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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

DANIEL B. BRAGG, 

Petitioner, : Case No. 2:18-cv-762 

- vs - District Judge Algenon L. Marbley 

Magistrate Judge Michael R. Merz 

CHARLES BRADLEY, Warden, 

 Pickaway Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus case brought pro se by Petitioner Daniel Bragg to obtain relief from 

his conviction in the Licking County Court of Common Pleas on one count of rape of a minor 

under the age of thirteen. Upon conviction, Petitioner was sentenced to be imprisoned for ten 

years to life and is serving that sentence in Respondent’s custody. 

 Although this case was filed at Columbus, the Magistrate Judge reference in the case has 

been transferred to the undersigned to help balance the magistrate judge workload in the District. 

 The case is before the Court for initial review under Rule 4 of the Rules Governing § 2254 

Cases which provides: 

The clerk must promptly forward the petition to a judge under the 

court’s assignment procedure, and the judge must promptly examine 

it, If it plainly appears from the petition and any attached exhibits 

that the petitioner is not entitled to relief in the district court, the 

judge must dismiss the petition and direct the clerk to notify the 

petitioner. 
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Procedural History 

After trial by a jury, Petitioner was convicted on October 20, 2016, of one count of rape of 

a minor under thirteen (Petition, ECF No. 1, PageID 11, ¶¶ 2(a), 5). He appealed to the Ohio Court 

of Appeals for the Fifth District which affirmed the conviction. State v. Bragg, 5th Dist. Licking 

Case No. 16-CA-95, 2017-Ohio-5726 (Jul. 3, 2017), appellate jurisdiction declined, 151 Ohio St. 

3d 1457, 2017-Ohio-8842 (2017). Having unsuccessfully sought review by the Ohio Supreme 

Court, Mr. Bragg filed his Petition in this Court on August 6, 2018. 

 Petitioner pleads the following grounds for relief: 

Ground One: The Defendant-Appellant was denied the effective 

assistant [sic] of counsel. 

Supporting Facts: Counsel failed to object to hearsay testimony 

when counsel failed to objects to leading questions during direct 

examination. 

Ground Two: The Defendant was denied the effective assistant 

[sic] of counsel. 

Supporting Facts: Counsel failed to object to testimony from Kelly 

Morrison that exceeded the scope of her knowledge and expertise 

and it was unfairly prejudicial. 

Ground Three: Counsel failed to object to leading questions 

during examination, and therefore [Petitioner] was denied effective 

assistant [sic] of counsel. 

Supporting Facts: Evidence Rule 611(C) provides that leading 

questions should not be used in direct examination of a witness 

except as necessary to develop his testimony. 

 

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 When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page Identification 

Number in the upper right hand corner of every page. 
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Ground Four: The cumulative effect of trial counsel’s errors 

prejudiced the Defendant-Appellant and deprived him of his 

Constitutional Rights to a fair trial. 

Supporting Facts: The failure of trial counsel to object to 

testimony and the failure of the trial court to make a fair decision to 

not allow testimony not based on supported evidences [sic] 

prejudiced the defendant to his right to a fair trial. 

(Petition, ECF No. 1, Page ID 5-10). 

Analysis 

 

Ground One: Ineffective Assistance of Trial Counsel: Failure to Object to Hearsay 

 In his First Ground for Relief, Petitioner asserts he suffered ineffective assistance of trial 

counsel when his trial attorney did not object to the admission of hearsay testimony elicited from 

a Joseph Blue. This was Bragg’s First Assignment of Error on direct appeal and the Fifth District 

decided it as follows: 

 1. Failure to object to hearsay. 

{¶ 14} Bragg argues that his trial counsel was ineffective because 

he failed to object to hearsay statements. He points to two 

statements made by Joseph Blue during his testimony. Specifically 

the first statement, “[m]y ex-wife catching Dan kissing my daughter 

on the lips” and the second statement[,] “I found my daughter and 

my ex-wife in my driveway and being told that my daughter has 

been sexually assaulted by Dan Bragg.” 

