Gillard v. Warden, Belmont County Correctional Institution

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael T. Gillard,
Petitioner,
V.
Shelbie Smith, Warden,
Respondent.
Case No. 2:24-cv-3695
Judge Michael H. Watson
Magistrate Judge Jolson
OPINION AND ORDER
The Muskingum County Common Pleas Court sentenced Michael Gillard
("Petitioner") to ten-to-fifteen years' imprisonment after he was found guilty of two
counts of rape and one count of attempted rape. Petition 2, ECF No. 1.
Petitioner now petitions for a Writ of Habeas Corpus. Id.
The Magistrate Judge issued a Report and Recommendation ("R&R"),
recommending the Court deny the Petition on the merits. R&R, ECF No. 18.
Petitioner objects. ECF No. 24. For the following reasons, the Court
OVERRULES Petitioner's objections and ADOPTS IN PART the R&R.
I. PROCEDURAL HISTORY
A. Direct Appeal
Petitioner raised two issues on direct appeal: (1) Petitioner's convictions
were against the manifest weight of the evidence; and (2) the trial court erred in
admitting prior bad act evidence. ECF No. 4 at PAGEID ## 199-219.
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The Ohio Fifth District Court of Appeals ("Fifth District") affirmed
Petitioner's convictions, id. at PAGEID ## 247-65, and the Supreme Court of
Ohio ultimately declined certiorari, id. at PAGEID # 335.
Petitioner does not raise either of these issues in his Petition.
B. Application to Reopen Direct Appeal
Petitioner also applied, pursuant to Ohio Rule of Appellate Procedure
26(B), to reopen his direct appeal with the Fifth District. Id. at PAGEID ## 336-
48. He argued that appellate counsel was ineffective in failing to argue on direct
appeal that: (1) trial counsel's failure to test certain evidence that had been
collected but not tested ("the untested DNA samples")1 deprived Petitioner of his
Sixth Amendment rights to present a complete defense and to a fair trial and of
his Fourteenth Amendment right to due process; (2) trial counsel's failure to test
the untested DNA samples deprived Petitioner of his Sixth Amendment right to
the effective assistance of trial counsel; and (3) the prosecutor committed a
Brady violation by failing to test the untested DNA samples. Id.
The Fifth District Court of Appeals denied the application to reopen the
direct appeal, concluding that there was no genuine issue as to whether
appellate counsel was ineffective for failing to raise those three claims. Id. at
1 The untested DNA samples included "pubic hair, neck, thigh, and fingernail swabs
from M. G, and an oral swab from A. G. " ECF No. 4 at PAGEID # 255. M. G. is the victim
in this case, and A. G. is her older sister.
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PAGEID ## 387-96. The Supreme Court of Ohio again refused certiorari. ld. ai
PAGED #422.
C. Petition for a Writ of Habeas Corpus
Because Petitioner objects to the Magistrate Judge's construction of the
claims raised in his Petition, the Court begins by setting out the same.
The Petition contains two "propositions of law. " Petition 7-8, ECF No. 1.
The first "proposition of law" states:
The Petitioner was denied his right to a complete defense, due
process, fair trial and effective assistance of counsel when the trial
counsel failed to investigate and to conduct additional testing of the
untested DNAsamples which are exculpatory and impeaching, which
violated his right under U. S. Constitution Amendment V, VI, and XIV,
and Ohio Const. Art 1, 1, 10 and 16;
Su ortin Facts: Petitioner[']s Counsel was ineffective
because he failed to raise trial counsel's failure to request DMA testing
of all samples collected during the investigation of the case. Giving
[sic] that the Y-STR is very broad, and the petitioner[']s claims of
innocence trial counsel should have tested the untested sample to
discover who the male DNAbelonged to where it was not linked to the
petitioner
Id. at 7-8.
The Magistrate Judge construed this proposition of law as asserting a
claim for ineffective assistance of trial counsel and a claim for ineffective
assistance of appellate counsel. R&R 8-9, ECF No. 18; see a/so ECF No. 10 at
PAGEID # 2218 ("Ground One of the initial Petition already contains Petitioner's
new claim that appellate counsel performed ineffectively by failing to raise on
direct appeal trial counsel's alleged ineffectiveness in the handling of DNA
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evidence. " (citation omitted)). The Magistrate Judge apparently did not construe
this proposition of law as asserting stand-alone claims that trial counsel's failure
to test the untested DNA samples deprived Petitioner of his Sixth Amendment
rights to present a complete defense and to a fair trial or his Fourteenth
Amendment right to due process because she did not consider such claims in the
R&R.
