1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CRAIG A. THOMPSON,

Petitioner, : Case No. 3:18-cv-117

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

KEITH FOLEY, Warden,

 Grafton Correctional Institution1

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Craig Thompson, is ripe for decision 

on the merits. The Court has before it the Petition (ECF No. 1), the State Court Record as originally 

filed (ECF No. 11), the Return of Writ (ECF No. 12), the Supplemental State Court Record (ECF 

No. 69), and Petitioner’s Traverse (ECF No. 88).

Litigation History

On March 5, 2013, Thompson was indicted by a Montgomery County grand jury on one 

count of complicity to commit burglary in violation of Ohio Revised Code § 2911.12(A)(1) and 

1 Petitioner has notified the Court of his transfer to Grafton Correctional Institution (ECF No. 94). The caption is 

ordered amended as set forth above.

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2923.03(A)(2)(Indictment, Count Three, State Court Record, Ex. 11, PageID 39). Thompson was 

jointly indicted with Bradley Burns who was charged with burglary in Count One and abduction

in violation of Ohio Revised Code § 2905.02(A)(2) in Count Two. 

After a mistrial in April 2014, Thompson filed a motion to dismiss on double jeopardy 

grounds which the trial court denied. The Second District Court of Appeals affirmed the denial. 

State v. Thompson, 2014-Ohio-5583 (Ohio App. 2nd Dist., Dec. 19, 2014), appellate jurisdiction 

declined, 143 Ohio St. 3d 1405 (2015). A second jury found Thompson guilty as charged and he was 

sentenced to six years imprisonment. On direct appeal the Second District affirmed. State v. 

Thompson, 2016-Ohio-7521 (Ohio App. 2nd Dist. Oct. 28, 2016), appellate jurisdiction declined, 

149 Ohio St. 3d 1408 (2017). 

The Return of Writ recounts numerous additional filings in the Second District and in the 

Supreme Court of Ohio (ECF No. 12, PageID 2163-66). These will be referred to herein only as 

needed. 

On January 11, 2017, Thompson filed an application to reopen his direct appeal under Ohio 

R. App.26(B)(ECF No. 11, Ex. 44). The Second District denied that application originally (Id. at 

Ex. 47) and on reconsideration (Id. at Ex. 49). The Supreme Court of Ohio declined appellate 

review. Id. at Ex. 53.

On February 16, 2017, Thompson filed a petition for post-conviction relief under Ohio 

Revised Code § 2953.21. Id. at Ex. 54. The trial court denied the petition. Id. at Ex. 57. 

Thompson filed a second petition under Ohio Revised Code § 2953.21 on June 5, 2018 

(Petition, State Court Record, ECF No. 11-1, Ex. 67). The trial court granted the State summary 

judgment (Decision, Supp. State Court Record, ECF No. 69, Ex. 76). Thompson appealed and 

the Second District affirmed. State v. Thompson, 2019-Ohio-5140 (Ohio App. 2d Dist. Dec. 13, 

2019), appellate jurisdiction declined, 2020-Ohio-3365 (Jun. 23, 2020).

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Thompson filed his Petition for habeas corpus in this Court on April 12, 2018, pleading the 

following grounds for relief:

Ground One: The trial court committed prejudicial error in 

overruling appellant’s pretrial motion to suppress.

Supporting Facts: The court made an erroneous ruling by 

overruling the defendant's motion to supress [sic] where the ruling 

was adverse to Thompson based off bias of the judge. Thompson 

did not consent to the search of his vehicle although the police 

searched anyway. Thompson was detained by police during a traffic 

stop where he was question by the police for over 3 hours before 

being escorted to District 10 headquarters where questioning 

continued for an additional 2 and a half hours. Police claim to have 

pulled Thompson over for a minor traffic violation yet Thompson 

was detained and questioned for over 6 hours. Thompson was not 

read his Miranda warnings yet statements made to police were still 

admitted at trial. Thompson had issued a subpeona [sic] for the in 

car cruiser cam recordings to support his assertions of an illegaql 

[sic] search and seizure, but the Sheriffs Department deleted the 

recordings in violation of direct orders from the Sheriff himself. All 

evidence obtained from the traffic stop should have been ruled as 

inadmissable [sic] at trial but the motion was overruled.

The lower court ruled that Miranda is only necessary when a 

reasonable person considers their situation to be in custody. 

However, the courts ruled that since Thompson did not testify, they 

did not know what Thompson was thinking. The rule does not 

pertain to Thompson himself but what a reasonable person would 

think. Therefore, the courts applied a subjective view and not an 

objective view.

After Thompson was stopped for his traffic violation, he was placed 

into the back of a police cruiser and questioned by the Deputy for 

several hours on the side of the road. Thompson was not allowed to 

possess his own cell phone or get out of the car without an escort by

serveral [sic] deputies. Thompson's movements were seriously 

diminished.

After several hours of questioning at the scene of the traffic stop, the 

Deputy transported Thompson to the District 10 headquarters for 

further questioning with Detective Saunders. Upon arrival at 

headquarters, Thompson was escorted into a room with one way in 

and one way out. Saunders sat himself between Thompson and the 

door and began asking more questions of Thompson.

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Saunders questioned Thompson about his relationship with the 

primary offender Bradley Burns. Thompson explained that he knew 

him and that the two were somewhat friends. Thompson admitted 

that he had seen Burns earlier that evening when Burns had asked 

for a ride to Meijer. Thompson admitted to taking Burns to Meijer 

and then told Detective Saunders that he had dropped Burns off at 

his girlfriends house in Huber Heights. Thompson changed his story 

as the interview continued and finally admitted that Thompson had

dropped Burns at Meijer and had not seen him since.

During the interview Saunders asked Thompson why he was sitting 

on Heather Hollow (the street where the crime occurred) that night. 

Thompson told Detective Saunders that he was sitting in his truck 

waiting on his girlfriend to come back into town so he could see her.

Thompson stated that due to the amount of time he waited, he had 

fell [sic] asleep waiting for her. Thompson then told Saunders that

when the police arrived in the area they began shining their lights 

into the truck of Thompson and woke him up. Thompson admitted 

that he had been laying back in his seat sleeping.

These statements would prove to be very detrimental to Thompson 

at trial. Thompson had not been given Miranda warnings before 

making these statements and as Detective Saunders would testify 

later, Saunders did not read Thompson his rights because "his father 

is in law-enforcement and Thompson knew his rights."

After the judge made the ruling the judge recussed [sic] himself after 

a complaint was filed with the Ohio Supreme Court alleging that the 

judge had had ex parte conversations with the victim in regards to 

Thompson's punishment. The new judge denied the original 

counsel's request to revisit the Motion to Supress [sic] and allowed 

all evidence against Thompson to be admitted at trial despite 

Constitutional Violations. Prior to the second trial, Thompson's new

counsel never even filed a new motion to supress [sic] or an appeal 

on the decision from the previous Motion to Supress [sic].

(Petition, ECF No. 1, PageID 6-7).

Ground Two: The trial court committed prejudicial error in 

admitting hearsay evidence not subject to proper authentication. 

Supporting Facts: The trial court allowed the admittance of text 

messages without proper authentication as the messages were 

prepared for trial and were thus "testimonial". Bathini claims to have 

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taken her phone to the prosecutor to retreive [sic] messages from 

within her phone. She claims that an "I.T." guy in the prosecutor's 

office pulled over eighty pages of texts from Thompson. Bathini 

was the only person to authenticate the messages although she is not 

the keeper of records and admitted to deleting her side of the 

conversation thus presenting only testimonial evidence to the jury 

without a keeper of the records, or the "I.T." guy, authenticating that 

the messages shown were from Thompson at all. The Confrontation 

Clause of the Fourth [sic] Amendment would require proper 

authentication. Thompson was prejudiced by allowing a testimonial 

conversation, prepared only for trial, to be heard by the jury.

Id. at PageID 7-8.

Ground Three: Appellant was subject to the ineffective assistance 

of counsel as guaranteed to him under both the Sixth and Fourteenth 

Amendments. 

Supporting Facts: Thompson's had retained counsel (Thomas 

Hansen) after being charged with one count of Complicity to 

Commit a Burglary. During the arraignment, and the Motion to 

Supress [sic], counsel failed to call any witnesses to aid the Defense, 

including Thompson himself.

Thompson had asserted that the police performed an illegal search 

and seizure of his vehicle. While counsel tried to obtain the 

recordings from the Deputies in car cruiser cams, the Deputy 

contended that the tapes were deleted in accordance to procedure. 

With the cruiser cam videos being intentionally deleted in an effort 

to cover up the police shortcomings, the only possible remedy 

counsel had was to put Thompson on the stand to refut [sic] the 

testimony that Thompson had agreed to the search. Counsel failed 

to call Thompson or other witnesses to aid in Thompson's defense.

Thompson had also supplied counsel with physical evidence to 

impeach statements that the tapes were erased in accordance with 

procedure. (Thompson had a copy of the policy and procedures from 

the sheriffs office) In fact, the orders of the Sheriffs office 

specifically state that all evidentiary tapes are to be kept until the 

conclusion of all court matters, including civil. The deputy did not 

keep the tapes, and by not putting Thompson on the stand, Thompson 

was denied his right to effective assistance of counsel. An attorney 

doing any investigation would have learned that the Deputy had to 

attend a 2 day seminar on the procedures for in car cruiser cams and 

there are sign-in sheets to prove his attendence [sic]. Counsel did 

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no such investigation and did not impeach the witness with the 

evidence available.

Thompson also provided counsel with a witness that would impeach 

state witnesses and contradict the deputie's [sic] theory that 

Thompson was free to leave and therefore was not qualified for 

Miranda warnings. As the deputy allowed Thompson to speak to his 

wife on speakerphone from the back of the police cruiser, to which 

Thompson told his wife he was being held by the police and they 

would not let him go. Thompson's wife testified in the first trial to 

this fact, but was forbidden in the second trial. Counsel should have 

put Thompson's wife on the stand in the Motion to Supress [sic] but 

never even spoke to Mrs. Thompson until the Motion to Supress 

[sic] was overruled.

