AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
[[COURTLISTENER_SUBOPINION {"id":"10381149","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
IAN A. CULTRONA,
Petitioner, : Case No. 2:22-cv-1965
- vs - Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz
WARDEN, Correctional Reception Center,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner pro se under
28 U.S.C. § 2254
, is before
the Court for decision on the merits. The relevant pleadings are the Petition (ECF No. 1), the State
Court Record (ECF No. 13), Respondent’s Answer (ECF No. 14), and Petitioner’s Reply (ECF
No. 18).
Litigation History
On January 18, 2019, the Tuscarawas County Grand Jury returned an eight-count
indictment in case number 2018 CR 12 0462, charging Cultrona with three counts of attempted
murder, one count of aggravated robbery, three counts of felonious assault, and one count of
conspiracy. (Indictment, State Court Record, ECF No. 13; Ex. 1). All charges contained a firearm
specification.
Id.
At trial the jury found Cultrona guilty of aggravated robbery, felonious assault, and the
firearm specifications on the felonious assaults, but not guilty on the conspiracy charge, as well as
the firearm specifications on the conspiracy and aggravated robbery counts. (Verdicts, State Court
Record, ECF No. 13, Exhibit 20). Because the jury was unable to reach verdicts on the three counts
of attempted murder, the court declared a mistrial on those charges and the associated firearm
specifications. (Judgment Entry, State Court Record, ECF No. 13, Exhibit 21). Cultrona was
sentenced to an aggregate prison term of eleven years; the State did not retry the mistried counts.
Cultrona appealed to the Ohio Fifth District Court of Appeals raising the following
assignments of error:
{¶ 18) "The trial court committed an error when it permitted
Sergeant Hamilton to testify a second time regarding his newly
created cell phone map, as that testimony violated discovery rules
and appellant's constitutional right to a fair trial."
{¶19) "The trial court committed error when it overruled
defendant’s motion in limine and gave the jury an instruction on
"flight"."
The Fifth District overruled the First Assignment of Error as defaulted for lack of a
contemporaneous objection and, reviewing for plain error, on the merits. State v. Cultrona, 2020-
Ohio-3250 ¶¶ 20-23 (Ohio App. 5th Dist. Jun. 5, 2020). Cultrona did not argue his first assignment
in terms of constitutional law at all, merely asserting that failure to enforce the Ohio discovery
rules denied Cultrona a fair trial. His second assignment of error about the flight jury instruction
was also argued solely in terms of Ohio law. Cultrona did not timely appeal to the Supreme Court
of Ohio; he was granted leave to file a delayed appeal, but the Supreme Court eventually declined
jurisdiction without deciding the case on the merits.
Cultrona then filed an Application to Reopen his direct appeal under Ohio R. App. P. 26(B),
asserting ineffective assistance of appellate counsel in failing to raise the following assignments
of error:
1. The trial court abused its discretion in permitting irrelevant
prejudicial prior acts evidence and inferences in violation of Evid.R.
404(B).
2. Violation of Cultrona’s Sixth Amendment right to effective
assistance of counsel.
Cultrona’s trial counsel’s performance was deficient and prejudicial
when said counsel failed to properly and effectively cross-examine
key witnesses, introduce key exculpatory evidence of bullet holes in
Cultrona’s van that occurred during the shooting, and failed to
properly investigate the case.
(Application, State Court Record ECF No. 13, Exhibit 32.) The Fifth District denied the
Application (Id. at Ex. 34) as well as a motion to reconsider (Id.. at Ex. 36). Cultrona appealed to
the Supreme Court of Ohio (Id. at Ex. 41) which declined to accept jurisdiction.
Id.
at Ex. 44.
Cultrona sought leave to file a delayed direct appeal (Id. at Ex. 46) which the Ohio Supreme Court
granted.
Id.
at Ex. 50. It then declined to exercise jurisdiction.
Id.
at Ex. 53.
Cultrona next filed his Petition for Writ of Habeas Corpus in this Court, raising the
following grounds for relief:
Ground One: The trial court committed an error when it permitted
testimony that violated discovery rules and petitioner’s
constitutional right to a fair trial.
Supporting Facts: Sergeant Hamilton testified a second time about
his newly created cell phone map.
