Francis v. State of Ohio

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISON
ALAN FRANCIS,
Petitioner,
v.
STEPHEN REYNOLDS,
Respondent.
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CASE NO. 4:25-cv-01734-JJH
JEFFREY J. HELMICK
UNITED STATES DISTRICT JUDGE
MAGISTRATE JUDGE
REUBEN J. SHEPERD
REPORT AND RECOMMENDATION
I. Introduction
On August 12, 20251, Petitioner Alan Francis (“Francis”) filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF Doc. 1). On January 30, 2026, I was referred
this case pursuant to Local Rule 72.2 for issuance of a report and recommended decision and
issuance of any non-dispositive orders. (Non-document entry of Jan. 30, 2026). On March 3,
2026, Francis requested to amend his petition. (ECF Doc. 15, p. 1). And on April 14, 2026,
Francis requested to add three additional grounds. (ECF Doc. 18). I granted Francis’ request on
April 27, 2026. (ECF Doc. 19). On May 28, 2026, Warden Stephen Reynolds2 (“Respondent”)
1 Francis does not provide an affidavit with a date he placed his petition in the prison mail system. (See
ECF Doc. 1, p. 5). However, a letter addressed to the Clerk of Courts is dated August 12, 2025, (ECF
Doc. 1-7, p. 1), and the envelope is postmarked August 14, 2025 (ECF Doc. 1-8). I therefore use August
12, 2025 as the date Francis filed his petition by placing in the prison mail system.
2 On April 27, 2026, the Court granted Francis’ motion to correct the name of the Respondent from the
State of Ohio to Stephen Reynolds. (ECF Doc. 19).
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filed a Motion to Dismiss Case as Time-Barred. (ECF Doc. 20). Francis did not file his Traverse
despite being granted two extensions to do so and being told that no further extensions would be
granted. (See non-document entries of June 26, 2026 and July 15, 2026).
II. Factual Background
The Ohio Eleventh District Court of Appeals set forth the facts on direct appeal. These
factual findings are presumed correct unless Francis rebuts this presumption by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1).
{¶ 2} On December 6, 2005, appellant was indicted for two counts of aggravated
murder, in violation of R.C. 2903.01, with death penalty specifications, pursuant to
R.C. 2929.04, and three-year firearm specifications, pursuant to R.C. 2941.145; one
count of aggravated burglary, a felony of the first degree, in violation of R.C.
2911.11, with a firearm specification; one count of aggravated robbery, a felony of
the first degree, in violation of R.C. 2911.01, with a firearm specification; one count
of robbery, a felony of the second degree, in violation of R.C. 2911.02; three counts
of aggravated robbery, felonies of the first degree, each with a firearm specification;
and one count of having a weapon while under disability, a felony of the third
degree, in violation of R.C. 2923.13.
{¶ 3} Thereafter, appellant pled not guilty and, on January 4, 2006, filed a motion
to suppress evidence. On December 5, 2006, appellant filed a supplemental brief in
support of his motion. Pursuant to these filings, appellant sought to exclude oral
statements made by him to police on November 23, 2005 and November 28, 2005.
The court held four hearings on the motion between March 22, 2007 and June 29,
2007.
{¶ 4} On April 10, 2008, the trial court denied the motion to suppress, finding that,
prior to making statements to police on November 23, 2005 and on November 28,
2005, appellant was advised of his Miranda rights and that he voluntarily waived
them.
{¶ 5} On September 19, 2008, appellant filed a motion to reconsider the trial court’s
ruling regarding his November 23, 2005 statement, challenging his capacity to
waive his Miranda rights based on his alleged ingestion of crack cocaine on the day
of his arrest. Following hearings conducted on December 16, 2008 and December
19, 2008, the trial court issued a second judgment entry, dated December 29, 2008,
denying appellant’s motion to suppress. The court again found that on November
23, 2005, appellant voluntarily waived his Miranda rights.
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{¶ 6} Following the trial court’s ruling, appellant entered a plea bargain with the
state, pursuant to which he agreed to plead no contest to the 9–count indictment,
including the firearm specifications, in exchange for the dismissal of the death
specifications.
{¶ 7} Subsequently, the trial court found appellant guilty of the charges, and
sentenced him to 30 years to life for the aggravated murder convictions. This
sentence was to be served concurrently with appellant’s sentence to 37 years in
prison for three unrelated robberies and the disability charge, and a separate three-
year term of imprisonment for the merged firearm specifications. The effective
sentence imposed on appellant was 40 years to life, and was imposed pursuant to
the parties’ plea bargain.
{¶ 8} While this case was pending on appeal, at appellant’s request, this court
remanded the matter to the trial court to include in the record certain documents
from the Niles Municipal Court. This court also granted appellee’s request to
remand the matter for the trial court to correct a typographical error in its December
29, 2008 judgment entry denying appellant’s motion to suppress. The trial court
corrected this entry and re-filed the record.
{¶ 9} On November 23, 2005, at about 5:30 a.m., Krystal Melius was working
behind the counter at the Niles Fuel Mart when appellant entered the store. He went
behind the counter, put a gun to Krystal’s side, and said, “This is a stick up. Give
me the money.” Although she initially refused, Ms. Melius eventually opened the
cash drawer. Appellant reached in and grabbed cash. He said if she moved, he would
“shoot to kill,” and he walked out the door.
{¶ 10} Later that same day, at around 3:00 p.m., while Ms. Melius was at the cash
register, she saw appellant in the line of customers. She quickly left the register and
told the manager that the man who had robbed her that morning was in line. The
manager called the police. Shortly thereafter, appellant and a second male left the
store, entered a car, and left the area. Upon arrival of the police, Ms. Melius gave
them appellant’s description. He was arrested at a residence in nearby Weathersfield
Township at about 3:30 p.m. Ms. Melius identified appellant from a photo array.
{¶ 11} Niles Police Chief Bruce Simeone, who was familiar with appellant from
prior dealings with him, was present at his arrest. Chief Simeone testified that, at
that time, appellant did not appear to be under the influence of drugs or alcohol. He
testified appellant appeared to understand what was happening, and was able to
follow the directions of police on the scene “perfectly.”
{¶ 12} While appellant was being booked for the Fuel Mart robbery, Niles
Detective Ron Wright found an emergency identification card for John Paul
Crocker on appellant. Detective Wright was aware that Mr. Crocker had been
murdered in Weathersfield two days earlier, and advised Chief Simeone that this
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card was found on appellant. Chief Simeone advised Weathersfield Police Chief
Joseph Consiglio of this discovery.
