Greene v. Warden, Noble Correctional Institution

                     UNITED STATES DISTRICT COURT                    Macey 
                       SOUTHERN DISTRICT OF OHIO                 □          
                             EASTERN DIVISION              ivél DEC 28  PM  3:  47 
Charles J. Greene,                                                  iS iad     □□□□□ 
            Petitioner,                    Case No. 2:21-cv-293 AST. DIV. CCLUMBUS 

     V.                                   Judge Michael H. Watson 
Jay Forshey, Warden,                     Magistrate Judge Merz 
Noble Correctional Institution, 
            Respondent. 

                           OPINION AND ORDER 
     This habeas corpus action under 28 U.S.C. § 2254 is before the Court on 
Petitioner's Objections, ECF No. 23, to the Magistrate Judge’s Report and 
Recommendations (“R&R”) recommending the Petition be dismissed.  ECF No. 20. 
A  litigant who objects to  a Magistrate Judge’s recommendation on a dispositive 
matter such as the merits of  a habeas corpus petition is entitled to  a de novo review 
by the assigned District Judge of those portions of the R&R to which substantial 
objection is made.  The Court has conducted that review, and its conclusions are 
embodied in this Opinion. 
                              I.      ANALYSIS 
A.     Ground One:  Admission of Gruesome Photographs of the Deceased 
     In his First Ground for Relief, Greene claims the trial court deprived him of a 
fair trial by admitting an excessive number of photographs of the deceased.  The 
R&R quoted at length the decision of the Ohio Tenth District Court of Appeals on 
this issue, where Green asserted this argument as his First Assignment of Error. 

ECF No. 20, PAGEID ## 1527-30 (quoting State v.  Greene, 2019-Ohio-4010 (10th 
Dist. Sept. 30, 2019), appellate jurisdiction declined,  157 Ohio St. 3d 1539 (2020)). 
The Magistrate Judge concluded the appellate court had found this claim 
procedurally defaulted for lack of an objection by trial counsel.  The appellate court, 
reviewing for plain error, found none because the photographs were relevant to 
determine cause of death." 
      The Magistrate Judge recommended dismissing Ground One as procedurally 
defaulted because the Tenth District's decision enforced a well-established Ohio 
procedural rule requiring contemporaneous objection to errors, a rule the Sixth 
Circuit has repeatedly held to be an adequate and independent state ground of 
decision.  R&R, ECF No. 20, PAGEID ## 1530-33.  Petitioner makes no objection to 
this procedural default analysis, and the Court finds it is correct. 
      Petitioner does, however, object on the merits, claiming “[t]he R&R 
unreasonably ignores that in the present case, there over 100 gruesome 
photographs unnecessarily shown to the jury.”  ECF No. 23, PAGEID # 1552.  Thus, 
he says, “the decision in the R&R has ‘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.”  /d. at PAGEID # 1553 (quoting 28 U.S.C. § 2254(d)(2)). 
     The R&R made no determination of whether any of the photographs were 
gruesome or whether their presentation to the jury was necessary.  Those factual 

' The body of the victim in this case, 81-year-old Alyce Seff, was found in a “wishing 
well” just after the Fourth of July in 2008.  Petitioner was not indicted until 2015 and not 
tried until 2017.  Greene, supra, at [J] 2-4. 
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decisions were made by the Tenth District Court of Appeals which found on plain 
error review Greene had not identified “which photographs he contends should have 
been excluded as unfairly prejudicial” and that the photographs shown to the jury 
were relevant to show intent and the cause of death.  Greene, supra, at J] 61-63. 
The Magistrate Judge decided this decision was entitled to deference under 28 
U.S.C. § 2254(d)(1) because it was not contrary to any clearly established Supreme 
Court precedent in that abuse of discretion by a  trial judge is not a violation of the 
United States Constitution.  R&R, ECF No. 20, PAGEID  # 1534 (citing Sinistaj v. 
Burt, 66 F.3d 804 (6th Cir.  1995)).  Furthermore, the Tenth District's decision was 
entitled to deference under 28 U.S.C. § 2254(d)(2) because its determination that 
the photographs were relevant was not based on an unreasonable determination of 
the facts based on the evidence presented.  /d.? 
     The Court concludes the R&R is correct as to its recommended disposition of 
Ground One. 
B.     Ground Two: Admission of “Other Acts” Testimony 
      In his Second Ground for Relief, Petitioner contends that admission of “other 
acts” testimony against him denied him his right to due process and a  fair trial.  He 
particularly complains of the admission of testimony by Norma Jenkins that she used 
cocaine with Greene around the time of the murder.  On cross-examination about 
her own drug use around the time of the murder, Jenkins had volunteered that she 