The Petition's second proposition of law states:
The Prosecutor committed a Brady violation when it purposely
avoided testing the untested DNA samples which is material
exculpatory and impeaching evidence.
Su ortin Facts: Prosecutor suppressed favorable [e]vidence
in violation of Brady v. Maryland. Giving [sic] that the Y-STR is very
broad, and the petitioner[']s claims of innocence the prosecutor should
have tested the untested sample to discover who the male DNA
belonged to where it was not linked to the petitioner.
Petition 8, ECF No. 1 .
The Magistrate Judge construed this proposition of law as asserting a
Fourteenth Amendment substantive due process claim based on the prosecutor's
alleged violation of Brady v. Maryland, 373 U. S. 83 (1963). R&R, ECF No. 18 at
PAGEID # 2343. Additionally, the Magistrate Judge had permitted Petitioner to
amend his Petition to add a claim that appellate counsel was ineffective for failing
to raise that BracVy claim on appeal. ECF No. 10 at PAGEID # 2219.
Thus, by the time the Magistrate Judge issued the R&R, she construed the
Petition as raising four claims: (1) trial counsel was ineffective under the Sixth
Amendment for failing to test the untested DNA samples; (2) appellate counsel
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was ineffective under the Sixth Amendment for failing to raise on direct appeal
trial counsel's ineffectiveness for failing to test the untested DNA samples; (3) the
prosecutor committed a Fourteenth Amendment Brac/y violation; and
(4) appellate counsel was ineffective under the Sixth Amendment for failing to
raise on direct appeal the prosecutor's Brac/y violation. R&R, ECF No. 18 at
PAGEID#2343.
D. Report and Recommendation
As a preliminary matter, the Magistrate Judge recommends denying
Petitioner's request for an evidentiary hearing and recommends, instead, limiting
consideration to the evidence considered by the state appellate court. R&R 19,
ECF No. 18.
On that state-court record, the Magistrate Judge notes that Respondent
has raised the defense of procedural default. R&R, ECF No. 18 at PAGEID
# 2343. Specifically, Respondent argues that Petitioner's Sixth Amendment
ineffective assistance of trial counsel claim and Petitioner's Fourteenth
Amendment Brady claim are procedurally defaulted because Petitioner did not
present them to the state courts. Id. (citing ECF No. 11 at PAGEID # 2236-50).
The Magistrate Judge also notes that, in analyzing whether Petitioner may
overcome the procedural default of those two claims, the Court would have to
essentially analyze the merits of those claims. R&R, ECF No. 18 at PAGEID
# 2343. So, the Magistrate Judge recommends overlooking the procedural
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default and considering the merits of Petitioner's ineffective assistance of trial
counsel claim and stand-alone Braafy claim. Id.
Ultimately, the Magistrate Judge recommends denying on the merits
Petitioner's ineffective assistance of trial counsel claim based on trial counsel's
failure to test the untested DNA samples and Petitioner's ineffective assistance of
appellate counsel claim based on appellate counsel's failure to raise trial
counsel's ineffectiveness on appeal. Id. at 12-16. Specifically, the R&R
concludes that the state court determined that appellate counsel was not
ineffective for failing to raise trial counsel's ineffectiveness on appeal because
trial counsel was not ineffective for failing to test the untested DNA samples, and
the R&R further concludes that said state-court determination was neither
contrary to nor an unreasonable application of clearly established United States
Supreme Court law. Id. That state-court determination dooms both the claims
for ineffective assistance of trial and appellate counsel, to the extent they are
based on trial counsel's failure to test the untested DNA samples. Id.
Similarly, the Magistrate Judge recommends denying on the merits the
stand-alone Brady claim and the remaining ineffective assistance of appellate
counsel claim, which is based on appellate counsel's failure to raise on direct
appeal the stand-alone Brady claim. Specifically, the R&R concludes that the
state court determined that appellate counsel was not ineffective for failing to
raise the prosecutor's Brady violation on appeal because the prosecutor did not
commit a Braafy violation; it further concludes that said state-court determination
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was neither contrary to, nor an unreasonable application of, clearly established
United States Supreme Court law. Id. at 16-19. That state-court determination
dooms both the ineffective assistance of appellate counsel claim (to the extent it
is based on appellate counsel's failure to assert the Brady claim) and the
proceduratly defaulted, stand-alone Brac/y claim. Id.