{¶ 15} “‘The failure to object to error, alone, is not enough to 

sustain a claim of ineffective assistance of counsel.’” State v. Fears, 

86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999), quoting State v. 

Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988). Accord, 

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 
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864, ¶ 233. A defendant must also show that he was materially 

prejudiced by the failure to object. Holloway, 38 Ohio St.3d at 244, 

527 N.E.2d 831. 

{¶ 16}As to the first statement, Bragg admitted kissing the victim 

when interviewed by Detective Collins. Therefore, any error in the 

admission of the statement during Blue's testimony that Blue’s exwife caught Bragg kissing the victim on the lips was harmless 

beyond a reasonable doubt. Accordingly, Bragg is unable to 

demonstrate he was prejudiced by counsel's ineffectiveness in 

failing to object to this testimony. 

{¶ 17} Bragg also contends he was prejudiced by counsel's failure 

to object to Blue's testimony that Blue was “told that my daughter 

has been sexually assaulted by Dan Bragg.” 

{¶ 18} “Hearsay” is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence 

to prove the truth of the matter asserted. Evid.R. 801(C). Hearsay is 

generally not admissible unless it falls within one of the recognized 

exceptions. Evid.R. 802; State v. Steffen (1987), 31 Ohio St.3d 111, 

119, 31 Ohio B. 273, 509 N.E.2d 383. 

{¶ 19} “The hearsay rule . . . is premised on the theory that out-ofcourt statements are subject to particular hazards. The declarant 

might be lying; he might have misperceived the events, which he 

relates; he might have faulty memory; his words might be 

misunderstood or taken out of context by the listener. And the ways 

in which these dangers are minimized for in-court statements-the 

oath, the witness' awareness of the gravity of the proceedings, the 

jury's ability to observe the witness’ demeanor, and, most 

importantly, the right of the opponent to cross-examine-are 

generally absent for things said out of court.” Williamson v. United 

States, 512 U.S. 594, 598, 114 S.Ct. 2431, 2434, 129 L.Ed.2d 

476(1994). 

{¶ 20}It is unclear whether Blue was referring to his ex-wife or the 

victim as the person who told him Bragg had sexually assaulted the 

victim. See, 1T. at 110. 

{¶ 21} In the case at bar, the victim testified in detail that Bragg 

sexually abused her. As she testified and was subject to crossexamination, the jury was able to determine her credibility firsthand. Any error in admitting testimony that the victim told Blue or 

his ex-wife that Bragg sexually abused her is harmless beyond a 

reasonable doubt because the jury heard the victim accuse Bragg of 
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sexually abusing her during her testimony at trial. Bragg was able to 

confront and cross-examine the victim concerning her accusations 

and whether she told Blue or his ex-wife that Bragg had sexually 

abused her. “Corroboration of victim testimony in rape cases is not 

required.” See State v. Sklenar (1991), 71 Ohio App.3d 444, 447, 

594 N.E.2d 88; State v. Banks (1991), 71 Ohio App.3d 214, 220, 

593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624, 638, 

591 N.E.2d 854, 8 Anderson's Ohio App. Cas. 185; State v. Gingell

(1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455 N.E.2d 1066." 

State v. Johnson, 112 Ohio St. 3d 210, 217, 2006-Ohio-6404 at ¶ 53, 

858 N.E.2d 1144, 1158. 

{¶ 22} Accordingly, we find that Blue’s testimony did not rise to a 

level that adversely affected Bragg’s substantial rights and did not 

deprive him of a fair trial. Bragg is unable to demonstrate he was 

prejudiced by counsel's ineffectiveness in failing to object to this 

testimony. 

State v. Bragg, 2017-Ohio-5726. 