{¶ 13} At about 5:00 p.m., Chief Consiglio met Chief Simeone at the Niles Police
Department in order to interview appellant. They met with him in an interview
room. Chief Consiglio told appellant he was investigating a homicide and wanted
to question him about his possession of the victim’s identification.
{¶ 14} At about 5:15 p.m., Chief Consiglio advised appellant of his Miranda rights,
using a form that outlines these rights. He read the Miranda rights form aloud to
appellant, while appellant read along from a copy Chief Consiglio provided to him.
{¶ 15} The waiver form consists of two sections. The first section, entitled “Your
Constitutional Rights,” advises the defendant of each of the Miranda rights. Next
to each of these rights is a line for the defendant to initial after he indicates he
understands each right. The second section of the form, entitled “Waiver of Rights,”
is comprised of a paragraph in which the defendant confirms that he has read and
understands his rights, and that he waives his rights and wishes to speak to police
without counsel. At the end of this section, there is a line for the defendant to initial.
At the bottom of the form there is a place for witnesses and the defendant to sign.
{¶ 16} Following the form, Chief Consiglio advised appellant of each of his rights,
and, after advising him of each right, appellant initialed each right, indicating he
understood it. While the chief was reading the waiver-of-rights section, appellant
said, “I would like to have an attorney.” Chief Consiglio said, “Fine. This interview
is terminated. I can’t ask you any more questions. We are done here.” Appellant
continued reading the form, and, after about one minute, he started to initial the
waiver section. Chief Consiglio said, “Wait a minute. You have invoked your rights
to an attorney. You don’t have to initial your Wavier of Rights.” Appellant then said,
“Well, I’ll talk to you guys.” Chief Consiglio said: “[Y]ou are initiating on your
own accord, I have not asked you to do this. I have made no promises or threats.
Was [there] coercion used here to get you to talk to me?” Appellant said, “No, I’ll
talk to you guys. I want to talk to you guys.”
{¶ 17} After appellant initialed the waiver section, Chief Consiglio read that section
to him. Appellant then signed the bottom of the form. Chief Simeone also testified
that Chief Consiglio read the waiver section to appellant.
{¶ 18} At the hearing held following appellant’s motion for reconsideration, Chief
Consiglio testified that he orally re-Mirandized appellant. He identified the notes
taken by Captain Michael Naples, who was present during the interview, which
confirm that at 1804, i.e., at 6:04 p.m., about 45 minutes after the interview began,
Chief Consiglio re-Mirandized appellant.
{¶ 19} Chief Consiglio asked appellant if he could record the interview. Appellant
said he would “rather not be video-taped or do an audio based on [sic] his friends
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have told him how we would use that in a court of law.” Chief Simeone testified,
“He said if we recorded it, he would not talk to us.” Chief Consiglio questioned
appellant for about two hours regarding the Crocker homicide, during which
appellant made incriminating statements concerning his involvement. Mr. Crocker,
an elderly, disabled Weathersfield resident, had been beaten, stabbed, and shot to
death in his own home with his own gun. Thereafter, appellant stole his gun and
identification.
{¶ 20} Both Chief Consiglio and Chief Simeone testified that appellant appeared
to understand all of their questions. They both testified that appellant was
“coherent” and did not appear to be under the influence of alcohol or narcotics.
Chief Consiglio testified that he asked appellant if he was under the influence of
drugs or alcohol, and he said he was not. Chief Simeone testified that he has arrested
appellant in the past, and had previously given him the Miranda warnings. Chief
Consiglio testified that nothing was promised to appellant in exchange for his
statement, and that no coercion was used against him. Both chiefs testified that
appellant ate about five sandwiches and drank a soda during the questioning. Chief
Simeone said that appellant did not appear to be tired and his speech was not
slurred. Both chiefs testified that once appellant signed the waiver, he never asked
for an attorney and never refused to answer any questions. Both chiefs testified that
appellant’s statement was made voluntarily.
{¶ 21} On Wednesday, November 23, 2005, appellant was charged with the Niles
robberies and remained in jail during the Thanksgiving weekend. Then, on Monday
morning, November 28, 2005, appellant was arraigned at the Niles Municipal court.
The charges were read to him, bond was set, but appellant did not enter a plea. The
case was set for preliminary hearing, but that hearing did not proceed as appellant
was subsequently indicted.
{¶ 22} On November 28, 2005, shortly before his arraignment, Niles Police
Detectives James Robbins and Daniel Adkins interviewed appellant at the Niles
Police Department. Both detectives testified that appellant did not appear to be
under the influence of drugs or alcohol. Detective Robbins testified that, prior to
meeting with the detectives, appellant had breakfast and coffee.
{¶ 23} Detective Robbins told appellant they were investigating the robberies that
had occurred in Niles the previous week. He asked appellant if they could record
the interview and appellant had no objection to it. Consequently, Detective Robbins
recorded the interview. Detective Robbins advised appellant of his Miranda rights,
using the same form described above. Appellant initialed each right and the waiver
section, and also signed the form. Both detectives testified that, during the
interview, appellant never objected to answering any questions. Appellant denied
any involvement in the Niles robberies. After admitting some involvement in the
homicide case, appellant asked for a lawyer. At that point Detective Robbins
terminated the interview.
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{¶ 24} Appellant appeals the trial court’s judgment entries denying his motion to
suppress.
(ECF Doc. 20-1, pp. 332-57; State v. Francis, 2010 WL 2349113, **1-4 (Ohio App. Ct. June 11,
2010) (“Francis I”)) .
III. Procedural History
A. State Court Conviction
On December 6, 2025, Francis was indicted with the following charges: two counts of
aggravated murder in violation of R.C. § 2903.01, each carried death penalty specifications
pursuant to R.C. § 2929.04, and three-year firearm specifications pursuant to R.C. § 2941.145;
one count of aggravated burglary, a first degree felony in violation of R.C. § 2911.11, with a
firearm specification; one count of aggravated robbery, a first degree felony in violation of R.C.
§ 2911.01, with a firearm specification; one count of robbery, a second degree felony in violation
of R.C. § 2911.02; three counts of aggravated robbery, first degree felonies in violation of R.C.
