1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

JOSHUA NORFLEET, 

Petitioner, : Case No. 2:18-cv-834 

- vs - District Judge James L. Graham 

Magistrate Judge Michael R. Merz 

RICHARD BOWEN. Warden, 

 Ohio State Penitentiary. 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus case brought pro se by Petitioner Joshua Norfleet to obtain relief 

from his convictions in the Common Pleas Court of Coshocton County and subsequent 

imprisonment. The case is ripe for decision on the Petition (ECF No. 1), the State Court Record 

(ECF No. 12), and the Return of Writ (ECF No. 13). Petitioner has not filed a Reply and the time 

for him to do so, set by Magistrate Judge Vascura in ordering an answer, expired January 2, 2019 

(See Order, ECF No. 7). 

Litigation History 

 Norfleet was indicted on February 29, 2016, on a number of felony counts arising from a 

home invasion with two others on February 3, 2016. He was convicted by a trial jury of aggravated 

burglary, burglary, kidnapping carrying a concealed weapon, having a weapon while under a 

disability, tampering with evidence, and improperly discharging a firearm in a residence. He was 
2 

sentenced to an aggregate term of imprisonment of over thirty-five years. Still represented by his 

trial counsel, he appealed to the Ohio Fifth District Court of Appeals which affirmed the 

convictions. State v. Norfleet, 2016-Ohio-8236 (Ohio App. 5th Dist. Dec. 15, 2016), appellate 

jurisdiction declined, 149 Ohio St. 3d 1420 (2017). In March 2017, Norfleet filed an Application 

to Reopen his direct appeal, pursuant to Ohio R. App. 26(B). The Fifth District denied that 

Application. After Norfleet failed to timely appeal to the Ohio Supreme Court, his motion for 

delayed appeal was denied. State v. Norfleet, Case No. 2017-1748 (copy at State Court Record, 

ECF No. 12, PageID 233). Norfleet filed his Petition for Writ of Habeas in the Northern District 

of Ohio on May 21, 2018 (ECF No. 1). That court transferred the case to this District on August 

10, 2018, finding that this is the federal judicial district in which the conviction occurred (ECF No. 

5). The Magistrate Judge reference in the case was recently transferred to the undersigned to help 

balance the workload in this District. 

 Norfleet pleads the following grounds for relief: 

Ground One: Aggravated burglary and kidnapping – the evidence 

was not sufficient for a guilty verdict. 

Ground Two: Kidnapping Brittany Harris and Samantha Crenshaw 

– the evidence was not sufficient for a guilty verdict. 

Ground Three: Whether Appellant remained on premises when 

told to leave. 

Ground Four: Consecutive sentences – State failed to sentence 

appellant to allied offense on burglary and kidnapping. 

Ground Five: Ineffective assistance of counsel. 

(Petition, ECF No. 1.) 
3 

Analysis 

Grounds One, Two, and Three: Insufficiency of the Evidence 

 In his First Ground for Relief, Norfleet claims there was insufficient evidence presented to 

the jury to support his convictions for aggravated burglary and kidnapping. He claims his actions 

did not become burglary until he was told to leave by Linda Murray, and that the jury later 

acquitted him of kidnapping her. In his Second Ground for Relief, he asserts there was similarly 

insufficient evidence that he kidnapped Brittany Harris and Samantha Crenshaw. In his Third 

Ground for Relief, he claims he was in the residence for less than two minutes which is insufficient 

to constitute the trespass needed for a burglary conviction. 

 These claims, in the form of claims that the convictions were against the manifest weight 

of the evidence, were presented to the Fifth District on direct appeal and decided as follows: 

[*P3] . . . At the trial, Brittany Harris testified that on February 3, 

2016, she was staying with Linda Murray at Murray's house. Harris 

testified that she had been staying at the house for about a month 

and that although she had used drugs while at Murray's house, she 

was not using or under the influence of drugs on February 3, 2016. 

Harris further testified that Samantha Crenshaw and Carrie Sickles 

were at Murray's house on such date. 