? The Objections assert the R&R does not meet this standard.  Obj., ECF No. 23, 
PAGEID # 1553.  However, under § 2254(d)(2), it is state court decisions that are 
measured by this standard, not Magistrate Judge reports. 
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used cocaine with Greene.  Greene, supra, at  § 68.  When asked in a follow-up 
question if she was high on July 5, 2008, she testified that she and Greene were 
trying to get high that day but could find neither money nor drugs.  /d.  The Tenth 
District found no reversible error because defense counsel had “opened the door” by 
asking Jenkins about drug use, and the trial judge had obviated any prejudice by 
giving a prompt curative instruction.  /d. at J] 75-76. 
     The Magistrate Judge recommended Ground Two be dismissed on the merits 
because  there  is  no  clearly  established  Supreme  Court  precedent  forbidding  the 
admission of other acts testimony.  R&R,  ECF  No.  20,  PAGEID ## 1537-38 (citing 
Bugh v. Mitchell, 329 F.3d 496, 500 (6th Cir. 2003)). 
      Petitioner objects that a jury is likely to infer criminal behavior from testimony 
that a defendant is a drug user.  ECF No. 23,  PAGEID # 1553.  Because of this, an 
attorney who  elicits  such  testimony  is  acting  against  his  client’s  interests,  and  the 
client  should  not  be  held  responsible  for  the  attorney's  conduct,  according  to 
Petitioner.  /d. (citing United States v. Munoz, 605 F.3d 359 (6th Cir. 2010)).  Petitioner 
relies on  Munoz, where the Sixth Circuit quoted the  Eleventh Circuit and  explained 
that: 
     Under fundamental tenets of agency law, a principal is not charged with 
     an agent's actions or knowledge when the agent is acting adversely to 
     the  principal’s  interests.   Thus,  when  an  attorney’s  actions  extend 
     beyond everyday mistakes into the realm of serious misconduct, in some 
     circumstances such malfeasance may be far enough outside the range 
     of behavior that reasonably could  be expected  by a  client that it would 
     be inappropriate to impute such attorney misconduct to the client. 
605 F.3d at 370 (quoting Downs v. McNeil, 520 F.3d 1311, 1319-21  (11th Cir. 2008)). 
However, contrary to Petitioner's assertions, Munoz does not support a different result 
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in this case.  First of all,  defense counsel did  not intentionally elicit testimony about 
Greene’s drug use.  Rather, he was appropriately cross-examining Jenkins about her 
own drug use at the time of the murder, thus appropriately impeaching her credibility. 
Jenkins’ testimony about Greene’s drug use with her was volunteered.  Counsel did 
not take an  action “extend[ing]  beyond everyday mistakes into the realm of serious 
misconduct.”  In fact,  had he failed to cross-examine Jenkins about her drug  use,  it 
would  have  constituted  at  least  colorable  ineffective  assistance  of  trial  counsel 
because she was a  State’s witness. 
     Secondly,  the  trial  court  in  no  way  held  Greene  “responsible”  for  Jenkins’ 
volunteered  testimony.   The  trial  judge  promptly  instructed  the  jury  it  could  not 
consider evidence of other crimes and precluded the State from making any argument 
to  that  effect.   Courts  cannot  prevent  witnesses  from  volunteering  inappropriate 
testimony; when it happens, a curative jury instruction is presumed to have dealt with 
the problem.  Cf.  United States v. Baker, 839 F. App’x 984, 990 (6th Cir. 2021), cert. 
denied,  No. 20-7231, 2021  WL 4507893 (U.S. Oct. 4, 2021) (“[T]he jury is presumed 
to follow the court’s curative instructions.”). 
     The Objections next rely on  Old Chief v.  United States, 519 U.S.  172 (1997), 
quoting: 
     “Courts that follow the common-law tradition almost unanimously have 
     come to disallow resort by the prosecution to any kind of evidence of a 
     defendant's evil character to establish a probability of his guilt.  Not that 
     the  law  invests  the  defendant with  a  presumption  of good  character, 
     Greer v.  United States, 245 U. S. 559, 62 L. Ed. 469, 38 S. Ct. 209, but 
     it simply closes the whole matter of character, disposition and reputation 
     on the prosecution’s case-in-chief.  The state may not show defendant's 
     prior trouble with the law,  specific criminal  acts,  or ill  name among  his 
     neighbors, even though such facts might logically be persuasive that he 
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      is by propensity a probable perpetrator of the crime.  The inquiry is not 
      rejected  because  character  is  irrelevant;  on  the  contrary,  it  is  said  to 
      weigh too much with the jury and to so overpersuade them as to prejudge 
      one with a bad general record and deny him a  fair opportunity to defend 
      against  a  particular  charge.   The  overriding  policy  of excluding  such 
      evidence,   despite  its  admitted   probative  value,   is  the  practical 
      experience that its disallowance tends to  prevent confusion  of issues, 
      unfair surprise and  undue  prejudice.”  Michelson v.  United States,  335 
      U.  S.  469,  475-476,  93  L.  Ed.  168,  69  S.  Ct.  213  (1948)  (footnotes 
      omitted). 
Obj.,  ECF  No. 23,  PAGEID # 1554 (quoting 519  U.S.  at 181).  If Greene had  been 
tried  in federal court,  character evidence would  have been excluded  under Federal 
Rule of Evidence 404 which  is the  rule the Supreme Court was  interpreting  in  Old 
Chief.  Ohio has a  parallel rule.  See Ohio R. Evid. 404.  But neither Old Chief nor any 
other  United  States  Supreme  Court  decision  imposes  the  rule  against  character 
evidence on state courts as a matter of federal constitutional law.  See Bugh, supra. 
Old Chief is not applicable in a federal habeas proceeding reviewing the admission of 
character evidence in a state court proceeding.  Therefore, the R&R’s conclusion that 
Greene’s Second Ground does not state a claim for habeas relief is correct. 
C.     Ground Three: Unfair Trial because of Leg Restraints 
      In his Third Ground for Relief, Petitioner asserts his trial was unfair because he 
was in leg  restraints visible to the jury throughout the trial.  The R&R notes that the 
Tenth  District  found  Greene  had  defaulted  this  claim  because  his  attorney  had 
expressly agreed to the leg restraints.  State v. Greene, supra, □□ 78-84.° 