§ 2911.01, each with a firearm specification; and one count of having a weapon while under
disability, a third degree felony in violation of R.C. § 2923.13. (ECF Doc. 21-1, pp. 6-17).
Francis, represented by counsel, entered a not guilty plea on December 8, 2005. (Id. at p.
18).
On January 4, 2006, Francis, through counsel, filed a Motion to Suppress arguing that
police officers obtained statements from him in violation of his Constitutional rights. (Id. at pp.
27-30). Francis, through counsel, supplemented his motion. (Id. at pp. 31-42). The state of Ohio
opposed both motions. (Id. at pp. 24-26; 43-55).
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Following a hearing, the state trial court withheld ruling on the motion to suppress to
allow for testimony and arguments. (Id. at pp. 58, 63).3 Francis filed an additional supplement to
his motion to suppress. (Id. at pp. 66-94). The trial court held an evidentiary hearing on Francis’
motion and on April 10, 2008 denied the motion to suppress his statements to police. (Id. at p.
100). The court concluded that Francis “was properly informed of his Miranda rights, that he
understood his rights and voluntarily, knowingly and intelligently waived his rights before giving
a statement.” (Id. at pp. 101; 95-103).
Francis, pro se, filed a motion to reopen the suppression proceedings. (Id. at pp. 104-22).
On September 19, 2008, Francis, through counsel, filed a motion to suppress evidence seized
following his execution of a consent to search premises form during his initial interrogation. (Id.
at pp. 123-31). The same day, Francis, through counsel, also filed a motion for reconsideration of
the court’s decision denying his request to suppress statements made to the police. (Id. at p. 132-
33). Both Francis and the state of Ohio filed proposed findings of fact and conclusions of law.
(Id. at pp. 134-41; 142-50).
Following hearings in December 2008, the trial court found that Francis acted freely,
knowingly, and voluntarily both in waving his Miranda rights and consenting to search,
overruling the motions to suppress. (Id. at pp. 151-58).
In exchange for the removal of the death penalty specifications, Francis entered a no
contest plea to a revised indictment on January 22, 2009. (Id at pp. 160-69). The court accepted
his no contest plea. (Id. at p. 169). On February 3, 2009, Francis was sentenced to an aggregate
prison term of 40 years to life. (Id. at pp. 170-73).
3 The trial court’s journal entry appears to rule on approximately 108 motions and/or requests made by Francis. The
discussion provided above only details the motions related to the issues on habeas review. (ECF Doc. 20-1, pp. 56-
65).
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B. Direct Appeal
On February 24, 2009, Francis appealed his conviction and sentence to Ohio’s Eleventh
District Court of Appeals. (Id. at pp. 174-81). On appeal, Francis raised the following
assignments of error:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING
DEFENDANT-APPELLANT’S MOTION TO SUPPRESS THE FRUITS OF THE
UNCONSTITUT1ONAL INTERVIEW OF APPELLANT ON NOVEMBER 28,
2005, IN VIOLATION OF THE SIXTH AMENDMENT.
THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING
DEFENDANT-APPELLANT’S MOTION TO SUPPRESS THE FRUITS OF THE
UNCONSTITUTIONAL INTERVIEW OF APPELLANT ON NOVEMBER 23,
2005 IN VIOLATION OF THE FIFTH AMENDMENT AND MIRANDA V.
ARIZONA (1966), 384 U.S. 436.
THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING
DEFENDANT-APPELANT’S MOTION TO SUPPRESS THE FRUITS OF THE
NOVEMBER 23, 2005 INTRVIEW BASED ON THE FACT THAT APPELLANT
LACKED VOLUNTARY CAPACITY IN VIOLATION OF THE FIFTH
AMENDMENT.
DEFENDANT-APPELLANT WAS DENID THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE
OHIO CONSTITUTTON.
(Id. at pp. 182-241).
The state of Ohio filed a motion for limited remand, asking the state appellate court to
remand the case to the trial court for issuance of a nunc pro tunc entry to correct the judgment
entry denying Francis’ motion to suppress. (Id. at pp. 242-43). The appellate court granted the
motion to remand on September 2, 2009. (Id. at pp. 244-45).
C. Remand Proceedings
The trial court filed a supplemental journal entry correcting its misstatements on
September 14, 2009. (Id. at pp. 247-56). In the corrected entry, the trial court concluded that
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Francis acted freely, knowingly, and voluntarily both in waving his Miranda rights and
consenting to search, overruling motions to suppress. (Id.; Francis I, 2010 WL 2349113).
D. Post-Remand Appeal
On September 29, 2009, the state of Ohio filed its appellate brief. (Id. at pp. 257-318).
Francis filed a reply-brief on October 7, 2009. (Id. at pp. 319-31). On June 14, 2010, the court of
appeals overruled Francis’ assignments of error and affirmed his conviction. (Id. at pp. 332-57;
358).
On September 10, 2010, Francis, pro se, filed an application to reopen his direct appeal.
(Id. at pp. 364-752). In his application, Francis raised the following proposed assignments of
error:
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to raise
on appeal the clear ‘Diminished Capacity’ of Appellant to waive Miranda.
INEFFECTIVEASSISTANCE OF APPELLATE COUNSEL - Perjury.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - Off the Record.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to
effectively review the record prior to filing any Appellant’s Brief.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to raise
on appeal, Ineffective Assistance of Trial Counsel for defective advise when
instructing Appellant to plead no contest to the 3 separate charges of Aggravated
Robbery.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to file
Transcript from Suppression Hearings.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to raise
on appeal, Ineffective Assistance of Counsel when Defense Counsel refused to
represent Appellant upon his filing of Affidavit of Bias and Prejudice, in the
Disqualification action of the Trial Judge in his case. TO WIT: Forced to file Pro
Se and denied certification, from Counsel of Record [Notary] See O.R.C. 2701.031
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INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to raise
on appeal deprivation of Due Process when Trial Court did not provide a 3 judge
panel pursuant to R.C. 2945.06 [See Appendix M]
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL - For failure to raise
on appeal, Ineffective Assistance of Trial Counsel for defective advise when
instructing Appellant to plead no contest to an F2 Robbery when the ‘show up’
identification was unduly suggestive.
(Id. at pp. 369-78). The state of Ohio filed a brief in opposition on September 21, 2010. (Id. at
pp. 753-89). Francis filed a motion for leave to file a response instanter. (Id. at pp. 790-91; 792-
96). The appellate court denied Francis’ application to reopen on November 23, 2010. (Id. at pp.