In sum, the Magistrate Judge construes the Petition as raising one
ineffective assistance of trial counsel claim, two ineffective assistance of
appellate counsel claims, and one stand-alone Brac/y claim. It recommends
looking past any procedural default of the ineffective assistance of trial counsel or
stand-alone Brady claims and considering all four claims on their merits, but,
based on such consideration, it recommends denying all four claims on their
merits.
II. ANALYSIS
A. Scope of Objections
Petitioner filed forty-two pages of objections. ECF No. 21, which the Court
struck because they contravened the Undersigned's Standing Orders, ECF No.
22.
Petitioner then moved for relief from the Court's Order and for leave to file
thirty pages of objections, which motion was erroneously docketed as an
"objection. " ECF No. 23. Petitioner thereafter filed compliant objections, which
were docketed as "Amended Objection. " ECF No. 24
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Petitioner's request to vacate the Court's prior Order striking his
noncompliant objections is DENIED. His assertion that he never received the
Undersigned's Standing Orders misses the mark. It is Petitioner's responsibility
to familiarize himself with all governing rules in this action, whether those be the
Rules Governing § 2254 Cases, the Federal Rules of Civil Procedure, the local
rules for the Southern District of Ohio, the Court's Standing Orders, or otherwise.
The Court has no obligation to proactively send a copy of the Undersigned's
Standing Orders to Petitioner. There was no violation of Federal Rule of Civil
Procedure 77(d), and there is no basis to grant relief from the Court's Order
striking Petitioner's non-compliant objections.
Given this conclusion, Petitioner's next assertion-that he was not
provided an opportunity to move for an extension of the page limits-also falls
flat. Petitioner could have moved, prior to the objections deadline, to exceed the
page limit. That he did not do so because he was unaware of the limit does not
mean that he was deprived of the opportunity.
Finally, Petitioner's request for an extension of the page limitation is
DENIED. Despite his assertion to the contrary, the issues involved in this Petition
are neither unduly complicated nor numerous (to the contrary, there is quite a bit
of overlap in the issues), so an extension of the page limitation is not warranted.
The Court will consider Petitioner's objections as briefed in ECF No. 24, which
appear on the docket as "Amended Objection" but which are the only compliant
set of objections in the case.
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B. Merits of Objections
Petitioner raises five objections to the R&R. The Court addresses them in
order, after setting forth the applicable standard of review.
1. Standard of Review
Pursuant to Federal Rule of Civil Procedure 72(b), the Court reviews de
novo those portions of the R&R to which Petitioner properly objected. Fed. R.
Civ. P. 72(b)(3). The Court can accept, reject, or modify the recommendation,
receive further evidence, or return the matter to the Magistrate Judge. Id.
2. Objection #1
Petitioner's first objection is essentially a contention that the Magistrate
Judge misconstrued the scope of his Petition, hie asserts that the Magistrate
Judge failed to consider the claims that Petitioner "was denied the right to
present a complete defense relating to the untested DNAsamples, thereby
resulting in the violation of due process of the Fourteenth Amendment, the
confrontation clause of the Sixth Amendment, and creates a miscarriage of
justice[. ]" Obj. 1, ECF No. 24. In other words, Petitioner asserts that the
Magistrate Judge failed to consider that trial counsel's failure to test the untested
DNAsamples deprived Petitioner of not just his right to the effective assistance of
trial counsel but also his Sixth Amendment rights to present a complete defense,
to confront witnesses against him, and to a fair trial, 2 as well as his Fourteenth
2 Petitioner does not refer to his right to a fair trial in his objection, but he does mention
it in his Petition, compare ECF No. 1 at PAGEID # 7 w/Y/? ECF No. 24 at PAGEID
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Amendment due process right. The Court will refer to these as the "stand-alone
Ground One claims, " to be distinguished from Petitioner's claim that trial
counsel's failure to test the untested DNA samples deprived Petitioner of his
Sixth Amendment right to the effective assistance of trial counsel, which the
Magistrate Judge did consider.
The Magistrate Judge never considered the stand-alone Ground One
claims because, as mentioned above, she never construed the Petition as raising
the stand-alone Ground One claims. Rather, she construed Ground One as
asserting two ineffective assistance of counsel claims: one against trial counsel
and one against appellate counsel. ECF No. 10 at PAGEID # 2217. To the
extent Petitioner believed that the Magistrate Judge misconstrued his claims, he
should have raised the issue earlier.