Ground Two: The trial court committed error when it overruled
defendant’s motion in limine and gave the jury an instruction on
“flight.”
Supporting Facts: There was a two-month time span between his
crimes and his flight, the matter was a bond violation rather than a
flight from justice and did not warrant a flight instruction.
Ground Three The trial court abused its discretion in permitting
irrelevant prejudicial prior acts evidence and inferences in violation
of Evid.R. 404(B).
Supporting Facts: Appellate counsel was ineffective for failing to
raise an ineffective assistance of trial counsel argument citing trial
counsel’s failure to present exculpatory evidence and effectively
cross-examine witnesses.
Ground Four: Trial counsel was ineffective.
Supporting Facts: Trial counsel failed to properly investigate the
case, failed to effectively cross-examine key witness, and failed to
introduce exculpatory evidence.
(Petition, ECF No. 1, PageID #: 5-10).
Analysis
Statement of Facts
Cultrona acknowledges the rule in habeas corpus law that findings of fact by the state courts
which have previously heard the case are presumed to be correct and that their correctness can be
rebutted only by proof in the record which shows those findings are in error by clear and
convincing evidence (Reply, ECF No. 18, PageID 1932, citing
28 U.S.C. § 2254
(e)(1) and Warren
v. Smith,
161 F.3d 358, 360-61
(6th Cir. 1998).) To overcome this law, he asserts:
[A] factual finding or assumption which lacks any record support or
which is contradicted by evidence in the record will be held to be
objectively unreasonable. See, Titlow v. Burt,
680 F.3d 577, 585-86
(6th Cir. 2012), rev'd on other grounds,
571 U.S. 12
,
134 S. Ct. 10
,
187 L. Ed. 2d 348
(2013); Matthews v. Ishee,
486 F.3d 883, 889
(6th
Cir. 2007). Moreover, fact-based habeas relief can be granted on a
claim adjudicated on the merits in state court only if Cultrona
demonstrates that the adjudication of the ground "resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings."
28 U.S.C. § 2254
(d)(2).
Id.
at PageID 1932-33.
To attempt to satisfy this legal standard, however, Cultrona quotes six paragraphs of the
appellate opinion in this case, but with his own additions, deletions, and interpolations which he
says demonstrate the errors in the state court findings. For example, he copies and changes the
following sentence from ¶ 7:
A .357 revolver was recovered from the pocket of his coat, and a
yellow bag containing marijuana was recovered [from a
compartment, beyond a make shift curtain, from where Cultrona
was taken into custody,] among [near] Cultrona's [an unidentified
persons] belongings. [(State Court Record, Trial Transcript, PageID
1093-1094). Further, the record is wholly devoid of any evidence
that Cultrona was found with a bag of marijuana. (State Court
Record Ex. 54, Motion to Correct Sentence, PageID 459-460). Thus,
any inference that the yellow bag was recovered among Cultrona's
belongings is unreasonable, given the evidence before the Court.
(Reply, ECF No. 18, PageID 1935.) The balance of the quotation from the appellate opinion is of
the same character with unattributed insertions and changes to the text where Petitioner cites no
record reference to support the change. It is impossible to tell which portions of this response to
the Statement of Facts is a quotation and which portions are Cultrona’s own composition, made to
look as if they are quotations. Much of the interpolated language is Cultrona’s unacknowledged
argument for what the finding should have been. These sections are largely unsupported by
citations to the record, although the Order for Answer provides:
When the record is filed electronically, the Court’s CM/ECF filing
system will affix a unique PageID number to each page of the
record, displayed in the upper right-hand corner of the page. All
papers filed in the case thereafter by either party shall include record
references to the PageID number.
(ECF No. 9. [Id. 43)
In its present form, Cultrona’s argument about the state court findings of fact does not
persuade the Court that those findings are clearly and convincingly rebutted by evidence of record.
To the extent Cultrona objects to this conclusion, he must lay out in his Objections, with record
citations, the evidence which he believes makes that rebuttal.
Ground One: Trial court error in permitting Sergeant Hamilton to take the stand a second
time to testify about his newly created cell phone map.
Sergeant John Ryan Hamilton identified himself as the evidence technician for the
Tuscarawas County Sheriff’s Office (Motion in Limine Transcript, ECF No. 13-2, PageID 616).