Id. at PageID 8-9.

Added by amendment:

During the Motion to Suppress, the arresting officer, Deputy 

Baranyi, testified that Thompson gave him permission to search the 

truck. The deputy testified that he spotted an invoice on a clipboard 

on the petitioner ' s backseat. This invoice became the link which 

became the reason Thompson was investigated further. 

Due to the testimony, implicating 'plain view' the invoice was 

allowed into evidence. However, defense Counsel Thomas Hansen 

had in his possession, the police reports from the Deputy which were 

written the morning of the arrest. The report shows that Thompson 

gave permission to obtain a marijuana pipe from a specific location. 

After obtaining the pipe, the Deputy notes that he searched a 

clipboard located in the backseat. Through this additional search, the 

Deputy located the invoice IN the clipboard and not ON as he had 

testified. 

Counsel did not use the exculpatory evidence to impeach the 

testimony of the Deputy, nor did he submit the reports into evidence. 

(ECF No. 67-1, PageID 2615-16.)

Ground Four: If the court finds that appellate counsel failed to 

argue important constitutional violations of Thompson’s right 

during the direct appeal, then Thompson was denied effective 

assistance of counsel on appeal. 

Supporting Facts: Appellate counsel failed in his duties to 

represent Thompson to the best of his abilities. Counsel filed his 

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entire brief based off one, two-hour meeting with Thompson, and 

ignored several issues Thompson wanted to address in the direct 

apeal [sic].

Counsel failed to fully investigate the claims in which Thompson 

had his Constitutional Rights violated. When counsel submitted a 

brief to the Appellate Court, he failed to present a complete record 

of the assignments of error being presented. There were documents 

that supported Thompson's claims to be raised in a Direct Appeal 

and a reasonable investigation by an attorney would have uncovered 

such evidence, yet appellate counsel failed in his duties to perform.

Thompson was unable to be a part of the appeals process and was 

denied his Constitutional Right to due process as well as his Sixth 

Amendment right to effective assistance of counsel.

Id. at PageID 10.

Ground Five: Cumulative bias on part of the trial judge. 

Supporting Facts: The trial judge had initiated the plea bargain 

proceedings and encouraged Thompson to plead guilt [sic] before 

trial began. The judge had already decided Thompson was guilty 

and took a partisan position regarding Thompson's guilt. Threats 

were made by the judge, directed at defense counsel, and by 

association Thompson, during a pretrial meeting in chambers. 

Affidavits were filed to the Supreme Court of Ohio as Thompson 

sought the disqualification of the judge.

There were also several instances during the trial where the judge 

stated she believes the prosecution over defense counsel, thus 

dismissing a relevant objection pertaining to Brady Violations.

Id. at PageID 11.

Ground Six: Prosecutorial Misconduct. 

Supporting Facts: During the introduction of evience [sic] mainly 

the text messages between Thompson and Bathini, the prosecution 

presented several pages of texts that defense counsel objected to

because the pages being shown to the jury were not given to the 

defense as part of the discovery.

The prosecution then made several comments during closing 

argument that were erroneous, unfounded, unsubstantiated and were 

injected as his personal opinion. During closing arguments, the 

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prosecution stated to the jury that Thompson had told Detective 

Saunder that he knew police were in the area and when they shined 

their lights in his truck, he ducked down to avoid being seen. This 

statement was a misrepresentation of what Thompson had told the 

Detective during the interview. The statement should not have been 

admitted anyway since Thompson had not been read his rights. The 

prosecution went on to say "and why would someone who is doing 

nothing illegal duck down to avoid being seen? Because that's what 

common thieves do.' This expert analysis by the prosecution 

influenced the jury to believe in Thompson's guilt.

The prosecutor in conclusion instructed the jury to remember what 

Burnstold Detective Saunders, "Yeah I did it. And I did it with Craig 

Thompson." either Burns nor Detective Saunders ever testified to 

this change. There was nothing in the record, statements, interview 

notes or prior testimony to this statement ever being said by any 

person relevant to the trial.

Although trial counsel failed to object to statements made by the 

prosecution in closing arguments, these statements worked to 

Thompson's actual and substantial disadvantage and infected his 

trial with Constitutional error. The comments were made during the 

state's rebuttal and Thompson's attorney was unable to respond 

before the jury retired for deliberations. Due to the tack of an 

objection by Thompson's counsel, the claim was only viewed for 

plain error to determine if the comments had a decisive effect on the 

outcome of trial.

During the sentencing phase, the prosecution submitted a sentencing 

memorandum that would usually be answered by the defense. 

However, upon review of the document submitted to the court, the 

prosecutions' certificate of service shows that the document was

served upon the wrong defense attorney thus denying Thompson, or 

his counsel, the opportunity to dispute the memorandum. The 

prosecution continued this malicious hinderance of Thompson's 

Constitutional rights to Due Process after trial with all motions filed 

after conviction, including but not limited to his Post-Conviction 

Petition. The prosecution intentionally hindered Thompson's 

receiving of filed documents by not filing pursuant to the Civil 

Rules, or Criminal Rules of Procedure prescribed by State and Local

Rules.

Id. at PageID 13.

Ground Seven: Craig Thompson’s sentence is void and/or voidable 

because he was denied the effective assistance of counsel when his 

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attorney unreasonably failed to counsel him to accept the State of 

Ohio’s offer of 3 years with judicial release probability after 6 

months in exchange for his guilty plea.

Supporting Facts: Prior to trial Thompson's counsel James Staton 

had informed Thompson that a plea offer had been made. That offer 

was 36 months with judicial release probability after a mere 6 

months and the court agreed to postpone sentencing until after the 

holidays so that Thompson could spend them with his children.

Counsel did not inform Thompson that if he rejected the offer that 

any sentence imposed by the judge would be mandatory due to prior 

convictions.

Counsel knew that the offer made was being made by the judge 

herself and not the prosecution, but failed to file any motions to 

disqualify the judge despite having the knowledge that the judge 

should not initiate the plea bargain proceedings. Counsel knew the

bias that the judge had formed for his client and was deficient in his 

representation.

Counsel expressed that Thompson should reject the plea, which 

Thompson did. After a trial, Thompson was sentenced to a 

mandatory 72 months with no possibility for early release. Counsels 

reasoning for denying the plea was a misunderstanding of law.

Id. at PageID 15. 

Ground Eight: Appellant was subject to the ineffective assistance 

of counsel as guaranteed to him under both the Sixth and Fourteenth 

Amendments.

Supporting Facts: The following is a Ground under ineffective 

assistance of counsel. Where the first claim (Ground Three) was 

ineffective assistance as well, ground three was centered around 

retained counsel Thomas Hansen's representation of Thompson and 

Ground Eight centers around court appointed trial counsel James 

Staton.

See Arguments above in Grounds 6 and 8 as well as .. .

Thompson's counsel had advised him to reject a plea agreement that 

was, not only beneficial to Thompson, but was a deal that Thompson 

was wanting to accept thus decreasing his amount of time in prison.

Thompson's counsel was deficient in his duties by failing to file

required motions. Trial counsel also failed to object to statements 

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made by the prosecution during closing arguments that were not 

only highly prejudicial to Thompson, but were also considered to be

the prosecutions personal opinion, and therefore Prosecutorial 

Misconduct.

After an investigation uncovered exculpatory evidence to contradict 

several important state witnesses, defense counsel failed to use the 

evidence discovered to impeach said witnesses and cast doubt on the 

testimony the witnesses provided. Burns had stated that Thompson 

was the first person he called upon leaving the scene of the crime 

because Thompson was his ride home. The state used this 

information repeatedly to show the jury that Thompson was the one 

Burns was calling because he was the accomplice. However, 

testimony of another witness and phone records showed that 

Thompson was not the first person Burns called, nor was he the 

second person he called. In fact Burns only called Thompson after 

his first options refused to come pick him up.

The investigation also uncovered employment records for Burns. 

State witness Kaitlyn Kerg contends that she was present for the 

planning of the burglary the night before the crime occurred. She 

claims to have been using several drugs including marijuana and 

xanax, as well as drinking alcohol during the planning and claims 

that Thompson took her back home before her curfew at 9:30 P.M. 

However, the employment records show that Burns was at work 

from 2 p.m. until 10 p.m. the night prior to the burglary thus Kerg 

could not have been present at a planning where Burns himself could 

not have been. Counsel did not impeach Kerg with the evidence and 

thus the jury was free to believe that the witness was present at the 

planning of the crime that occurred despite counsel's knowledge that 

the testimony was false.

Counsel also had at his disposal the transcripts available from the 

previous trial, as well as all of the police reports, and the proffer 

agreement between Burns and the state. The contents of the proffer 

agreement clearly state that a provision of the agreement was that 

Burns was to submitt [sic] to a polygraph exam to prove the 

truthfulness of his testimony against Thompson. Bruns testified that 

he never did submit to a polygraph exam in the first trial, so the 

judge redacted that portion of the agreement before the second trial 

began.

During Burns' testimony, in the second trial, Burns testified that not 

only had he informed others about this burglary plan, but that there 

were others present during the planning of the crime itself. Since 

Burns never mentioned this fact in any of his statements to the police 

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or prosecution, and Burns never testified to this fact in the previus 

[sic] trial, Thompson's counsel would be deemed as ineffective for 

failing to impeach Burns' testimony under Impeachment by 

Omission.

There was no physical evidence against Thompson and there was 

very little circumstancial [sic] evidence. The state's case against 

Thompson was based upon the testimony of two key witnesses and 

text messages sent between Thompson and Bathini. Thompson's 

counsel possessed several pieces of evidence and information to 

impeach those witnesses but failed to do so thus failing in his duties 

to represent Thompson and the prejudice that resulted is clear.

Id. at PageID 16-17.

Ground Nine: The accumulation of errors in this case violate

Thompson's right to due process.

Supporting Facts: See above arguments.

Id. at PageID 18-19.