[*P4] Harris testified that she was in her bedroom, Murray and 

Sickles were in Murray's bedroom and Crenshaw was sleeping in 

front of the living room door on an air mattress. According to Harris, 

she was woken up by someone beating on the door. After no one 

closer to the door answered it, Harris got up and asked who was 

there. After a person responded "Josh", Harris, thinking that it was 

Josh Edie who lived in the house, unlocked and opened the door 

about three inches. Transcript at 176. Outside, Harris saw three 

African-American men. One of the men was appellant and the other 

two were his brothers. Harris testified that she asked the men who 

they were there for and that they did not respond. When she went to 

close the door, the three men pushed their way into the house. Harris 
4 

noticed that the first one in, who was appellant, had a gun in his 

pants. 

[*P5] When asked what happened after the men pushed the door 

open, Harris testified that appellant "put the gun to my chest and told 

me to sit the fuck down on the couch." Transcript at 178. Harris 

testified that appellant and his brothers had lived across the street 

from her growing up and that appellant was wearing a white t-shirt 

and white bandanna. According to Harris, the men began asking 

"Where's he at? Where's that nigga at? We know he is in here 

somewhere." Transcript at 179. She testified that she did not know 

who they were talking about and that appellant's brother, Willie, was 

yelling at Samantha Crenshaw. At the time, Willie had a dark object 

in his waistband. 

[*P6] Harris testified that Linda Murray came out of her room and 

told the men to leave. Appellant continued searching while 

brandishing a gun and went into Murray's bedroom. Harris testified 

that after appellant exited the bedroom, he went over to Samantha 

Crenshaw, knelt down and put the gun down by her head while 

Crenshaw was on the air mattress under a blanket. Crenshaw, 

according to Harris, tried to cover her face with the blanket and 

rolled towards the wall so that she was not facing appellant. After 

appellant shot the gun near Crenshaw's head, the men ran out of the 

house. 

[*P7] On cross-examination, Harris admitted that she knew that 

drugs were being sold out of Murray's house and that people were 

coming to the house to buy drugs. She testified that crack and 

cocaine were being sold and that she had used both of the substances 

before while living at the house. Harris testified that she used drugs 

two or three times a week and that the other women living in the 

house also used drugs. 

[*P8] The next witness to testify was Linda Murray. Murry testified 

that she had used crack cocaine for a long time but was not using 

drugs or under the influence of drugs on February 3, 2016. When 

asked, she testified that she did not sell drugs out of her house and 

that she had known appellant and his brothers for approximately 20 

years. Murray testified that she did not hear knocking on the door 

but then heard a commotion in her front room. She testified that she 

told the men to "get the F out of my house" but that they did not 

leave. Transcript at 212. According to Murray, appellant "kept 

saying 'Where's her at? Where's he at." Transcript at 212-213. When 

she asked appellant who he was talking about, appellant indicated 

"Josh." She then told appellant that Josh was not there. Murray 
5 

testified that she did not know who appellant was talking about, but 

that a man named Josh Edie comes to her house. She testified that 

appellant was wearing a white t-shirt, white bandanna and a jacket. 

[*P9] Murray also testified that all three men had guns and that 

while appellant's gun was in his hand, she was unsure where the 

other two had their guns. When asked what happened after appellant 

left her bedroom, she testified that she heard a shot. Murray, when 

asked why she did not call 911 when appellant first came into her 

bedroom, testified that she was scared. Murray testified that she did 

not want to go into the front room because she did not know if 

Samantha Crenshaw was dead or not. She testified that she heard the 

three men making comments directed towards Crenshaw about her 

robbing them. After the men left and Murray came out of her 

bedroom, she found a hole in the air mattress and the floor and a 

bullet casing. Murray called 911. She testified that she did not feel 

free to leave her house when the three men came in with guns and 

thought that if she did not cooperate, they might shoot everyone. 

[*P10] On cross-examination, Murray testified that she used crack 

cocaine two or three times a month, but was not still using crack 

cocaine. While she admitted that drugs were sold out of her house, 

she testified that Josh Edie sold the drugs, not her. When asked why 

Samantha Crenshaw was sleeping the whole day on February 3, 

2016, Murray testified that Crenshaw was "coming off of heroin." 