He was called to testify to his analysis of historic cell site data relating to the case. At the outset
of his testimony, defense counsel renewed the objection he had made in a motion in limine to
exclude this evidence altogether; the trial judge overruled it.
Id.
at PageID 10821. Cultrona argued
admission of the cell tower analysis would violate Ohio R. Evid. 701 and Petitioner’s
Confrontation Clause rights under Crawford v. Washington,
541 U.S. 36
(2004), and Melendez-
Diaz v. Massachusetts,
557 U.S. 305
(2009)(Motion, State Court Record, ECF No. 13, Ex. 15,
PageID 117-18.) However when Cultrona appealed, he did not raise either of those claims or
indeed any claim about the admission of Hamilton’s original testimony (See Appellant’s Brief,
State Court Record, ECF No. 13, Ex. 29). Instead, he complained about Hamilton’s being allowed
to re-take the stand and present a new cell site map created in response to defense cross-
examination.
Id.
at PageID 224.
The Fifth District found that the new map had been created to rebut Cultrona’s claim during
trial that the original map excluded exculpatory evidence, essentially a Brady2 violation. The Fifth
1 The Motion in Limine relating to cell tower records is at State Court Record, ECF No. 13, Ex. 15.
2 The State has a duty to produce exculpatory evidence in a criminal case. If the State withholds evidence and it is
material, the conviction must be reversed. Brady v. Maryland,
373 U.S. 83
(1963).
District found that in fact nothing exculpatory had been excluded. Cultrona,
2020-Ohio-3250, ¶
14
(Ohio App. 5th Dist. Jun. 5, 2020). In overruling Cultrona’s first assignment of error, the Fifth
District held Cultrona had waived all but plain error review because he had not objected in the trial
court on the basis of an alleged discovery violation. Id. at ¶ 22. It also held the issue of whether
the State could recall a witness was committed to the discretion of the trial judge under Ohio R.
Evid. 611. The Fifth District found no abuse of discretion because the second map was created to
clarify questions raised by the defense. Id. at ¶ 29.
Respondent argues the first part of Ground One is procedurally defaulted because it is to
recalling the witness and not on the basis of violation of the discovery rules or the right to a fair
trial (Return of Writ, ECF No. 14, PageID 1901). The Court of Appeals reviewed this claim only
for plain error and found none. An Ohio state appellate court’s review for plain error is enforcement,
not waiver, of a procedural default. Wogenstahl v. Mitchell,
668 F.3d 307, 337
(6th Cir. 2012); Jells
v. Mitchell,
538 F.3d 478, 511
(6th Cir. 2008); Lundgren v. Mitchell,
440 F.3d 754, 765
(6th Cir. 2006);
White v. Mitchell,
431 F.3d 517, 525
(6th Cir. 2005); Biros v. Bagley,
422 F.3d 379, 387
(6th Cir. 2005);
Hinkle v. Randle,
271 F.3d 239
(6th Cir. 2001).
In Ohio, this includes direct and delayed appeal to the Ohio Court of Appeals and the Ohio
Supreme Court. Mackey v. Koloski,
413 F.2d 1019
(6th Cir. 1969); Allen v. Perini,
424 F.2d 134,
140
(6th Cir. 1970). Failure to present an issue to the state supreme court on discretionary review
constitutes procedural default. O’Sullivan v. Boerckel,
526 U.S. 838, 848
(1999)(citations
omitted).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility,
786
F.3d 450, 464
(6th Cir. 2015), Guilmette v. Howes,
624 F.3d 286, 290
(6th Cir. 2010)(en banc);
Eley v. Bagley,
604 F.3d 958, 965
(6th Cir. 2010); Reynolds v. Berry,
146 F.3d 345, 347-48
(6th
Cir. 1998), citing Maupin v. Smith,
785 F.2d 135, 138
(6th Cir. 1986); accord Lott v. Coyle,
261
F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr,
265 F.3d 407, 417
(6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen,
442 U.S. 140, 149
,
99 S.Ct. 2213
,
60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith,
785 F.2d 135, 138
(6th Cir. 1986); accord, Hartman v. Bagley,
492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards,
281 F.3d 568, 576
(6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway,
792 F.3d 654, 657
(6th Cir. 2015).