In any event, the stand-alone Ground One claims are procedurally
defaulted and, therefore, properly not considered on their merits. Petitioner
never argued on direct appeal a stand-alone claim that trial counsel's failure to
test the untested DNA samples denied Petitioner his Sixth Amendment rights to
present a complete defense, to confront witnesses against him, or to a fair trial.
Nor did Petitioner raise on direct appeal a stand-alone claim that trial counsel's
failure to test the untested DNA samples denied Petitioner his Fourteenth
Amendment right to due process. See ECF No. 4 at PAGEID ## 199-219
# 2405, so the Court considers this as one of the claims that Petitioner attempts to
assert.
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(arguing only manifest weight of the evidence and improper propensity
evidence).
To the extent Petitioner believes that he raised these stand-alone Ground
One claims in his Rule 26(B) application to reopen his appeal, he is mistaken.
His application to reopen the appeal did not raise the stand-alone Ground One
claims; it raised only a claim that appellate counsel was ineffective for failing to
assert on direct appeal most of those stand-alone Ground One claims. 3 See
ECF No. 4 at PAGEID ## 336-48; Ohio R. App. P. 26(B)(1) (permitting a criminal
defendant to "apply for reopening of the appeal.. . based on a claim of
ineffective assistance of appellate counsel. "); Davie v. Mitchell, 547 F. 3d 297, 312
(6th Cir. 2008) ("By its very nature, then, a Rule 26(B) application is a claim of
ineffective assistance of appellate counsel. "); Dawson-Durgan v. Shoop, No.
1:19-cv-382, 2022 WL 1084866, at *9 (S. D. Ohio Apr. 11, 2022) ("An Ohio App.
Rule 26(B) application preserves for habeas review only the ineffective
assistance of appellate counsel arguments, not the underlying substantive
arguments. " (citation omitted)), R&R adopted by 2023 WL 2728477 (S. D. Ohio
Mar. 31, 2023).
3 The state court seems not to have construed Petitioner's application to reopen as a
failure of appellate counsel to raise the stand-alone Ground One claims but rather as a
failure of appellate counsel to argue an ineffective assistance of trial counsel claim. See
ECF No. 4 at PAGEID # 391 (construing Petitioner's "First Proposed Assignment of
Error" as appellate counsel's failure to raise an ineffective assistance of trial counsel
claim). Moreover, the Confrontation Clause claim (to the extent it is separate from the
right to present a complete defense) appears nowhere in the application to reopen the
appeal or the Petition. See ECF No. 1; ECF No. 4 at PAGEID ## 336-45. It is
mentioned for the first time in Petitioner's objection. ECF No. 24 at PAGEID # 2405.
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Because the Fifth District did not grant Petitioner's application, his appeal
was never reopened, and he never raised the stand-alone Ground One claims.
Davie, 547 F. 3d at 312 ("[Bjringing an ineffective assistance claim in state court
based on counsel's failure to raise an underlying claim does not preserve the
underlying claim for federal habeas review because the two claims are
analytically distinct. Thus, a Rule 26(B) application based on ineffective
assistance cannot function to preserve the underlying substantive claim."
(internal quotation marks and citation omitted)). The mere fact that the Fifth
District considered trial counsel's ineffectiveness when assessing Petitioner's
ineffective assistance of appellate counsel claim does not mean that Petitioner
sufficiently presented the stand-alone Ground One claims to the state courts. Id.
at 313 ("The mere fact that Davie's substantive 'acquittal-first' claim was included
as an underlying assignment of error in the Rule 26(B) application does not,
given the comity and federalism concerns implicated in habeas cases, justify
reaching the merits of that claim. ").
To the extent the Court should construe the Petition as raising the stand-
alone Ground One claims separate from any ineffective assistance of trial
counsel claim, then, they are procedurally defaulted unless Petitioner overcomes
the procedural default.