Petitioner sought to amend Ground Eight, but the Court rejected the amendment as 

untimely (ECF No. 101). 

Analysis

Ground One: Denial of the Motion to Suppress

In his First Ground for Relief, Thompson asserts the state court erred by denying his 

Motion to Suppress. Respondent asserts, on the basis of Stone v. Powell, 428 U.S. 465 (1976), 

that this ground for relief is not cognizable to the extent it raises Fourth Amendment claims and 

defends the Fifth Amendment claims on the merits (Return, ECF No. 12, PageID 2178). 

In his Traverse, Thompson argues Stone is not applicable because he did not have a full 

and fair opportunity to litigate his Fourth Amendment claims in the state courts (ECF No. 88, 

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PageID 3099). This is so, he says, because the Sheriff’s Office destroyed exculpatory evidence 

(video recordings from the dashboard camera in the cruiser). Id. Second, he claims, his attorney 

made several egregious errors in litigating the Motion to Suppress, errors rising to the level of 

ineffective assistance of trial counsel. Id. at PageID 3100. Third, the motion to suppress was 

decided by a judge who was biased against him. Id. at PageID 3101-02. After making these 

arguments, Thompson proceeds to argue the merits of the motion to suppress.

Federal habeas corpus relief is not available to state prisoners who allege they were 

convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that 

question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court 

to determine whether state procedure in the abstract provides full and fair opportunity to litigate, 

and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim 

was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an 

unanticipated and unforeseeable application of a procedural rule prevents state court consideration 

of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept 

of a “full and fair opportunity,” held: 

The mechanism provided by the State of Ohio for resolution of 

Fourth Amendment claims is, in the abstract, clearly adequate. Ohio 

R. Crim. P. 12 provides an adequate opportunity to raise Fourth 

Amendment claims in the context of a pretrial motion to suppress, 

as is evident in the petitioner’s use of that procedure. Further, a 

criminal defendant, who has unsuccessfully sought to suppress 

evidence, may take a direct appeal of that order, as of right, by filing 

a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P. 

5(A). These rules provide an adequate procedural mechanism for the 

litigation of Fourth Amendment claims because the state affords a 

litigant an opportunity to raise his claims in a fact-finding hearing 

and on direct appeal of an unfavorable decision. 

Id. at 526. 

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Thompson presented denial of the motion to suppress as his Third Assignment of Error on 

direct appeal and the Second District decided it as follows:

[*P39] The third assignment of error challenges the overruling of 

Thompson's motion to suppress on three grounds: (1) after the 

original trial judge recused himself, the second trial judge did not 

re-evaluate the motion to suppress; (2) the traffic stop was 

unconstitutionally prolonged; and (3) during the stop Thompson was 

not advised of his Miranda rights.

The effect of recusal

[*P40] On Thompson's motion, the original judge in this case 

recused himself five months after he overruled Thompson's motion 

to suppress. [footnote omitted] Thompson filed a second motion to 

suppress, asking for a new hearing on the first motion because of the 

original judge's recusal. While there was no written ruling on the 

second motion, the new judge said at trial that the original judge 

"made his ruling, and I'm standing by his ruling. I'll note your 

continuing objection." (Trial Tr. 833). Thompson says that the new 

judge should have reconsidered the suppression issue because of the 

alleged bias that the original judge had against him.

[*P41] The reason for the recusal is not entirely clear. Thompson 

says in his brief that the judge "recused himself after revealing a bias 

against the Appellant." But the basis of Thompson's recusal motion 

was that the judge had an ex parte conversation with the victim. 

According to Thompson, at the final pre-trial conference the judge 

said, "'I have talked privately with the victim in this case concerning 

the plea agreement for the co-defendant and [the judge] stated that 

he (the victim) really wants your man (Defendant-Thompson).'" 

Affidavit of Disqualification of Judge, 2. We are not convinced that 

this shows a bias against Thompson. Moreover, the trial court had 

overruled Thompson's motion to suppress on August 13, 2013, five 

months before the recusal. And in a motion to continue, that 

Thomson filed on November 25, 2013, it states that Burns pled on 

September 16, 2013, but the plea deal was apparently not complete 

until a Proffer Agreement was signed on October 25, 2013. 

Therefore whatever communication the victim may have had about 

the plea deal was well after the ruling on the suppression motion.

[*P42] Also, a trial judge's recusal does not render void a 

suppression ruling made by that judge. Even a ruling made by a 

disqualified judge before being disqualified is not void. 

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Griffith, 54 Ohio St.2d 440, 442, 377 N.E.2d 775 (1978) ("Although 

a judge would be without power to hear and determine a cause after 

disqualification, his judgment, however erroneous, before 

disqualification is not void."); Evans v. Dayton Newspapers, Inc., 

57 Ohio App.3d 57, 58, 566 N.E.2d 704 (2d Dist.1989) (saying that 

"being informed that he [the judge] should not proceed did not 

render his pretrial orders void"). So the new judge in this case was 

not required to reconsider the suppression ruling. We turn now to 

that ruling.

The length of the traffic stop

[*P43] "Review of a trial court's ruling on a motion to suppress is 

'a mixed question of law and fact.' State v. Burnside, 100 Ohio St. 

3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We accept the trial 

court's factual findings as long as they are supported by competent, 

credible evidence. However, we review de novo the application of 

the law to these facts. " (Citations omitted.) State v. Belton, Ohio 

Sup. Ct. Slip Opinion No. 2016-Ohio-1581, ¶ 100.

[*P44] "[A] police stop exceeding the time needed to handle the 

matter for which the stop was made violates the Constitution's shield 

against unreasonable seizures. A seizure justified only by a policeobserved traffic violation, therefore, 'become[s] unlawful if it is 

prolonged beyond the time reasonably required to complete th[e] 

mission' of issuing a ticket for the violation." Rodriguez v. United 

States, [575 U.S. 348], 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 

(2015), quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 

834, 160 L.Ed.2d 842 (2005). "An officer * * * may conduct certain 

unrelated checks during an otherwise lawful traffic stop. But * * * 

he may not do so in a way that prolongs the stop, absent the 

reasonable suspicion ordinarily demanded to justify detaining an 

individual." Id. at 1615.

[*P45] "[A] police officer who lacks probable cause but whose 

observations lead him reasonably to suspect that a particular 

person's behavior is criminal may detain the person briefly to 

investigate the circumstances that provoked the suspicion." State v. 

Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 

13. "[T]he officer may ask the detainee a moderate number of 

questions to determine his identity and to try to obtain information 

confirming or dispelling the officer's suspicions." Id. at ¶ 14. "'[T]he 

detention of a stopped driver may continue beyond [the normal] time 

frame when additional facts are encountered that give rise to a 

reasonable, articulable suspicion of criminal activity beyond that 

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which prompted the initial stop.'" (Citations omitted.) State v. 

Batchili, 113 Ohio St. 3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 

15, quoting State v. Howard, 12th Dist. Preble Nos. CA2006-02-

002, CA2006-02-003, 2006-Ohio-5656, ¶ 16.

[*P46] There is no dispute that Deputy Baranyi's initial traffic stop 

of Thompson was lawful. Baranyi testified that he saw Thompson 

fail to come to a complete stop and saw that Thompson's truck was 

missing a front license plate. Thompson's problem with the stop 

concerns its length. He says that Deputy Baranyi's detention of him 

went well beyond the time period needed to issue a ticket and that 

no facts were articulated to allow for such a prolonged detention.

[*P47] Around 12:40 a.m., Baranyi stopped Thompson for the 

above-mentioned traffic violations, also suspecting that Thompson 

might be connected to the burglary that just occurred nearby. One of 

Deputy Baranyi's first questions to Thompson was where he was 

coming from and where he was headed. Thompson replied that he 

was coming from Bathini's house on Heather Hollow—the same 

street as the burglarized house. Baranyi asked Thompson to come 

back to his cruiser to talk further and to verify Thompson's story. 

Baranyi called Bathini, and she told him that while she knew 

Thompson, she was not at home and that she and Thompson had no 

plans to see each other that night. This made Deputy Baranyi even 

more suspicious. Consequently he called his supervisor and told him 

about the stop and the phone call. Baranyi then searched 

Thompson's truck and found a keycard to a hotel room at the

America's Best Hotel and an invoice for work done at the 

burglarized house. Baranyi then talked to Maria Bateman about her 

encounter with Burns. Bateman said that the man asked her to give 

him a ride to Tim Horton's in Englewood. Thompson told Baranyi 

that he was with Burns earlier but had dropped him off. He said that 

Burns lived at the America's Best Hotel in Englewood. Deputy 

Baranyi relayed all this information to the other deputies 

investigating the burglary, telling them that a possible burglary 

suspect could be at the Tim Horton's in Englewood. When Detective 

Saunders heard all that was known about the burglary, he asked 

Deputy Baranyi to ask Thompson if he would come in for an 

interview, and Thompson agreed. It was 3:19 a.m. when Baranyi 

brought Thompson to the police station. So Thompson was detained 

for roughly two-and-a-half hours.

[*P48] Baranyi had reasonable, articulable suspicion that 

Thompson might be involved in the burglary. So Baranyi's detention 

of Thompson while he verified where Thompson had been was 

justified. Once Baranyi discovered that Thompson had lied about 

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where he had been, Baranyi's suspicion grew, justifying continued 

detention while he investigated the burglary. As time passed, 

Baranyi's suspicion continued to grow as he saw the invoice in 

Thompson's truck listing the phone number of the burglary call and 

heard Bateman's story. Additional facts kept coming to light that 

justified Deputy Baranyi's continued detention of Thompson. We 

believe this continued detention was reasonable under the evolving 

circumstances.

Miranda

[*P49] Deputy Baranyi did not advise Thompson of his Miranda

rights because Baranyi did not consider Thompson in custody. 