797-805).
Francis appealed the denial of both his direct appeal and application to reopen to the Ohio
Supreme Court on January 6, 2011. (Id. at pp. 806-07). In his memorandum in support of
jurisdiction, Francis did not raise formal propositions of law, but argued “due process violations”
and “ineffective assistance of counsel.” (Id. at pp. 808-54). The state of Ohio opposed
jurisdiction. (Id. at pp. 855-66). On April 6, 2011 the Ohio Supreme Court denied Francis leave
to appeal and dismissed the case. (Id. at p. 867; State v. Francis, 944 N.E.2d 695 (Table) Apr. 6,
2011(“Francis II”)).
E. Post-Conviction Proceedings
On February 4, 2009, Francis filed a pro se motion seeking leave to file a motion to
withdraw his no contest plea. (Id. at pp. 359-61). On March 17, 2009, Francis’ motion for leave
was granted and his motion to withdraw was denied. (Id. at pp. 362-63).
On September 20, 2011, Francis filed a pro se motion to “alter, amend, or vacate a void
judgment” with the trial court. (Id. at pp. 868-73). The state of Ohio opposed the motion. (Id. at
pp. 874-76). Francis filed a reply-brief. (Id. at pp. 877-80). On June 26, 2013, the state trial court
denied Francis’ motion. (Id. at p. 881).
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Francis appealed the denial to the state appellate court on July 26, 2013. (Id. at pp. 882-
84).
On March 17, 2016, Francis, pro se, filed a motion to vacate void plea with the trial court.
(Id. at pp. 885-97). Francis filed a motion for leave to supplement on October 13, 2023. (Id. at
pp. 898-910). The trial court denied the motion on October 18, 2023. (Id. at p. 911). Francis
appealed the denial on November 9, 2023. (Id. at pp. 912-17). In his appellate brief, Francis
raised the following assignment of error: “The Trial Court Erred by Accepting Appellant’s No-
Contest Plea Without Informing Appellant of the Effect of a No-Contest Plea as Required by
Crim.R. 11 (B)(2).” (Id. at pp. 918-33). The state of Ohio filed a responsive brief. (Id. at pp. 934-
44). Francis filed a reply brief. (Id. at pp. 945-53). On May 6, 2024, the state appellate court
affirmed the trial court’s judgment. (Id. at pp. 954-58; State v. Francis, 2024 WL 1991436 (May
6, 2024) (“Francis III”)).
Francis appealed to the Ohio Supreme Court on June 5, 2024. (Id. at pp. 959-60). In his
memorandum in support of jurisdiction, Francis raised the following proposition of law:
Because Appellant filed his motion to withdraw plea of no contest prior to the
Court’s decision in State v. Harper, 160 Ohio St. 3d 480, 2020 Ohio-2913, 159
N.E.3d 248, the doctrine of res judicata was not applicable to bar review of the
claims presented therein, as the no contest plea was void ab initio.
(Id. at pp. 961-80). The state of Ohio opposed jurisdiction. (Id. at pp. 981-94). The Ohio
Supreme Court declined jurisdiction on August 6, 2024. (Id. at pp. 995; State v. Francis,
239 N.E.3d 398 (Table).
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IV. Federal Habeas Corpus Petition
On April 27, 2026, I granted Francis’ motions (ECF Docs. 15; 18) to amend his petition.
(ECF Doc. 19). In doing so, I allowed Francis to clarify the grounds for relief that he wished to
raise which are as follows4:
[GROUND ONE:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial counsel knew or should have known that the trial court
completely failed to comply with its Statutorily mandated duty, pursuant to
Criminal rule 11(C)(2)(b) and 11(B)(2), to advise the Defendant of the ‘Effect Of
The Plea’ as Sentencing Transcripts clearly reflect, whereas Trial Counsel stood by
knowingly allowed it to happen. Had Defendant known he was admitting the
“TRUTH” to anything alleged in the indictment, he would not have accepted such
a plea and insisted on going to trial to prove his actual innocence.
[GROUND TWO:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial counsel knew or should have known that the handwritten
notes of a third-party Police Officer, that were not read nor signed to adopt by the
Defendant as his actual spoken words, were not “STATEMENTS” as a matter of
law and should never have been raised to be suppressed as such to the absolute
prejudice of their client’s best interests.
[GROUND THREE:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial counsel knew or should have known the Trial Court
abused its discretion by Ordering the admission of unauthenticated, unread, and
unsigned by the alleged speaker for adoption, handwritten notes of a third-party
police officer, into evidence as the material statements of the defendant while, by
the ineffective assistance of trial counsel, those counselor’s did not contest it nor
did the appellate counsel. Raised in 26(b) and denied.
[GROUND FOUR:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial Counsel knew or should have known that every piece of
alleged evidence implicating Defendant in Three Aggravated Robberies having
been found inadmissible for trial by the Trial Court should have alleviated the
4 I note that in the Motion to Dismiss (ECF Doc. 20), Respondent lists approximately 16 grounds for
relief, after piecing information together from Francis’ many filings. Francis reiterates these 16 grounds in
his Motion to Compel. (ECF Doc. 26). However, in my Order granting Francis’ Motions to Amend, I state
that his motions are granted “to include the 12 listed grounds for relief.” (ECF Doc. 19). Accordingly,
only the 12 grounds permitted in that Order will be discussed.
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listing of those same robberies into the Amended indictment yet allowed their client
to proceed to plead out thereto.
[GROUND FIVE:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial counsel refused Defendant’s adamant insistence of taking
the stand to be heard during Suppression Proceedings and/or trial, should it have
gone there, as is reflected in the numerous correspondence he’d written to his Trial
Counsel the majority of which he has within his immediate possession.
[GROUND SIX:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL –
PERJURED TESTIMONY].
[Supporting Facts:] The Trial Counselors, on the fourth day for jury selection
proceedings, advised the defendant, in a back room of the Court Room and, in
breach of Lawyer/client confidentiality, in the presence of Two Deputy Sheriffs,
that they were, “…..not going to raise that (blatantly elicited, by state and defense
attorneys, perjured testimony which is clearly apparent within the Record) or any
other issue for your defense that will discredit the Judge or the two Chiefs of Police”
leaving Defendant with absolutely NO FAITH in his Counsel to represent his best
interests as he had, for over Three (3) years at the time, insisted on going to trial to
prove his actual innocence, forcing him to accept a worse plea offer than any other
offer made within those years.
