IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RICHARD A. DAVIDSON, 

 CASE NO. 2:18-CV-00495 

 Petitioner, JUDGE ALGENON L. MARBLEY 

 Chief Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, WARREN 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. On March 11, 2019, the Court issued an Opinion and Order dismissing all of 

Petitioner’s claims, with the exception of his amended claim of ineffective assistance of appellate 

counsel. (ECF No. 25.) On March 27, 2019, Respondent filed a Supplemental Memorandum on 

that claim. (ECF No. 31.) Petitioner has filed Reply. (ECF No. 32.) The issue now is ripe for 

review. For the reasons that follow, the Undersigned RECOMMENDS that Petitioner’s 

amended claim of the denial of the effective assistance of appellate counsel be DENIED and that 

this action be DISMISSED. 

I. Facts and Procedural History

 Petitioner challenges his conviction in the Fayette County Court of Common Pleas for 

unlawful sexual conduct with a minor. This Court previously has detailed the facts and 

procedural history of this case. (See Report and Recommendation, ECF No. 13; Opinion and

Order, ECF No. 25.) As discussed, the sole issue remaining for this Court’s review involves 

Petitioner’s amended claim that he was denied the effective assistance of appellate counsel based 

on his attorney’s failure to raise on appeal a claim that the evidence was constitutionally 
2 

insufficient to establish his conviction, as he lacked knowledge of the alleged victim’s true age 

based on her deception and did not act recklessly in that regard; that the trial court lacked subject 

matter jurisdiction; that the trial court improperly failed to consider Petitioner’s diagnosis of post 

tramatic stress disorder resulting from his military service in imposing sentence; and that 

appellate counsel failed to independently present all of Petitioner’s claims to the state appellate 

court. (See Motion to Add Additional Claim of Ineffective Assistance of Appellate Counsel, ECF 

No. 20.) It is the position of the Respondent that this claim is without merit. 

II. Standard of Review 

Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective 

Death Penalty Act (“AEDPA”) sets forth standards governing this Court’s review of state-court 

determinations. The United State Supreme Court has described AEDPA as “a formidable barrier 

to federal habeas relief for prisoners whose claims have been adjudicated in state court” and 

emphasized that courts must not “lightly conclude that a State’s criminal justice system has 

experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.

Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also

Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for 

evaluating state-court rulings, and demands that state court decisions be given the benefit of the 

doubt.” (internal quotation marks, citations, and footnote omitted)).

The factual findings of the state appellate court are presumed to be correct. 

In a proceeding instituted by an application for a writ of habeas corpus by a person 

in custody pursuant to the judgment of a State court, a determination of a factual 

issue made by a State court shall be presumed to be correct. The applicant shall 

have the burden of rebutting the presumption of correctness by clear and convincing 

evidence. 
3 

28 U.S.C. § 2254(e)(1). “Under AEDPA, a writ of habeas corpus should be denied unless the 

state court decision was contrary to, or involved an unreasonable application of, clearly 

established federal law as determined by the Supreme Court, or based on an unreasonable 

determination of the facts in light of the evidence presented to the state courts.” Coley v. Bagley, 

706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 

U.S.C. § 2254(d)(1) (a petitioner must show that the state court’s decision was “contrary to, or 

involved an unreasonable application of, clearly established federal law”); 28 U.S.C. § 

2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable determination 

of the facts in light of the evidence presented in the State court proceeding”). The United States 

Court of Appeals for the Sixth Circuit has explained these standards as follows: 

A state court’s decision is “contrary to” Supreme Court precedent if (1) “the state 

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 

question of law[,]” or (2) “the state court confronts facts that are materially 

indistinguishable from a relevant Supreme Court precedent and arrives” at a 

different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 

389 (2000). A state court’s decision is an “unreasonable application” under 28 

U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule from [the 

Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . 

. case” or either unreasonably extends or unreasonably refuses to extend a legal 

principle from Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362, 

120 S.Ct. 1495, 146 L.Ed.2d 389. 

Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with 

the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011). 