When Thompson arrived at district headquarters, Detective 

Saunders told him that he was not under arrest. Saunders then talked 

to Thompson for five or ten minutes. Meanwhile, Burns arrived at 

the station. Saunders left Thompson and went to talk to Burns. After 

talking with him, Saunders decided to arrest Thompson, because 

their stories about what had happened that night were contradictory 

and also because of the items that Deputy Baranyi found in 

Thompson's truck. Saunders went back to Thompson, told him that 

he was under arrest, and handcuffed him. Before asking him any 

further questions, Saunders advised Thompson of his Miranda

rights.

[*P50] Thompson contends that he was subject to custodial 

interrogation by Deputy Baranyi while he was in the police cruiser. 

Thompson says that Baranyi never told him that he was free to leave 

at any time. He notes that the doors on a police cruiser only open 

from the outside, severely limiting his freedom of movement. 

Thompson also points out that he was only allowed to exit the police 

cruiser once to use the restroom and that he was accompanied by 

two deputy sheriffs and afterwards was immediately put back in the 

cruiser. Thompson did not testify, so what he actually believed is 

unknown.

[*P51] Miranda warnings are required only before a suspect is 

subjected to custodial interrogation. "The determination whether a 

custodial interrogation has occurred requires an inquiry into how a 

reasonable man in the suspect's position would have understood his 

situation. * * * The ultimate inquiry is simply whether there is a 

formal arrest or restraint on freedom of movement of the degree 

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associated with a formal arrest." State v. Biros, 78 Ohio St.3d 426, 

440, 1997 Ohio 204, 678 N.E.2d 891 (1997). Typically, Terry stops 

do not rise to the level of detention requiring Miranda warnings. 

State v. Healy, 2d Dist. Montgomery No. 18232, 2000 Ohio App. 

LEXIS 3480, 2000 WL 1062197, *16 (Aug. 4, 2000), citing 

Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 

L.Ed.2d 317 (1984). But warnings are required if a person is 

subjected to treatment during the detention that renders him "in 

custody" for practical purposes. State v. Strozier, 172 Ohio App. 3d 

780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 18 (2d Dist.).

[*P52] It is unclear at what point Thompson is saying he was in 

custody for Miranda purposes. Certainly, he was not in custody 

immediately. As we have said, "[s]imply asking the motorist in that 

circumstance to sit in the rear of the police cruiser for a short period 

of time while answering a few questions or while a citation is issued 

does not convert the ordinary traffic stop into custodial 

interrogation." (Citations omitted.) State v. Barnett, 2d Dist.

Montgomery No. 14019, 1994 Ohio App. LEXIS 4767, 1994 WL 

567551, *4 (Aug. 31, 1994). Accord State v. Engle, 2d Dist. 

Montgomery No. 25226, 2013-Ohio-1818, ¶ 27 (saying that 

"instructing an individual to sit in a police cruiser does not convert 

the traffic stop into a custodial interrogation" and that "[m]any 

courts have found that this instruction is permissible for purposes of 

officer safety"). Even if Miranda warnings should have been given 

before they were, Thompson does not cite in his brief—and at oral 

arguments, could not point to—any specific statements that he made 

that prejudiced him.

[*P53] The third assignment of error is overruled.

Thompson, 2016-Ohio-7521.

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, 131 S. 

Ct. 770, 785 (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 

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

As can be seen from the Second District’s decision, Thompson’s claim that his opportunity 

to litigate his Fourth Amendment claim was not “full and fair” on the basis of the destruction of 

video recordings by the Sheriff’s Office was not raised on direct appeal. Thompson has thus 

forfeited that claim. To put it another way, the Second District’s disposition of the motion to 

suppress claim cannot be deemed unreasonable when it was not presented with the claim later 

made in habeas. Moreover, his assertion that the video recordings would be exculpatory is 

speculative.

The same result must be reached with Thompson’s claim of ineffective assistance of trial 

counsel in presenting the motion to suppress: Thompson never asserted to the Second District that 

the motion to suppress should have been granted because its denial was based on counsel’s errors. 

Even in his Traverse, Thompson does not enumerate what those errors were.

Finally, there is Thompson’s claim that the motion to suppress was decided by a biased 

judge. Even this claim was not squarely presented to the Second District. Instead, Thompson 

asserted that because the first judge had recused himself, the second judge had to reconsider the 

suppression decision and the appellate court decided Ohio law did not require reconsideration. 

There is certainly no federal constitutional rule that requires reconsideration by a second judge 

after a first judge recuses himself or herself in a case.

Without doubt there is a Due Process right to have one’s case decided by an unbiased judge. 

Tumey v. Ohio, 273 U.S. 510 (1927), Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). A 

judge therefore has an ethical obligation to recuse himself or herself when he or she is biased. But 

there can be many other reasons for recusal besides bias against a particular litigant. For example, 

a judge may be required to recuse himself when he is the trustee of a university which has a conflict 

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of interest with one of the litigants. Liteky v. United States, 510 U.S. 540, 548 (1994). Here the 

Second District found the reason for Judge Singer’s disqualification was unclear. Thompson, 

2016-Ohio-7521 at ¶ 41. Thompson claimed it was after the first judge revealed a bias against 

him, but what the judge actually revealed was that he had had an ex parte conversation with the 

victim of the crime. Ex parte conversations are per se improper, whether or not they result in a 

bias, and this would have been an appropriate basis for recusal. In any event, as the Second District 

found and Thompson does not dispute, the decision on the motion to suppress happened months 

before the ex parte conversation, so that whatever the judge heard in the ex parte conversation 

cannot have been the source of bias in deciding the motion to suppress.

Thompson has not shown he was not given a full and fair opportunity to litigate his Fourth 

Amendment claims. Therefore Stone v. Powell bars this Court from reaching the merits of those 

claims in habeas corpus.

Miranda v. Arizona, 384 U.S. 436 (1966), involves the Fifth Amendment privilege against 

compelled self-incrimination rather than the Fourth Amendment. Stone v. Powell therefore does 

not bar merits consideration of Thompson’s Miranda claims.

Considering the evidence presented at the suppression hearing, the Second District found 

that the length of Thompson’s detention was reasonable, not because Deputy Baranyi needed that 

much time to issue a traffic citation for running a stop sign, but because Baranyi’s suspicion that 

Thompson was involved in the burglary of Fox’s home became more and more justified as Baranyi 

gathered more information from other sources and as Thompson’s answers became less and less 

plausible.

Thompson argues the Second District’s findings of fact about the stop are not entitled to 

deference, citing Thompson v Keohane, 516 U.S. 99 (1995). In that case the Supreme Court was 

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interpreting the version of 28 U.S.C. 2254(d) that was in effect prior to adoption of Antiterrorism 

and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"). 

The current version of the statute requires deference to state court fact finding unless the state court 

decision was based on an unreasonable determination of the facts in light of the evidence presented 

in the State court proceedings. The presumption language which formerly appeared in § 2254(d) 

has been moved to § 2254(e) and it can be overcome only by clear and convincing evidence that 

was in the state court record. Cullen v. Pinholster, 563 U.S. 170 (2011).

The question of whether statements made by a person who has been detained by police are 

voluntary or not is indeed a mixed question of law and fact as Justice Ginsburg noted in Keohane, 

supra. Prior to the adoption of the AEDPA, state court decisions on that question were reviewed

de novo. Hardin v. Straub, 954 F.2d 1193, 1198 (6th Cir. 1992). But now, and since 1996, mixed 

questions of law and fact are reviewed under the “unreasonable application” prong of the AEDPA. 

White v. Mitchell, 431 F.3d 517 (6th Cir. 2005), citing Barnes v. Elo, 339 F.3d 496, 501 (6th Cir. 

2003); Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir. 2003), citing Harpster v. Ohio 128 F.3d 322, 

327 (6th Cir. 1997) . 

Reviewed under that standard, the Second District’s decision on the Miranda claim was 

not an unreasonable application of that case and its progeny. As the Second District found, while 

Thompson’s original stop was justified by a minor traffic infraction, Deputy Baranyi’s suspicion 

that Thompson was involved in a neighboring burglary already being investigated was deepened 

by Thompson’s lying statements about why he was parked in his truck near the burglary scene. 

Thompson never took the stand during the suppression hearing to deny Baranyi’s account of the 

encounter. And he has not attempted to refute the Second District’s finding that he had not pointed 

out on appeal which of his statements made to Baranyi was prejudicial.

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The First Ground for Relief should be dismissed, because Stone v. Powell bars review of 

as to Fourth Amendment claims and the Second District’s decision on the Fifth Amendment claims 

is not an objectively unreasonable application of Miranda and its progeny.

Ground Two: Admission of Unauthenticated Text Messages

In his Second Ground for Relief, Thompson complains that the admission of improperly 

authenticated text messages violated his rights under the Confrontation Clause.

Respondent asserts Ground Two raises only an Ohio evidentiary law question and is 

therefore not cognizable in habeas corpus (Return, ECF No. 12, PageID 2178). Respondent further

claims this ground for relief is procedurally defaulted and is without merit. Id.

Thompson raised his claim about admission of the text messages as his Fourth Assignment 

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

[*P54] The fourth assignment of error alleges that the trial court 

erred by admitting text messages that Thompson sent to Bathini. 

Thompson contends that the messages are hearsay and were not 

properly authenticated and were unfairly prejudicial.

[*P55] During Bathini's testimony, the State introduced some text 

messages from her cell phone that were sent between her and 

Thompson. Defense counsel objected, and a sidebar was held. The 

State told the judge that "the text messages show the nature of their 

relationship, the nature of, you know, the work that he did on the 

house, how that relationship developed, ended, what his financial 

situation was." (Trial Tr. 732). Defense counsel explained that his 

objection was on relevance grounds:

I think that that's several different things, Your Honor. 

It's—working on the house is one thing. The relationship 

he had with her romantically is another thing. His marital 

relationship with his wife was a third thing. The timeline 

would be a fourth thing. I'm not sure. Each text and each 

text string relates to a different one. There are some that 

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establish the timeline of when they met and that they knew 

each other. There are other text strings that would establish 

what—when he was working and what he was doing for 

the job. There's another text that may establish that they 

were having financial problems. There was another text 

that may, you know, solely deal with their romantic 

relationship. I think it would depend on what exactly the 

text is. All of them together aren't relevant to any one thing 

and would not be relevant to all of the things.