[GROUND SEVEN:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial counsel knew and advocated the prosecutorial misconduct
by knowingly using PERJURED TESTIMONY of the Chiefs of Police to threaten
and force a plea acceptance from the Defendant. The perjured testimony is clearly
apparent within the certified Court Record.
[GROUND EIGHT:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts]: Trial Counsel allowed Defendant to be denied his inalienable
right to pre-sentence allocution. In fact, Trial Counsel, clearly against any
reasonable trial strategy for the Defendant’s best interests advised Defendant to not
say anything to the Judge when asserting his actual innocence was the most
appropriate trial strategy under the circumstances.
[GROUND NINE:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial Counsel allowed the Defendant to be convicted of Two
Murders, which the Court clearly asserted on the Record would not happen, for the
death of one individual.
[GROUND TEN:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
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[Supporting Facts:] Trial Counsel completely failed to perform Reasonably
adequate investigation Never once forming nor presenting, in a Thirty-Eight
months time period, a theory for defense except, against Defendant’s adamant
unmovable stance on his actual innocence, a “Not guilty By Reason of Insanity
defense” except one Counselor who’d been pursuing a “PATTERN OF CORRUPT
PRACTICES” DEFENSE until he “mysteriously” died (murdered) on a toilet
because of such pursuit of said “line of defense”. His compilations to date “could
not be located” nor would his partner nor replacement agree to pursue the same.
All/Any evidence for the defense being circumstantial being found through other
hearsay being Fruits of a poisonous tree. No record of adequate investigation exists.
[GROUND ELEVEN:] [INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL].
[Supporting Facts:] Trial Counsel failed when they did not move to dismiss all
charges once the Court suppressed the ‘PROBABLE CAUSE to Arrest’s photo
array positive identification evidence, made by the same Four victims of Three
robberies who thereafter testified under oath that they, in Fact, Never saw the Face
of their assailant, as having been “unduly suggestive photo array when it was/is
clearly and convincingly apparent to God and the whole World that by only
overreachingly corrupt coercive police effort would Four different people who say
they’d never seen their assailant’s Face choose the same Face.
[GROUND TWELVE:] [Judicial/Prosecutorial Misconduct]
[Supporting Facts:] With direct reference to arguments No. (2.) (3.) and (6.). The
Court’s Trial Judge along with the State’s Attorney Knowingly abused discretion
by allowing the Defense Attorney-introduced ‘ORAL STATEMENTS GIVEN TO
THE POLICE’ To survive suppression and by allowing knowingly and purposefully
elicited perjured Testimonies from the Chiefs of Police to become STATE’S
EVIDENCE and tactically used to coerce the Defendant into accepting a plea offer
for more prison time than offered in the previous Six to Eight offers made.
(ECF Docs. 15, pp. 2-4; 18, pp. 2-4).
V. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104-
132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), apply to Francis’ petition for writ
of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997). “As amended by AEDPA, 28
U.S.C. § 2254 sets several limits on the power of a federal court to grant an application for a writ
of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170 (2011). This is
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so because “[s]tate courts are adequate forums for the vindication of federal rights” and AEDPA
thus acts as a “formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). As such, AEDPA “dictates a
highly deferential standard for evaluating state-court rulings which demands that state-court
decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal
citation and quotation omitted).
Under 28 U.S.C. § 2254, federal courts may “entertain only those applications alleging
that a person is in state custody ‘in violation of the Constitution or laws or treaties of the United
States’” and in most instances, federal courts may not grant habeas relief “unless . . . the
applicant has exhausted state remedies.” Cullen, 563 U.S. at 181, quoting 28 U.S.C. §§ 2254(a),
(b), (c). Further, if an application for writ of habeas corpus involves a claim that was
“adjudicated on the merits in State court proceedings,” the application
shall not be granted . . . unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100
(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the
petitioner. Cullen, 563 U.S. at 181.
First, clearly established federal law for purposes of AEDPA review includes “the
holdings, as opposed to dicta, of [U.S. Supreme Court] decisions.” Williams v. Taylor, 529 U.S.
362, 412 (2000). A state court decision is contrary to U.S. Supreme Court precedent if the state
court arrives at a conclusion opposite that reached by the Court on a question of law or if the
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state court decides a case differently than the Court despite both cases having materially
indistinguishable facts. Williams, 529 U.S. at 405; White v. Mitchell, 431 F.3d 517, 523 (6th Cir.
2005), cert. denied, 549 U.S. 1047 (2006). However, a state court does not act contrary to clearly
established federal law where U.S. Supreme Court precedent is ambiguous or otherwise
unavailable. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).
A state court decision is an unreasonable application of Supreme Court precedent where
the state court’s adjudication was “objectively unreasonable” and not merely erroneous or
incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th
Cir. 2000), cert. denied, 531 U.S. 1089 (2001). Under § 2254(d)(2), a state court’s factual
determination will stand unless it is objectively unreasonable in light of the evidence presented in
state court. Harrington, 562 U.S. at 100. “[A] federal habeas court may not grant relief simply
because it concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.” Williams, 529 U.S. at 365.
Next, “a determination of a factual issue made by a State court shall be presumed to be
correct. [Petitioner] shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2554(e)(1). And, as the U.S. Supreme Court has repeated,
“a state court factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion . . . .” Burt, 571 U.S. at 18. Federal courts must also
defer to a state court’s judgment on issues of state substantive and procedural law. Murray v.
Carrier, 477 U.S. 478, (1986); Engle v. Isaac, 456 U.S. 107, 128-29 (1982).
In all, federal habeas corpus relief is a “guard against extreme malfunctions in the state
criminal justice systems,” and is different in kind from the relief available in direct appeal.
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Harrington, 562 U.S. at 102-03; see also Brown v. Davenport, 596 U.S. 118, 133 (2022) (internal
quotation omitted). Thus, to obtain “habeas corpus from a federal court, a state prisoner must
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 fair-minded disagreement.” Harrington, 562 U.S. at 103.
When a properly presented federal constitutional claim was not adjudicated on the merits
in the state courts, the reviewing federal court must apply the pre-AEDPA standard, reviewing de
novo questions of law and mixed questions of law and fact. Durr v. Mitchell, 487 F.3d 423, 432
(6th Cir. 2007) (“When the state court has not assessed the merits of a claim properly raised in a
habeas petition, the deference due under AEDPA does not apply.”).