 In reaching this decision, the Fifth District applied the federal standard for ineffective 

assistance of counsel announced in Strickland v. Washington, 466 U.S. 668 (1984), which 

generally requires a defendant to show deficient performance by his attorney and resulting 

prejudice. State v. Bragg, 2017-Ohio-5726, at ¶¶ 10-13, citing Harrington v. Richter, 562 U.S. 86 

(2011); Knowles v. Mirzayance, 556 U.S. 111 (2009); Lockhart v. Fretwell, 506 U.S. 364 (1993); 

Strickland, 466 U.S. 668; State v. Bradley, 42 Ohio St. 3d 136 (1989) (the Ohio Supreme Court’s 

adoption of the Strickland standard). 

 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 s 

contrary to, or involved an objectively unreasonable application of, clearly established precedent 

of the United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington, supra; 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). 
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 While acknowledging that these two pieces of Blue’s testimony were hearsay and thus 

could have been objected to, the Fifth District found no prejudice because the victim herself 

testified so extensively to the sexual abuse and Bragg admitted kissing her. The Fifth District’s 

decision is an objectively reasonable application of the prejudice prong of Strickland and is 

therefore entitled to deference from this Court. 

 The First Ground for Relief should therefore be dismissed. 

Ground Two: Ineffective Assistance of Counsel: Failure to Object to Expert Testimony 

Beyond the Scope of Expertise 

In his Second Ground for Relief, Bragg claims he received ineffective assistance of trial 

counsel when his attorney did not object to witness Kelly Morrison’s testimony beyond the scope 

of her expertise. This was Bragg’s Third Assignment of Error on direct appeal and the Fifth 

District decided it as follows: 

3. Testimony of expert witness. 

{¶ 28} Bragg argues that the testimony of nurse practitioner Kelly 

Morrison concerning epilepsy and autism exceeded the scope of her 

expertise as a pediatric nurse practitioner and Bragg's trial counsel 

should have moved to exclude such testimony as a violation of 

Evid.R. 702(B) and Evid.R. 403, as it was unfairly prejudicial. 

Specifically, Bragg contends that there was no foundation that the 

witness was qualified through knowledge, skill, experience, 

training, or education, to discuss the effects of epilepsy on an 

individuals' short-term and long-term memory. There was no 

testimony that she was similarly qualified to discuss the effects of 

autism on a child's ability to communicate. 

{¶ 29} Evid.R. 702, which governs the admissibility of expert 

testimony, states: "A witness may testify as an expert if all of the 

following apply: (A) The witness' testimony either relates to matters 

beyond the knowledge or experience possessed by lay persons or 
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dispels a misconception common among lay persons; (B) The 

witness is qualified as an expert by specialized knowledge, skill, 

experience, training, or education regarding the subject matter of the 

testimony; (C) The witness’ testimony is based on reliable scientific, 

technical, or other specialized information." Evid.R. 702. The 

proponent of the testimony bears the burden of establishing the 

witness's qualification. 

{¶ 30} The testimony that Bragg cites as error concern the effects 

epilepsy can have on the brain and how the victim’s developmental 

delays and autism affected her ability to communicate. Bragg argues 

that this testimony provided an explanation to the jury as to why the 

victim did not discuss the allegations that account for four of the 

counts in the indictment. [Appellant’s Brief at 14]. 

{¶ 31} The victim's father had testified that the victim had epilepsy 

and had undergone testing for autism. (1T. at 103-105). He further 

testified, “She has problems with motor skills, memory lapse. She 

also has the — not an ability to put a timeline together.” (1T. at 

104). Further, Blue testified that his daughter has been in behavioral 

therapy for a year “and they were unable to connect with her, and 

they had noticed tendencies that were coming out as being autistic.” 

(1T. at 104). Further, the victim attends a behavioral and special 

needs school. (1T. at 105). 

{¶ 32} Having reviewed the record, however, we conclude that the 

testimony of Ms. Morrison concerned an explanation for the 

developmental delays experienced by the victim and how those 

delays presented themselves during her examination of the victim. 

