UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

James Blankenship,

Petitioner, Case No. 2:18-cv-640

v. District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

Norman Robinson, Warden,

 London Correctional Institution,

Respondent.

OPINION AND ORDER

This habeas corpus case, brought pro se by Petitioner James Blankenship 

under 28 U.S.C. § 2254, is before the Court for determination of Petitioner’s 

Objections, ECF Nos. 17, 22, to the Magistrate Judge’s original Report and 

Recommendations (“Report”), ECF No. 14, and Supplemental Report and 

Recommendations (“Supplemental Report”), ECF No. 19.

Pursuant to Fed.R.Civ.P. 72(b), a District Judge is to review de novo any 

portions of a Magistrate Judge’s report and recommendations on the merits of a 

habeas corpus petition. Having conducted that de novo review, the Court 

concludes Petitioner’s Objections are without merit. Accordingly, the Report and 

Supplemental Report are ADOPTED, and the Petition will be ordered 

DISMISSED WITH PREJUDICE.

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I. FACTUAL AND PROCEDURAL OVERVIEW

On July 24, 2015, the Delaware County, Ohio, Grand Jury indicted 

Petitioner on one count of engaging in a pattern of corrupt activity in violation of 

Ohio Revised Code § 2923.32(A)(1) (Count 1); ten counts of breaking and 

entering in violation of Ohio Revised Code § 2911.13(A) (Counts 2, 4, 5, 7–9, 

and 11–14); and three counts of safecracking in violation of Ohio Revised Code 

§ 2911.31(A) (Count 3, 6, 10). State Court Record, ECF No. 4, Ex. 1, PageID 

23–30. Count Thirteen was dismissed on motion for acquittal and Count 

Fourteen was not presented to the trial jury, which convicted Blankenship on all 

the remaining counts. Id. at Ex. 3, PageID 33–34. He was then sentenced to 

nine and one-half years imprisonment, the term he is now serving. The Fifth 

District Court of Appeals affirmed, except for a remand to impose post-release 

control properly. State v. Blankenship, No. 16 CAA 0024, 2017-Ohio-7267 (Ohio 

App. 5th Dist. Aug. 16, 2017) (“Blankenship I”); appellate jurisdiction declined, 

151 Ohio St. 3d 1512, 2018-Ohio-365.

Subsequently, Blankenship filed an Application to Reopen his direct appeal 

under Ohio R.App.P. 26(B) on grounds his appellate counsel should have raised 

an insufficiency of the evidence claim. State Court Record, ECF No. 4, Ex. 16, 

PageID 168–77. The Fifth District declined to reopen the appeal (State v. 

Blankenship, No. 16 CAA 06 0024 (Ohio App. 5th Dist. Dec. 26, 2017) 

unreported, copy at State Court Record, ECF No. 4, Ex. 18, PageID 202-08

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(“Blankenship II”)), and the Supreme Court of Ohio again declined appellate 

jurisdiction. 152 Ohio St. 3d 1449, 2018-Ohio-1600. 

Blankenship then filed his Petition in this Court pleading three grounds for 

relief:

Ground One: There was insufficient evidence submitted 

to the jury to sustain a conviction as to Count VII of the 

indictment.

Supporting Facts: The State failed to present any 

evidence at all that the Defendant, or any of his alleged 

co-conspirators, committed a breaking and entering at 

the Delaware County Humane Society as alleged in 

Count VII of the indictment. The complete lack of any 

direct or circumstantial evidence in support of the 

conviction makes it constitutionally unsound. The State’s 

case on this Count of the indictment is supported only by 

speculation and conjecture and not

by any evidence at all.

Ground Two: There was insufficient evidence that any 

criminal conduct occurred in Delaware County, Ohio and 

the State of Ohio failed to provide any evidence that 

Delaware County had jurisdiction over this case.

Supporting Facts: The State of Ohio tried this case in 

Delaware County, Ohio but it failed to provide any 

evidence that Blankenship committed any crime in 

Delaware County, nor did the State present any evidence 

that Blankenship knew of, conspired with, or had any 

associate engage in any criminal conduct in Delaware 

County, Ohio. There was insufficient evidence to try the 

Defendant in Delaware County. Because the State failed 

to provide any evidence that venue was proper in 

Delaware County, the Petitioner was denied Due 

Process of Law when he was tried in Delaware County, 

Ohio.

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Ground Three: The Petitioner received ineffective 

assistance of counsel on appeal in violation of the Sixth 

Amendment to the U.S. Constitution.

Supporting Facts: Petitioner received ineffective 

assistance of counsel in his direct appeal when appellate 

counsel failed to argue that the state failed to present 

sufficient evidence that the Petitioner engaged in any 

enterprise or pattern of corrupt activity as defined by the 

state RICO statute. Appellate counsel filed to raise a 

meritorious assignment of error that would have resulted 

in reversal and the Petitioner was prejudiced as a result.

Petition, ECF No. 1, PageID 5, 6, 8. The Warden raised no affirmative 

procedural defenses, but defended the conviction on the merits. Return, ECF 

No. 5, PageID 282–83.