> The R&R also notes the finding of the Tenth District that, in any event, Greene pointed 
to no place in the record which showed the  jury could actually see the leg restraints.  R&R, 
ECF No. 20, PAGEID # 1539  (citing State v. Greene, supra, J 83).  Petitioner objects to 
this portion of the Tenth District’s opinion: 
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      Petitioner objects that it was ineffective assistance of trial counsel for his 
attorney not to object to the leg restraints, but that is not the claim he made as his 
Third Assignment of Error on direct appeal.  There, he asserted trial court error in 
allowing the leg restraints and that is the claim the Tenth District adjudicated as 
procedurally defaulted.  To the extent he might have made a  claim of ineffective 
assistance of trial counsel and provided extra-record evidence of what the jury could 
see, he could have done that in a petition for post-conviction relief under Ohio 
Revised Code § 2953.21, but he never filed such a petition and the time within which 
he could have done so has now expired.  Claims of trial court error are judged under 
different standards from claims of ineffective assistance of trial counsel, and 
presentation of one does not constitute fair presentation of both.  In the Petition, 
Greene included a claim of ineffective assistance of trial counsel regarding the leg 
restraints as a sub-claim in his Fifth Ground for Relief.  Further review of the R&R as 
to that claim is included below. 
     While Greene is correct that the Constitution prohibits routine shackling and 
the better practice is to hold a hearing to determine whether it is necessary, here 