Ohio’s relevant procedural rule is that an appeal to the Supreme Court of Ohio must be
taken within forty-five days of judgment in the court of appeals. No timely appeal to that court
was taken here.
Cultrona claims that he did “appeal pro se to the Ohio Supreme Court, but that court
declined jurisdiction.” (Reply, ECF No. 18, PageID 1938-39, citing State v. Cultrona,
163 Ohio
St. 3d 1515
(Ohio August 3, 2021). As noted above, the Supreme Court allowed Cultrona to file a
delayed appeal but then declined to exercise jurisdiction.
In order to exhaust a federal constitutional claim so as to be able to obtain a habeas corpus
decision on the merits, a defendant must fairly present that claim to the state courts, including
presenting both the legal and factual basis of the claim. Williams v. Anderson,
460 F.3d 789, 806
(6th Cir. 2006); Levine v. Torvik,
986 F.2d 1506, 1516
(6th Cir.), cert. denied,
509 U.S. 907
(1993),
overruled in part on other grounds by Thompson v. Keohane,
516 U.S. 99
(1995); Riggins v.
McMackin,
935 F.2d 790, 792
(6th Cir. 1991). The claim must be fairly presented at every stage of
the state appellate process. Wagner v. Smith,
581 F.3d 410, 418
(6th Cir. 2009). Cultrona’s first
habeas corpus claim – that allowing Sergeant Hamilton to testify a second time violated discovery
rules – was not presented to the Fifth District as a constitutional claim at all, but as a violation of
Ohio’s criminal discovery rules. Indeed, the claim is presented to this Court also as a violation of
discovery rules (Petition, ECF No. 1, PageID 5).
Federal habeas corpus is available only to correct federal constitutional violations.
28 U.S.C.
§ 2254
(a); Wilson v. Corcoran,
562 U.S. 1
(2010); Lewis v. Jeffers,
497 U.S. 764, 780
(1990);
Smith v. Phillips,
455 U.S. 209
(1982), Barclay v. Florida,
463 U.S. 939
(1983). "[I]t is not the
province of a federal habeas court to reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68
(1991); see also Elmendorf v. Taylor,
23 U.S. (10 Wheat.) 152, 160
(1825)(Marshall C. J.);
Bickham v. Winn,
888 F.3d 248
(6th Cir. Apr. 23, 2018)(Thapar, J. concurring). Violation of
Ohio’s discovery rules is not a federal constitutional violation, except insofar as the Ohio rules
reinforce the rule in Brady v. Maryland.
The second part of Cultrona’s first assignment of error on appeal to the Fifth District
claimed allowing Sgt. Hamilton to retake the witness stand to testify about his new cell site map
violated Cultrona’s constitutional right to a fair trial. While the Sixth and Fourteenth Amendments
certainly entitle a criminal defendant to a “fair trial,” one does not fairly present a constitutional
claim merely by reciting the talismanic words “fair trial.” Merely using talismanic constitutional
phrases like “fair trial” or “due process of law” does not constitute raising a federal constitutional
issue. Slaughter v. Parker,
450 F.3d 224, 236
(6th Cir. 2006); Franklin v. Rose,
811 F.2d 322, 326
(6th Cir. 1987); McMeans v. Brigano,
228 F.3d 674, 681
(6th Cir. 2000), citing Petrucelli v.
Coombe,
735 F.2d 684, 688-89
(2nd Cir. 1984). Mere use of the words “due process and a fair trial
by an impartial jury” are insufficient. Slaughter v. Parker,
450 F.3d 224, 236
(6th Cir. 2006);
Blackmon v. Booker,
394 F.3d 399, 400
(6th Cir. 2004)(same). “A lawyer need not develop a
constitutional argument at length, but he must make one; the words ‘due process’ are not an
argument.” Riggins v. McGinnis,
50 F.3d 492, 494
(7th Cir. 1995).
Having read Cultrona’s Reply, the Magistrate Judge can find no place where he argues the
First Ground on a constitutional basis and indeed he admits “Other than the reasons set forth above,
Cultrona concedes the basis for his First habeas ground is moot.” (Reply, ECF No. 18, PageID 1957.)