“In order for a federal court to find a state court’s application of [Supreme Court 

precedent] unreasonable, . . . [t]he state court’s application must have been objectively 

unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21, 

(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and 

Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. at 102 
4 

(“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as 

“ ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”) (quoting 

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable 

application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the 

reasonableness of the state court’s analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) 

(“[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should be on the 

ultimate legal conclusion that the state court reached and not whether the state court considered 

and discussed every angle of the evidence.”) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th 

Cir. 2002) (en banc )); see also Nicely v. Mills, 521 F. App’x 398, 403 (6th Cir. 2013) 

(considering evidence in the state court record that was “not expressly considered by the state 

court in its opinion” to evaluate the reasonableness of state court’s decision). Relatedly, in 

evaluating the reasonableness of a state court’s ultimate legal conclusion under § 2254(d)(1), a 

court must review the state court’s decision based solely on the record that was before it at the 

time it rendered its decision. Pinholster, 563 U.S. at 181. Put simply, “review under § 

2254(d)(1) focuses on what a state court knew and did.” Id. at 182. 

III. Ineffective Assistance of Appellate Counsel 

“In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . . 

. to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective 

assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) 

(citation omitted). The United States Supreme Court set forth the legal principals governing 

claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). 

Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate that his 

counsel’s performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; 
5 

Hale v. Davis, 512 F. App’x. 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient 

performance by counsel by demonstrating ‘that counsel’s representation fell below and objective 

standard of reasonableness.’” Poole v. MacLaren, 547 F. App’x 749, 754 (6th Cir. Dec. 5, 2013) 

(quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) 

and citing Strickland, 466 U.S. at 687). To make such a showing, a petitioner “must overcome 

the ‘strong [ ] presum[ption]’ that his counsel ‘rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.’” Poole, 547 F. App’x 

at 754 (quoting Strickland, 466 U.S. at 687). “To avoid the warping effects of hindsight, [courts 

must] ‘indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.’” Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) 

(quoting Strickland, 466 U.S. at 689). 

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 

285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Burger v. Kemp, 483 U.S. 776, 107 

S.Ct. 3114, 97 L.Ed.2d 638 (1987). . . . 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. 

. . . The attorney need not advance every argument, regardless of merit, urged by 

the appellant. Jones v. Barnes, 463 U.S. 745, 751–752, 103 S.Ct. 3308, 77 L.Ed.2d 

987 (1983) (“Experienced advocates since time beyond memory have emphasized 

the importance of winnowing out weaker arguments on appeal and focusing on one 

central issue if possible, or at most on a few key issues.” 463 U.S. 751–52). 

Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D. 

Ohio March 6, 2013). Factors to be considered in determining whether a defendant has been denied 

the effective assistance of appellate counsel include: 

(1) Were the omitted issues “significant and obvious”? 

(2) Was there arguably contrary authority on the omitted issues? 

(3) Were the omitted issues clearly stronger than those presented? 

(4) Were the omitted issues objected to at trial? 
6 

(5) Were the trial court’s rulings subject to deference on appeal? 

(6) Did appellate counsel testify in a collateral proceeding as to his appeal 

strategy and, if so, were the justifications reasonable? 

(7) What was appellate counsel’s level of experience and expertise? 

(8) Did the petitioner and appellate counsel meet and go over possible issues? 

(9) Is there evidence that counsel reviewed all the facts? 

(10) Were the omitted issues dealt with in other assignments of error? 

(11) Was the decision to omit an issue an unreasonable one which only an 

incompetent attorney would adopt? 

Mapes v. Coyle, 171 F.3d 408, 427–28 (6th Cir. 1999) (citations omitted). 

The United States Supreme Court has cautioned federal habeas courts to “guard against 

the danger of equating unreasonableness under Strickland with unreasonableness under § 

2254(d).” Harrington v. Richter, 562 U.S. at 105. The Court observed that while 

“‘[s]urmounting Strickland’s high bar is never an easy task, . . . [e]stablishing that a state court’s 

application of Strickland was unreasonable under § 2254(d) is all the more difficult. . . .’” Id. 

(quoting Padilla v. Kentucky, 559 U.S. 356,371-72 (2010) and citing Strickland, 466 U.S. at 

689). The Court instructed that the standards created under Strickland and § 2254(d) are both 

“‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations 

omitted). Thus, when a federal habeas court reviews a state court’s determination regarding an 

ineffective assistance of counsel claim, “[t]he question is not whether counsel’s actions were 

reasonable. The question is whether there is any reasonable argument that counsel satisfied 

Strickland’s deferential standard.” Id. Under this deferential standard of review, Petitioner has 

failed to establish that he is entitled to relief. 

