(Report, ECF No. 5, PageID 29-30). 

 If Petitioner had pleaded a Double Jeopardy claim in this Court, the Report would have 

had to reach the issue of fair presentation. But Clark said nothing about double jeopardy in his 

Petition. The full text of Ground Three 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 that should 

have been merged. 

(Petition, ECF No. 1.) Thus, the question on Ground Three is not whether it was fairly presented 

to the Ohio courts as a double jeopardy claim, but whether it has been pleaded as a double jeopardy 

claim in this Court. Clark cites authority for the proposition that pleading an assignment of error 

 

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 If the District Judge should reject the recommendations made in this and the prior Report, Respondent can still raise 

the procedural default defense and the Court will decide it at that time. 
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under Ohio Revised Code § 2941.25 fairly presents a double jeopardy claim to the state courts, but 

no authority for the idea that one can raise a double jeopardy claim in federal court without ever 

using those words. 

 Putting that confusion aside and treating the Petition as if it raised a pure double jeopardy 

claim, the Magistrate Judge finds that claim is without merit. The Double Jeopardy Clause of the 

Fifth Amendment to the United States Constitution affords a defendant three basic protections: 

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). 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); Blockburger v. United States, 284 U.S. 299, 304 (1932). Applying the 

Blockburger test, it is plain that the offenses of conviction have different elements. Felonious 

assault is committed by assaulting another person with a deadly weapon. Having weapons under 

disability is committed by acquiring a firearm at a time when one is disqualified by law from 

possessing a gun, e.g., by having been convicted of a felony. As the Second District noted, Clark 

did not acquire the weapon he used in the assault “with an immediate, virtually simultaneous intent 

to fire it at the victim and had no other reason for possessing the weapon.” State v. Clark, 2nd Dist. 

Montgomery No. 27365, 2017-Ohio-7633, ¶ 31 (Sept. 15, 2017). Thus, there is no double jeopardy 

violation in punishing Clark separately for obtaining a firearm when he was not permitted to have 
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one and then using that firearm to assault the victims in this case. 

Clark raises no objection to the recommended disposition of any of the other five grounds 

for relief. 

Conclusion 

 Having further analyzed the case in light of the Objections, the Magistrate Judge again 

concludes that it should 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. 

September 27, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

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

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

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

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

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

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. 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, 
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153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).