The “reasons set forth above” do not relate to the merits of Ground One, but to showing ineffective
assistance of trial counsel.
Accordingly, Cultrona’s First Ground for Relief should be dismissed with prejudice.
Ground Two: Trial Court Error in Giving Flight Instruction to the Jury
In his Second Ground for Relief, Cultrona argues the trial court committed error in giving
the jury an instruction regarding inferences that they could draw from Cultrona’s flight.
Prior to trial the State submitted a proposed jury instruction on consciousness of guilt taken
from Ohio Jury Instructions § 409.13 (State Court Record, ECF No. 13,Ex. 18). Defendant
opposed the instruction, but his motion in limine to that effect was overruled and the instruction
was given. That formed the basis of Cultrona’s Second Assignment of Error on direct appeal
(Appellant’s Brief, State Court Record, ECF No. 13, Ex. 29, PageID 244-.) Trial counsel had
argued that more than two months elapsed between the crime and Cultrona’s flight from the
jurisdiction, undermining any inference of consciousness of guilt. Id. at PageID 245. Appellate
counsel acknowledged Ohio Supreme Court precedent holding that flight at any time before trial
could be sufficient. Id. at PageID 245, citing State v. Hand,
107 Ohio St. 3d 378
(2006)3 which
counsel admitted “seems dispositive of this argument.” Appellate counsel attempted to distinguish
Hand because Hand was charged with escape at the time he fled, whereas Cultrona’s flight was a
bond violation.
The Fifth District overruled Cultrona’s Second Assignment of Error, holding in part
(¶ 36) While Cultrona acknowledges Hand, he attempts to
distinguish that matter from his own by pointing out that the
defendant in Hand was charged with escape, while he was not. This
is a distinction without a difference. Simply because Cultrona was
not charged with escape does not make Hand any less applicable.
"[F]light may be proven where it occurs after any event which would
tend to spark a sharp impulse of fear of prosecution or conviction.in
a guilty mind." State v. Jeffries,
182 Ohio App.3d 459,477
,
913
N.E.2d 493
, (11th Dist. 2009) quoting United States v. Dillon,
870
F.2d, 1125, 1128
(C.A.6, 1989).
State v.
Cultrona, supra.
In reaching that point, the Fifth District noted that whether to give a
particular jury instruction is committed to the discretion of the trial judge.
At no point in here argument did Cultrona’s appellate counsel suggest that the Constitution
precluded the instruction, nor did the Fifth District discuss the assignment of error in constitutional
terms. Although Cultrona does not argue in these terms, abuse of discretion is not reviewable in
3 The cited decision is that of the Ohio Supreme Court upholding Hand’s multiple aggravated murder convictions and
capital sentence. He was later denied a writ of habeas corpus in this Court in Case No. 2:07-cv-846, aff’d.
871 F. 3d
390
(6th Cir. 2017), cert. denied, ___ U.S. ___ (Apr. 23, 2018).
habeas in any event. Abuse of discretion is not a denial of due process. Sinistaj v. Burt,
66 F.3d
804
(6th Cir. 1995).
Consequently Cultrona’s Second Ground for Relief does not state a claim upon which
habeas corpus relief can be granted and it should be dismissed with prejudice.
Ground Three: Abuse of Discretion in Admitting Prior Bad Acts Evidence
In his Third Ground for Relief, Cultrona argues the trial judge abused his discretion in
admitting evidence of prior bad acts on Cultrona’s part.
As just noted, abuse of discretion by a state trial judge does not amount to a denial of due
process.
Sinistaj, supra.
The pleaded supporting facts – “Appellate counsel was ineffective for
failing to raise an ineffective assistance of trial counsel argument citing trial counsel’s failure to
present exculpatory evidence and effectively cross-examine witnesses” – do not speak to or
support the claim made, to wit, that the admission of other acts evidence somehow violated
Cultrona’s constitutional rights. Finally, a stand-alone claim of constitutional error for admitting
the prior bad acts evidence, does not state a claim in habeas corpus. The Supreme Court has never
held that admission of prior bad acts evidence violates the Constitution. Bugh v. Mitchell,
329
F.3d 496, 512
(6th Cir. 2003).