 The state appellate court rejected Petitioner’s claim as follows: 
7 

Appellant claims he was denied the effective assistance of appellate counsel 

because appellate counsel failed to raise several issues related to the statute 

prohibiting unlawful sexual contact with a minor, including that the statute is void 

for vagueness, is unconstitutional under the 14th Amendment, it does not have a 

mens rea and is a strict liability statute. In addition, as part of this argument, he 

contends mistake of true age exempts him from criminal liability, there is no 

criminal intent and his attorney was ineffective for failing to raise actual innocence. 

In a second argument, appellant contends his sentence was contrary to law because 

the court did not consider his military service and post-traumatic stress disorder as 

required by law. 

An application of this nature shall be granted only if there is a genuine issue as to 

whether the applicant was deprived of the effective assistance of counsel on appeal. 

State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, ¶ 5. See, also, App.R. 

26(B)(5). As used in this analysis, ineffective assistance of counsel is intended to 

comprise the two elements set forth in Strickland v. Washington (1984), 466 U.S. 

668, 104 S.Ct. 2052, namely, a deficiency in the representation of appellant and 

prejudice resulting from such deficient representation. Tenace; State v. Sheppard, 

91 Ohio St.3d 329, 2001-Ohio-52. Appellant bears the burden of demonstrating a 

genuine issue as to whether he was denied the effective assistance of appellate 

counsel. Tenace, 2006-Ohio-2987 at ¶ 6, citing State v. Spivey, 84 Ohio St.3d 24, 

1998-Ohio-704, certiorari denied (1999), 526 U.S. 1091, 119 S.Ct. 1506; State v. 

Myers, 102 Ohio St.3d 318, 2004-Ohio-3075, ¶ 9. 

“To show ineffective assistance, [appellant] must prove that his counsel were 

deficient for failing to raise the issues he now presents and that there was a 

reasonable probability of success had they presented those claims on appeal.” State 

v. Jalowiec, 92 Ohio St.3d 421, 422, 2001-Ohio-164, certiorari denied, 534 U.S. 

964, 122 S.Ct. 374. 

The sufficiency of evidence to support appellant’s conviction for unlawful sexual 

contact with a minor and the issue of appellant’s recklessness in regard to the 

victim’s age were discussed in the first and second assignments of error on direct 

appeal. Appellant’s arguments in his petition regarding the nature of the statutes 

involved fail to raise a genuine issue of ineffective assistance of appellate counsel 

as he has not met his burden to establish counsel’s ineffectiveness in failing to raise 

these issues on appeal.1

 

 

1 The state appellate court denied Petitioner’s claim of insufficiency of the evidence in relevant 

part as follows: 

{¶ 15} Davidson was convicted of unlawful sexual conduct with a minor, in 

violation of R.C. 2907.04(A). That statute provides, 

No person who is eighteen years of age or older shall engage in sexual conduct with 

another, who is not the spouse of the offender, when the offender knows the other 
8 

 

person is thirteen years of age or older but less than sixteen years of age, or the 

offender is reckless in that regard. 

{¶ 16} “Sexual conduct” is defined in R.C. 2907.01(A) as “vaginal intercourse 

between a male and female; anal intercourse, fellatio, and cunnilingus between 

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

slight, of any part of the body or any instrument, apparatus, or other object into the 

vaginal or anal opening of another.” 

{¶ 17} “A person has knowledge of circumstances when he is aware that such 

circumstances probably exist.” R.C. 2901.22(B). “A person is reckless with respect 

to circumstances when, with heedless indifference to the consequences, he 

perversely disregards a known risk that such circumstances are likely to exist.” R.C. 

2901.22(C); State v. Smith, 12th Dist. Warren Nos. CA2012–02–017 and CA2012–

02–018, 2012–Ohio–4644, ¶ 36. 