The testimony was not beyond the witness’s specialized knowledge, 

skill, experience, training, or education and was not offered for an 

improper purpose. Further, because the victim testified at trial the 

jury was able to assess her ability to recall events and communicate 

those events and how her developmental delays presented 

themselves during her testimony. 

{¶ 33} Accordingly, we find that the testimony of Ms. Morrison did 

not rise to a level that adversely affected Bragg’s substantial rights 

and did not deprive him of a fair trial. Bragg is unable to demonstrate 

he was prejudiced by counsel’'s ineffectiveness in failing to object 

to this testimony. 

State v. Bragg, 2017-Ohio-5726. Thus the Fifth District applied the same federal standard applied 

to the hearsay question and found that Nurse Morrison’s testimony did not prejudice Bragg, given 
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testimony by the victim’s father about her developmental difficulties and the victim’s own 

testimony. Again, the Magistrate Judge concludes this is not an objectively unreasonable 

application of Strickland. It is first of all unclear that an objection to the scope of Nurse Morrison’s 

testimony would have been successful since, as a pediatric nurse practitioner, she would have had 

experience with developmental difficulties in children. But the Fifth District was also reasonable 

in finding that there was no prejudice, given the father’s testimony and the ability of the jury to 

assess the victim’s credibility. Ultimately, Bragg was acquitted on four of the five counts of the 

indictment which was likely affected by the victim’s developmental difficulties. 

 Ground Two should therefore be dismissed. 

Ground Three: Ineffective Assistance of Trial Counsel: Failure to Object to Leading 

Questions 

 In his Third Ground for Relief, Petitioner claims he received ineffective assistance of trial 

counsel when his attorney failed to object to leading questions. This was Bragg’s Second 

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

2. Leading questions. 

{¶ 23}Bragg next argues that he was denied ineffective assistance 

of counsel for trial counsel’s failure to object to leading questions 

posed to Joseph Blue and the victim. 

{¶ 24} Evidence Rule 611(C) provides that “[l]eading questions 

should not be used on the direct examination of a witness except as 

may be necessary to develop his testimony.” This rule places the 

decision whether to allow leading questions on direct examination 

within the trial court's discretion. See Staff Note, Evid.R. 611(C); 

State v. D'Ambrosio, 67 Ohio St.3d 185, 190, 1993-Ohio-170, 616 

N.E.2d 909, 914(1993). For that reason, the Ohio Supreme Court 

has held that the failure to object to leading questions does not 
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constitute ineffective assistance of counsel. State v. Jackson, 92 

Ohio St.3d 436, 449, 2001-Ohio-1266, 751 N.E.2d 946. Further, 

courts have recognized that due to a trial court's broad discretion to 

allow leading questions, the decision to not object to leading 

questions is a trial strategy. “Debatable strategic and tactical 

decisions may not form the basis of a claim for ineffective assistance 

of counsel.” State v. Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, 

656 N.E.2d 643; State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 

1189(1980). 

{¶ 25} Upon review of the questions cited by Bragg, the questions, 

many of which though leading, were mainly used to develop the 

testimony or were inconsequential and trial counsel might well have 

not wanted to interrupt the proceedings. (1T. at 104, 108, 112, 116, 

135, 136, 138). 

{¶ 26} Bragg relies on State v. Poling, 11th Dist. Portage No. 2004-

P-0044, 2006-Ohio-1008, wherein a conviction was reversed based 

on prosecutorial misconduct, including the use of leading questions. 

In Poling, however, the use of leading questions was pervasive and 

egregious. The appellate court observed that 11 witnesses were 

presented, leading questions—often supplying testimony—were 

asked of eight witnesses, and the leading questions were not 

buttressed by information elicited in the normal manner. "These 

questions, with their answers, often formed a substantial part of the 

witness' performance. The prosecution would persist in leading, 

following objections (often sustained) by the trial court. The 

prosecution did this with mature, experienced witnesses, such as [a 

detective]. It did this with its own investigator . . . . It did this the 

[the victim's mother], providing her with an answer following a 

sustained objection. . . . . The prosecution relied so heavily on 

leading its witnesses, and supplying them with answers, that we 

cannot see how appellant's conviction could otherwise have been 

obtained.” Id. at ¶ 27, 29. The isolated instances of leading 

questions asked by the prosecutor at Bragg’s trial were not 

analogous to Poling. Having reviewed the record, however, we 

conclude that the prosecutor resorted to leading questions to move 

the trial along, not to influence his witnesses' testimony or to supply 

them with answers. See, State v. Ross, 2nd Dist. Montgomery No. 