[A]s a general matter, "state-court evidentiary rulings cannot rise to
the level of due process violations unless they 'offend[ ] some
principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.'" Seymour, 224 F.3d at 552
(quoting Montana v. Egelhoff,
518 U.S. 37, 43
,
116 S. Ct. 2013
,
135
L. Ed. 2d 361
(1996)). Ultimately, states have wide latitude with
regard to evidentiary matters under the Due Process Clause.
Id.
Wilson v. Sheldon,
874 F.3d 470, 475-76
(6th Cir. 2017).
Cultrona cites United States v. Clay,
667 F. 3d 689
(6th Cir. 2012), as a case in which a
conviction was reversed by the Sixth Circuit for violation of Fed. R. Evid. 404(b). That is an
accurate citation, but it is not in point. That case was tried in federal District Court for violation
of federal criminal law. In applying 404(b) to hold the prior bad acts were not admissible, the
Sixth Circuit did not find a constitutional violation, but rather a violation of federal evidence law.
Ohio is not bound by federal precedent interpreting Fed. R. Evid. 404(b)4.
Cultrona’s Third Ground for Relief does not state a claim upon which habeas corpus relief
can be granted.
Ground Four: Ineffective Assistance of Trial Counsel
In his Fourth Ground for Relief, Cultrona asserts trial counsel provided ineffective
assistance of counsel in violation of the Sixth Amendment when he “failed to properly investigate
the case, failed to effectively cross-examine key witness, and failed to introduce exculpatory
evidence.” These are vague and conclusory allegations; Cultrona does not tell the Court what
further investigation trial counsel should have conducted and what that investigation would have
revealed. Nor does he show what further cross-examination of which “key witness” would have
revealed what exculpatory facts. Finally, he does not tell us what exculpatory evidence was
available and not introduced.
The governing standard for ineffective assistance of trial counsel was adopted by the
4 The authoring judge in the Clay case was The Honorable Algenon L. Marbley who was sitting by designation on the
Sixth Circuit in that case. He is also the District Judge to whom this case is assigned.
Supreme Court in Strickland v. Washington,
466 U.S. 668
(1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687
. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins,
560 U.S. 370, 389
(2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689
.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694
. See also Darden v. Wainwright,
477 U.S. 168
(1986); Wong v. Money,
142 F.3d
313, 319
(6th Cir. 1998); Blackburn v. Foltz,
828 F.2d 1177
(6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218. The burden of proof of ineffective assistance of trial counsel is on
the Petitioner and it is not satisfied by vague general allegations.
Respondent asserts Ground Four is procedurally defaulted because it was not presented on
direct appeal. The Magistrate Judge disagrees. Proof of Ground Four would have required
Cultrona to introduce evidence outside the appeal record – proof of what counsel would have
discovered if he had investigated properly, what answers he would have received if he had cross-
examined effectively, what exculpatory evidence was available that was not introduced. Ohio’s
method for litigating claims of ineffective assistance of trial counsel which depend on evidence
outside the appellate record is by petition for post-conviction relief under Ohio Revised Code §
2953.21. But the State Court Record filed here does not show that Cultrona ever filed such a
petition and the time for doing so has expired: the statute of limitations for a post-conviction
petition is 365 days from the date when the record is filed on appeal. Ohio Revised Code §
2953.23. Cultrona’s Brief on direct appeal was filed December 2, 2019, obviously more than 365
days ago (State Court Record, ECF No. 13, Ex. 29). Cultrona cannot excuse the failure to file a
post-conviction petition by blaming it on counsel because defendants are not entitled to appointed
counsel in post-conviction proceedings.
Cultrona’s Ground Four is barred by his procedural default in failing to present this claim
to the Ohio courts.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion’, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
October 24, 2022.
s/ Michael R. Merz
United States Magistrate Judge
> At various points in his Reply, Cultrona argues that numerous conclusions are “debatable among jurists of reason.”
That standard only applies to determiming whether conclusions of this Court in deciding the case are debatable among
jurists of reason. The standard does not apply to any other conclusions reached by any other entity or person associated
with the case.
16
17Case Information
- Court
- S.D. Ohio
- Decision Date
- October 24, 2022
- Status
- Precedential