Transcript at 232. She stated that she did not hear appellant knocking 

on the door and did not know if he knocked or whether Harris let 

him in. Murray agreed that she had a criminal record for trafficking 

in drugs. 

[*P11] At trial, Samantha Crenshaw testified that she had a history 

of drug use and had used meth and weed. She testified that she was 

using drugs when staying with Murray and had been using drugs 

since she was 16 years old. Crenshaw denied using drugs or being 

under the influence of drugs on February 3, 2016. When asked why 

she slept all day on February 3, 2016, Crenshaw testified that it was 

normal for her to do so when she did not have drugs. When asked 

about the first thing that she remembered, Crenshaw testified that 

she woke up to the three men coming in and asking where "he" was 

at. According to Crenshaw, appellant knelt down in front other [sic], 

pulled out his gun, said "this is gangsta", and shot the gun while she 

was on the air mattress along the wall by the front door. Transcript 

at 252. She testified appellant ripped off the blanket that was over 

her head before the gun went off. 
6 

[*P12] Crenshaw further testified that Harris was sitting on the 

couch when the men first came into the house and that they told 

Harris to sit down. The men kept asking where "he" was at. 

Crenshaw testified that she was not injured, that she did not hear 

anyone invite the men into the house, and that she had never seen 

them at Murray's house prior to the date in question. 

[*P13] On cross-examination, Crenshaw testified that she used 

drugs four days of the week and that she did not hear anyone knock 

on the door. She further testified that she did not see Harris open the 

door. While no one told her that she could not leave the house, 

Crenshaw, when asked if she was restrained in any way, testified 

that the three men had guns. 

[*P14] After Crenshaw testified, appellee moved for a nolle 

prosequi concerning counts [sic] 9 (improperly discharging a 

firearm at or into a habitation) which was granted. 

[*P15] Carrie Goff (aka Sickles) next testified that Murray was her 

aunt and that she was staying at Murray's on the night of February 

3, 2016. She admitted using cocaine and crack, but denied either 

using drugs or being under the influence of drugs on February 2, 

2016 and February 3, 2016. Goff, on cross-examination, testified 

that she did not hear anyone else knock on the door that night other 

than Missy Wright, who had stopped in that evening. 

[*P16] Detective Garrison Bryant, during the ensuing investigation, 

reviewed a video of Murray's house taken by a neighbor across the 

street. The Detective had received information that appellant was 

wearing a white bandanna and white T-shirt. The video showed a 

man wearing a white bandanna and a white shirt under a jacket. The 

Detective found a .40 caliber shell casing in the living area of 

Murray's residence and a bullet hole in the pillow that was on top of 

the air mattress that Samantha Crenshaw was positioned on during 

the incident. The pillow contained gunshot residue. The air mattress 

also contained a bullet hole. In the basement area of the house, under 

the area where Crenshaw was sleeping, Detective Bryant located a 

bullet hole in the ceiling and located a copper jacket of a bullet. 

[*P17] After appellant was apprehended, a bullet was found in the 

vehicle that the three men had been driving that matched the kind 

and caliber of the shell casing found in Murray's residence. 

However, the weapon that was discharged at Murray's house was 

never located. The clothing that appellant was wearing at the time 

of his apprehension matched the descriptions that were given by the 
7 

eyewitnesses. Gunshot reside was located on the left cuff of 

appellant's coat. 

[*P18] At trial, appellant testified in his own defense. Appellant 

admitted that he had a criminal record and had been convicted of 

carrying a concealed weapon and involuntary manslaughter. He had 

been in prison for ten years. When asked why he went with his two 

brothers to Murray's house, appellant testified that his oldest brother 

needed to stop there for an unknown reason. Appellant testified that 

he knew Murray and had been to her house before and that someone 

opened the door after he knocked. Appellant denied forcing his way 

into the house or having a gun on him that night. 