(Id.). Noting the defense's continuing objection, the trial court 

overruled the objection and admitted the messages.

[*P56] Later during Bathini's testimony, defense counsel told the 

trial court that "a whole chunk" of text messages were not in the 

discovery packet from the State. (Id. at 749). Counsel appears to be 

objecting to the admission of the text messages because he did not 

receive some of them until that day.

[*P57] Thompson contends that the text messages from Bathini's 

cell phone were hearsay, were not properly authenticated, and were 

unfairly prejudicial. But at trial Thompson did not object to the 

admission of the messages on any of these grounds. To be sure, he 

did object, but he did so on the grounds that they were not relevant 

and that he had not received them in discovery. Thompson 

acknowledges this but says that counsel entered a continuing 

objection to admission and that this is sufficient to preserve the issue 

for review.[footnote omitted] We disagree. An objection on one 

ground does not preserve an issue on a ground not raised in the 

objection. State v. Barnes, 10th Dist. Franklin No. 04AP-1133, 

2005-Ohio-3279, ¶ 28, citing State v. Davis, 1 Ohio St.2d 28, 33, 

203 N.E.2d 357 (1964).

[*P58] Thompson did not object on hearsay, authentication or 

prejudice grounds when the error could have been addressed or 

cured. Although he did object to admission, Thompson did not raise 

these specific objections until this appeal. Because Thompson failed 

to object at trial on the specific ground raised here he has forfeited 

the issue limiting us to plain error analysis. State v. Tibbetts, 92 Ohio 

St.3d 146, 160-61, 2001 Ohio 132, 749 N.E.2d 226 (2001); Crim.R. 

52(B). But even if Thompson had objected to the text messages' 

admission on the grounds he argues here, we would not find error, 

plain or otherwise. The text messages are not hearsay. They are 

party-opponent admissions properly authenticated by Bathini. Nor 

are the messages unfairly prejudicial.

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[*P59] A statement is not hearsay if it "is offered against a party 

and is * * * the party's own statement." Evid.R. 801(D)(2)(a). 

"Courts have held that photographs of text messages sent from a 

defendant are not hearsay, instead they qualify as a party-opponent 

admission under Evid.R. 801(D)(2), as long as the statements are 

properly authenticated." State v. Davis, 12th Dist. Madison No. 

CA2015-05-015, 2016-Ohio-1166, ¶ 21, 61 N.E.3d 650, citing State 

v. Bickerstaff, 11th Dist. Ashtabula No. 2014-A-0054, 2015-Ohio4014, ¶ 15; and State v. Shaw, 2013-Ohio-5292, 4 N.E.3d 406, ¶ 43, 

4 N.E.3d 406 (7th Dist.). "[I]n most cases involving electronic print 

media, i.e., texts, instant messaging, and e-mails, the photographs 

taken of the print media or the printouts of those conversations are 

authenticated, introduced, and received into evidence through the 

testimony of the recipient of the messages." State v. Roseberry, 197 

Ohio App. 3d 256, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 73 (8th 

Dist.). "Therefore, statements from text messages are properly 

authenticated and are admissible as a party-opponent admission 

when the recipient of the messages identifies the messages as 

coming from the defendant." (Citation omitted.) Davis at ¶ 21. Here, 

Bathini recited the content of the text messages and identified which

messages she sent and which were sent by Thompson. The messages 

were properly admitted through her testimony because she was the 

recipient, had personal knowledge of their content, and could 

identify the sender as Thompson.

[*P60] Thompson contends that the text messages were unfairly 

prejudicial because they were misleading. He says that they show 

only one side of the conversation and says that the only messages 

presented were those that show him at fault. Thompson says that 

other messages were not presented that would have shown context.

[*P61] Relevant evidence is inadmissible "if its probative value is 

substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or of misleading the jury." Evid.R. 403(A). 

When determining whether evidence's probative value is 

"substantially outweighed" by the danger of prejudice, the evidence 

is viewed in a light most favorable to the proponent, maximizing its 

probative value and minimizing any prejudicial effect to the party 

opposing admission. State v. Frazier, 73 Ohio St.3d 323, 333, 1995 

Ohio 235, 652 N.E.2d 1000 (1995); State v. Durr, 58 Ohio St. 3d 

86, 92, 568 N.E.2d 674 (1991).

[*P62] Bathini specifically testified that the text messages that she 

discussed at trial were only some of the messages that she received 

from Thompson. So the jury knew that it was not hearing about 

every message that Thompson sent. Some messages that were 

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presented show that Thompson was having serious financial 

problems and needed a lot of money very quickly. Other messages 

suggest that Thompson and Bathini's relationship ended poorly. 

Bathini provided context for the messages that were presented by 

explaining what the conversations were about. We see little danger 

of unfair prejudice.

[*P63] The fourth assignment of error is overruled.

Thompson, 2016-Ohio-7521.

As background, Shai Bathini was the house guest of the victim, Charles Fox, and 

Thompson’s girlfriend. Id. at ¶ 10. She had persuaded Fox to hire Thompson to do some work on 

the house in November 2012. Id. Bathini testified that Thompson was badly in need of money and 

blamed her for getting him into debt, such that their relationship ended in January 2013, shortly 

before the burglary.

From examination of the Thompson’s Brief on Appeal (State Court Record ECF No. 11, 

Ex. 32) and Second District’s opinion, it is clear Thompson never raised a Confrontation Clause 

claim in the state court. On that basis, Ground Two is procedurally defaulted because it was never 

presented to the state courts.

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

follows:

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 

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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). “Absent 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. d 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 [v. Thompson], 501 U.S. [722,] 731-732, 111 

S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. 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).

"A claim may become procedurally defaulted in two ways."

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a 

claim is procedurally defaulted where state-court remedies have 

been exhausted within the meaning of § 2254, but where the last 

reasoned state-court judgment declines to reach the merits because 

of a petitioner's failure to comply with a state procedural rule. Id.

Second, a claim is procedurally defaulted where the petitioner failed 

to exhaust state court remedies, and the remedies are no longer 

available at the time the federal petition is filed because of a state 

procedural rule. Id.

Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013).

A petitioner can fail to meet procedural requirements in two ways:

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First, a petitioner may procedurally default a claim by failing to 

comply with state procedural rules in presenting his claim to the 

appropriate state court. If, due to the petitioner's failure to comply

with the procedural rule, the state court declines to reach the merits 

of the issue, and the state procedural rule is an independent and 

adequate grounds for precluding relief, the claim is procedurally 

defaulted.

Second, a petitioner may procedurally default a claim by failing to 

raise a claim in state court, and pursue that claim through the state's 

ordinary appellate review procedures. If, at the time of the federal 

habeas petition, state law no longer allows the petitioner to raise the 

claim, the claim is procedurally defaulted.

Smith v. Warden, Toledo Corr. Inst., 2019 U.S. App. LEXIS 18196 * 19 (6th Cir. Jun. 18, 2019), 

quoting Lundgren v. Mitchell, 440 F.3d 754, 806 (6th Cir. 2006)).

Failure to raise a constitutional issue at all on direct appeal is subject to the cause and 

prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478, 

485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th

Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure 

to present an issue to the state supreme court on discretionary review constitutes procedural 

default. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted). “Even if the state 

court failed to reject a claim on a procedural ground, the petitioner is also in procedural default ‘by 

failing to raise a claim in state court, and pursue that claim through the state’s ordinary appellate 

procedures.’” Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009), citing Williams v. Anderson, 

460 F.3d 789, 806 (6th Cir. 2006)(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999)); see 

also Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004) ("A federal court is also barred from hearing 

issues that could have been raised in the state courts, but were not[.]"). The corollary to this rule is 

that where a petitioner raised a claim in the state court but in violation of a state's procedural rule, 

a state court must expressly reject the claim on that procedural ground for a federal court to deem 

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the claim defaulted. See Williams, 460 F.3d at 806 (noting that a state court's expressed rejection 

of a petitioner's claim on procedural basis and petitioner's complete failure to raise a claim in state 

court are the two ways a claim can be in procedural default).

Because Thompson never raised a Confrontation Clause claim in the Ohio courts, he cannot 

raise it now. But even if he could, it would be meritless: Bathini was present at trial and subject 

to cross-examination about her testimony.

Thompson’s Second Ground for Relief does not state any other constitutional claim. A 

party to a text message surely can authenticate it; she or he does not need to be the keeper of the 

record of the internet service provider on whose servers the messages are stored. As the Second 

District noted, Thompson’s side of those messages (the portions admitted) are not hearsay because 

they are admissions of a party opponent, excepted from the definition of hearsay by Ohio 

R.Evid.801(D)(2). In any event, claims about authentication and hearsay are claims about errors 

in applying Ohio evidence law. This Court is bound by state court interpretations of Ohio law. 

Bradshaw v. Richey, 546 U.S. 74 (2005). 

Lastly, even as evidence claims, the hearsay and authentication claims are procedurally 

defaulted because, as the Second District noted, Thompson did not object on those bases, but rather 

on the basis of asserted irrelevance. Thompson, 2016-Ohio-7521 ¶ 58. For that reason, the Second 

District reviewed them only for plain error. Id. Plain error review is enforcement of a procedural 

default, not a waiver of the failure to object. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 

2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 

(6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 

(6th Cir. 2005); Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001).

The Second Ground for Relief should therefore be dismissed.

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Ground Three: Ineffective Assistance of Retained Trial Counsel

The Sixth Amendment protects a criminal defendant’s right to the effective assistance of 

counsel, whether counsel is retained or appointed. In his Third Ground for Relief, Thompson 

accumulates his claims that his retained trial attorney, Thomas Hansen, provided ineffective 

assistance of trial counsel. 

The governing standard for ineffective assistance of counsel is found in Strickland v. 