22958, 2010-Ohio-843, ¶ 109. 

{¶ 27} Furthermore, based on the overwhelming evidence of 

Bragg's guilt, we cannot say that the outcome of Bragg's trial would 

have been different had defense counsel objected. See, State v. 

Richardson, 8th Dist. Cuyahoga No. 91864, 2009-Ohio-4867, ¶ 29. 

Accordingly, we find that the prosecutor's use of leading questions 
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did not rise to a level that adversely affected Bragg's substantial 

rights and did not deprive him of a fair trial. Bragg is unable to 

demonstrate he was prejudiced by counsel's ineffectiveness in 

failing to object to this testimony. 

State v. Bragg, , 2017-Ohio-5726. 

 While the Fifth District’s express conclusion is that Bragg was not prejudiced by his 

counsel’s failure to object to leading questions, it also found that it would have been appropriate 

strategy not to object and that objections might not have been sustained, thus finding trial counsel’s 

performance was also not deficient. Counsel’s tactical decisions are particularly difficult to attack. 

O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). Indeed, strategic choices by defense 

counsel are “virtually unchallengeable.” Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001), 

quoting Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir. 1984). 

 The Fifth District’s decision is thus an objectively reasonable application of both the 

deficient performance and prejudice prongs of Strickland. It is therefore entitled to deference and 

the Third Ground for Relief should be dismissed. 

Ground Four: Cumulative Error 

 In his Fourth Ground for Relief, Bragg claims the cumulative effect of his trial counsel’s 

errors deprived him of a fair trial. In his Supporting Facts he also adverts to the cumulative effect 

of trial court error. 

 Bragg’s Fourth Assignment of Error on direct appeal alleged only cumulative trial court 

error, not cumulative ineffective assistance of trial counsel. The Fifth District decided that since 
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they had found no error at all, there was no error to cumulate. State v. Bragg, supra, at ¶¶ 36-40. 

Bragg’s Petition does not plead any errors which could be accumulated. 

 Moreover, Ground Four does not state a claim under the Constitution upon which relief 

can be granted. 

 However, “post-AEDPA, not even constitutional errors that would 

not individually support habeas relief can be cumulated to support 

habeas relief.” Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 

2010) (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). 

Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012), cert. denied sub nom. Moreland v. 

Robinson, 134 S. Ct. 110 (2013). See also Ahmed v. Houk, No. 2:07-cv-658, 2014 U.S. Dist. 

LEXIS 81971, *332 (S.D. Ohio Jun. 16, 2014) (Merz, Mag. J.). 

 In Lorraine v. Coyle, 291 F.3d 416, (6th Cir. 2002), the court held: 

The Supreme Court has not held that distinct constitutional claims 

can be cumulated to grant habeas relief. Thus, it cannot be said that 

the judgment of the Ohio courts is contrary to Berger, or to any other 

Supreme Court decision so as to warrant relief under the AEDPA.

Cf. Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983) (pre-AEDPA 

case; holding that “errors that might not be so prejudicial as to 

amount to a deprivation of due process when considered alone, may 

cumulatively produce a trial setting that is fundamentally unfair”). 

Id. at 447. Cumulative error is not a basis for granting habeas relief in non-capital cases. Eskridge 

v. Konteh, 88 F. App’x 831, 836 (6th Cir. 2004). 

 Therefore Ground Four should be dismissed. 

Conclusion 

 Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the 
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Petition herein be dismissed. 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 29, 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. 

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).