     Petitioner argues that without an evidentiary hearing to observe the table 
     that  Petitioner was  sitting  at,  there  is  no  way  that  he  can  support  his 
     argument  by  clear  and  convincing  evidence  because  the  table  cannot 
     “speak” for the purpose of being on record.  It is also highly unlikely that a 
     juror would ever openly state on the record during trial that they could see 
     or hear the leg irons, nor is it likely that the court reporter would type in the 
     noise of the leg irons. 
Obj.,  ECF No. 23,  PAGEID # 1555.  Petitioner's objection  is irrelevant,  however, given 
that the issue was waived.  Similarly,  because the issue was waived,  Petitioner has no 
right to an evidentiary hearing on the matter. 
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Petitioner was heard on the subject when his attorney asked that handcuffs be 
removed and argued that the leg restraints would be sufficient.  While Petitioner now 
disagrees with his attorney's concession, he does not claim he ever disagreed with 
his attorney at trial, and his opportunity to present extra-record evidence of any such 
disagreement would have been in a post-conviction petition, which he never filed.  A 
defendant cannot remain silent in the face of such conduct and then obtain habeas 
relief on the basis of a silent record. 
      Petitioner argues his failure to file  a post-conviction petition is excused by his 
appellate attorney’s failure to tell him that there was such an issue.  Obj., ECF No. 
23, PAGEID # 1556 (citing Gunner v.  Welch, 749 F.3d 511  (6th Cir. 2014)).  In 
Gunner, the court held that the petitioner’s failure to file a petition for post-conviction 
relief to raise his ineffective assistance of trial counsel claim was excused by 
appellate counsel's failure to tell him that the claim had to be raised in that way and 
of the deadline for doing so. 
      Gunner is distinguishable in two important respects.  First of all, the ineffective 
assistance of trial counsel claim in Gunner could not have been raised on direct 
appeal because it depended on a great deal of information about Gunner’s rejection 
of an offered plea deal that was outside the record.  Ohio’s procedure for raising 
claims of ineffective assistance of trial counsel is binary:  such claims can be raised 
in post-conviction proceedings if, but only if, they could not be raised on direct 
appeal.  Otherwise, they are barred by res judicata.  State v. Perry,  10 Ohio St. 2d 
175 (1967).  Here, the facts necessary to show ineffective assistance of trial counsel 
were arguably evident on the face of the appellate record:  Greene was brought to 
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court in handcuffs and leg restraints, and his attorney asked that the handcuff be 
removed, arguing the leg restraints were sufficient.  No more record was needed to 
raise this as an assignment of error on appeal.* 
      The second distinction from Gunner is that, in that case, the appellate court 
essentially held it was ineffective assistance of appellate counsel to fail to advise 
Gunner of when the trial transcript had been filed® and of the necessity for raising an 
ineffective assistance of trial counsel claim in a post-conviction petition.  Supreme 
Court precedent holds that before relying on ineffective assistance of appellate 
counsel as excusing cause for failure to properly present a constitutional claim to the 
state courts, a habeas petitioner must first present the ineffective assistance of 
appellate counsel claim to the state courts in the manner they have prescribed. 
Edwards v.  Carpenter, 529 U.S. 446 (2000).  Ohio law requires that claims of 
ineffective assistance of appellate counsel be presented to the appellate courts by 
an application to reopen the appeal under Ohio Rule of Appellate Procedure 26(B). 
See State v. Murnahan, 63 Ohio St. 3d 60 (1992).  Greene has never filed such an 
application. 
     Petitioner’s Objections to the recommended disposition of Ground Three are 
overruled. 

4 Of course, as the Court previously recognized, any trial counsel claim supported by 
non-record evidence could have been raised in post-conviction proceedings.  Ohio 
Revised Code § 2953.21.  Here, though, appellate counsel could have reasonably 
believed that there was enough record evidence for the trial counsel claim to have been 
raised on direct appeal sufficient as to not impose a duty on him to tell Petitioner about 
post-conviction options. 
> At the time, the post-conviction filing deadline was 180 days after the trial transcript 
had been filed.  That deadline has now been increased to 365 days. 
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D.     Ground Four: Inadmissible Community and Victim Impact Evidence 
      In his Fourth Ground for Relief, Petitioner claims he was deprived of due 
process of law and a  fair trial by the admission of community and victim impact 
evidence.  He had raised this claim in his Fourth Assignment of Error on direct 
appeal, particularly complaining, as the Tenth District found, of the testimony of 
Barbara Fisher that the victim was a close friend of Fisher’s family and the victim 
treated her tenants like family.  State v.  Greene, supra, J 85. 
     The Tenth District overruled this assignment of error, summarizing the relevant 
testimony: 
     {| 88} At trial,  Fisher testified she and her mother were close friends of 
     Seff.   Fisher  related that Seff “carried wads  of cash,”  and  earned  her 
      living as a landlord of approximately 15 rental properties.  (Tr. Vol.  Il at 
     216.)  Fisher explained Seff had two personal residences, including her 
      home in German Village.  Fisher testified as to calls she and her mother 
     made  to  Seffs  cell  and  home  phones  over  the  2008  Fourth  of  July 
     weekend after not hearing from her.  After Seffs death, Fisher's mother 
     was  appointed  the  executor of Seffs  estate,  and  Fisher assisted  her 
     mother in handling estate matters.  Fisher testified as to assisting police 
     in obtaining Seff's bank records, in which it was discovered Seff’s credit 
     cards had been used at a local Walmart. 
     {f] 89} Here, Fisher’s testimony as to her relationship with Seff provided 
     background information about Seff, including details about her personal 
     property,  real estate, and  proclivity to carry large amounts of cash with 
     her.  Fisher’s  “preliminary testimony”  also  “laid  the  foundation”  for  her 
     testimony as to her ability to assist police investigators in obtaining Seff's 
     bank and credit card records.  See State v. Hartman, 93 Ohio St.3d 274, 
     293 (2001).  Thus, we find  no error by the trial court in admitting such 
     evidence as relevant in “relating to the facts attendant” to the offense. 
     Fautenberry at 440. 
Id. 
     This testimony as summarized by the Tenth District is not so much community 
impact  evidence  as  laying  a  foundation  for  Fisher’s  ability  to  testify  about  Seff’s 
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conduct which made her vulnerable.  Because this was clearly a homicide, the key 
issue at trial was identity, and establishing the relative positions of Seff and Greene in 
the neighborhood was relevant to proving the identity of the killer.  The Tenth District, 
relying  on  Ohio  Supreme  Court precedent,  found  that evidence  related  only to the 
personal  characteristics  of  the  victim,  while  generally  inadmissible,  can  become 
admissible “if it also ‘relat[es] to the facts attendant to the offense.”  /d. at {87 (citing 
State  v.  Clinton,  153  Ohio  St.3d  422,  2017-Ohio-9423,  4  126,  quoting  State  v. 
Fautenberry, 72 Ohio St.3d 435, 440 (1995)). 
     The  Magistrate Judge  recommended  deference to this  decision  because  he 
concluded  it was  neither  contrary  to  nor an  unreasonable  application  of Supreme 
Court  precedent,  noting  that the  United  States  Supreme  Court  has  allowed  victim 
impact testimony even  in  a capital  case.  R&R,  ECF  No.  20,  PAGEID ## 1542-43 
(citing Payne v.  Tenn., 501  U.S. 808 (1991)). 
     Greene criticizes the R&R’s reliance on Payne, noting that it was a capital case 
and this is not.  But the Court agrees with the Magistrate Judge’s R&R because the 
Supreme Court is more cautious about what is admissible in capital cases, which have 
the ultimate stakes.  See,  e.g., Burger v. Kemp, 483 U.S. 776, 785(1987) (“Our duty 
to search for constitutional error with painstaking care is never more exacting than it 
is  in  a  capital  case.”).   Thus,  if  anything,  the  R&R’s  reliance  on  Payne  offered 
Petitioner an advantage, not a harm. 

6 It is relevant that Greene had performed odd jobs for Seff on a number of occasions, 
and an eyewitness had seen her pick him up in her car in close proximity to the time of 
her death.  /d. at     20-22. 
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      Greene  also  relies  on  a  number  of  federal  cases  other  than  Payne  v. 
Tennessee to support his position.  Obj.,  ECF  No.  23,  PAGEID ## 1557-59 (citing 
United States v. Solivan, 937 F.2d 1146, 1157 (6th Cir. 1991); United States v. Payne, 
2 F.3d 706,  710 (6th Cir.  1993); and  United States v.  Lawrence,  735 F.3d 385, 405 
(6th Cir. 2013)).  Solivan did not address the admission of evidence but rather found 
a  prosecutor's appeal  in closing  argument that the community’s commitment to the 
war on drugs required a conviction made the trial unfair.  In Payne the court held the 
prosecutor's  references  in  closing  and  rebuttal  arguments  to  the  plight  of  poor 
children, to Christmastime, and to the then-recent announcement by an employer in 
the  area  of a  large  layoff were so  prejudicial  and  persistent as to  require  reversal; 
again, there was no claim of inadmissible evidence.  Lawrence was a  capital case in 
which the question on appeal was admissibility of victim impact testimony not under 
the  general  rubric of due  process  but as  a  matter of statutory  interpretation  of the 
Federal  Death  Penalty Act.  None of these cases  involved  victim  impact testimony 
that was probative of another key issue, as in this case. 
     The Tenth District's conclusion that the prosecutor’s purpose in introducing this 
evidence was as a  legitimate foundation for testimony to establish identity and not to 
appeal to the emotions or passions of the jury is also entitled to deference under 28 
U.S.C.  § 2254(d)(2).  Because the Tenth  District’s decision  is entitled to deference 
under both 28 U.S.C.  § 2254(d)(1) and  (2),  Greene’s Objections as to Ground  Four 
are overruled. 
E.     Ground Five: Ineffective Assistance of Trial Counsel 
      In  his  Fifth  Ground  for  Relief,  Petitioner  claims  he  received  ineffective 
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assistance of trial counsel.  As he presented this claim to the Tenth District, the sub- 
claims were (1) introduction of crime scene and morgue photographs of Seff’s body, 
(2) failure to object or request a hearing on the use of leg  irons,  (3) failure to object 
when evidence of appellant’s status as a suspect in other crimes was elicited, and (4) 
the cumulative effect of counsel’s errors.  Respondent defended on the merits,  and 
the  Magistrate Judge recommended deference to the Tenth  District’s decision as a 
not unreasonable application of the governing  standard  spelled  out in  Strickland v. 
Washington, 466 U.S. 668 (1984). 
      In objecting as to Ground Five, Greene relies heavily on agency law principles 
enunciated in United States v. Munoz, 605 F.3d 359 (6th Cir. 2010), emphasizing: 
      Under fundamental tenets of agency law, a principal is not charged with 
     an agent's actions or knowledge when the agent is acting adversely to 
     the  principal's  interests.   Thus,  when  an  attorney’s  actions  extend 
      beyond everyday mistakes into the realm of serious misconduct, in some 
     circumstances such malfeasance may be far enough outside the range 
     of behavior that reasonably could  be expected  by a  client that it would 
     be inappropriate to impute such attorney misconduct to the client. 
Id. at 370 (quoting Downs v. McNeil, 520 F.3d 1311,  1319-21  (11th Cir.2008)).  True 
enough.   But we  must  remember that  in  deciding  an  ineffective  assistance  of trial 
counsel claim, we are not adjudicating a breach of agency contract.  If that were the 
test, then any defendant who perceived after the fact that he had been harmed by a 
decision his attorney had made could have his conviction set aside by proving he did 
not authorize the action the attorney took. 
     Instead, the governing standard for ineffective assistance of counsel is found 
in Strickland v.  Washington, 466 U.S. 668 (1984), requiring proof of deficient 
performance and prejudice.  Berghuis v.  Thompkins, 560 U.S. 370, 389 (2010), 
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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. 
      In this case, trial counsel did object to the photographs and obtained 
exclusion of the morgue photos.  The balance of the photographs of the deceased 
were found by the Tenth District to be probative of the cause of death and 
supportive of the coroner’s testimony.  Greene has not shown how further objection 
by his attorney could have overcome that relevance finding.  As to the leg irons, 
defense counsel was heard on the question of restraints and obtained elimination of 
the handcuffs.  Greene assumes without any proof that a further hearing on the 
matter would have changed the judge’s mind.  And, as noted above, he has 
presented no proof the jury could see the leg irons. 
     With respect to the claim his attorney was deficient in not objecting to 
testimony about his being a suspect in other crimes, the Tenth District explained 
why the presence of his DNA in the CODIS database was relevant but did not imply 
he had been convicted of other crimes.  Greene, supra, J 99.  Because counsel 
could not have precluded the testimony, it was not deficient performance to fail to 

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attempt to do so.  /d.  And because there were no individual instances of ineffective 
assistance of trial counsel, there was no argument for reversal based on cumulating 
these claims.  /d.  at  J 100. 
     The R&R rejected as procedurally defaulted Greene’s claim that his counsel 
provided ineffective assistance of trial counsel by asking the question in response to 
which Lisa Jenkins volunteered that she used cocaine with Greene.  Greene claims 
in his Objections that the default is excused by his appellate attorney’s ineffective 
assistance, relying on Gunner, supra.  For reasons explained above, Gunner does 
not apply because, inter alia, Greene never pursued a  claim of ineffective assistance 
of appellate counsel by filing that claim in an Ohio Rule of Appellate Procedure 
26(B) application for reopening. 
                            ll.     CONCLUSION 
     Having  considered  de novo those  portions of the  R&R to which  Greene  has 
made substantial objection, the Court overrules those Objections and adopts the R&R. 
     The Clerk shall  enter judgment  dismissing the Petition with prejudice.  Because 
reasonable  jurists  would  not  disagree  with  this  conclusion,  Petitioner  is  denied  a 
certificate of appealability, and the Court certifies to the Sixth Circuit that any appeal 
would  be  objectively  frivolous  and  should  not  be  permitted  to  proceed  in  forma 
pauperis. 
     IT IS SO ORDERED.               |                  
                                                -   Vater 
                                   MICHAEL H. WATSON, JUDGE 
                                   UNITED STATES DISTRICT COURT 

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