{¶ 18} Davidson’s convictions for unlawful sexual conduct with a minor and 

aggravated possession of drugs were based on sufficient evidence. The state 

presented evidence that R.S. was 13 years old and Davidson was 43 years old on 

November 24, 2016. R.S. testified about the encounter with Davidson which 

included both cunnilingus and digital penetration. 

{¶ 19} Davidson argues that his conduct was at worst negligent, and certainly not 

reckless. Davidson cites R.S.’s dating profile and her insistence that she was 19 

years old. Davidson further believes that the trial court considered the hookup 

websites and pornographic imagery contained in photographs of the website as 

evidence that he was morally reprehensible and thus guilty without considering 

whether his behavior was legally reckless. Essentially, Davidson argues “the trial 

court would have to have found that Mr. Davidson disregarded a substantial and 

justifiable risk that R.S. was under the age of sixteen based solely upon her living 

with her grandparents and him failing to ask for government-issued identification 

and proof of age.” 

{¶ 20} However, following review of the record, we find Davidson’s argument is 

without merit. In a sufficiency analysis, “the persuasiveness of the State’s evidence 

is not at issue.” State v. Stoddard, 9th Dist. Summit No. 27426, 2015–Ohio–3750, 

¶ 25. The only issue is whether, viewing the evidence in favor of the State, the State 

set satisfied its burden of production. Id. 

{¶ 21} In this case, R.S. testified that she had invited Davidson to the house in the 

middle of the night and gave him instructions to not arouse the suspicions of her 

grandmother. R.S. testified that Davidson asked her how old she was on numerous 

occasions and even asked her what her birthday was, which caused her to “pause” 

so she could do the math in her head. While R.S. told Davidson that she was 19 

years old, he did not do anything to learn her true age. In fact, the evidence strongly 
9 

Likewise, appellant has failed to raise a genuine issue of ineffective assistance of 

appellate counsel in relation to the court’s failure to consider his military service 

and post-traumatic stress disorder. The statutory provision requiring a court to 

consider these factors is found in R.C. 2929.12(F), and the court stated in the 

sentencing entry that it had considered the statutory provisions set forth in R.C. 

2929.12 in determining sentence. Accordingly, the court did not fail to consider 

this factor. Moreover, appellant has not argued, much less established, how his 

post-traumatic stress disorder was a contributing factor to his commission of 

unlawful sexual conduct with a minor, as required by the statute. 

Under Strickland, a court must apply a heavy measure of deference to counsel’s 

judgments, and indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance. Counsel’s failure to argue those 

issues appellant presents in his application does not raise a genuine issue as to 

whether counsel was ineffective since counsel is not required to present every 

imaginable issue on direct appeal. 

Upon due consideration of the foregoing, and it appearing to the court that there is 

no genuine issue as to whether appellant was deprived of the effective assistance of 

counsel on appeal. . . appellant’s application for reopening is hereby DENIED. 

(Entry Denying Application to Reopen Appeal, ECF No. 30-2, PAGEID # 371-74.) 

 Petitioner argues that the appellate court contravened or unreasonably applied 

federal law when it stated that he had failed to raise a “genuine issue as to whether 

counsel was ineffective” in lieu of applying the test set forth in Strickland. (Reply, ECF 

No. 32, PAGEID # 378.) The record does not support this argument. To the contrary, 

the state appellate court recognized and appropriately applied the two-prong test set forth 

by the Supreme Court in Strickland, concluding that Petitioner had failed to raise any 

 

suggests that Davidson was extremely skeptical that R.S. had provided him with 

her correct age. Viewing the evidence in a light most favorable to the prosecution, 

a reasonable trier of fact could find that Davidson was reckless in determining 

R.S.’s true age before engaging in sexual conduct with her. 

State v. Davidson, 12th Dist. Nos. CA2017-08-015, CA2017-08-016, 2018 WL 2095706, 

at *2-3 (Ohio Ct. App. May 7, 2018). 
10 

“genuine issue” regarding the denial of the effective assistance of appellate counsel under 

Strickland. That reasoning does not provide a basis for relief under 28 U.S.C. § 2254(d). 