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence has 

two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel was 

not functioning as the "counsel" guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the conviction 

or death sentence resulted from a breakdown in the adversary 

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both 

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing 

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that counsel's 

conduct falls within a wide range of reasonable professional 

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assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action "might be 

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to overcome 

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing 

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.” 

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 

86, 111-12 (2011). 

In assessing prejudice under Strickland, the question is not whether 

a court can be certain counsel's performance had no effect on the 

outcome or whether it is possible a reasonable doubt might have 

been established if counsel acted differently. See Wong v. 

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328 

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052, 

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably 

likely” the result would have been different. Id., at 696, 104 S. Ct. 

2052, 80 L. Ed. 2d 674. This does not require a showing that 

counsel's actions “more likely than not altered the outcome,” but the 

difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest 

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The 

likelihood of a different result must be substantial, not just 

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

All of Thompson’s ineffective assistance of trial counsel claims raised on direct appeal 

related to the performance of Attorney James Staton who represented Thompson at the second 

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trial. None of the claims made in Ground Three were presented on direct appeal and indeed they 

could not have been because they rely on material that was not part of the direct appeal record. 

Under Ohio law, ineffective assistance of trial counsel claims which can be raised on direct appeal 

must be raised there or be barred by res judicata from presentation in later state court proceedings. 

State v. Perry, 10 Ohio St. 2d 175 (1967).

Ineffective assistance of trial counsel claims which could not be presented on appeal 

because they depended, as Thompson’s Ground Three claims do, on evidence outside the appellate

record must be presented by petition for post-conviction relief under Ohio Revised Code § 

2953.21. Thompson does not claim that he presented these issues in that way. Instead, he asserts 

he presented them by raising a claim in his Application to Reopen his Direct Appeal, that his 

appellate counsel provided ineffective assistance of appellate counsel by not raising a claim that 

Thomas Hansen provided ineffective assistance of trial counsel in the pre-trial process (Traverse, 

ECF No. 88, PageID 3144). 

But this argument is unpersuasive. An application to reopen a direct appeal must 

demonstrate ineffective assistance of appellate counsel based on that attorney’s failure to raise 

assignments of error which depend on the appellate record. An Application to Reopen is not an 

opportunity to litigate issues which have been previously defaulted. Because claims of ineffective 

assistance of appellate counsel are based on an analytically distinct legal theory from the 

underlying claims, the 26(B) application does not preserve the underlying claims from default.

Scott v. Houk, 760 F.3d 497, 505 (6th Cir. 2014); Davie v. Mitchell, 547 F.3d 297 (6th Cir. 

2008)(Rogers, J.), and Garner v. Mitchell, 502 F.3d 394 (6th Cir. 2007)(Moore, J.), both citing 

White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005); Moore v. Mitchell, 531 F. Supp. 2d 845, 862 

(S.D. Ohio 2008)(Dlott, J.); see also Bailey v. Nagle, 172 F.3d 1299, 1309 n. 8 (11th Cir. 1999); 

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and Levasseur v. Pepe, 70 F.3d 187, 191-92 (1st Cir. 1995). 

Thompson argues the merits of his Hansen ineffective assistance of trial counsel claim at 

length in his Traverse (ECF No. 88, PageID 3144-50). But he does not show that he submitted 

this claim, and the evidence outside the direct appeal record, to the Ohio courts in a properly filed 

petition under Ohio Revised Code § 2953.21.

Thompson’s Post-Conviction Petition is in the State Court Record (ECF No. 11, Ex. 54). 

He lists six affidavits as attached to support his claims. Id. at PageID 787. In the body of the 

Petition, he discusses the asserted ineffective assistance of trial counsel of James Staton. Id. at 

PageID 783-87. See also Ground Two at PageID 790-92. It was Staton’s alleged ineffectiveness 

that Judge Gorman understood Thompson was litigating (Decision, State Court Record 11-1, Ex. 

57). Thompson’s own Affidavit in support is about the asserted deficiencies in Staton’s 

performance. Id. at PageID 807-08. 

In sum, Thompson’s Third Ground for Relief is procedurally defaulted for failure to present 

it to the state courts.

Ground Four: Ineffective Assistance of Appellate Counsel

In his Fourth Ground for Relief, Thompson argues he received ineffective assistance of 

appellate counsel on direct appeal. As pleaded here, the claims are vague: appellate counsel did 

not take enough time, failed to present “a complete record of the assignments of error,” and “failed 

to fully investigate the claims in which Thompson had his Constitutional Rights violated.” 

Thompson does not say how much time he believes was required, which assignments were 

omitted, and which claims were not fully investigated.”

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Thompson presented his claims of ineffective assistance of appellate counsel to the Second 

District in his Application for Reopening under Ohio R. App.26(B)(State Court Record, ECF No. 

11, Ex. 44). In denying that Application, the Second District noted that many of the claims being 

raised had already been raised on direct appeal and were barred from being present again by res 

judicata. (Decision, State Court Record, ECF No. 11-1). In addition, as for the non-barred 

assignments, the court found Thompson failed to show he had been prejudiced by their omission. 

Id. at PageID 732. The Second District reiterated its conclusions on reconsideration. Id. at Ex. 49.

A criminal defendant is entitled to effective assistance of counsel on appeal as well as at 

trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey, 

469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 

(6th Cir. 2008). 

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 

(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of 

appellate counsel, then, the court must assess the strength of the claim that counsel failed to raise. 

Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th

Cir. 2008). 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. If a reasonable probability exists that the defendant would have 

prevailed had the claim been raised on appeal, the court still must consider whether the claim's 

merit was so compelling that the failure to raise it amounted to ineffective assistance of appellate 

counsel. 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 (1983)("Experienced advocates 

since time beyond memory have emphasized the importance of winnowing out weaker arguments 

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on appeal and focusing on one central issue if possible, or at most on a few key issues." 463 U.S.

751-52). Effective appellate advocacy is rarely characterized by presenting every non-frivolous 

argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Williams v. 

Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005); see Smith v. Murray, 

477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those presented will the 

presumption of effective assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876 

F.3d 248 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008).

“In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner 

must show errors so serious that counsel was scarcely functioning as counsel at all and that those 

errors undermine the reliability of the defendant’s convictions.” McMeans v. Brigano, 228 F.3d 

674(6th Cir. 2000), citing Strickland and Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994). 

Counsel’s failure to raise an issue on appeal could only be ineffective assistance if there is a 

reasonable probability that inclusion of the issue would have changed the result of the appeal. 

McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing Greer v. Mitchell, 264 F.3d 663, 

676 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002). “Counsel’s performance is strongly 

presumed to be effective.” McFarland, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 

2000)(citing Strickland). “To prevail on a claim of ineffective assistance of appellate counsel, a 

petitioner must show that appellate counsel ignored issues [which] are clearly stronger than those 

presented.” Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009); Smith v. Robbins, 528 U.S. 259, 

288 (2000), quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).

AEDPA deference applies to state courts’ decisions on the merits of ineffective assistance 

of appellate counsel claims. To prevail in habeas, Thompson must show that the Second District’s 

rejection of his 26(B) Application was an objectively unreasonable application of Strickland as it 

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applies at the appellate level.

In his Traverse Thompson makes no argument at all on the merits of Ground Four, instead 

asserting merely that it is not procedurally defaulted (ECF No. 88, PageID 3085, 3200). The 

Magistrate Judge agrees that the claim is preserved for review, but the review is not de novo. 

Instead, Thompson must show the Second District’s decision is an objectively unreasonable 

application of Strickland. He has not even made an argument to that effect. Ground Four must 

therefore be dismissed with prejudice.

Ground Five: Bias by the Trial Judge

In his Fifth Ground for Relief, Thompson asserts the trial judge was biased against him2. 

Thompson argues “cumulative” bias by which the Magistrate Judge understands he means to assert 

there are several examples of conduct by the trial judge which demonstrate bias.

Respondent notes that trial judge bias was raised on direct appeal under the argument that 

Thompson was punished for going to trial instead of pleading. He further notes that the issue of 

trial judge bias raised in the Application to Reopen does not preserve and underlying claim of bias 

(Return, ECF No. 12, PageID 2179). 

Thompson raised the claim that he was punished for going to trial as his sixth Assignment 

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

E. Punishment for going to trial

[*P79] The sixth assignment of error alleges that the trial judge 

punished Thompson by enhancing his sentence for exercising his 

right to a jury trial.

2 The claim here is against the judge who eventually tried the case, The Honorable Barbara Pugliese Gorman, as 

opposed to The Honorable Gregory Singer, the judge who heard the motion to suppress and later recused himself, 

presumably because of ex parte conversation with the victim.

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[*P80] "It is beyond dispute that a defendant cannot be punished 

for refusing to plead guilty and exercising his right to a trial. 

'Accordingly, when imposing a sentence, a trial court may not be 

influenced by the fact that a defendant exercised his right to put the 

government to its proof rather than pleading guilty.' Where the 

record [**44] creates an inference that a defendant's sentence was 

enhanced because he elected to put the government to its proof, we 

have looked for additional evidence dispelling the inference and 

unequivocally explaining the trial court's sentencing decision." 

(Citations omitted.) State v. Anderson, 2d Dist. Montgomery No. 

26525, 2016-Ohio-135, ¶ 7, quoting State v. Blanton, 2d Dist. 

Montgomery No. 18923, 2002-Ohio-1794, 2002 WL 538869, *2-3.

[*P81] Thompson says that the trial judge made angry statements 

that were meant to deter him from proceeding to trial. The judge 

was, according to Thompson, irritated because he was not convicted 

in the first trial and by the circumstances leading to the hung jury. 

The judge made a comment referring to PTSD because of the first 

trial. Thompson asserts that the judge also said that she was 

convinced that Thompson had interfered with the jury. Lastly, 

Thompson says that the judge's attitude toward him tended to 

manipulate the jury into finding him guilty.

[*P82] The statements that Thompson cites were made during voir 

dire and at the end of the trial. The statements made during voir dire 

occurred at a sidebar after the State had finished questioning the 

prospective jurors. The judge asked defense counsel how long his 

questioning would take:

THE COURT: How long do you think you'll be?

