IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DANIEL W. LYTLE, 

 CASE NO. 2:18-CV-529 

 Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR. 

 Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, PICKAWAY 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, and 

the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that 

this action be DISMISSED. 

I. Facts and Procedural History 

 The Ohio Tenth District Court of Appeals summarized the facts and procedural history of 

the case as follows: 

{¶ 2} The charges against appellant arose from a series of threats and violent acts 

toward his estranged wife, Tammy Lytle. The first of these involved a break-in at 

Tammy's apartment in the early morning hours of October 28, 2012, in which 

appellant allegedly kicked down the apartment door and held a knife to her throat. 

Subsequently, at various times through November and December 2012, appellant 

allegedly engaged in conversations and preparatory actions with other individuals 

to arrange the murder or disfigurement of Tammy. 

{¶ 3} The trial court's judgment entry contains two errors on its face: The 

kidnapping conviction is entered in error on a charge that was dismissed before 

trial, and the jury's guilty verdict on a further charge of conspiracy to commit 

kidnapping is not addressed in the entry at all. To ascertain the posture of this 

appeal, we must therefore recapitulate the basic procedural history of the case in 

detail, bearing in mind that a trial court speaks through its journal and that any 

defects in the entry are paramount. State v. Miller, 127 Ohio St.3d 407, 2010–Ohio–
2 

5705. “ ‘A court of record speaks only through its journal and not by oral 

pronouncement or mere written minute or memorandum.’ ” State v. Osie, 140 Ohio 

St.3d 131, 2014–Ohio–2966, ¶ 83, quoting Schenley v. Kauth, 160 Ohio St. 109, 

113 (1953), paragraph one of the syllabus. 

{¶ 4} The Franklin County Grand Jury originally returned an eight-count 

indictment: Count 1 alleged conspiracy to commit aggravated murder; Count 2 

alleged aggravated burglary; Count 3 alleged aggravated robbery; Count 4 alleged 

kidnapping; Count 5 alleged violation of a protection order; Count 6 alleged 

abduction; Count 7 alleged domestic violence; and Count 8 alleged conspiracy to 

commit kidnapping. 

{¶ 5} On the eve of trial, the prosecution submitted an entry to amend the 

indictment, dropping the domestic violence and kidnapping charges and changing 

the conspiracy to commit aggravated murder charge to conspiracy to commit 

murder. The amended indictment renumbered the counts as follows: Count 1 

alleged conspiracy to commit murder; Count 2 alleged aggravated burglary; Count 

3 alleged aggravated robbery; Count 4 alleged violation of a protection order; Count 

5 alleged abduction; and Count 6 alleged conspiracy to commit kidnapping. The 

case went to trial on the charges as alleged and numbered in the amended 

indictment, and the jury received verdict forms suitably numbered and defined for 

each charge. 

{¶ 6} The jury returned guilty verdicts on all counts except Count 3, aggravated 

robbery, for which it returned a verdict of not guilty. At the sentencing hearing, the 

trial court verbally and accurately announced the verdicts. The court logically 

determined that Counts 2 and 4, respectively aggravated burglary and violation of 

a protection order, would merge for sentencing. The court acknowledged that the 

state elected to sentence appellant on the aggravated burglary charge pursuant to 

this merger. The court further determined that Counts 1 and 6, respectively 

conspiracy to commit murder and conspiracy to commit kidnapping, were 

committed through separate conduct and would not merge. The court then 

announced sentences as follows: for Count 1, conspiracy to commit murder, 11 

years; for Count 2, aggravated burglary, 11 years; for Count 5, abduction, 2 years; 

and for Count 6, conspiracy to commit kidnapping, 5 years. The sentences for 

Counts 1, 2, and 6 were to be served consecutively and that for Count 5 

concurrently, for a total of 27 years. 

{¶ 7} When reducing the announced sentences to a written entry, however, the trial 

court did not duplicate the above determinations. The court erroneously revived the 

numbering used in the original indictment and, as a result, sentenced appellant on 

the kidnapping charge for which he had been neither tried nor convicted. 

Conversely, the court made no finding of guilt and imposed no sentence pursuant 

to the jury's guilty verdict on the charge of conspiracy to commit kidnapping. 

