IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DANIEL B. BRAGG, 

 CASE NO. 2:18-CV-00762 

 Petitioner, JUDGE ALGENON L. MARBLEY 

 MAGISTRATE JUDGE MICHAEL R. MERZ 

 v. 

CHARLES BRADLEY, WARDEN, 

PICKAWAY CORRECTIONAL INST., 

 Respondent. 

OPINION AND ORDER 

 On October 29, 2018, the Magistrate Judge issued a Report and Recommendation 

pursuant to Rule 4 of the Rules Governing Section Cases in the United States District Courts 

recommending that the Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be 

dismissed. (ECF No. 3.) Petitioner has filed an Objection to the Magistrate Judge’s Report and 

Recommendation. (ECF No. 6.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de 

novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 6) is OVERRULED. 

The Report and Recommendation (ECF No. 3) is ADOPTED and AFFIRMED. This action is 

hereby DISMISSED. 

 The Court DECLINES to issue a certificate of appealability. 

 Petitioner challenges his October 20, 2016, conviction after a jury trial in the Licking 

County Court of Common Pleas on one count of rape of a minor under the age of thirteen. He 

asserts that he was denied the effective assistance of counsel, because his attorney failed to 

object to hearsay testimony and leading questions, and failed to object to certain testimony from 

Kelly Morrison (claims one, two, and three); and that he was denied a fair trial based upon the 
2 

cumulative error (claim four). The Magistrate Judge recommended dismissal of these claims on 

the merits. 

 Petitioner objects to the recommendations of the Magistrate Judge. Petitioner argues that, 

had his attorney objected to the use of leading questions by the prosecutor, the admission of 

hearsay testimony by Joseph Blue, and testimony by Kelly Morrison that exceeded the scope of 

her expertise, he would have been found not guilty of the charge against him, particularly where 

the jury acquitted him of four of the charges against him. Petitioner argues that the appellate 

court’s determination that his attorney chose not to object to the prosecutor’s use of leading 

questions, as a matter of trial strategy, is unreasonable, and without record support. He argues 

that the record shows that he was denied a fair trial based on the denial of the effective assistance 

of counsel under Strickland v. Washington, 466 U.S. 668 (1984). 

 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this Court reviews 

deferentially state court decisions on the merits of federal constitutional claims. “To satisfy this 

high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being 

presented in federal court was so lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods 

v. Donald, -- U.S. --, --, 135 S.Ct. 1372, 1376 (2015) (citing Harrington v. Richter, 562 U.S. 86, 

103 (2011)). 

When reviewing state criminal convictions on collateral review, federal judges are 

required to afford state courts due respect by overturning their decisions only 

when there could be no reasonable dispute that they were wrong. . . . This is 

especially true for claims of ineffective assistance of counsel, where AEDPA 

review must be “ ‘ “doubly deferential” ’ ” in order to afford “both the state court 

and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. ––––, 

––––, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013) (quoting Cullen v. Pinholster, 

563 U.S. 170, ––––, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011)). 

Id. 
3 

This standard is difficult to meet, and Petitioner has failed to do so here. The 

appellate court determined that Petitioner could not establish prejudice from any of 

counsel’s alleged deficiencies. In order to establish prejudice, a petitioner must 

demonstrate a reasonable probability that, but for counsel’s errors, the result of the 

proceedings would have been different. Strickland, 466 U.S. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” Id. 

Thus, in view of the record, this was not an unreasonable conclusion. The record does 

not reflect a basis for relief. 

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases for the United States 

District Courts, the Court now considers whether to issue a certificate of appealability. See 28 

U.S.C. § 2255(d). When a claim has been denied on the merits, a certificate of appealability may 

issue only if the petitioner “has made a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional 

right, a petitioner must show “that reasonable jurists could debate whether (or, for that matter, 

agree that) the petition should have been resolved in a different manner or that the issues 

presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 

529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). 

When a claim has been denied on procedural grounds, a certificate of appealability may 

issue if the petitioner establishes that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional right, and that jurists of reason would 

find it debatable whether the district court was correct in its procedural ruling. Id. 

This Court is not persuaded that reasonable jurists would debate this Court’s dismissal of 

this action. Therefore, the Court DECLINES to issue a certificate of appealability. 
4 

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in 

good faith and that an application to proceed in forma pauperis on appeal should be DENIED. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE 

 DATED: June 3, 2019