 Notably, in the filing of his Reply (ECF No. 32), Petitioner attempts to raise 

additional new claims that he did not previously raise in the Motion to Add the 

Additional Claim of Ineffective Assistance of Appellate Counsel (ECF No. 20) or present 

to the state appellate court in Rule 26(B) proceedings. (See ECF No. 30-1, 30-2.) For 

example, Petitioner argues at length that he was denied the effective assistance of trial 

counsel, because his attorney failed to investigate or understand the elements of the 

offense charged, failed to present a defense, stipulated to guilt, wrongfully advised 

Petitioner to waive his right to a jury trial, refused to permit Petitioner to testify on his 

own behalf, failed to object, failed to present defense witnesses, failed to appear at 

sentencing, failed to submit mitigating evidence at sentencing, failed to challenge the 

constitutionality of O.R.C. § 2907.04(A) as void for vagueness, and failed to establish 

whether that statute imposed strict liability or required a certain mens rea, or intent, to 

establish guilt. (Reply, ECF No. 32, PAGEID # 385-94.) Petitioner also argues that his 

appellate counsel performed in a constitutionally ineffective manner by failing to raise 

these same issues on direct appeal. (PAGEID # 392.) These claims are not properly 

before the Court. 

 The Court granted Petitioner’s request to amend the Petition to include only those 

same issues of the denial of the effective assistance of appellate counsel that Petitioner 

had presented to the state appellate court in his application to reopen the appeal under 

Ohio Rule 26(B). (See Motion to Add the Additional Claim of Ineffective Assistance of 

Appellate Counsel, ECF No. 20.) Thus, the Court will not now address any additional 
11 

claims raised by Petitioner through the filing of his Reply (ECF No. 32). Instead, the 

Court will address solely those same claims of ineffective assistance of appellate counsel 

presented by Petitioner in his motion to amend and in Rule 26(B) proceedings. 

 Petitioner claims that his attorney failed to separately identify and argue issues 

involving the insufficiency of the evidence and manifest weight of the evidence in regard 

to his conviction on unlawful sexual conduct with a minor. (Reply, ECF No. 32, 

PAGEID # 383.) The record, however, does not indicate that appellate counsel raised a 

claim regarding the manifest weight of the evidence, or any error in this regard. (Brief of 

Defendant-Appellant Richard Davidson, ECF No. 9, PAGEID # 57-58.) Moreover, the 

state appellate court conducted an independent review of the sufficiency of the evidence 

as it pertained to Petitioner’s conviction for aggravated possession of drugs, despite 

appellate counsel’s failure to include any argument on this issue, concluding that the 

evidence was constitutionally sufficient to sustain both of Petitioner’s convictions. State 

v. Davidson, 2018 WL 2095706, at *3.2

 Petitioner does not indicate, and the record does 

not reflect, the manner whereby any additional argument would have assisted him. He 

therefore has failed to establish a claim for ineffective assistance of appellate counsel on 

this basis. 

 

2 The appellate court found as follows: 

[A]lthough Davidson argues that both of his convictions were not supported by 

sufficient evidence, he makes no argument in his brief as to the second conviction 

for aggravated possession of drugs. Nevertheless, following independent review, 

we conclude that Davidson’s conviction for aggravated possession of drugs is also 

supported by sufficient evidence. The state presented sufficient evidence that 

Davidson knowingly possessed methamphetamine in violation of R.C. 2925.11. As 

a result, Davidson’s first and second assignments of error are overruled. 

State v. Davidson, 2018 WL 2095706, at *3. 
12 

 Petitioner asserts that appellate counsel improperly failed to challenge the application of 

O.R.C. § 2907.04(A) as unconstitutionally vague or argue that it impermissibly imposed strict 

liability or unconstitutionally prohibited him from raising the affirmative defense of mistake of 

age. He complains that appellate counsel failed to argue that he lacked knowledge of the alleged 

victim’s age. He further asserts that his attorney should have argued on direct appeal that the 

trial court lacked subject matter jurisdiction to hold him criminally liable for the offenses 

charged. These arguments do not assist him. 