As the Magistrate Judge noted, one manner of overcoming procedural
default is through an ineffective assistance of appellate counsel claim. R&R,
ECF No. 18 at PAGEID # 2343; see a/so Davie, 547 F. 3d at 312. In connection
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with the Rule 26(B) application, the Fifth District did consider the merits of
Petitioner's claims that appellate counsel was ineffective for failing to raise on
direct appeal both trial counsel's ineffectiveness and the prosecutor's Brady
violation, so those ineffective assistance of appellate counsel claims are not
procedurally defaulted. In this way, the Court's ability to consider the stand-alone
Ground One claims (which Petitioner accuses the Magistrate Judge of failing to
consider) hinges on whether Petitioner demonstrates that appellate counsel was
ineffective for failing to raise those claims on direct appeal. The viability of those
claims on direct appeal collapses with Petitioner's ineffectiveness of trial counsel
claim. So, in short, Objection #1 rises or falls with Objection #2 (Petitioner's
contentions about the Fifth District's decision): if appellate counsel was
ineffective for failing to raise trial counsel's ineffectiveness, Petitioner overcomes
the procedural default, and the Court can consider the stand-alone Ground One
claims along with the procedurally defaulted ineffective assistance of trial counsel
claim. On the other hand, if appellate counsel was not ineffective, the stand-
alone Ground One claims and the ineffective assistance of trial counsel claim are
procedurally defaulted, and the Magistrate Judge made no error in failing to
consider the merits of the stand-alone Ground One claims.
As shown below, because the R&R correctly recommends that the Court
deny Petitioner's ineffective assistance of appellate counsel claims, Petitioner is
procedurally defaulted from raising the stand-alone Ground One claims. The
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R&R thus did not err in failing to consider the merits of the stand-alone Ground
One claims, and Petitioner's Objection #1 lacks merit.
3. Objection #2
Second, Petitioner argues that the Fifth District's determination regarding
appellate counsel's ineffectiveness for failing to raise on direct appeal both trial
counsel's ineffectiveness for failing to test the untested DNA samples and the
prosecutor's Brady violation were unreasonable applications of, or contrary to,
clearly established Supreme Court law, and the R&R erred in recommending that
the Court conclude otherwise. Obj. 5, ECF No. 24.
Because the Fifth District did adjudicate these claims on the merits, this
Court must apply AEDPA deference to those determinations. Davie, 547 F. 3d at
313. Thus, this Court considers whether the Fifth District's decisions were
contrary to, or an unreasonable application of, clearly established United STAtes
Supreme Court precedent. They were not.
To reiterate, the Fifth District's determinations were limited to appellate
counsel's ineffectiveness; the Fifth District did not consider the merits of a claim
for trial counsel's ineffectiveness or for the prosecutor's Brac/y violation. E. g.,
ECF No. 4 at PAGEID # 387 ("App. R. 26(B) establishes a two-stage procedure
to adjudicate claims of ineffective assistance of appellate counsel. "). But
appellate counsel's ineffectiveness ultimately hinges on whether trial counsel was
ineffective for failing to test the untested DNAsamples and whether the
prosecutor committed a Brac/y violation. So, this Court explores the Fifth
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District's "ineffectiveness of appellate counsel" determination by looking to what
the Fifth District said about the unraised ineffective assistance of trial counsel
and Brac(/claims, keeping in mind that the ineffective assistance of trial counsel
claim, in turn, subsumes any stand-alone Ground One claims based on the
failure to test the untested DNA samples.
a. Failure to Raise Trial Counsel's Ineffectiveness
The Fifth District's determination-that trial counsel's decision not to test
the untested DNA samples was a sound trial strategy-was neither contrary to,
nor an unreasonable application of, United States Supreme Court law.
Trial counsel's choice not to test the untested DNA samples could have
stemmed from a reasonable and substantial fear that Petitioner's DNA would be
found on the untested samples (or at least be consistent with the DNA found on
the untested samples). Trying to create reasonable doubt by blaming the State
for not testing all available samples was thus a strategic decision that leveraged
the State's failure to test the samples without risking negative results from
undertaking that testing. See ECF No. 4-2 at PAGEID ## 820, 1895, 2082. It
was thus not deficient performance.
Moreover, as the Fifth District noted, Petitioner has not established that
any of the untested DNA samples would be exculpatory such that he suffered
prejudice from trial counsel's strategy. Petitioner surely says as much, but he
has not shown as much because his self-serving statements are pure
speculation; the evidence remains untested, so the results are unknown.
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Even more, Petitioner's speculation is, itself, legless. Because Petitioner's
penile swab contained a mixture of DNA, a finding ofA. G. 's DNAwithin the
mixture (assuming Petitioner's assertion that testing would reveal the same)
simply has no relevance to whether M. G. 's DNA makes up the remainder of the
mixture. The presence of A. G. 's DMA on Petitioner's penile swab likewise does
not change the fact that Petitioner could not be excluded from the Y-STR testing
from M. G. 's breast and vaginal samples. Nor could testing of the untested DNA
samples exclude M. G. as a contributing source of the DNA found on Petitioner's
penile swab. Thus, the Fifth District correctly concluded that, though the
presence of A. G. 's DNA on Petitioner's penile swab could impeach A. G. 's
credibility, 4 "it would not exonerate [Petitioner] in the rape of M. G. " ECF No. 4 at
PAGEID # 393.