MR. STATON [Defense counsel]: Not as long as that.

MS. AMRHEIN [for the State]: Sorry.

MR. STATON: That's all right. You got more stuff to do.

THE COURT: No, no, that's fine. Half hour, 45 minutes?

MR. STATON: Yeah, something like that.

THE COURT: Okay. We'll take 15 minutes. I know I don't have to 

say this, but again remember, I've got my PTSD from the last trial.

MR. STATON: No twitching.

THE COURT: Make sure your client and his mom do not mingle 

with the prospective jurors.

MR. STATON: Oh, certainly.

THE COURT: Okay. I—

MR. STATON: I will certainly do that.

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THE COURT: I have no idea like I said, last time they did not have 

a whole lot of restrictions on them so I'm not implying anything 

about them. I just want to be careful.

MR. STATON: Sure.

THE COURT: Okay.

(Trial Tr. 180-181). 

The end-of-trial statements were made right after the jury was 

discharged:

THE COURT: * * * The Court has reviewed the verdict entry. It is 

filled in ink, signed by all 12 jurors and the Court orders that the 

judicial assistant file it forthwith.

Okay. You can be seated.

At this time, I am going to revoke the Defendant's bond, taking him 

into custody and put this on for sentencing on Wednesday at 11:00, 

okay?

* * *

THE COURT: Any[thing] further, Defense counsel?

MR. STATON: Your Honor, we would ask the Court consider to 

continuing bond until sentencing. Our—

THE COURT: No.

MR. STATON: —client is at a low flight risk in this matter. He 

hasn't been out in years since this—

THE COURT: He's been out for a long time. He has a number of 

previous convictions. I don't think that would be appropriate. We'll 

do the sentencing on Wednesday.

THE DEFENDANT: I've got my kids, and work, and all that stuff. 

I've got to get back.

UNIDENTIFIED SPEAKER: It's over. Let's go.

THE DEFENDANT: [F***].

THE COURT: For attorneys, I'm going to go talk to the lawyers. I 

don't know if any of you want to come back.

THE DEFENDANT: Fine. I don't do—

THE COURT: I will talk to—

THE DEFENDANT: —it to you.

THE COURT: —them first. Ask if you want to come—

THE DEFENDANT: I didn't do it to you.

THE COURT: —if you do, fine. If you—

THE DEFENDANT: I don't care what you—

THE COURT: —don't, that's fine, too.

THE DEFENDANT: —think.

THE COURT: And I don't know if they're going to want to talk to 

you or not.

(Id. at 1108-1109).

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[*P83] We do not believe that any of these statements come close 

to creating an inference that Thompson's sentence was enhanced 

because he exercised his right to a trial. The judge never suggested 

that she thought that Thompson had interfered with the jury. And 

the jury could not have been affected by any of the statements 

because the jury did not hear any of them.

[*P84] The sixth assignment of error is overruled.

Thompson, 2016-Ohio-7521. Thus the claim on direct appeal was not a general claim of judicial 

bias, but a specific claim that the sentence was increased because Thompson insisted on going to 

trial instead of accepting a plea bargain. The question of whether the sentence was increased 

because Thompson went to trial is a question of fact and the Second District’s decision that the 

cited passages from the transcript did not support that inference is entitled to deference; Thompson 

has not overcome it with reference to facts in the state court record which showed that it is in error.

In the Petition, Thompson adds the claim that Judge Gorman initiated plea negotiations. 

He provides no record references at all to show this happened. In his Traverse, he cites Murchu v. 

United States, 926 F.2d 50 (1st Cir. 1991), in which the federal First Circuit Court of Appeals enforced 

Fed. R. Crim.11 P. 11(e) which forbids a federal trial judge presiding over a federal criminal case from 

participating in plea negotiations. However, in Murchu the First Circuit was enforcing a procedural 

rule adopted by the Supreme Court, not a constitutional rule. The United States Constitution does not 

flatly prohibit a trial judge’s participation in plea negotiations and neither do the Ohio Rules of 

Criminal Procedure.

Thompson claims the trial judge threatened his attorney, but he provides no evidentiary basis 

for that claim, nor any reference to any place where he raised that claim in the state court proceedings.

Thompson raised the issue of disqualifying Judge Gorman in his 26(B) Application, but the 

Second District noted it had no jurisdiction over that question because the disqualification of a 

Common Pleas Judge must be presented to the Chief Justice of the Supreme Court of Ohio by affidavit 

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(Decision, State Court Record, ECF No. 11-1, Ex. 47, PageID 735-36). Thompson claims in the 

Petition that he filed such an affidavit, but gives no record reference. If he did in fact file an Affidavit 

of Disqualification, Chief Justice O’Connor evidently overruled it, finding Judge Gorman was not 

disqualified by bias. The Chief Justice’s decision is entitled to deference under 28 U.S.C. § 2254(d) 

just as any other state court decision would be.

Finally, Thompson claims Judge Gorman displayed bias by stating she believed the 

prosecution over defense counsel in overruling a claimed Brady v. Maryland violation. Again, no 

record references are given, so this Court cannot determine whether the ruling was correct or 

incorrect. However, it is in the very essence of a trial judge’s job to decide evidentiary objections 

and it is not inappropriate to state the basis. Comparing the credibility of witnesses and attorneys 

is at the core of a trial judge’s responsibility.

[O]pinions formed by the judge on the basis of facts introduced or 

events occurring in the course of the current proceedings, or of prior 

proceedings, do not constitute a basis for a bias or partiality motion 

unless they display a deep-seated favoritism or antagonism that 

would make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388 (6th

Cir. 2002)(quoting the deep-seated favoritism or antagonism standard). The Liteky Court went on 

to hold:

Not establishing bias or partiality, however, are expressions of 

impatience, dissatisfaction, annoyance, and even anger, that are 

within the bounds of what imperfect men and women, even after 

having been confirmed as federal judges, sometimes display. A 

judge’s ordinary efforts at courtroom administration — even a stern 

and short-tempered judge’s ordinary efforts at courtroom 

administration — remain immune.

510 U.S. at 555.

The Fifth Ground for Relief should therefore be dismissed with prejudice.

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Ground Six: Prosecutorial Misconduct

In his Sixth Ground for Relief, Thompson claims the prosecutor engaged in 

unconstitutional misconduct in the following ways: (1) showing pages of text messages between 

Bathini and Thompson to the jury which had not been disclosed in discovery; (2) making untrue 

statements in closing argument “that Thompson had told Detective Saunder that he knew police 

were in the area and when they shined their lights in his truck, he ducked down to avoid being 

seen”; (3) The prosecutor in conclusion instructed the jury to remember what Burns told Detective 

Saunders, "Yeah I did it. And I did it with Craig Thompson”; (4) improper service of the sentencing 

memorandum on Thompson’s prior counsel.

Respondent asserts this claim is procedurally defaulted because it was never presented to 

the state courts as a stand-alone claim of prosecutorial misconduct. Thompson responds “Ground 

six was presented to the state courts under ineffective assistance of appellate counsel for failing to 

file a direct [appeal] on winning issues such as ineffective assistance of trial counsel for failure to 

object to the prosecutorial misconduct, and prosecutor misconduct on its own merits.” (Traverse, 

ECF No. 88, PageID 3200.)

Presentation of a claim as an underlying claim of ineffective assistance of trial counsel or 

ineffective assistance of appellate counsel does not preserve the merits of the claim for habeas 

review. All of the asserted instances of prosecutorial misconduct were provable from the appellate 

record and so should have been raised on direct appeal. In denying Thompson’s claim that it was 

ineffective assistance of appellate counsel to fail to raise these claims, the Second District pointed 

out that it had already decided on direct appeal that the prosecutor’s comment about Burns’s 

testimony was a fair summary of the evidence and that he had failed in his 26(B) application to 

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point to any specific prosecutorial comments which he thought were prejudicial (Decision and 

Entry, State Court Record, ECF No. 11-1, Ex. 47). Thompson has not shown that this Decision 

was an objectively unreasonable application of Strickland. In Serra v. Michigan Dept of 

Corrections, 4 F.3d 1348 (6th Cir. 1993), the court identified factors to be weighed in considering 

prosecutorial misconduct claims:

In every case, we consider the degree to which the remarks 

complained of have a tendency to mislead the jury and to prejudice 

the accused; whether they are isolated or extensive; whether they 

were deliberately or accidentally placed before the jury, and the 

strength of the competent proof to establish the guilt of the accused.

Id. at 1355-56, quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982)(citation omitted). 

The misconduct must be so gross as probably to prejudice the defendant. Prichett v. Pitcher, 117 

F.3d 959, 964 (6th Cir.), cert. denied, 522 U.S. 1001 (1997)(citation omitted); United States v. 

Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Claims of prosecutorial misconduct are reviewed 

deferentially in habeas. Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), rev’d on other 

grounds, 560 U.S. 370 (2010), citing Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004), cert. 

denied, 544 U.S. 921 (2005).

Thompson did not preserve any stand-alone claims of prosecutorial misconduct by 

objecting at trial. On direct appeal the Second District applied plain error review, thereby 

enforcing the Ohio contemporaneous objection rule. The Sixth Circuit has many times held that 

rule is an adequate and independent ground of state court decision. Wogenstahl v. Mitchell, 668

F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin 

v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 

2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th

Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 

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239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 

U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin 

v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), 

cert. denied, 562 U.S. 876 (2010). Claims procedurally defaulted by failure of contemporary 

objection cannot be resurrected by including them as underlying claims in a 26(B) application, 

whose sole purpose is to raise claims of ineffective assistance of appellate counsel.

Thompson’s Sixth Ground for Relief should therefore be dismissed.

Ground Seven: Ineffective Assistance of Trial Counsel in Plea Negotiations

In his Seventh Ground for Relief, Thompson claims he received ineffective assistance of 

trial counsel when James Staton did not advise him to accept an offer of an agreed sentence of 

thirty-six months. He asserts Staton did not tell him that a sentence after trial would be mandatory 

or that the trial judge initiated the plea offer. Instead, he asserts Staton advised trying the case. 