 Appellate counsel did not fail to raise the issue regarding Petitioner’s alleged lack of 

knowledge of the victim’s age. To the contrary, his attorney argued in connection with his claim 

of insufficiency of the evidence that the State had failed to establish that that Petitioner knew the 

victim’s age or acted recklessly in that regard. Petitioner had met the alleged victim on an “adult 

only” website that required users to be at least 18 years of age. The victim knew that people 

utilized the website for sexual encounters. She lied about her age, stating that she was 19 years 

old. (ECF No. 9, PAGEID # 62-63.) She also falsely told Petitioner that she was 19 years old 

when he asked. (PAGEID # 63.) Appellate counsel argued that, under these circumstances, 

Petitioner acted negligently at worst. (PAGEID # 66-68.) The state appellate court rejected this 

argument. Under these circumstances, Petitioner has not shown that he was denied effective 

assistance of appellate counsel. 

None of the remaining issues referred to which Petitioner refers involve potentially 

meritorious claims for relief. Petitioner’s argument that Ohio’s statute on unlawful sexual 

conduct with a minor is unconstitutionally void would have been reviewed on direct appeal for 

plain error only, due to his failure to raise the issue at trial. See State v. Awan, 22 Ohio St.3d 120 

(Ohio 1986) (failure to raise issue of unconstitutionality of a statute at the trial level waives the 
13 

issue for appeal). Moreover, the record reflects that such a claim would not have succeeded. To 

establish that a statute is unconstitutionally void for vagueness, the challenging party must show 

that “an individual of ordinary intelligence would not understand what he is required to do under 

the law.” State v. Anderson, 57 Ohio St.3d 168, 171 (Ohio 1991). Petitioner would have to 

establish “beyond a reasonable doubt, that the statute was so unclear that he could not reasonably 

understand that it prohibited the acts in which he engaged.” Id. (citing United States v. Harriss

(1954)). It does not appear that Petitioner could meet this standard. At least one Ohio court has 

rejected the argument that O.R.C. § 2907.04(A) is unconstitutionally void for vagueness. See

State v. Turner, 156 Ohio App.3d 177 (Ohio Ct. App. 2004). Further, the “Ohio courts have 

repeatedly recognized that no mens rea is necessary for the element of engaging in sexual 

conduct under R.C. 2907.04(A); it is a strict liability element.” State v. Jackson, 8th Dist. No. 

92531, 2010 WL 2635062, at *5 (Ohio Ct. App. July 1, 2010) (citing State v. Matthews, 7th Dist. 

No. 08–MA–49, 2009–Ohio–3254; State v. Notestine, 6th Dist. No. OT–08–038, 2009–Ohio–

3220; State v. McGinnis, 3d Dist. No. 15–08–07, 2008–Ohio–5825.) “Indeed, ‘although R.C. 

2907.04 requires the offender to be at least reckless in knowing the victim’s age, it does not 

require the state to prove the offender’s mental state for engaging in sexual conduct.’” Id. (citing 

Notestine at ¶ 53.) See also State v. Vansickle, 12th Dist. No. CA2013-03-005, 2014 WL 

1356681, at *4 (Ohio Ct. App. March 31, 2014) (“[T]he offense of unlawful sexual conduct with 

a minor is not a specific intent crime.”) Therefore, the defense of mistake of fact does not apply: 

“Mistake of fact” can only negate a specific intent crime. This court has previously 

explained that “‘recklessness’ involves an even lower mental state than 

‘knowingly’ “ and “does not involve a specific intent.” State v. Bryant, 12th Dist. 

Warren No. CA2007–02–0241, 2008–Ohio–3078, ¶ 13, citing State v. Davis, 145 

Ohio App.3d 296, 299, 762 N.E.2d 1027 (12th Dist.2001). As reckless conduct was 

sufficient to prove that [the defendant] acted with the necessary mental state, there 

was nothing about the reckless conduct that mistake of fact could have negated. 
14 

Id. Thus, Petitioners argument that the statute therefore is void, or that the trial court lacked 

jurisdiction fails. Finally, the record does not indicate that the trial court failed to comply 

with state law in imposing sentence, or that any additional argument regarding Petitioner’s 

prior military service or diagnosis of post traumatic stress disorder would have assisted 

him. 

 In short, Petitioner has failed to establish the denial of the effective assistance of 

appellate counsel. This claim lacks merit. 

IV. Recommended Disposition 

For the foregoing reasons, the Undersigned RECOMMENDS that this action be 

DISMISSED. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

in part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 
15 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 _s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers 

 Chief United States Magistrate Judge