Moreover, a lack of Petitioner's DNA on the untested DNA samples would
not change the other evidence of guilt: M. G. 's testimony that Petitioner raped her,
the bruise on M. G. 's back, or the testimony of M. G. 's friend and M. G. 's mother.
Thus, Petitioner has failed to demonstrate a reasonable probability that
testing of the untested DNA samples would have led to a different result in the
trial. See Davison v. United States, No. 21-4170, 2022 WL 17572211, at *4 (6th
4 Trial counsel did impeach A. G. 's credibility through Detective Shawger's testimony that
A. G. 's DNAwas found on underwear located on the couch in Defendant's mother's
home, which was consistent with Defendant's version of events. Tr. 852:18-855:4, ECF
No. 4-2 at PAGEID ## 1308-10.
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Cir. June 7, 2022) ("Davison presented no evidence that the results of DNA and
fingerprint testing would have been in his favor. ").
Because Petitioner can show neither deficient performance by trial counsel
nor prejudice, he failed to show that appellate counsel was ineffective for failing
to raise on direct appeal trial counsel's ineffectiveness.
Petitioner's argument to the contrary is unavailing. He contends that the
Fifth District's determination on this issue was contrary to California v. Trombetta,
467 U. S. 479 (1984), Smith v. Murray, 477 U. S. 527 (1986), and Smith v.
Robbins, 528 U. S. 259 (2000). 5 Obj. 3, 5, ECF No. 24. But none of those cases
help Petitioner, let alone establish that the Fifth District's determination was
contrary to, or an unreasonable application of, clearly established Supreme Court
law.
Trombetta held that the government had no due process obligation to
preserve breath samples interpreted by a device called an Intoxilyzer. See
generally Trombetta, 467 U. S. 479 (1984). This case, by contrast, does not
involve the State's destruction of evidence, so it is not clear how the Fifth
5 Petitioner also seems to argue that the Fifth District's decision was contrary to Mapes
v. Coyle, 171 F. 3d 408 (6th Cir. 1999), because it did not address each of the factors
discussed in Mapes. Obj. 6, ECF No. 24. Even if that were so, relief is warranted only
when a state-court decision is contrary to, or an unreasonable application of, a principle
"embodied in a Supreme Court holding. Circuit precedent does not constitute clearly
established Federal law, as determined by the Supreme Court. " Tucker v. Nagy, No. 24-
1723, 2025 WL 1693798, at *2 (6th Cir. June 17, 2025) (citation modified).
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District's determination could be contrary to, or an unreasonable application of,
Trombetta.
Smith v. Murray reiterated the "cause and prejudice" standard for
overcoming procedural default on direct appeal. 477 U. S. 527, 533 (1986). As
part of the "cause" analysis, the Supreme Court concluded that appellate
counsel's deliberate decision not to raise a particular claim on direct appeal did
not render appellate counsel ineffective. Id. at 535. Again, it is not clear how the
Fifth District's determination in this case could be contrary to, or an unreasonable
application of, Murray.
Smith v. Robbins determined the constitutionality of California's procedure
for appellate counsel who believe that an appeal is frivolous and should not be
permitted (or should be dismissed). 528 U. S. at 264-65. The Supreme Court
concluded that California's procedure did not violate the Fourteenth Amendment
because it provided "the minimum safeguards necessary to make [the first
appeal as of right] adequate and effective. " Id. at 276 (citation modified).
Appellate counsel here did not file what Ohio courts colloquially refer to as
an "Anders brief, " so the relevance of Robbins to this case is limited to the fact
that, in Robbins, the Supreme Court reiterated (in dicta) that the standard set
forth in Strickland v. Washington, 466 U. S. 668 (1984), applies to a claim of
ineffective assistance of appellate counsel when appellate counsel fails to file a
merits brief. Id. at 285 (citation omitted). But even in confirming that Strickland
applies in such instances, the Robbins Court distinguished between what
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constitutes deficient performance when counsel fails to file a merits brief versus
what constitutes deficient performance when counsel files a merits brief but omits
a particular claim. Id. at 288 (noting that it will be easier for a defendant to show
deficient performance when counsel fails to file a merits brief than when counsel
merely omits one claim from a merits brief). Again, appellate counsel here filed a
merits brief on direct appeal, and nothing in the Fifth District's analysis of the
omitted claims is contrary to Strickland (or Robbins's discussion of Strickland).