A. Procedural Barriers
Before coming to federal court, a state habeas petitioner must overcome certain
procedural barriers, including exhaustion of state remedies and procedural default. See Daniels v.
United States, 532 U.S. 374, 381 (2001). A federal court sitting in habeas review may review
claims that were evaluated on the merits by the state court. But claims that were not evaluated by
a state court, either because they were never fully presented to the state court (i.e., state court
remedies were unexhausted) or because they were not properly presented to the state court (i.e.,
they are procedurally defaulted) are not available for federal habeas corpus review. Bonnell v.
Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004), aff’d sub nom. Bonnell v. Mitchell, 212 F.
App’x 517 (6th Cir. 2007).
B. Exhaustion
A petitioner must first give the state courts a “fair” opportunity to act on his claims.
O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (emphasis in original). For a claim to have
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been fairly presented, the factual and legal basis of the claim asserted by the petitioner must have
been raised at each and every stage of state review. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir.
2009); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). It is not enough for the claim
raised in state court to be “somewhat similar” to the one raised in the habeas petition or implicate
the same facts; the state court must have been called upon to apply the legal principles of the
claim now presented to the federal courts. Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir.
2011).
The petitioner also must have presented their “claim to the state courts as a federal
constitutional issue – not merely as an issue arising under state law.” Williams v. Anderson, 460
F.3d 789, 807 (6th Cir. 2006) (quotation marks omitted). In this Circuit, this can be done in 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, 228 F.3d at 681 (paragraph breaks added).
Failure to exhaust occurs where state court remedies are still “available at the time of the
federal petition.” Williams, 460 F.3d at 806. This failure to exhaust can also lead to a petitioner
procedurally defaulting his claims. If the petitioner has not fully utilized his state remedies and
has no legal mechanism by which to do so now, the claim he failed to present is procedurally
defaulted, and this Court cannot act on the claim either. See Gray v. Netherland, 518 U.S. 152,
161-62 (1996); Williams, 460 F.3d at 809.
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C. Procedural Default
The procedural default doctrine limits federal review if the petitioner has failed to follow
the state’s procedural requirements for presenting his or her claim in state court. See Coleman v.
Thompson, 501 U.S. 722, 732 (1991). This doctrine flows from the insight that courts must have
the authority to insist that “defendants present their arguments on time and according to
established procedures.” Benton v. Brewer, 942 F.3d 305, 307 (6th Cir. 2019). Thus, a federal
habeas court will not consider a habeas petition if “the last state-court judgment denying relief on
the claim rests on a procedural state-law ground that is ‘independent of the federal question and
is adequate to support the judgement.’” Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013)
(quotation marks omitted).
This Circuit consults a four-part test to determine whether a petitioner has procedurally
defaulted a claim. A petitioner procedurally defaults a claim if: (1) the petitioner fails to comply
with a state procedural rule; (2) the state courts enforced the rule; (3) the state procedural rule is
an adequate and independent state ground for denying review of a federal constitutional claim;
and (4) the petitioner cannot show cause and prejudice excusing the default. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Because the procedural-default bar to federal habeas review is harsh, courts have created
safety-valves to permit review in limited circumstances. A petitioner can obtain review of
procedurally defaulted claims if he or she shows: (1) “cause,” i.e. that some external factor kept
him from complying with the state rule or fairly presenting his claim; and (2) “prejudice,” i.e.
that, assuming the petitioner’s constitutional claim has merit, there is a reasonable probability
that a different verdict would have resulted if the alleged constitutional violation hadn’t occurred.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wogenstahl v. Mitchell, 668 F.3d 307, 337
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(6th Cir. 2012). A petitioner can also obtain review of a procedurally defaulted claim if the
procedurally defaulted claim is based on new evidence that the petitioner was factually innocent
of the crime of conviction. See Coleman, 501 U.S. at 750 (“fundamental miscarriage of justice”
exception to procedural default); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (A
“fundamental miscarriage of justice” can occur only when the procedurally defaulted claim
would establish that the petitioner was “actually innocent.”). But “[A]ctual[] innocen[ce]” means
“factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998). To overcome procedural default, an actual innocence claim must be supported by “new
reliable evidence . . . that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
VI. Discussion
Respondent argues in its Motion to Dismiss that Francis’ Petition was untimely filed.
(ECF Doc. 20). In an unrelated motion to expand the record, Francis contends “[a]lthough the
Petition was untimely filed, Petitioner can demonstrate (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely
filing, and therefore, he is entitled to equitable tolling.” (ECF Doc. 28, p. 2). Thus, before turning
to Francis’ grounds for relief, I must first determine whether his petition was timely filed.
A. 28 U.S.C. § 2244(d)(1)
AEDPA provides that a: “1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). The statute of limitations period runs from the latest of four possible dates:
(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
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(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). The United States Supreme Court has held that “direct review”
for purposes of § 2241(d)(1)(A) includes seeking certiorari. Penry v. Lynaugh, 492 U.S. 302, 314
(1989). Therefore, the statute of limitations includes the 90 days that the petitioner has to seek
certiorari whether or not such review is sought. Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d
452, 459-60 (6th Cir. 2012) (citing Gonzalez v. Thaler, 56 U.S. 134 (2012)).
Under Section 2244(d)(1)(A), Francis had one year from “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review” to file his petition. Here, Francis’ convictions and sentence were affirmed by Ohio’s
Eleventh District Court of Appeals on June 14, 2010. (ECF Doc. 20-1, pp. 332-57; Francis I,
2010 WL 2349113). He then had 45 days to file an appeal to the Ohio Supreme Court.
See S.Ct.Prac.R. 6.01(A)(1). Francis did not file a timely appeal to the Ohio Supreme Court,
however he gets the benefit of that time as if he did. (ECF Doc. 20-1, p. 867).5 Getting the
benefit of those 45 days, Francis had until July 29, 2010 to file his petition. The record before the
Court does not indicate that Francis sought certiorari with the United States Supreme Court, but
similarly to the handling of his failure to timely file to the Ohio Supreme Court, including the 90
days he had to seek such review, Francis’ conviction became final on October 27, 2010.