{¶ 8} In addition to the convictions for conspiracy to commit murder and 

aggravated burglary, which retained their original numbering (Counts 1 and 2) 
3 

across both versions of the indictment, the court's entry thus reflects guilt for 

“KIDNAPPING, in violation of Section 2905.01, a Felony of the First Degree, as 

charged in Count Four of the Indictment; * * * VIOLATING A PROTECTION 

ORDER * * *, in violation of Section 2919.27, a Felony of the Third Degree, as 

charged in Count Five of the Indictment; and * * * ABDUCTION, in violation of 

Section 2905.02, a Felony of the Third Degree, as charged in Count Six of the 

Indictment.” Using this partially incorrect numbering, the court then specified the 

following sentences: Count 1 (conspiracy to commit murder), 11 years; Count 2 

(aggravated burglary), 11 years; Count 5 (violation of a protection order), 2 years; 

and Count 6 (abduction), 5 years. The court merged Count 4 (kidnapping) with 

Count 2 (aggravated burglary) for sentencing. 

{¶ 9} The mere misnumbering of certain counts in the entry's recitation of verdicts 

is of little importance with respect to those charges that can be clearly discerned 

from the amended indictment, jury verdicts, and verbal pronouncements of the 

court at the sentencing hearing. The numbering of charges in an indictment is not 

essential to the validity of the charges therein if the elements and operative facts of 

the alleged offenses are otherwise clearly stated and distinct for each offense. 

Braxton v. Maxwell, 1 Ohio St.2d 134 (1965). For this reason, the state of the record 

does not preclude our review of the guilty verdicts for conspiracy to commit 

murder, aggravated burglary, violation of a protection order, and abduction. The 

charges against appellant were clearly and consistently numbered for these charges 

from the time of the amended indictment to the sentencing hearing, and, in 

particular, there is no possibility that the trial court's subsequent confusion of 

charges had any impact on the jury's consideration of the case. State ex rel. 

Douthard v. Warden, 11th Dist. No.2002–T–0145, 2003–Ohio–325. 

{¶ 10} The misidentification in the judgment entry of the conspiracy-to-commitkidnapping verdict as kidnapping proper, however, complete with reference to the 

kidnapping statute (R.C. 2905.01) rather than the conspiracy statute (R.C. 2923.01) 

is more serious and requires us to vacate this conviction and remand the matter 

before we can review appellant's conviction for conspiracy to commit kidnapping. 

Likewise, the trial court's erroneous renumbering of counts in its recitation of 

sentences has resulted in the merger of the wrong counts and imposition of 

inapposite sentences and compels resentencing on all charges. Collectively, these 

constitute more than mere a scrivener's error and should not be corrected by means 

of a nunc pro tunc entry. See generally State v. Henderson, 5th Dist. No.2013–CR–

0409, 2014–Ohio–3121. 

{¶ 11} With these considerations settled, we review appellant's three assignments 

of error: 

[I.] THE TRIAL COURT ERRED IN FAILING TO DISMISS APPELLANT'S 

CASE FOR A VIOLATION OF HIS RIGHT TO SPEEDY TRIAL. 
4 

[II.] INSUFFICIENT EVIDENCE EXISTED TO CONVICT APPELLANT AND 

CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

[III.] THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENSE 

COUNSEL'S MOTION PURSUANT TO RULE 29 AT THE CLOSE OF THE 

STATE'S CASE. 

State v. Lytle, 10th Dist. No. 13AP-866, 2015 WL 1372810, at *1-3 (Ohio Ct. App. March 26, 

2015). On March 26, 2015, the appellate court held as follows: 

{¶ 89} In summary, appellant's first assignment of error is overruled. His second 

and third assignments of error are overruled in part and mooted to the extent that 

they address the charge of conspiracy to commit kidnapping. Appellant's conviction 

for kidnapping is vacated. His convictions for aggravated burglary, abduction, 

violation of a protection order, and conspiracy to commit murder are affirmed. The 

judgment of the Franklin County Court of Common Pleas is affirmed in part and 

vacated in part, and this cause is remanded to that court to enter judgment reflecting 

the jury's verdict on the conspiracy to commit kidnapping charge and to resentence 

appellant on all convictions. 