In sum, the Fifth District's determination concerning the ineffectiveness of
appellate counsel (based on appellate counsel's failure to argue the
ineffectiveness of trial counsel) was not contrary to or an unreasonable
application of Trombetta, Murray, or Robbins. Thus, these theories of
Petitioner's ineffective assistance of appellate counsel claim fail on the merits.
Moreover, without ineffective assistance of appellate counsel, Petitioner cannot
overcome the procedural default of his underlying ineffective assistance of trial
counsel or his stand-alone Ground One claims, so those claims are DISMISSED
as procedurally defaulted.
b. Failure to Raise the Prosecutor's Sraofy Violation
Petitioner seems again to assert that the Fifth District's determination
regarding appellate counsel's failure to raise the Brady claim was contrary to
Murray and Robbins. Obj. 9, ECF No. 24. For the same reasons addressed
above, the Fifth District's decision is simply not contrary to Robbins or Murray,
nor is it an unreasonable application of Robbins or Murray
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Petitioner also argues that the Fifth District's Brady determination was
contrary to Banks v. Dretke, 540 U. S. 668 (2004). Obj. 11-12, 14-15, ECF No.
24
Banks, a pre-AEDPA case, centered on whether the defendant could
overcome the procedural default of his federal Bradyc\a\m. Banks, 540 U. S. at
690-91. Petitioner cites Banks for the proposition that criminal defendants need
not "scavenge for hints of undisclosed Brady material when the prosecution
represents that all such material has been disclosed. " Obj. 11, ECF No. 24
(citing Banks, 540 U. S. at 695).
But that statement exists in the context of whether Banks established
cause to overcome his procedural default, with the State arguing that he was not
sufficiently diligent to establish cause. Unlike in Banks, Petitioner's diligence is
not at issue here. Rather, the main issue here is whether the untested DNA
samples are "exculpatory" for purposes of a Brady claim. Banks does not bear
upon that issue, so the Fifth District's opinion was neither contrary to, nor an
unreasonable application of, Banks.
In fact, the Fifth District's determination on appellate counsel's
ineffectiveness for failure to raise the Brady claim was legally correct. To recap,
this is not a case where the prosecutor performed DNA tests and suppressed
exculpatory results. Rather, Petitioner's issue is that the prosecutor failed to test
certain DNA evidence. But to further recap, the prosecutor likewise did not
suppress the lack of testing. To the contrary, Detective Shawger testified that the
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untested DNA samples existed and were never tested, and trial counsel
addressed the lack of testing in his closing argument. Tr. 790:7-12, 834:19-
855:4, 1620:9-1624:8, ECF No. 4-2 at PAGEID ## 1246, 1290-1311, 2076-80.
So, Petitioner's argument is that the prosecutor had a Brady obligation to test all
available DNA evidence and to then disclose the results to defense counsel
As a preliminary matter, untested DNA samples are not "exculpatory" for
Srady purposes; once tested, the results could be exculpatory, inculpatory, or
inconclusive. See Skinner v. Switzer, 562 U. S. 521, 525, 534 (2011) ("While test
results might prove exculpatory, that outcome is hardly inevitable; as earlier
observed,..., results might prove inconclusive or they might further incriminate
Skinner. " (citation omitted)). Petitioner's Brady claim fails on that basis alone: no
exculpatory evidence was suppressed.
What Petitioner truly invokes is the Supreme Court's "access to evidence"
cases because he argues the prosecutor had a duty to test the untested DNA
samples. But no such duty exists under Brady or the Supreme Court's "access
to evidence" cases. Cf. Arizona v. Youngblood, 488 U. S. 51 , 57 (1988) (finding
no due process violation where the state collected a rectal swab and clothing,
failed to refrigerate the clothing or test semen samples from the same, and made
the untested evidence available to the defendant's expert, who declined to test
it); Vercruysse v. Morrison, No. 20-1928, 2020 WL 8921409, at *2 (6th Cir. Dec.