[*P19] At the conclusion of the evidence and the end of 

deliberations, the jury, on April 13, 2016, found appellant guilty of 

aggravated burglary with a firearm specification, of kidnapping both 

Brittany Harris and Samantha Crenshaw, of carrying a concealed 

weapon, of having weapons while under disability and of tampering 

with evidence. The jury found appellant not guilty of the other two 

of the counts of kidnapping. 

* * * 

[*P24] Appellant, in his first assignment of error, argues that his 

convictions for aggravated burglary, kidnapping, carrying a 

concealed weapon, having a weapon while under disability, and 

tampering with evidence are against the manifest weight of the 

evidence. 

[*P25] In determining whether a conviction is against the manifest 

weight of the evidence, the court of appeals functions as the 

"thirteenth juror," and after "reviewing the entire record, weighs the 

evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be overturned and a 

new trial ordered." State v. Thompkins, 78 Ohio St.3d 380, 387, 

1997-Ohio-52, 678 N.E.2d 541. Reversing a conviction as being 

against the manifest weight of the evidence and ordering a new trial 

should be reserved for only the "exceptional case in which the 

evidence weighs heavily against the conviction." Id. We note the 

weight to be given to the evidence and the credibility of the 

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio 

St.2d 230, 227 N.E.2d 212 (1967). The trier of fact "has the best 

opportunity to view the demeanor, attitude, and credibility of each 

witness, something that does not translate well on the written page." 
8 

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674 

N.E.2d 1159. 

[*P26] 'While the jury may take note of the inconsistencies and 

resolve or discount them accordingly * * * such inconsistencies do 

not render defendant's conviction against the manifest weight or 

sufficiency of the evidence.' State v. Naugle, 5th District Stark 

No.2008-CA-00190,[ 182 Ohio App. 3d 593,] 2009-Ohio-3268[, 

913 N.E.2d 1052] citing State v. Craig, 10th Dist. No. 99AP-739[, 

2000 Ohio App. LEXIS 1138, ]2000 WL 297252 (Mar. 23, 2000), 

quoting State v. Nivens, 10th Dist. No. 95APA09-1236,[ 1996 Ohio 

App. LEXIS 2245,] 1996 WL 284714 (May 28, 1996), 3 [sic]. 

[*P27] Appellant was convicted of aggravated burglary in violation 

of R.C. 2911.11(A)(2). Such section states as follows: 

(A) No person, by force, stealth, or deception, shall 

trespass in an occupied structure or in a separately secured 

or separately occupied portion of an occupied structure, 

when another person other than an accomplice of the 

offender is present, with purpose to commit in the structure 

or in the separately secured or separately occupied portion 

of the structure any criminal offense, if any of the following 

apply:... 

(2) The offender has a deadly weapon or dangerous 

ordnance on or about the offender's person or under the 

offender's control. 

[*P28] Appellant specifically argues that his conviction for 

aggravated burglary is against the manifest weight of the evidence 

because an individual who was going to break into a residence 

would not knock on the front door, because no one other than 

Brittany Harris, who was furthest from the front door, heard the 

knocking on the front door, because he did not enter the residence 

to commit a criminal offense, and because the four witnesses, all 

drug users, were not credible. 

[*P29] As is stated above, Brittany Harris testified that appellant 

forced his way into the house and that he had a gun on his person at 

the time. Testimony was adduced that, while in the house, appellant 

restrained and terrorized both Harris and Samantha Crenshaw and 

fired a gun at Crenshaw's head. While appellant argues that the 

women who testified were drug users who were not credible, the 

juror [sic], as trier of fact, was in the best position to assess their 

credibility. 
9 

[*P30] Appellant also argues that his conviction for kidnapping 

Brittany Harris and Samantha Crenshaw was against the manifest 

weight of the evidence. Appellant was convicted of kidnapping in 

violation of R.C. 2905.01(A)(3): 

[*P31] "(A) No person, by force, threat, or deception, or, in the case 

of a victim under the age of thirteen or mentally incompetent, by any 

means, shall remove another from the place where the other person 

is found or restrain the liberty of the other person, for any of the 

following purposes: 

[*P32] "(3) To terrorize, or to inflict serious physical harm on the 

victim or another[.]" 