Id. at *19. Petitioner did not file a timely appeal. On May 1, 2017, he filed a motion for a 

delayed appeal. (ECF No. 7, PAGEID # 403.) On June 21, 2017, the Ohio Supreme Court 

denied his motion for a delayed appeal. State v. Lytle, 149 Ohio St.3d 1430 (Ohio 2017). 

Pursuant to the remand of the Ohio Court of Appeals, on May 14, 2015, the trial court 

issued a new judgment entry of sentence. (ECF No. 7, PAGEID # 258-261.) Petitioner filed a 

timely appeal. The state appellate court summarized the facts as follows: 

{¶ 1} Defendant-appellant, Daniel W. Lytle, appeals the May 14, 2015 judgment 

of the Franklin County Court of Common Pleas resentencing him following this 

court's decision in State v. Lytle, 10th Dist. No. 13AP–866, 2015–Ohio–1133. For 

the following reasons, we reverse the judgment of the trial court. 

I. Facts and Procedural Background 

{¶ 2} Appellant challenges only his conviction for conspiracy to commit 

kidnapping. As we extensively reviewed the factual and procedural history of this 

case in our prior decision, we shall limit our discussion to only those facts relevant 

to the disposition of the present appeal. See id. at ¶ 2–8, 27–50, 83. 
5 

{¶ 3} Appellant's conviction for conspiracy to commit kidnapping was based 

largely on the testimony of Wayne VanBlarcume. At trial, VanBlarcume testified 

that, on December 18, 2012, he received a call from a friend who asked if he was 

interested in making some money. VanBlarcume stated he was interested, and 

agreed to the distribution of his phone number. Approximately 15 minutes later, 

VanBlarcume received a call from a man who identified himself as “Stan.” (Tr. 

Vol.IV, 472.) “Stan” asked if he could come over to talk to VanBlarcume, 

VanBlarcume agreed and provided his home address. 

{¶ 4} Approximately 15 minutes later, “Stan” arrived at VanBlarcume's house, and 

VanBlarcume got into his car. VanBlarcume later identified the caller, “Stan,” both 

in a police photo array and at trial, as appellant. Appellant told VanBlarcume that 

his wife was trying to frame him for breaking into her house and putting a knife to 

her throat. As a result, appellant stated “[h]e'd like to get somebody to mess his wife 

up and cut her face up with a box cutter * * * [s]o she could look in the mirror and 

think of him every time she looks in the mirror.” (Tr. Vol.IV, 474.) Appellant asked 

VanBlarcume to find someone to complete this task for him. Appellant then drove 

VanBlarcume to his wife's house, pointed out which house she lived in, and then 

returned VanBlarcume to his home. VanBlarcume testified he had no intention of 

helping appellant and did not agree to help appellant. VanBlarcume told appellant 

“I'd see what I could do, and that was it.” (Tr. Vol.IV, 478.) 

{¶ 5} After appellant departed, VanBlarcume contacted law enforcement, but did 

not receive a response. On December 30, 2012, VanBlarcume received a call from 

appellant, who asked if VanBlarcume knew someone named Jimmy Lee. 

VanBlarcume said that he did know him, but that he was in prison. On January 2, 

2013, after seeing a local news story describing appellant's arrest, VanBlarcume 

again contacted law enforcement and identified appellant in a photo array. 

VanBlarcume stated at trial that he was “100 percent sure” that appellant was the 

man who wanted him to find someone to cut his wife's face. (Tr. Vol.IV, 494.) 

{¶ 6} At trial, plaintiff-appellee, State of Ohio, also introduced telephone records 

corroborating appellant's calls to VanBlarcume on December 18 and 30, 2012. 

{¶ 7} On January 9, 2013, a Franklin County Grand Jury indicted appellant, 

charging him with eight criminal counts: one count of conspiracy to commit 

aggravated murder, in violation of R.C. 2923.01 and 2903.01, a felony of the first 

degree; one count of aggravated burglary, in violation of R.C. 2911.11, a felony of 

the first degree; one count of aggravated robbery, in violation of R.C. 2911.01, a 

felony of the first degree; one count of kidnapping, in violation of R.C. 2905.01, a 

felony of the first degree; one count of violating a protection order, in violation of 

R.C. 2919.27, a felony of the third degree; one count of abduction, in violation of 