5 Francis attempted to appeal from the denial of both his direct appeal and his application to re-open his direct
appeal on January 6, 2011. (ECF Doc. 21-1, pp. 806-07). However, the Ohio Supreme Court denied him leave to
appeal, thereby treating it as untimely filed. (Id. at p. 867).
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Therefore, pursuant to Section 2244(d)(1)(A), Francis had until October 27, 2011 to file his
federal habeas petition.
Francis’ petition was filed with this Court on August 12, 2025. (ECF Doc 1). Thus, absent
statutory or equitable tolling, Francis’ petition is time barred.
B. 28 U.S.C. § 2244(d)(2)
AEDPA allows for statutory tolling under Section 2244(d)(2) when it states: “The time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.” 28 U.S.C. § 2244(d)(2); see also Holbrook v. Curtin, 833 F.3d
612, 615 (6th Cir. 2016). Statutory tolling extends “until the application has achieved final
resolution through the State’s post-conviction procedures,” Carey v. Saffold, 536 U.S. 214, 220
(2002), or “until the expiration of the period for further State court review, whether or not the
petitioner actually seeks such review.” Holbrook, 833 F.3d at 615, quoting Whitcomb v. Smith, 23
F. App’x 271, 273 (6th Cir. 2001). However, even where a petitioner has properly filed a state
postconviction motion and tolls AEDPA’s statute of limitations, statutory tolling under 28 U.S.C.
§ 2244(d)(2) does not serve to revive the one-year limitations period. Vroman v. Brigano, 346
F.3d 589, 601 (6th Cir. 2003). Rather, statutory tolling only pauses a clock that has not yet
expired. Id. And the statute of limitations is not tolled during the filing of a subsequent petition
for certiorari to the United States Supreme Court because that period is within the federal system
and is “not a part of a ‘State’s post-conviction procedures.’” Lawrence v. Florida, 549 U.S. 327,
337 (2007) (quoting 28 U.S.C. § 2244(d)(2)).
Francis filed his application to reopen his direct appeal on September 10, 2010. (ECF
Doc. 20-1, pp. 364-752). This date has no effect on AEDPA’s statute of limitations because
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Francis’ conviction did not become final until October 27, 2010. The state appellate court denied
the application on November 23, 2010. (Id. at pp. 797-805). Francis then had 45 days to file an
appeal with the Ohio Supreme Court. See S.Ct.Prac.R. 6.01(A)(1). Francis filed an appeal to the
Ohio Supreme Court on January 6, 2011 and that appeal was denied on April 6, 2011. (Id. at pp.
806-07; 867). Therefore, the AEDPA statute of limitations started running once the appellate
court released its decision until Francis filed his appeal to the Ohio Supreme Court, 44 days later.
This made Francis’ habeas petition due by February 21, 2012.
Francis also filed a number of post-conviction proceedings with the state trial court. He
filed a February 4, 2009 motion seeking to withdraw his guilty plea which was denied on March
17, 2009. (Id. at pp. 359-61; 362-63). This had no bearing on the statute of limitations because it
occurred before his conviction became final.
The statute of limitations ran from April 6, 2011 until Francis filed another post-
conviction motion on September 20, 2011 – or for another 167 days. (Id. at pp. 868-73). The
state trial court denied the motion on June 26, 2013. (Id. at pp. 882-84). The Return of Writ
includes a notice of appeal from this denial filed by Francis on July 26, 2013, marking another
30 days elapsed. (Id. at pp. 882-84). The Return of Writ provides no indication of what happened
after the filing of this notice of appeal.
In his motion to dismiss, Respondent claims “Francis failed to prosecute this appeal and
provide additional required pleadings to proceed. Therefore, no further action occurred. At this
time, only 167 days remained of Francis’s AEDPA one-year statute of limitations.” (ECF Doc.
20, p. 12). While a review of the state court docket reveals that nothing occurred with respect to
the appeal after Francis filed the notice of appeal, I cannot confidently say that this amounted to
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an error on Francis’ behalf for failing to prosecute.6 See Docket 2005 CR 00867 State of Ohio -
vs- Francis, Alan M JMS,
https://courts.co.trumbull.oh.us/eservices/searchresults.page?x=drzZkoqLm7yz-BAzVgg-
xu5yBs8J1DHqXLYd5ZfAVNMyV5*77QcIZGmDBLpOMlXzOkMj*kj1U5bavi0YNpsZbQ.
Ohio Rule of Appellate Procedure 4 states: “An appeal of right from a trial court to a court of
appeals may be taken only by filing a notice of appeal with the clerk of the trial court within the
time allowed by Rule 4. The appellant must attach to the notice of appeal a time-stamped copy of
the judgment or order from which the appeal is taken.” See Ohio App. R. 4. On its face, the
notice of appeal Francis filed appears to follow this mandate. He filed the notice of appeal and
attached the judgement entry from which he was appealing. (See ECF Doc. 20-1, pp. 882-84).
The notice of appeal was filed with the Trumbull County Clerk of Courts for the common pleas
court and was date stamped. (Id.). Notwithstanding the filing of the notice of appeal with the
clerk, the notice of appeal does not have a date stamp indicating receipt by the Eleventh District
Court of Appeals. (Compare ECF Doc. 20-1, pp. 882 (notice of appeal including only a date
stamp from the Trumbull County common pleas court) and ECF Doc. 20-1, p. 912 (including a
date stamp from both the Trumbull County appellate court)). In addition, a review of the
appellate court’s online docket further indicates that nothing further happened with the case after
Francis filed his notice of appeal. There is no corresponding case or case number. Thus, it
appears as though the case was never adjudicated.
While Respondent claims that it was Francis who failed to prosecute his appeal, upon
review of the available information, it appears as if he did not have the opportunity to do so
6 This Court is permitted to take judicial notice of a state court’s docket. See Kirk v. Ivey, 2020 WL
349662, at *1 (N.D. Ohio, 2020) (citing Ghaster v. City of Rocky River, 913 F. Supp. 2d 443, 455 (N.D.
Ohio 2012) (explaining that a federal court may take judicial notice of an Ohio state court case docket if
the plaintiffs refer to the Ohio state court case in their complaint)).
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because it was not received by the court of appeals, no case was opened, no case number was
assigned, and the case was therefore not disposed of properly. Based on the foregoing
information, I cannot conclude that Francis’ AEDPA statute of limitations has run as it appears he
still has an open appeal from 2013 that has yet to be adjudicated.