. . . 

[*P34] Appellant initially contends that Harris could not claim to 

have been kidnapped when she was free to leave since the front door 

was open, but did not do so. However, Harris testified that she was 

concerned that the other three women would have been shot if she 

left to get help, that appellant, who had a gun, told her to sit down 

on the couch, and that she was worried that she would be shot if she 

did not listen. Thus, there was testimony that appellant, by force or 

threat, restrained Harris' liberty with purpose to terrorize her. 

Appellant also argues that Samantha Crenshaw could not have been 

kidnapped since she was asleep throughout the experience and 

testified that she did not see anyone restrained. However, Crenshaw 

testified that appellant knelt beside her and put a gun to her head. 

While she was never told that she could not leave, she testified, 

when asked if she was restrained in any fashion, that all of the men 

had guns. We find that appellant's convictions for kidnapping were 

not against the manifest weight of the evidence. There was evidence, 

if believed, that appellant restrained the liberty of both women to 

terrorize them. 

State v. Norfleet, 2016-Ohio-8236. 

An allegation that a verdict was entered upon insufficient evidence states a claim under the 

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. 

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order 
10 

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a 

reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable inferences 

from basic facts to ultimate facts. 

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); 

United States v. Somerset, No. 3:03-po-002, 2007 U.S. Dist. LEXIS 76699 at *1 (S.D. Ohio Oct. 

12, 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of 

course, it is state law which determines the elements of offenses; but once the state has adopted 

the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra. 

A state court finding that the verdict is not against the manifest weight of the evidence 

implicitly also holds that there is sufficient evidence. Nash v. Eberlin, 258 Fed. App’x 761, 762, 

2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-1185, 2011 

U.S. Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden, No. 1:10-

cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.). 

 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, 100 

(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). Deference is also due under 28 U.S.C. § 

2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts 
11 

in light of the evidence presented in the State court proceedings. 

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to groups 

who might view facts differently than we would. First, as in all 

sufficiency-of-the-evidence challenges, we must determine 

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, 

re-evaluate the credibility of witnesses, or substitute our judgment 

for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 

(6th Cir. 1993). Thus, even though we might have not voted to 

convict a defendant had we participated in jury deliberations, we 

must uphold the jury verdict if any rational trier of fact could have 

found the defendant guilty after resolving all disputes in favor of the 

prosecution. Second, even were we to conclude that a rational trier 

of fact could not have found a petitioner guilty beyond a reasonable 

doubt, on habeas review, we must still defer to the state appellate 

court's sufficiency determination as long as it is not unreasonable. 

See 28 U.S.C. § 2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus 

case, “deference should be given to the trier-of-fact's verdict” under Jackson v. Virginia and then 

to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 

541 F.3d 652, 656 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en 

banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction 

based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 

656 (6th Cir. 2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial 
12 

deference. First, on direct appeal, "it is the responsibility of the jury 

-- not the court -- to decide what conclusions should be drawn from 

evidence admitted at trial. A reviewing court may set aside the jury's 

verdict on the ground of insufficient evidence only if no rational trier 

of fact could have agreed with the jury." Cavazos v. Smith, 565 U. 

S. 1, 2, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam). And 

second, on habeas review, "a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge 

simply because the federal court disagrees with the state court. The 

federal court instead may do so only if the state court decision was 

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. 

[766, 773], 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43 

(2012) (per curiam). 

 The Fifth District’s thorough and careful review of the testimony at trial shows that its 

decision on the weight of the evidence claims is neither contrary to nor an objectively unreasonable 

application of Jackson v. Virginia, 443 U.S. 307 (1979). Therefore, Petitioner’s first three grounds 

for relief should be dismissed. 

Ground Four: Improper Consecutive Sentencing for Burglary and Kidnapping 

 In his Fourth Ground for Relief, Norfleet claims he was improperly sentenced to 

consecutive terms for burglary and kidnapping and that they should have been merged as allied 

offenses of similar import under Ohio Revised Code § 2941.25. 

 Norfleet presented the consecutive sentences argument as his second assignment of error 

on direct appeal, but nothing in the Fifth District’s decision adverts to any claim that these offenses 

are allied offenses of similar import. 

 With respect to both claims, they arise solely under Ohio law. Federal habeas corpus is 

available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. 
13 

Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 

U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal 

habeas court to reexamine state court determinations on state law questions. In conducting habeas 

review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, 

or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf 

v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248

(6th Cir. 2018)(Thapar, J., concurring). A federal habeas court may not re-evaluate a state court’s 

interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). 

 Norfleet’s Fourth Ground for Relief does not state a claim arising under the Federal 

Constitution. On that basis it should be dismissed. 

Ground Five: Ineffective Assistance of Counsel at Trial and on Appeal 

 In his Fifth Ground for Relief Norfleet claims he received ineffective assistance of trial 

counsel and ineffective assistance of appellate counsel in several respects; the same attorney 

represented him at both stages of the case. 

 Under Ohio law, ineffective assistance of trial counsel claims which are apparent on the 

appellate record must be raised on direct appeal. However, when the same attorney represents a 

defendant at both stages, a defendant can raise such claims later in a petition for post-conviction 

relief under Ohio Revised Code § 2953.21. Norfleet has never filed such a petition and has 

therefore procedurally defaulted his ineffective assistance of trial counsel claims. 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 
14 

In all cases in which a state prisoner has defaulted his federal claims 

in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred unless 

the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights 

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 

U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “[A]bsent cause and prejudice, ‘a federal 

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal 

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000) quoting Gravley v. 

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 

456 U.S. at 110; Wainwright, 433 U.S. at 87. 

[A] federal court may not review federal claims that were 

procedurally defaulted in state court—that is, claims that the state 

court denied based on an adequate and independent state procedural 

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 

L.Ed.2d 417 (2009). This is an important “corollary” to the 

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 

S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which 

a state prisoner fails to exhaust state remedies, a habeas petitioner 

who has failed to meet the State’s procedural requirements for 

presenting his federal claims has deprived the state courts of an 

opportunity to address” the merits of “those claims in the first 

instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115 

L.Ed.2d 640. The procedural default doctrine thus advances the 

same comity, finality, and federalism interests advanced by the 

exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 

S.Ct. 1454, 113 L.Ed.2d 517 (1991). 

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). 

 The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a 
15 

habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 

2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 

345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott 

v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001). 

First the court must determine that there is a state procedural rule 

that is applicable to the petitioner's claim and that the petitioner 

failed to comply with the rule. 

 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of Ulster 

County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 

(1979). 

Third, the court must decide whether the state procedural forfeiture 

is an "adequate and independent" state ground on which the state 

can rely to foreclose review of a federal constitutional claim. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

there was "cause" for him to not follow the procedural rule and that 

he was actually prejudiced by the alleged constitutional error. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner 

can overcome a procedural default by showing cause for the default and prejudice from the asserted 

error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015). 

 Ohio has a relevant procedural rule, the statute of limitations on petitions for postconviction relief, which expires one year from the date the appellate record is complete. That time 

is long since passed here and there is no doubt the Ohio courts would enforce the statute against 

Norfleet if he attempted now to file a petition under Ohio Revised Code § 2953.21. The State has 

a strong interest in finality in criminal cases and the statute of limitations is therefore an adequate 

state procedural, completely independent of federal law. Therefore, Norfleet’s claims of 
16 

ineffective assistance of trial counsel are procedurally defaulted. 

 Norfleet did raise his claims of ineffective assistance of appellate counsel by the 

appropriate vehicle, an application to reopen under Ohio R. App. P. 26(B). However, he also 

procedurally defaulted those claims by not timely appealing to the Ohio Supreme Court. That 

court’s forty-five day time limit on appeals has been repeatedly upheld by the Sixth Circuit as an 

adequate and independent state procedural rule. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 

2004). 

 Therefore, Norfleet’s Fifth Ground for Relief should be dismissed. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein 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. 

April 17, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 
17 

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 United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).