R.C. 2905.02, a felony of the third degree; one count of domestic violence, in 

violation of R.C. 2919.25, a misdemeanor of the first degree; and one count of 

conspiracy to commit kidnapping, in violation of R.C. 2923.01 and 2905.01, a 

felony of the second degree. On July 8, 2013, the trial court filed an entry granting 
6 

the state's motion to amend the indictment. The entry reflected the amendment of 

the count of conspiracy to commit aggravated murder to a single count of 

conspiracy to commit murder, in violation of R.C. 2923.01 and 2903.02, a felony 

of the first degree. Additionally, the trial court dismissed the counts of kidnapping 

and domestic violence at the state's request. 

{¶ 8} Beginning July 8, 2013, the case was tried before a jury. On July 16, 2013, 

the jury returned a verdict finding appellant guilty of the remaining charges except 

for aggravated robbery. On September 12, 2013, the trial court held a sentencing 

hearing and imposed consecutive sentences for the offenses of conspiracy to 

commit murder, aggravated burglary, and conspiracy to commit kidnapping, which 

were to run concurrently with the sentence for abduction for a total of 27 years 

imprisonment. On the same day, the trial court filed a judgment entry reflecting 

appellant's conviction and sentence. 

{¶ 9} On appeal, this court found that appellant's right to a speedy trial was not 

violated and affirmed appellant's convictions for aggravated burglary, abduction, 

violation of a protection order, and conspiracy to commit murder. Lytle at ¶ 89. 

However, we found that the trial court, in the September 12, 2013 sentencing entry, 

erroneously identified the conspiracy to commit kidnapping verdict as kidnapping 

proper, which required us to vacate the conviction and remand to the trial court for 

the limited purpose of issuing a corrected judgment entry before undertaking a 

review of the conviction. Id. at ¶ 7–10. 

{¶ 10} On May 4, 2015, the trial court held a resentencing hearing, imposing a 

sentence identical to the one imposed on September 12, 2013. On May 14, 2015, 

the trial court filed a judgment entry reflecting appellant's resentencing and 

properly identifying appellant's conviction for conspiracy to commit kidnapping. 

II. Assignments of Error 

{¶ 11} Appellant appeals and assigns the following two assignments of error for 

our review: 

[I.] Appellant was convicted of conspiracy to commit kidnapping in the absence of 

evidence sufficient to support a finding of guilty in violation of his right to due 

process as guaranteed by the Fifth and Fourteenth [A]mendments to the United 

States Constitution and comparable provisions of the Ohio Constitution. 

[II.] Appellant's conviction for conspiracy to commit kidnapping was against the 

manifest weight of the evidence in violation of his right to due process as 

guaranteed by the Ohio Constitution. 

State v. Lytle, 10th Dist. No. 15AP-556, 2016 WL 1461773, at *1-3 (Ohio Ct. App. April 14, 

2016). On April 14, 2016, the appellate court sustained Petitioner’s first assignment of error, 
7 

reversing the judgment of the trial court, and again remanding the case to the trial court for resentencing. Id. On September 14, 2016, the Ohio Supreme Court declined to accept jurisdiction 

of the appeal. State v. Lytle, 146 Ohio St.3d 1503 (Ohio 2016). 

Pursuant to the remand of the state appellate court, on December 19, 2016, the trial court 

again issued a new judgment entry of sentence. (ECF No. 7, PAGEID # 375-79.) Through new 

counsel, Petitioner filed a timely appeal. (PAGEID # 391.) However, the appellate court 

subsequently granted his motion to dismiss that appeal. (PAGEID # 393, 399.) 

On August 16, 2017, Petitioner filed a delayed application to reopen the appeal pursuant 

to Ohio Appellate Rule 26(B). On October 13, 2017, the appellate court denied the Rule 26(B) 

application as untimely. (PAGEID # 503.) Petitioner did not file an appeal to the Ohio Supreme 

Court. 