7, 2020) ("The prosecution did not have a constitutional duty to perform any
particular tests on the light fixture .... " (citing Youngblood, 488 U. S. at 59));
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Roberts v. Edwards, 74 F. 3d 1240 (6th Cir. 1996) ("The district court properly
concluded that the state had no constitutional duty to perform any particular
forensic tests on the evidence collected. " (citing Youngblood, 488 U. S. at 59));
Fappiano v. City of New York, 640 F. App'x 115, 120 (2nd Cir. 2016) ("Although
Brady prohibits police officers from suppressing exculpatory evidence, 'the police
do not have a constitutional duty to perform any particular tests' to generate
exculpatory evidence. " (quoting Youngblood, 488 U. S. at 59)); Riggs v. Williams,
87 F. App'x 103, 106 (8th Cir. 2004) ("To begin with, petitioner has offered no
legal authority to support his claim that the police had a duty to test the shoes,
and Voungfo/oocf supports the opposite conclusion. " (citing Youngblood, 488 U. S.
at 59)); United States v. Hensley, No. 22-cr-20290, 2023 WL 4238477, at *3
(E. D. Mich. June 28, 2023) ("Here, the Government did not suppress any
evidence. By failing to preserve and test the gun, the Government did not fail to
disclose evidence that it possessed. ").
At bottom, because this is not a case where the prosecutor tested certain
evidence but withheld the exculpatory results of the same, because the
prosecutor had no duty to test the untested DNA samples, and because the
untested DNA is not exculpatory, the Fifth District's conclusion on Petitioner's
Brady claim was legally correct. More to the point, it was not contrary to, or an
unreasonable application of, established Supreme Court precedent. Therefore,
Petitioner's ineffective assistance of appellate counsel claim fails on the merits to
the extent it is based on appellate counsel's failure to raise on direct appeal the
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prosecutor's Sraafy violation. And because appellate counsel was not ineffective,
the stand-alone Brady claim is procedurally defaulted
4. Objection #3
Third, Petitioner contends that the R&R erred in recommending that the
Court conclude that the prosecutor had no duty to test the untested DNA
samples. Obj. 11, ECF No. 24. This objection fails for the reason addressed
above.
5. Objection #4
Fourth, Petitioner asserts that the R&R incorrectly recommended that the
Court not hold an evidentiary hearing in this case. Obj. 17, ECF No. 24.
The Magistrate Judge's recommendation was correct because the state
court decided the pertinent issues on the merits, so this Court may consider only
the state-court record for those issues. E. g., Simpson v. Hildebrand, No. 24-
4017, 2025 WL 3459580, at *2 (6th Cir. June 2, 2025) ("Simpson was not entitled
to an evidentiary hearing to develop his claim with allegations and evidence not
presented to the state courts. " (citations omitted)).
In any event, there is no factual dispute that would warrant an evidentiary
hearing.
6. Objection #5
Fifth, Petitioner argues that the R&R erred in recommending that the Court
deny a Certificate ofAppealability ("COA"). Obj. 18, ECF No. 24.
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A state prisoner who seeks a writ of habeas corpus in federal court does
not have an automatic right to appeal a district court's adverse decision unless
the court issues a COA. 28 U. S. C. § 2253(c)(1 )(A). A court may issue a COA
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 such a showing when claims are denied on the merits, a
petitioner must show "that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. " Slack v. McDaniel,
529 U. S. 473, 484 (2000). When a claim has been denied on procedural
grounds, the petitioner must establish "thatjurists 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.
On de novo review, the Court agrees that reasonable jurists would not find
this Court's merits conclusions debatable or wrong and likewise would not find
debatable whether this Court was correct in its procedural rulings.
III. CONCLUSION
For the above reasons, the Court ADOPTS IN PART the R&R. The Court
concludes that Petitioner's (1) stand-alone Ground One claims, (2) ineffective
assistance of trial counsel claim, and (3) stand-alone Brac/y claim are
procedurally defaulted. The Court alternatively denies them on the merits. The
Court denies on the merits Petitioner's claims that appellate counsel was
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ineffective for failing to raise on direct appeal: (1) trial counsel's ineffectiveness,
and (2) the Srac/y violation. The Court DECLINES to issue a COA, and the Court
also CERTIFIESthat any appeal would be objectively frivolous and that the Sixth
Circuit should not permit Petitioner to proceed in forma pauperis.
The Clerk SHALL issue judgment for Respondent and close this case.
IT IS SO ORDERED.
ICHAEL H. ATSON, JUDGE
UNITED STATES DISTRICT COURT
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