Generally speaking, a federal habeas court will not review a question of federal law if a
state court’s decision rests on a substantive or procedural state law ground that is independent of
the federal question and is adequate to support the judgment, absent a showing of cause and
prejudice to excuse the default. See Coleman v. Thompson, 501 U.S. 722, (1991). A state court
procedural default, however, is not a jurisdictional bar to a review of a habeas petition on
the merits. See Trest v. Cain, 522 U.S. 87, (1997). That is, “federal courts are not required to
address a procedural-default issue before deciding against the petitioner on the merits.” Hudson
v. Jones, 351 F. 3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518,
(1997)). It may be more economical for the habeas court to simply review the merits of the
petitioner’s claims, “for example, if it were easily resolvable against the habeas petitioner,
whereas the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at
525. Similarly, where the statute of limitations poses complicated issues, it may be more efficient
for the Court to resolve the merits of the petition against the Petitioner. See, e.g., Johnson v.
Mackie, 2014 WL 1418678 (E.D. Mich. April 14, 2014).
In the present case, I find it more efficient to proceed directly to the merits of Francis’
substantive claims and accordingly bypass discussion of any procedural barriers. On this basis, I
recommend that Respondent’s Motion to Dismiss be denied. After reviewing Francis’ substantive
claims, I further recommend that his petition be denied as without merit.
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In Grounds 1 through 11, Francis raises various reasons why he believes his trial counsel
was ineffective, including failing to object to evidentiary rulings, not calling Francis as a witness
at the suppression hearing, failing to object to charges in the indictment. I find each of the
arguments made in Grounds 1 through 11 to be too conclusory to warrant habeas relief. Under 28
U.S.C. § 2254, federal courts may “entertain only those applications alleging that a person is in
state custody ‘in violation of the Constitution or laws or treaties of the United States.’” Cullen,
563 U.S. at 181, (quoting 28 U.S.C. § 2254(a)). Furthermore, Rule 2(c) of the Rules Governing
Section 2254 Cases requires a petition to “specify all the grounds for relief” and “state the facts
supporting each ground.” Here, Francis does not allege in any of his grounds for relief that he is
being held in violation of the Constitution or a law of the United States. Although Francis argues
the various ways he believes his trial counsel was ineffective, he does not explain how any of the
alleged happenings violated his Constitutional rights or the law.
Because “conclusory and perfunctory” allegations of ineffective assistance, like the ones
raised here, “are insufficient to warrant habeas relief,” Wogenstahl v. Mitchell, 668 F.3d 307,
335-36 (6th Cir. 2012), I recommend that the Court find that Mitchell is not entitled to a habeas
on Grounds 1 through 11. See also Blackledge v. Allison, 431 U.S. 63, 75 (1977) (Stating that a
habeas corpus petition containing only “vague (or) conclusory” allegations is subject to dismissal
(quoting Machibroda v. United States, 368 U.S. 487, (1962))).
I find the same is true with respect to Francis’ twelfth and final ground for relief. In that
ground, Francis baldly asserts judicial and prosecutorial misconduct when they allowed allegedly
perjured testimony at the suppression hearing.
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As was true with the other eleven grounds, Francis does not argue how the alleged activity
violated the Constitution or Federal law and instead makes conclusory statements. I accordingly
recommend that Ground 12 be denied.
VII. Francis’ Motion to Compel Respondent to Provide Transcript
Finally, pending before the Court is a motion filed by Francis requesting that the
Respondent be ordered to “provide him with a complete transcript of proceedings held in the
state-court.” (ECF Doc. 26, p. 1). Specifically, he requests the seven or eight volumes of
transcripts filed in his state court proceedings and an “examination of the trial transcripts should
be carefully undertaken” by the Court. (Id. at p. 6). Pursuant to Rule 5 of the Rules Governing
Section 2254 Petitions, respondents are required to provide courts with the transcripts and
documents available that “the respondent considers relevant.” Rule 5 of the Rules Governing
Section 2254 Cases, 28 U.S.C. foll. § 2254. Habeas Corpus Rule 7 empowers the court to “direct
the parties to expand the record by submitting additional materials relating to the petition” on its
own motion or a motion of a party. Rule 7 of Rules Governing Section 2254 Cases, 28 U.S.C.
foll. § 2254. Having been able to adequately address the issues above, I find a review of the
transcripts unnecessary to resolve the issues raised on habeas review. I therefore deny Francis’
Motion to Compel.
VIII. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(1)(A), this Court will grant a certificate of appealability
(“COA”) for an issue raised in a Section 2254 habeas petition only if the petitioner has made a
substantial showing of the denial of a federal constitutional right. Cunningham v. Shoop, 817 F.
App’x 223, 224 (6th Cir. 2020). A petitioner satisfies this standard by demonstrating that
reasonable jurists “could disagree with the district court’s resolution of his constitutional claims
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or that jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation marks omitted);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
If the District Court adopts my recommendations above, I further recommend that no
COA issue in this case. Reasonable jurists would not disagree with the Court proceeding to deny
of Francis’ claims because they were argued in a conclusory and vague manner which did not
provide the Court the framework for how the state court violated the Constitution or federal law,
and where the AEDPA statute of limitations issue involved a complicated application of state
law.
IX. Recommendation
For the foregoing reasons, I deny Francis’ Motion to Compel. (ECF Doc. 26). I
recommend that the Respondent’s Motion to Dismiss be denied. (ECF Doc. 20). I further
recommend that all of Francis’ grounds for relief be denied as without merit. I also recommend
that no certificate of appealability be issued.
Dated: October 14, 2026
REUBEN J. SHEPERD
UNITED STATES MAGISTRATE JUDGE
OBJECTIONS
Objections, Review, and Appeal
Within 14 days after being served with a copy of this report and recommendation, a party
may serve and file specific written objections to the proposed findings and recommendations of
the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28
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U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo
by the assigned district judge.
* * *
Failure to file objections within the specified time may result in the forfeiture or waiver
of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the
United States Court of Appeals, depending on how or whether the party responds to the report
and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be
specific and not merely indicate a general objection to the entirety of the report and
recommendation; “a general objection has the same effect as would a failure to object.” Howard
v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus
on specific concerns and not merely restate the arguments in briefs submitted to the magistrate
judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge
without specific objections ‘wastes judicial resources rather than saving them, and runs contrary
to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL
3018175, *2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections
may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d
868, 878-79 (6th Cir. 2019).
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