 On May 31, 2018, Petitioner filed this Petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. He asserts that he was denied his right to a speedy trial under Ohio law and in 

violation of Barker v. Wingo, 407 U.S. 514 (1972) (claim one); that the evidence is 

constitutionally insufficient to sustain his convictions (claim two); that he was denied the 

effective assistance of appellate counsel because his attorney failed to argue on appeal that the 

trial court lacked subject-matter jurisdiction to permit the amendment of the Indictment (claim 

three); and that he was denied the effective assistance of appellate counsel, because his attorney 

failed to assert on direct appeal that he was convicted in violation of the Confrontation Clause 

(claim four). It is the position of the Respondent that Petitioner’s claims are waived or without 

merit. 
8 

II. Analysis 

A. State-Law Speedy Trial Claim 

In claim one, Petitioner asserts that he was denied his right to a speedy trial. To the 

extent that he raises an issue regarding the alleged violation of state law, or state speedy trial 

statutes, it does not provide him a basis for relief. A federal court may review a state prisoner's 

habeas petition only on the grounds that the challenged confinement is in violation of the 

Constitution, laws or treaties of the United States. 18 U.S.C. § 2254(a). A federal court may not 

issue a writ of habeas corpus “on the basis of a perceived error of state law.” Pulley v. Harris, 

465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas 

court does not function as an additional state appellate court reviewing state courts' decisions on 

state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “ ‘[F]ederal courts 

must defer to a state court's interpretation of its own rules of evidence and procedure’ ” in 

considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th 

Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief 

be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such circumstances do not 

exist here. 

B. Federal Speedy Trial Claim 

 1. Fair Presentment 

Petitioner also asserts in claim one that he was denied his federal constitutional right to a 

speedy trial. Respondent argues that Petitioner has waived this federal claim by failing to 

present it to the state appellate court. Return of Writ (ECF No. 8, PAGEID # 1587.) The 

undersigned disagrees. 
9 

In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly 

present the substance of each constitutional claim to the state courts as a federal constitutional 

claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). 

Although the fair presentment requirement is a rule of comity, not jurisdiction, see Castille v.

Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is 

rooted in principles of comity and federalism designed to allow state courts the opportunity to 

correct the State’s alleged violation of a federal constitutional right that threatens to invalidate a 

state criminal judgment. 

In the United State Court of Appeals for the Sixth Circuit, a petitioner can satisfy the fair 

presentment requirement in any one of four ways: (1) reliance upon federal cases employing 

constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; 

(3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a 

denial of a specific constitutional right; or (4) alleging facts well within the mainstream of 

constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Further, general 

allegations of the denial of a constitutional right, such as the right to a fair trial or to due process, 

are insufficient to satisfy the “fair presentment” requirement. Id. 

Here, Petitioner argued in the Ohio Court of Appeals not only that the trial court violated 

Ohio’s speedy trial statutes, but that he was denied his right to a speedy trial under the Sixth 

Amendment. He also referred to various federal cases in support of this claim, such as Klopfer v.

North Carolina, 386 U.S. 213 (1967); Barker v. Wingo, 407 U.S. 514 (1969); Smith v. Hooey, 

393 U.S. 374 (1969); United States v. Ewell, 383 U.S. 116 (1966); and United States v. Marion, 

404 U.S. 307 (1971). (ECF No. 7, PAGEID # 135-36.) In addition, the state appellate court 

addressed this federal claim. See Lytle, 2015 WL1372810, at *4. Under these circumstances, the 
10 

undersigned finds that Petitioner has not waived his federal speedy trial claim for review in these 

proceedings by failing to present it to the state appellate court. 

However, as explained below, the undersigned finds that Plaintiff’s claims are barred 

from review under the doctrine of procedural default. 

2. Procedural Default 

Congress has provided that state prisoners who are in custody in violation of the 

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of 

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to 

protect the constitutional rights of criminal defendants, and in order to prevent needless friction 

between the state and federal courts, a state criminal defendant with federal constitutional claims 

is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). 

If he fails to do so, but still has an avenue open to him by which he may present his claims, his 

petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 

459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). 

Where a petitioner has failed to exhaust his claims but would find those claims barred if later 

presented to the state courts, “there is a procedural default for purposes of federal habeas . . . .” 

Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). 

The term “procedural default” has come to describe the situation where a person 

convicted of a crime in a state court fails (for whatever reason) to present a particular claim to 

the highest court of the State so that the State has a fair chance to correct any errors made in the 

course of the trial or the appeal before a federal court intervenes in the state criminal process. 