II. ANALYSIS

A. Ground One: Insufficient Evidence on Count Seven

In his First Ground for Relief, Blankenship asserted there was insufficient 

evidence to convict him on Count Seven of the Indictment charging him with 

breaking and entering the Delaware County Humane Society at a given address 

in Delaware, Ohio. Blankenship I, 2017-Ohio-7267, at ¶¶ 17–18, citing State 

Court Record, ECF No. 4, Ex. 1, PageID 26. The Fifth District Court of Appeals 

reviewed this claim under the appropriate United States Supreme Court 

precedent, Jackson v. Virginia. Blankenship I, 2017-Ohio-7267, ¶ 22, citing 443 

U.S. 307 (1979). The Magistrate Judge’s Report quotes the Fifth District’s 

opinion on this at length. ECF No. 14, PageID 1403–09. Noting that Supreme 

Court precedent requires deference to state court decisions on constitutional 

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questions which are not objectively unreasonable, the Magistrate Judge found 

the Fifth District’s decision on the sufficiency of the evidence was an appropriate 

application of Jackson, and recommended Ground One be dismissed on the 

merits. Id. at PageID 1414.

In his Objections, Petitioner admitted that the State had produced sufficient 

evidence that someone had broken into the Delaware County shelter on the day 

he was charged with breaking in, but claimed that the circumstantial evidence 

relating to all the other animal shelter break-ins within one month’s time and the 

admissions of co-participation in many of those crimes by his two co-participants, 

Corby Creech and Toni Beers, is insufficient. After the Magistrate Judge 

explained and reiterated his conclusion, see Supplemental Report, ECF No. 19, 

PageID 1431–34, Blankenship maintained his objection. ECF No. 22, PageID 

1445–47.

The Court OVERRULES Blankenship’s insufficiency of the evidence claim

and objections. The constitutional test under Jackson v. Virginia is whether any 

rational juror, construing the evidence most strongly in favor of the prosecution, 

could have found the Petitioner guilty. The decision of the Fifth District on the 

evidence that court summarized is clearly a reasonable application of Jackson.

Blankenship also objects to the Magistrate Judge’s allowing of the 

inference from the fact that his cellphone was in the vicinity of some of the breakins to the fact that it was on his person. He points to the testimony of his father 

at trial that sometimes when he would call Petitioner, either Creech or Beers 

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would answer. Supp. Objections, ECF No. 22, PageID 1447–48. While that 

weakens the inference, it does not destroy it. Cellphones are designed to be 

carried on the person of the owner. Yes, sometimes they are left on surfaces in 

areas shared with others who may answer the phone. But the only other persons 

who are shown to have answered this cellphone are person who lived with 

Petitioner. There was no evidence that either Creech or Beers answered 

Blankenship’s cellphone at a time when the State’s celltower evidence showed 

the cellphone to be near the site of a break-in.

Circumstantial evidence is rarely completely conclusive; even DNA 

evidence gets reported in probabilistic terms. But circumstantial evidence does 

not have to support only one inference to be admissible and probative. Here the 

inference from a particular cellphone’s being Blankenship’s to his presence 

where the phone was found to have been is completely reasonable. It was 

therefore not an error to admit this evidence or for the jury to rely on it, in part, in 

reaching its verdicts.

B. Ground Two: Insufficient Proof of Venue

Although Blankenship had pleaded insufficient proof of venue in Ground 

Two, he voluntarily withdrew this claim in his Traverse. ECF No. 12, PageID 

1390.

C. Ground Three: Ineffective Assistance of Appellate Counsel

In his Third Ground for Relief, Blankenship claimed he received ineffective 

assistance of appellate counsel when his appellate attorney did not raise as an 

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assignment of error that there was insufficient evidence to convict him of violating 

Ohio’s RICO statute, Ohio Revised Code § 2923.32(A)(1). The Magistrate 

Judge’s Report notes that Blankenship appropriately raised this claim in an 

application to reopen his direct appeal under Ohio R.App.P. 26(B), and the Fifth 

District denied it on the merits. ECF No. 14, PageID 1417, citing Blankenship II, 

State Court Record, ECF No. 4, Ex. 18, PageID 204–08. 

The question for this Court, then, is whether the Fifth District’s decision 

was a reasonable application of Strickland v. Washington, 466 U.S. 668 (1984), 

as it applies to appellate counsel. The Magistrate Judge concluded that it was,

and the Court agrees. It is a question of Ohio law what facts must be shown to 

establish the existence of an “enterprise” under the Ohio Racketeering Influenced 

and Corrupt Organizations (“RICO”) statute and the Fifth District held that there 

was such evidence, implying that an assignment of error claiming the contrary 

would have been without merit. The Report also found:

Contrary to Blankenship’s argument that there was no 

enterprise, there was testimony that the three coconspirators lived together in the same household 

continuously during the period of the sixteen crimes, that 

the crimes followed a remarkably parallel pattern (time of 

day, identity of target, etc.). Blankenship I, 2017-Ohio7267, ¶¶ 36, 38. There was further testimony from Beers 

that Blankenship and Creech paid the bills of the 

household but neither was gainfully employed in a 

legitimate job. Id. at ¶ 35.

(ECF No. 14, PageID 1418.)

It cannot be ineffective assistance of appellate counsel to fail to raise an 

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assignment of error which is without merit. The Fifth District essentially found 

that it would not have granted relief on this omitted assignment of error because 

the evidence was sufficient to prove the existence of an “enterprise” as that 

element is defined under Ohio RICO law.

III. CONCLUSION

In accordance with this analysis, the Court OVERRULES Petitioner’s 

Objections and ADOPTS the Magistrate Judge’s Report and Recommendations 

and Supplemental Report and Recommendations. The Petition is ordered to be 

DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree 

with this conclusion, Petitioner is DENIED a certificate of appealability in that the 

Court certifies to the Sixth Circuit that any appeal would be objectively frivolous,

and Petitioner should not be permitted to proceed in forma pauperis. 

IT IS SO ORDERED.

/s/ Michael H. Watson_____________

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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