Respondent notes this claim was raised in post-conviction and rejected by the trial court 

and court of appeals on the grounds there was no proof of record that there ever had been such an 

offer (Return, ECF No. 12, PageID 2180-81). Thompson responds in his Traverse:

Ground seven regarding a void sentence and ineffective assistance 

of counsel premised on a plea offer was dismissed in Thompson's 

post-conviction petition. The Second District then REVERSED that 

decision and sent the case back to the trial court. The trial court then 

allowed Thompson to renew his arguments and submit additional 

evidence where Thompson submitted an affidavit from trial counsel 

James Staton. This affidavit shows the trial judge offered Thompson 

a deal in return for his plea of guilty. (CR. 935)

The trial court then adjudicated the case by denying Thompson's 

petition and granted Summary Judgment to the State. This was done 

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after a writ of procedendo was filed by Thompson on May 10, 2019. 

Thompson filed a timely notice of appeal and presented his claims

to the Second District.

(ECF No. 88, PageID 3086).

Ground seven, is facial [sic] sufficient to warrant relief, or an 

evidentiary hearing to establish the prejudice by counsel for failing 

to advise Thompson to accept the plea. Smith v United States, 348 

F.3d 545 (6th Cir. 2003) (remanding . .. for evidentiary hearing on 

whether counsel was ineffective for failing to advise movant to 

accept government's plea offer.)

(ECF No. 88, PageID 3201).

As proof of the offered plea bargain, Thompson cites Attorney Staton’s Affidavit of 

February 15, 2018, and his own Affidavit of January 5, 2017, along with affidavits of other family 

members. (State Court Record, ECF No. 11-1, PageID 933-35, attached to Appellant’s Brief, State 

Court Record, Ex. 62.) Judge Gorman considered this evidence after remand from the Second 

District reversing her first grant of summary judgment to the State and rejected this claim because 

the State averred that no such offer had ever been made (Decision, State Court Record, ECF No. 

69, PageID 2729). 

On appeal the Second District found no reversible error in Judge Gorman’s decision that 

Staton did not provide ineffective assistance of trial counsel by advising that the case was winnable 

at trial, assuming he did give that advice, particularly in light of the mistrial that occurred the first 

time the case was tried. State v. Thompson, 2019-Ohio-5140 (Ohio App. 2d Dist. Dec. 13, 

2019)(copy at Decision, State Court Record, ECF No. 69, PageID 2869.) The Second District also 

upheld Judge Gorman’s credibility findings in that the affiants were Thompson’s family members 

and the supposed plea offer was not plausible because Thompson faced mandatory prison time 

because of prior convictions. Id. at ¶ 30. Even assuming the plea offer had been made, it would 

not have been professionally incompetent advice to recommend rejecting it because the case 

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seemed reasonably winnable at trial. Id. at ¶ 33. Thompson makes many claims about the 

weakness of the State’s case, to wit, that there was no physical evidence against him and the case 

was largely circumstantial. If Thompson has as good a case as he himself seems to believe, how 

could it have been bad advice to try the case?

Thompson has not shown that this decision of the Second District is an objectively 

unreasonable application of Strickland. Staton ended up not winning on the admission of Bathini’s 

text messages, but it was a strong enough argument that independent appellate counsel repeated it 

on appeal. Staton’s projection that witness Kerg’s testimony would not be believed by the jury 

was a reasonable projection under the circumstances, since her line-up identification of Thompson 

was shaky. 

Requesting an evidentiary hearing on this ground to show prejudice, Thompson relies on 

precedent from 2003 which was effectively overruled by Pinholster, supra.

Ground Seven should therefore be dismissed with prejudice. 

Ground Eight: Ineffective Assistance of Counsel

In his Eighth Ground for Relief, Thompson claims he received ineffective assistance of 

trial counsel from trial attorney James Staton in the following ways: (1) advice to reject a plea 

offer; (2) failure to object to prosecutor’s comments in closing; (3) failure to use exculpatory 

evidence to show Thompson was not the first person Burns called after leaving the victim’s home; 

(4) failure to use Burns’ employment records to impeach Kaitlyn Kerg’s testimony that she was 

present when Burns and Thompson planned the burglary; (5) failure to use Burns’s proffer to show 

that he had not taken a polygraph examination as he had agreed; (6) failure to use “several 

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[unspecified] “pieces of evidence” to impeach Bathini and other witnesses.” These sub-claims are 

extracted from the statement of supporting facts in the Petition (ECF No. 1, PageID 16-17.)

However, in the Traverse Thompson argues completely different claims of ineffective 

assistance of trial counsel: Dereliction of duty (Sub-claim One); Failure to investigate witnesses 

(Sub-claim Two); Failure to file pre-trial motions (Sub-claim Three); Erroneous Admission of 

Alleged Facts (Sub-claim Four); Allowing Bias [sic] Juror to be seated (Sub-claim Five); Cronic

Analysis (Sub-claim Six); Erroneous stipulation (Sub-claim Seven); Unprofessional misconduct 

(Sub-claim Eight); Failure to object to preserve the record (Sub-claim Nine)(ECF No. 88, PageID 

3187-98). 

With the exception of that portion of Sub-claim Nine which complains of Attorney Staton’s 

failure to object to the prosecutor’s comments in closing, none of claims made in Thompson’s 

Traverse are included in the Petition. A district court may decline to review a claim a petitioner 

raises for the first time in his traverse or reply. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), 

citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). All portions of Ground Eight except 

the claim about failing to object during closing should be dismissed on this basis. 

Moreover, the Court has already held Thompson’s proposed amendment to Ground Eight 

was barred by the statute of limitations because it did not relate back to the original Petition (ECF 

No. 101). Thompson’s Traverse was filed June 29, 2020; the Petition has been filed more than 

two years earlier on April 12, 2018. These sub-claims added in the Traverse no more relate back 

to the original filing than the one Thompson attempted to add by formal amendment.

Staton’s failure to object during the prosecutor’s closing was evident on the face of the 

appellate record. Thompson did plead a claim of ineffective assistance of trial counsel as his Fifth 

Assignment of Error on direct appeal, but out of three pages devoted to arguing this Assignment, 

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presented exactly one sentence on this particular claim of ineffective assistance of trial counsel: 

“Finally, Counsel did not properly object to the State making false statements in closing

arguments. (RE: Trans. Vol. 5 Page ID# 1087; 1-25)” (Appellant’s Brief, State Court Record, ECF 

No. 11, Ex. 32, PageID 453.)

The Second District expended more ink on deciding this sub-claim than Thompson did in 

presenting it to them. The appellate court held:

[*P73] Thompson claims that counsel was deficient for not 

objecting to false statements made by the State in its closing 

arguments. The prosecutor told the jury that Thompson "went back 

to the headquarters and gave inconsistent statements but admitted 

that when the police shined their light, he ducked down." (Trial Tr. 

1085). Thompson asserts that Detective Saunders, to whom he made 

the admission, never said this. Thompson is incorrect. Saunders 

testified that Thompson admitted lying back: "* * * He [Thompson] 

stated that he[] remembered the deputies pulling onto the street and 

remembered the deputy shining the light in the car but stated that the 

deputy must not have saw him, and that [he] kind of laid back in the 

car." (Id. at 834). Counsel cannot be faulted for not objecting to the 

prosecutor's reasonable summary of the evidence.

Thompson, 2016-Ohio-7521. This is obviously not an unreasonable application of Strickland.

Ground Eight should therefore be dismissed with prejudice.

Ground Nine: Cumulative Error

In his Ninth Ground for Relief, Thompson claims he should be granted relief based on the 

cumulative errors enumerated in the other Grounds for Relief (Petition, ECF No. 1, PageID 18-

19). Respondent asserts that a cumulative error claim is not cognizable in habeas (Return, ECF 

No. 12, PageID 2217, citing Williams v. Anderson, 460 F.3d 789, 816-817 (6th Cir. 2006), and Caudill 

v. Conover, No. 14-5418, 2016 U.S. App. LEXIS 24161 (6th Cir. 2016) (unpublished) at *21.

Thompson responds by citing Kyles v Whitley, 514 U.S. 419 (1995), and Williams v Taylor, 

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529 U.S. 362 (2000)(Traverse, ECF No. 88, PageID 3199). In Brady v. Maryland, 373 U.S. 83 

(1963), the Supreme Court held “that the suppression by the prosecution of evidence favorable to 

an accused . . . violates due process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution." Kyles, 514 U.S. at 432 (1995) 

(quoting Brady, 373 U.S. at 87). Kyles also held that the materiality of any evidence withheld in 

violation of Brady must be determined by considering all the evidence presented at trial. This of 

course requires accumulating Brady errors, but then weighing the withheld evidence against the 

evidence suppressed. This is not the same as holding, for example, that one Brady error is not 

enough for relief but three could be. Williams also did not involve accumulating errors, but rather 

counsel’s obligation to address the evidence as a whole.

In Williams v. Anderson, cited by Respondent, the authoring judge would much have 

preferred being able to accumulate errors to grant relief. However, the Court held “Nonetheless, 

the law of this Circuit is that cumulative error claims are not cognizable on habeas because the 

Supreme Court has not spoken on this issue. See Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 

2005) (discussing cumulated evidentiary errors).” 460 F. 3d at 816. The law not changed since. 

See Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), cert. denied, 132 S.Ct. 2751 (2011), 

citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005), cert. denied sub nom. Moore v. Simpson,

549 U.S. 1027 (2006); 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, 2014 U.S. Dist. 

LEXIS 81971, *332 (S.D. Ohio 2014).

Thompson’s Ninth Ground for Relief should be dismissed as non-cognizable in habeas 

corpus.

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Conclusion

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

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it 

is also recommended that Petitioner be denied a certificate of appealability and that the Court 

certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be 

permitted to proceed in forma pauperis. 

August 31, 2020.

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. Because this document is being served by mail, three days are added under 

Fed.R.Civ.P. 6. 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. 

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