This requires the petitioner to present “the same claim under the same theory” to the state courts 

before raising it on federal habeas review. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987). 
11 

One of the aspects of “fairly presenting” a claim to the state courts is that a habeas petitioner 

must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims 

being asserted. That means that if the claims are not presented to the state courts in the way in 

which state law requires, and the state courts therefore do not decide the claims on their merits, 

neither may a federal court do so. As the United States Supreme Court explained in Wainwright 

v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the 

merits in the state proceeding due to respondent’s failure to raise them there as required by state 

procedure” also cannot be resolved on their merits in a federal habeas case-that is, they are 

procedurally defaulted. 

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a 

federal habeas claim is waived by the petitioner’s failure to observe a state procedural rule. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there 

is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed 

to comply with the rule.” Id. Second, the Court must determine whether the state courts actually 

enforced the state procedural sanction. Id. Third, the Court must determine whether the state 

procedural forfeiture is an adequate and independent state ground upon which the state can rely 

to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that 

the petitioner did not comply with a state procedural rule and that the rule was an adequate and 

independent state ground, then the petitioner must demonstrate cause for his failure to follow the 

procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This 

“cause and prejudice” analysis applies to failures to raise or preserve issues for review at the 

appellate level. Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.), cert. denied sub nom. Leroy v.

Morris, 474 U.S. 831 (1985). 
12 

In light of the fourth part of the Maupin analysis, in order to establish cause, petitioner 

must show that “some objective factor external to the defense impeded counsel's efforts to 

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). 

Constitutionally ineffective counsel may constitute cause to excuse a procedural default. 

Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective 

assistance of counsel claim generally must “be presented to the state courts as an independent 

claim before it may be used to establish cause for a procedural default.” Murray, 477 U.S. at 

479. Such is the case because before counsel’s ineffectiveness will constitute cause, “that 

ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be 

both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th 

Cir.), cert. denied, 546 U.S. 1017 (2005). Or, if the claim is procedurally defaulted, petitioner 

must be able to “satisfy the ‘cause and prejudice’ standard with respect to the ineffectiveassistance claim itself.” Edwards, 529 U.S. at 450–51. The Supreme Court explained the 

importance of this requirement as follows: 

We recognized the inseparability of the exhaustion rule and the procedural-default 

doctrine in Coleman: “In the absence of the independent and adequate state ground 

doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion 

requirement by defaulting their federal claims in state court. The independent and 

adequate state ground doctrine ensures that the States' interest in correcting their 

own mistakes is respected in all federal habeas cases.” 501 U.S., at 732, 111 S. Ct. 

2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and 

procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 

1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to “ 

‘protect the integrity’ of the federal exhaustion rule.” Id. at 848, 526 U.S. 838, 119 

S. Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S. Ct. 1728, 144 

L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion 

requirement, we said, would be utterly defeated if the prisoner were able to obtain 

federal habeas review simply by “ ‘letting the time run’ ” so that state remedies 

were no longer available. Id. at 848, 526 U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1. 

Those purposes would be no less frustrated were we to allow federal review to a 

prisoner who had presented his claim to the state court, but in such a manner that 

the state court could not, consistent with its own procedural rules, have entertained 
13 

it. In such circumstances, though the prisoner would have “concededly exhausted 

his state remedies,” it could hardly be said that, as comity and federalism require, 

the State had been given a “fair ‘opportunity to pass upon [his claims].’ ” Id. at 854, 

526 U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis 

added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 94 L.Ed. 761 

(1950)). 

Id. at 452–53. 

If, after considering all four factors of the Maupin test, the Court concludes that a 

procedural default occurred, it must not consider the procedurally defaulted claim on the merits 

unless “review is needed to prevent a fundamental miscarriage of justice, such as when the 

petitioner submits new evidence showing that a constitutional violation has probably resulted in a 

conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) 

(citing Murray, 477 U.S. at 495–96), cert. denied, 135 S. Ct. 1545 (2015). 

a. Application to Claims One and Two 

Petitioner asserted in the Ohio Court of Appeals that he had been denied his right to a 

speedy trial and that the evidence is constitutionally insufficient to sustain his convictions; 

however, he failed thereafter to file a timely appeal to the Ohio Supreme Court, and the Ohio 

Supreme Court denied his motion for a delayed appeal. Consequently, Petitioner has 

procedurally defaulted claims one and two for review in these proceedings. See Watkins v. 

Warden, Madison Correctional Institution, No. 2:18-cv-590, 2018 WL 3142854, at *6 (S.D. 

Ohio June 26, 2018) (citations omitted); Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). 

b. Application to Claims Three and Four 

In claims three and four, Petitioner asserts that he was denied the effective assistance of 

appellate counsel. Petitioner likewise has procedurally defaulted these claims by failing to file a 

timely Rule 26(B) application. The state appellate court denied his delayed Rule 26(B) 

application for failure to establish good cause for the untimely filing, reasoning as follows: 
14 

App.R. 26(B)(1) provides that “[a]n application for reopening shall be filed in the 

court of appeals where the appeal was decided within ninety days from 

journalization of the appellate judgment unless the applicant shows good cause for 

filing at a later time.” Journalization of the underlying appellate judgment in this 

case occurred on April 14, 2016 for Lytle II, over one year before appellant filed 

his application for delayed reopening. 

. . . . Appellant [] claims in his application that good cause exists for his failure to 

timely file his application under App.R. 26(B) and provides his own affidavit in 

support of such claim. In his affidavit, appellant states that, following his first 

appeal in Lytle I, his former counsel “incorrectly led me to believe that he could 

again challenge the convictions and sentence, those initially affirmed by this Court 

on the first appeal, through subsequent appeals.” (Appellant’s Aff. at ¶ 11.) 

Appellant further claims that, on March 17, 2017, following his resentencing on 

remand from Lytle II, he learned through correspondence with new counsel 

appointed to represent him on his third appeal that he would be unable to further 

appeal his previously affirmed convictions. However, in the same correspondence, 

appointed counsel for appellant’s third appeal informed him that he could file an 

application for reopening under App.R. 26(B). 

Here, regardless of whether or not appellant was aware prior to being informed by 

appointed counsel on March 17, 2017 of the potential for relief through an 

application for reopening, appellant’s lack of legal knowledge does not 

automatically excuse him from the filing requirements of App.R. 26(B). State v.

Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, ¶ 10, quoting State v. Reddick, 72 

Ohio St.3d 88, 91 (1995) (“ ‘Lack of effort or imagination, and ignorance of the 

law * * * do not automatically establish good cause for failure to seek timely relief 

under App.R. 26(B).”); State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, ¶ 9, 

quoting State v. Winstead, 74 Ohio St.3d 277, 278 (1996) (“The 90-day requirement 

in [App.R. 26(B)] is ‘applicable to all appellants.’ ”); State v. Richardson, 8th Dist. 

No. 87886, 2008-Ohio-2360, ¶ 2. Even if we were to consider the March 17, 2017 

correspondence in place of the date of the journalization of the underlying 

judgments for purposes of complying with App.R. 26(B), appellant nevertheless 

fails to explain the nearly five-month delay between March 17, 2017 and the filing 

of his delayed application for reopening on August 16, 2017. As a result, we 

conclude appellant has failed to demonstrate good cause as required by App.R. 

26(B)(2)(b) for his untimely filing. Therefore, we need not consider appellant’s 

arguments regarding ineffective assistance of appellate counsel. 

(ECF No. 7, PAGEID # 506-07.) Thus, Petitioner has likewise procedurally defaulted his claims 

of the denial of the effective assistance of appellate counsel. See Scuba v. Brigano, 527 F.3d 

479, 488-89 (6th Cir. 2007). Moreover, Petitioner did not file an appeal of the appellate court’s 

decision to the Ohio Supreme Court. He may now no longer do so, as Ohio does not permit 
15 

delayed appeals in Rule 26(B) proceedings. Ohio Supreme Court Rule of Practice 7.01(A)(4)(c). 

Petitioner has consequently additionally procedurally defaulted his claim of the denial of the 

effective assistance of appellate counsel on this basis. See Johnson v. Turner, 2:14-cv-01908, 

2016 WL 6963177, at * (S.D. Ohio Nov. 29, 2016). The state courts were unable to enforce this 

procedural rule due to the nature of Petitioner’s procedural default. 

c. Cause and Prejudice 

Petitioner may still obtain review of these claims on the merits, if he establishes cause for 

his procedural defaults, as well as actual prejudice from the alleged constitutional violations. As 

cause for his procedural defaults, Petitioner asserts the denial of the effective assistance of 

appellate counsel based on his attorney’s failure to file a timely appeal in the Ohio Supreme 

Court or in Rule 26(B) proceedings.1 He also asserts that negligent mailing practices in the 

Pickaway Correctional Institution prevented his timely filing. (See Petitioner’s Memorandum in 

Opposition to Respondent’s Answer/Return of Writ to Dismiss Federal Habeas Corpus, ECF No. 

13, PAGEID # 1643-46.) Petitioner’s arguments are not persuasive. 

 The right to counsel extends to the first appeal of right and no further. Pennsylvania v.

Finley, 481 U.S. 551, 555 (1987). Under the rule of Coleman v. Thompson, 501 U.S. 722 

(1991), attorney error in proceedings wherein there is no right to counsel—such as in the filing 

of a motion for a discretionary appeal with the Ohio Supreme Court or in Rule 26(B) 

proceedings—cannot serve as cause for a procedural default. See McClain v. Kelly, 631 F. 

App’x 422, 436-37 (6th Cir. 2015) (citations omitted). In addition, because Petitioner’s reliance 

 

1

 Petitioner stated in his motion for a delayed appeal to the Ohio Supreme Court that his retained 

counsel had agreed to file an appeal to the Ohio Supreme Court, but did not do so and never 

advised him of the 45 day time limit for filing an appeal. (ECF No. 7, PAGEID # 405.) 

Petitioner represents that he learned, on March 17, 2017, when speaking with the public 

defender, that he could not longer appeal his claims. (See PAGEID # 436-38.) 
16 

upon alleged negligent mailing practices lacks record support, he has failed to establish cause for 

his procedural defaults. 

d. Actual Innocence 

Finally, Plaintiff has failed to establish that his claims may avoid the procedural bar 

under the actual innocence exception. 

The United States Supreme Court has held that a claim of actual innocence may be raised 

“to avoid a procedural bar to the consideration of the merits of [the petitioner’s] constitutional 

claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case, where a 

constitutional violation has probably resulted in the conviction of one who is actually innocent, a 

federal habeas court may grant the writ even in the absence of a showing of cause for the 

procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible 

showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise 

procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in 

Schlup is “‘not itself a constitutional claim, but instead a gateway through which a habeas 

petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’” 

Id. at 315 (quoting Herrera v. Collins, 506 U. S. 390, 404 (1993)). 

The actual innocence exception allows a petitioner to pursue his constitutional claims if it 

is “more likely than not” that new evidence—not previously presented at trial—would allow no 

reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th 

Cir. 2005). The Sixth Circuit has offered the following explanation of the actual innocence 

exception: 

The United States Supreme Court has held that if a habeas petitioner “presents 

evidence of innocence so strong that a court cannot have confidence in the outcome 

of the trial unless the court is also satisfied that the trial was free of nonharmless 

constitutional error, the petitioner should be allowed to pass through the gateway 
17 

and argue the merits of his underlying claims.” Schlup, 513 U.S. at 316, 115 S.Ct. 

851, 130 L.Ed.2d 808. Thus, the threshold inquiry is whether “new facts raise[ +] 

sufficient doubt about [the petitioner's] guilt to undermine confidence in the result 

of the trial.” Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish 

actual innocence, “a petitioner must show that it is more likely than not that no 

reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 

Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that 

“actual innocence means factual innocence, not mere legal insufficiency.” Bousley 

v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To 

be credible, such a claim requires petitioner to support his allegations of 

constitutional error with new reliable evidence-whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical evidence-that was 

not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130 L.Ed.2d 808. 

The Court counseled however, that the actual innocence exception should “remain 

rare” and “only be applied in the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 

115 S.Ct. 851, 130 L.Ed.2d 808. 

Souter, 395 F.3d at 589–90 (footnote omitted). 

Because Petitioner fails to satisfy these standards, the actual innocence exception does not 

operate to save his otherwise procedurally defaulted claims. 

III. Disposition 

 For the reasons set forth above, it is RECOMMENDED that this action be 

DISMISSED. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

in part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1). 
18 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE