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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM HARRELL, ) Case No. 5:24-CV-01391-JJH
)
Petitioner, ) JUDGE JEFFREY J. HELMICK
)
v. ) MAGISTRATE JUDGE
JENNIFER DOWDELL
)
STATE OF OHIO, et al. ) ARMSTRONG
)
Respondents.
) REPORT & RECOMMENDATION
I. INTRODUCTION
Petitioner, William Harrell (âMr. Harrellâ), seeks a writ of habeas corpus under 28
U.S.C. § 2254. (ECF No. 1). Mr. Harrell was sentenced to five years in prison after pleading
guilty to six counts of breaking and entering.
Mr. Harrell asserts four grounds for relief. Respondents, the State of Ohio and Warden
Doug Luneke (together, âRespondentsâ), filed an answer/return of writ on December 13,
2024. (ECF No. 19). Mr. Harrell filed a traverse on January 15, 2025. (ECF No. 23). This
matter was referred to me on October 21, 2024, under Local Rule 72.2 to prepare a report and
recommendation on Mr. Harrellâs petition. (See ECF non-document entry dated October 21,
2024). For the reasons set forth below, I recommend that Mr. Harrellâs petition be
DISMISSED and/or DENIED. I further recommend that the Court not grant Mr. Harrell a
certificate of appealability.
II. RELEVANT FACTUAL BACKGROUND
For purposes of habeas corpus review of state court decisions, a state court's findings
of fact are presumed correct and can be contravened only if the habeas petitioner shows, by
clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.
§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d
524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by
a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio
Court of Appeals for the Ninth Appellate District summarized the facts as follows:
{¶2} Mr. Harrell was indicted in six separate criminal cases. In each case, he
was charged with breaking and entering. His indictment in Criminal Case No.
2019-07-2647 alleged that his offense occurred on July 30, 2019. His indictment
in Criminal Case No. 2019-09-3136 alleged that his offense occurred on
September 8, 2019. His indictment in Criminal Case No. 2019-10-3397 alleged
that his offense occurred on September 29, 2019. His indictment in Criminal
Case No. 2020-09-2558 alleged that his offense occurred on April 24, 2020. His
indictment in Criminal Case No. 2020-09-2559 alleged that his offense occurred
on April 28, 2020. Finally, his indictment in Criminal Case No. 2020-09-2560
alleged that his offense occurred on April 30, 2020.
{¶3} All six of Mr. Harrell's cases were consolidated for jury trial. On the first
day of trial, a jury was empaneled, and the attorneys gave their opening
statements. On the morning of the second day of trial, Mr. Harrell inquired about
the possibility of a plea. A recess was taken and, when court reconvened, defense
counsel notified the court that Mr. Harrell was willing to plead no contest to all
charges. The trial court indicated that it would not accept pleas of no contest,
however, and that the matter would proceed to trial. Mr. Harrell then interjected
and told the court he would plead guilty. An additional recess ensued, and the
parties notified the court that they had reached an agreement. Before releasing
the jury, the trial court conducted a plea colloquy, accepted Mr. Harrell's guilty
pleas, ordered a presentence investigation, and scheduled the matter for
sentencing.
{¶4} Before sentencing could occur, Mr. Harrell mailed a letter to the trial court
in which he expressed his desire to withdraw his plea. The State filed a brief in
opposition to the letter and, at sentencing, the court and the parties construed the
letter as a presentence motion to withdraw Mr. Harrell's plea. The trial court
heard arguments from defense counsel, Mr. Harrell, and the State before denying
Mr. Harrell's motion to withdraw. The court sentenced Mr. Harrell on each of
his counts and ordered his sentences to run consecutively for a total of five years
in prison.
(ECF No. 19-1, Exhibit 15); State v. Harrell, Nos. 30104, 30106, 30107, 30108,
30109, 2022 WL 4233036, 2022-Ohio-3217 (9th Dist. Sept. 14, 2022).
III. PROCEDURAL HISTORY
A. State Court Conviction
Mr. Harrell was indicted in the Summit County Court of Common Pleas in seven
separate cases, case numbers CR 2019-07-2647, CR 2019-09-3136, CR 2019-10-3397, CR
2020-09-2455, CR 2020-09-2558, CR 2020-09-2559, and CR 2020-09-2560. (ECF No. 19-
1, Exhibit 1). In six of the cases, Mr. Harrell was charged with one fifth-degree felony count
of breaking and entering in violation of O.R.C. §§ 2911.13(A) and 2911.13(C). Id.1 In the
seventh case, he was charged with one second-degree felony count of felonious assault in
violation of O.R.C. §§ 2903.11(A)(2) and 2903.11(D)(1)(A). Id. On May 5, 2021, the trial
court dismissed the felonious assault count with prejudice at the request of the State because
the State could not locate the victim. (ECF No. 19-1, Exhibit 2).
The case proceeded to trial on May 4, 2021. (ECF No. 19-1, Exhibit 3). On the second
day of trial, Mr. Harrell withdrew his plea of not guilty and pled guilty in each of the six
remaining cases. Id.
On May 17, 2021, Mr. Harrell sent a letter to the trial court indicating that he wished
to withdraw his plea. (ECF No. 19-1, Exhibit 4). The State construed Mr. Harrellâs letter as a
motion to withdraw his plea and opposed the motion. Id. On June 10, 2021, the trial court
denied Mr. Harrellâs motion to withdraw his plea and sentenced him to an aggregate term of
five years in prison. (ECF No. 19-1, Exhibit 6).
B. Direct Appeal
On September 9, 2021, Mr. Harrell, through counsel, filed a notice of appeal to the
Â
1 The indictment in Case Number CR 2020-09-2560 does not appear in the state court record filed in this Court.
Other documents indicate that Mr. Harrell was charged with one fifth-degree felony count of breaking and
entering in that indictment.
Ninth Appellate District in each of the six cases. (ECF No. 19-1, Exhibit 7). Mr. Harrell also
filed a motion for leave to file a delayed appeal, which the court granted on September 28,
2021. (ECF No. 19-1, Exhibits 8, 10). Mr. Harrell additionally filed a motion to consolidate
the appeals, which the Ninth Appellate District granted as well. (ECF No. 19-1, Exhibits 9-
10).
On February 6, 2022, Mr. Harrell, through new appellate counsel, filed his appellate
brief, raising the following assignments of error:
1. The Trial Court Abused Its Discretion By Denying The Defendant The
Opportunity To Plead No Contest.
2. The Trial Court Abused Its Discretion By Denying The Defendant The
Opportunity [To] Withdraw His Plea Prior To Sentencing.
3. Whether The Defendant Was Denied His Constitutional Right to Effective
Assistance of Counsel When Trial Counsel Failed To Argue Defendantâs Motion
to Withdraw His Pleas.
(ECF No. 19-1, Exhibit 13).
On September 14, 2022, the Ninth Appellate District affirmed the trial courtâs
judgment in all six cases. (ECF No. 19-1, Exhibit 15). On April 4, 2023, Mr. Harrell, acting
pro se, filed a notice of appeal to the Ohio Supreme Court. (ECF No. 19-1, Exhibit 16). Mr.
Harrell also filed a motion for leave to file a delayed appeal, arguing that he did not receive a
copy of the Ninth Appellate Courtâs decision until October 24, 2022, and that his prior
appellate counsel failed to timely inform him of the decision. (ECF No. 19-1, Exhibit 17). On
June 6, 2023, the Ohio Supreme Court denied Mr. Harrellâs motion for leave to file a delayed
appeal and dismissed the appeal. (ECF No. 19-1, Exhibit 60; State v. Harrell, 2023-Ohio-
1830).
C. Rule 26(A) Motion for Leave to File Delayed Motion for Reconsideration
On November 17, 2022, Mr. Harrell, acting pro se, filed a motion for leave to file a
delayed motion for reconsideration pursuant to Ohio Appellate Rule 26(A). (ECF No. 19-1,
Exhibit 20). In his motion, Mr. Harrell argued that he was deprived of his rights to: (1) due
process; (2) a jury trial; (3) confront the witnesses against him; (4) effective assistance of
counsel; (5) a speedy trial; and (6) freedom from cruel and unusual punishment. Id. On
December 1, 2022, the Ninth Appellate District denied Mr. Harrellâs motion as untimely.
(ECF No. 19-1, Exhibit 23).
On February 6, 2023, Mr. Harrell filed a revised motion for leave to file a delayed
application for reconsideration pursuant to Rule 26(A). (ECF No. 19-1. Exhibit 26). On
March 20, 2023, the Ninth Appellate District denied Mr. Harrellâs revised motion. (ECF No.
19-1, Exhibit 35).
D. Rule 26(B) Application to Reopen Appeal
On January 19, 2023, Mr. Harrell, acting pro se, filed a delayed application to reopen
his direct appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 19-1, Exhibit 24). In his
application, Mr. Harrell asserted the following assignments of error:2
1. Appellate counsel abused his discretion by failing to address A major point of
error in which trial counsel made no attempt to provide the defendant with any
defense! Violating his 6th Constitution Right.
2. Appellate counsel abused his discretion by failing to address A significant Point
of Error being the defendant was denied âDue Processâ because of the excessive
amount of Pre-Trial hearings the defendant was harassed with plea offers.
3. Appellate counsel abused his discretion by failing to address a major point or
error being the trial court did not follow âProper Procedureâ when the defendant
addressed the court and noted that prosecution both violated his right to
Â
2 Mr. Harrellâs assignments of error are presented verbatim.
Attorney-Client Privilege & committed an act of prosecutorial misconduct with
that same information!
4. Appellate counsel abused his discretion by failing to first contact and/or consult
with the defendant before filing his appeal and subsequently failing to use all the
information available to him during oral arguments.
5. The Trial Court abused its discretion by refusing to rule on the defendants
Petition to Vacate or Set Aside Judgment of Conviction or Sentence R.C.
2953.21(A)(2) Pro-Se
6. The Appellant Court abused its discretion by both writing and posting false
information to the record in its Ruling.
Id. On January 26, 2023, the Ninth Appellate District denied Mr. Harrellâs Rule 26(B)
application as untimely. (ECF No. 19-1, Exhibit 25).
E. Motion for Leave to File Delayed Appeal
On February 17, 2023, Mr. Harrell filed a motion for leave to file a delayed appeal
pursuant to Ohio Appellate Rule 5(A). (ECF No. 19-1, Exhibit 28). On February 27, 2023,
the State moved to strike Mr. Harrellâs motion because his direct appeal had already been
decided. (ECF No. 19-1, Exhibit 29). On March 8, 2023, the Ninth Appellate District entered
a Magistrateâs Order denying Mr. Harrellâs motion because the Ninth Appellate District had
already entered judgment in Mr. Harrellâs direct appeals. (ECF No. 19-1, Exhibit 34).
F. Post-Conviction Petition
On February 17, 2022, Mr. Harrell filed a petition for post-conviction relief in the trial
court pursuant to O.R.C. § 2953.21(A)(2). (ECF No. 19-1, Exhibit 36). In his petition, Mr.
Harrell argued that he received the ineffective assistance of counsel in violation of his rights
under the Sixth Amendment. On November 28, 2022, the trial court denied Mr. Harrellâs
petition, holding that Mr. Harrellâs claim was barred by res judicata and that he failed to meet
his burden to show substantive grounds for relief. (ECF No. 19-1, Exhibit 45). Mr. Harrell
did not appeal the trial courtâs decision.
G. State Habeas Petition
On June 20, 2023, Mr. Harrell, acting pro se, filed a petition for a writ of habeas
corpus in the Ohio Supreme Court. (ECF No. 19-1, Exhibit 46). In his petition, Mr. Harrell
asserted that a number of his rights had been violated, including: (1) his Fifth Amendment
right to due process; (2) his Fifth Amendment right against self-incrimination; (3) his Sixth
Amendment right to a trial by jury; (4) his Sixth Amendment rights to confront adverse
witnesses, to the effective assistance of counsel, and to a speedy trial; and (5) his Eighth
Amendment right to be free from cruel and unusual punishment. Id. On August 1, 2023, the
Ohio Supreme Court sua sponte dismissed Mr. Harrellâs petition. (ECF No. 19-1, Exhibit 47).
H. Federal Habeas Action
On December 18, 2023, Mr. Harrell, acting pro se, filed a complaint against the State
of Ohio, Warden Luneke, and others in the United States District Court for the Southern
District of Ohio. (ECF No. 1). On December 21, 2023, the Clerk of Court entered an order
directing Mr. Harrell to specify whether he intended to file a petition for a writ of habeas
corpus or a prisoner civil rights complaint. (ECF No. 2). Mr. Harrell clarified that he intended
to file a habeas petition rather than a prisoner civil rights complaint. (ECF No. 7). He filed
his 28 U.S.C. § 2254 habeas petition on January 29, 2024, which asserts four grounds for
relief3:
1. Ineffective Assistance of Counsel.
Supporting Facts: Repeated neglect of my legal problems compounded with a
violation of my attorney client communications.
2. Due Process.
Supporting Facts: Repeated neglect of legal problems.
Â
3 Mr. Harrellâs grounds for relief are presented verbatim.
3. Self-Incrimination.
Supporting Facts: I was threaten during a pause in proceeding at trial with being
charged with an additional offense with upgraded charge being burglary due to
female juror comments.
4. Confrontation of Adverse Witnesses.
Supporting Facts: Trial counsel refused to contact or subpoena the witnesses I
asked for to be present at trial and called to testify.
(ECF No. 7).
On February 7, 2024, United States Magistrate Judge Peter B. Silvain, Jr. of the
Southern District of Ohio transferred Mr. Harrellâs petition to this Court pursuant to 28 U.S.C.
§ 2241(d) and Southern District of Ohio Local Rule 82.1(f) because the Summit County Court
of Common Pleas, which is located in the territory covered by the Northern District of Ohio,
entered the judgment at issue against Mr. Harrell. (ECF No. 9).
Respondents filed an answer/return of writ on December 13, 2024. (ECF No. 19). On
January 15, 2025, Mr. Harrell filed his traverse. (ECF No. 23).
IV. STANDARDS OF REVIEW AND GOVERNING LAW
A. Jurisdiction
28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of
habeas corpus on âbehalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.â A state prisoner may file a § 2254 petition in the âdistrict court for the
district wherein such person is in custody or in the district court for the district within which
the State court was held which convicted and sentenced him[.]â 28 U.S.C. § 2241(d). The
Summit County Court of Common Pleas sentenced Mr. Harrell, and the Court takes judicial
notice that Summit County is within this Courtâs geographic jurisdiction. Accordingly, this
Court has jurisdiction over Mr. Harrellâs § 2254 petition.
B. Exhaustion and Procedural Default
Under AEDPA, state prisoners must exhaust all possible state remedies, or have no
remaining state remedies, before a federal court can review a petition for a writ of habeas
corpus on the merits. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509
(1982). This entails giving the state courts âone full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established appellate review process.â
OâSullivan v. Boerckel, 526 U.S. 838, 845 (1999). In other words, âthe highest court in the
state in which the petitioner was convicted [must have] been given a full and fair opportunity
to rule on the petitioner's claims.â Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
The exhaustion requirement, however, ârefers only to remedies still available at the time of
the federal petition.â Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). It âdoes not require
pursuit of a state remedy where such a pursuit is clearly futile.â Wiley v. Sowders, 647 F.2d
642, 647 (6th Cir. 1981).
Procedural default is a related but âdistinctâ concept from exhaustion. Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain
consideration of a federal constitutional claim by state courts because he failed to: (1) comply
with a state procedural rule that prevented the state courts from reaching the merits of the
petitionerâs claim; or (2) fairly raise that claim before the state courts while state remedies
were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle,
456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining whether there has been a
procedural default, the federal court looks to the last explained state-court judgment. Ylst v.
Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).
A claim is fairly presented when it has been asserted as a federal constitutional issue at every
stage of the state court review process. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d
281, 285 (6th Cir. 2010); Williams, 460 F.3d at 806.
The Sixth Circuit has developed a four-part test to determine whether a procedural
default precludes a federal court from reaching a petitionerâs claim: (1) whether there is a
state procedural rule that is applicable to the petitionerâs claim and that the petitioner failed
to comply with; (2) whether the state court âactually enforcedâ the state procedural rule; (3)
whether the rule is an âadequate and independentâ state ground on which the state can rely to
foreclose review of a federal claim; and (4) whether the petitioner can demonstrate cause for
his failure to follow the procedural rule and actual prejudice from the alleged constitutional
error. Barton v. Warden, Southern Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015)
(quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). These factors are commonly
known as the âMaupinâ factors.
As the fourth Maupin factor indicates, if a procedural default has occurred, the default
can be excused and will not preclude consideration of a claim on federal habeas review if the
petitioner can demonstrate: (1) âcause for the default and actual prejudice as a result of the
alleged violation of federal law;â or (2) âfailure to consider the claim will result in a
fundamental miscarriage of justice.â Coleman v. Thompson, 501 U.S. 722, 750 (1991). A
âfundamental miscarriage of justiceâ can occur only when the procedurally defaulted claim â
supported by new reliable evidence not presented at trial â would establish that the petitioner
was âactually innocentâ of the offense. Schlup v. Delo, 513 U.S. 298, 324 (1995); Lundgren
v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
C. Cognizable Federal Claim
Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody âonly on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.â A petitioner's claim is not cognizable on habeas review if it âpresents no federal issue
at all.â Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18,
2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, âerrors in
application of state law . . . are usually not cognizable in federal habeas corpus.â Bey v.
Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th
Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (â[I]t is not the province
of a federal habeas court to reexamine state court determinations on state law questions.â).
A federal habeas court does not function as an additional state appellate court; it does
not review state courtsâ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610,
614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead,
âfederal courts must defer to a state court's interpretation of its own rules of evidence and
procedureâ in considering a habeas petition. Id. (quotation omitted). Moreover, âthe doctrine
of exhaustion requires that a claim be presented to the state courts under the same theory in
which it is later presented in federal court.â Wong v. Money, 142 F.3d 313, 322 (6th Cir.
1998).
D. AEDPA Standard of Review
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (âAEDPAâ), provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of the claim
â
(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.
(Id.)
To determine whether relief should be granted, the Court must use the âlook-throughâ
methodology and look to the âlast explained state-court judgmentâ on the petitioner's federal
claim. Ylst, 501 U.S. at 804 (âThe essence of unexplained orders is that they say nothing. We
think that a presumption which gives them no effectâwhich simply âlooks throughâ them to
the last reasoned decisionâmost nearly reflects the role they are ordinarily intended to
play.â); Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018) (âWe conclude that federal habeas
law employs a âlook throughâ presumption.â).
âA decision is âcontrary toâ clearly established federal law when âthe state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or
decides a case differently than the Supreme Court has on a set of materially indistinguishable
facts.ââ Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.
362, 412-13 (2000)). âClearly established Federal law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.â White v.
Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). â[U]nder the
unreasonable application clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.â Lockyer v. Andrade, 538 U.S. 63, 75
(2003). âThe unreasonable application clause requires the state court decision to be more than
incorrect or erroneousââit must be âobjectively unreasonable.â Id.
Under § 2254(d)(2), âwhen a federal habeas petitioner challenges the factual basis for
a prior state court decision rejecting a claim, the federal court may overturn the state court's
decision only if it was âbased on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.ââ Burt v. Titlow, 571 U.S. 12, 18 (2013)
(quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an âunreasonable determination
of the factsâ under § 2254(d)(2) only if the trial court made a âclear factual error.â Wiggins
v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if â[r]easonable minds reviewing
the record might disagreeâ about the finding in question, âon habeas review that does not
suffice to supersede the trial court's . . . determination.â Rice v. Collins, 546 U.S. 333, 341-
42 (2006). The prisoner bears the burden of rebutting the state court's factual findings âby
clear and convincing evidence.â Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).
For state prisoners, the § 2254(d) standard âis difficult to meet . . . because it is meant
to be.â Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, â[a]s amended by
AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings.â Id. at 103. âIt preserves authority
to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree
that the state courtâs decision conflicts with this Court's precedentsâ and âgoes no further.â
Id. Thus, in order to obtain federal habeas corpus relief, âa 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 fairminded disagreement.â Id.
V. ANALYSIS
Mr. Harrell asserts four grounds for relief. Respondents argue that Mr. Harrell
procedurally defaulted on each of his claims and that these claims fail on the merits. I agree
with Respondents on both arguments.
A. Ground One: Ineffective Assistance of Counsel
In his first ground for relief, Mr. Harrell argues that he received the ineffective
assistance of trial counsel in violation of his Sixth Amendment rights. Respondents argue that
Mr. Harrell procedurally defaulted on his claim and that the claim fails on the merits. I agree
with Respondents on both arguments.
1. Procedural Default
Mr. Harrell timely presented an ineffective assistance of trial counsel claim in his
direct appeal to the Ninth Appellate District. (ECF No. 19-1, Exhibit 13). After the Ninth
Appellate District rejected Mr. Harrellâs appeal, however, he failed to appeal the decision to
the Ohio Supreme Court within 45 days, as required under Ohio Supreme Court Rule of
Practice 7.01(A)(1). The Ohio Supreme Court enforced its procedural rule when it denied Mr.
Harrellâs motion for leave to file a delayed appeal and dismissed the appeal. (ECF No. 19-1,
Exhibit 60; State v. Harrell, 2023-Ohio-1830).
It is well-settled that the Ohio Supreme Courtâs enforcement of the timeliness
requirement in Rule 7.01(A)(1) constitutes an independent and adequate state ground that
precludes habeas review under Maupin. See Prieto v. Schweitzer, 4:18CV00222, 2019 WL
2605639, at *6 (N.D. Ohio May 31, 2019) (âThe Court finds Prieto's failure to timely appeal
to the Supreme Court of Ohio, in conjunction with that court's denial of his Motion for
Delayed Appeal, resulted in procedural default.â) (citing Bonilla v. Hurley, 370 F.3d 494, 497
(6th Cir. 2004)), report and recommendation adopted, 2021 WL 147049 (N.D. Ohio Jan. 15,
2021); Davenport v. Fender, No. 1:20-CV-0561, 2023 WL 1785492, at *13 (N.D. Ohio Jan.
5, 2023) (holding that Ohio Supreme Courtâs denial of motion for leave to file delayed appeal
constituted adequate and independent state ground under Maupin and resulted in procedural
default), report and recommendation adopted, 2023 WL 1782121 (N.D. Ohio Feb. 6, 2023).
Mr. Harrell also raised an ineffective assistance of trial counsel claim in his petition
to vacate his sentence, which he filed in the trial court on February 17, 2022. (ECF No. 19-1,
Exhibit 36). However, the trial court denied Mr. Harrellâs petition because, among other
reasons, his claims were barred by the doctrine of res judicata. (ECF No. 19-1, Exhibit 45).
The Sixth Circuit has ârepeatedly held that Ohioâs res judicata rule is an adequate and
independent state procedural ground for purposes of procedural default.â Wogenstahl v.
Mitchell, 668 F.3d 307, 341 (6th Cir. 2012); see also Hand v. Houk, 871 F.3d 390, 409 (6th
Cir. 2017) (âWe have previously held that an Ohio courtâs application of the res judicata
doctrine is an adequate and independent state ground that bars federal habeas relief.â). In
addition, Mr. Harrell did not appeal the trial courtâs decision to the Ninth Appellate District
or the Ohio Supreme Court, and thus failed to fairly present the claim at all levels of the state
court review process. See OâSullivan, 526 U.S. at 845. As a result, Mr. Harrell procedurally
defaulted on his first ground for relief.
Mr. Harrellâs procedural default can be excused if he demonstrates either cause and
prejudice or that failure to consider his claim would result in a fundamental miscarriage of
justice. See Coleman, 501 U.S. at 750. Mr. Harrell argues that cause exists because his
appellate counsel failed to timely notify him of the Ninth Appellate Districtâs decision.
Ineffective assistance of appellate counsel can constitute a basis to excuse a procedural
default in some circumstances. See Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013).
âHowever, âan ineffective-assistance-of-counsel claim asserted as cause for the procedural
default of another claim can itself be procedurally defaulted.ââ Id. (quoting Edwards v.
Carpenter, 529 U.S. 446, 453 (2000)). As Respondents correctly argue, the Ninth Appellate
District refused to consider Mr. Harrellâs Rule 26(B) application, in which he raised an
ineffective assistance of appellate counsel claim, because Mr. Harrellâs application was
untimely. (ECF No. 19-1, Exhibit 25). â[V]iolation of the timeliness requirements of an
application for reopening . . . constitute[s] [an] adequate and independent state ground[] to
preclude hearing an untimely claim on the merits.â Baker v. Bradshaw, 495 F. Appâx 560,
565 (6th Cir. 2012) (quotations omitted). Because Mr. Harrell procedurally defaulted on his
ineffective assistance of appellate counsel claim, it cannot serve as cause to excuse his
procedural default.
Even if Mr. Harrell had not procedurally defaulted on his ineffective assistance of
appellate counsel claim, the claim would not excuse his procedural default. â[I]n order to
demonstrate that he suffered prejudice as a result of this failure of counsel, a defendant must
demonstrate that he âwould have timely appealedâ to the Ohio Supreme Court had he received
timely notice.â Calhoun v. Kelly, No. 1:10 CV 2083, 2012 WL 629722, at *2 (N.D. Ohio Feb.
24, 2012) (quoting Smith v. Ohio Depât of Rehab. & Corr., 463 F.3d 426, 435 (6th Cir. 2006)).
â[I]f the period of time between when the defendant learned of the decision and when he or
she attempted to appeal the decision is greater than the period allotted by state law for the
timely filing an appealâhere, forty-five daysâthe defendant fails to demonstrate that he or
she âwould have timely appealedâ the decision but for the counsel's deficient failure to notify
the defendant of the decision.â Smith, 463 F.3d at 435 (emphasis omitted).
By Mr. Harrellâs own admission, his counsel sent him a copy of the Ninth Appellate
Districtâs decision on October 24, 2022. (ECF No. 19-1, Exhibit 17, PageID # 315). However,
Mr. Harrell did not file his Rule 26(B) application until January 19, 2023, well after the
deadline to file the application had passed. (ECF No. 19-1, Exhibit 24). Mr. Harrell waited
even longer to file his motion for a delayed appeal to the Ohio Supreme Court, as he did not
file the motion until April 4, 2023. (ECF No. 19-1, Exhibit 17). Mr. Harrell thus cannot show
that he would have timely appealed the Ninth Appellate Districtâs decision had his appellate
counsel promptly notified him of the decision, and his appellate counselâs alleged
ineffectiveness cannot constitute cause to excuse his procedural default. See Calhoun, 2012
WL 629722 at *2 (holding that petitioner did not demonstrate cause to excuse procedural
default where petitioner waited more than 45 days after allegedly receiving belated notice of
appellate decision to file motion for delayed appeal in Ohio Supreme Court); Davidson v.
Warden, Warren Corr. Inst., No. 2:18-CV-00495, 2019 WL 1109566, at *5 (S.D. Ohio Mar.
11, 2019) (holding that attorneyâs alleged failure to timely notify petitioner of appellate
decision did not constitute cause to excuse procedural default where petitioner received notice
before deadline to appeal expired and waited 91 days to file motion for delayed appeal).
Finally, Mr. Harrell argues that his procedural default should be excused because he
is actually innocent of the relevant offenses. However, Mr. Harrell has not offered new,
reliable evidence not presented at trial to support his actual innocence claim. See Schlup, 513
U.S. at 324. As a result, I recommend that the Court dismiss his first ground for relief as
procedurally defaulted.
2. Merits
Alternatively, I recommend that the Court deny Mr. Harrellâs first ground for relief
on the merits. In his various filings, Mr. Harrell argues that his trial counsel was ineffective
in a number of ways, including: (1) failing to file pretrial motions, including motions to
dismiss and motions to suppress; (2) allegedly disclosing attorney-client privileged
information to the prosecution; (3) failing to object when the prosecution referred to that
information during opening statements; (4) failing to obtain witnesses and subpoena records
that would support Mr. Harrellâs defense; (5) failing to request a continuance after a juror
reported that a break-in occurred at her place of work near where the robberies at issue took
place and that video of the perpetrator existed; and (6) failing to adequately represent Mr.
Harrell in connection with his plea and permitting Mr. Harrell to be coerced into accepting
the plea.
Many of Mr. Harrellâs arguments involve his counselâs performance on matters
predating his guilty plea, and Mr. Harrell waived those arguments by pleading guilty.
âGenerally, a voluntary and unconditional guilty plea âbars any subsequent non-jurisdictional
attack on the conviction.â United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012) (quoting
United States v. Pickett, 941 F.2d 411, 417 (6th Cir. 1991)). This is so because:
[A] guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Tollett extends to counselâs alleged ineffectiveness on matters predating the plea. See
McDaniel v. Walters, No. 3:22-CV-02051-DAR, 2025 WL 316322, at *9 (N.D. Ohio Jan. 28,
2025) (report and recommendation) (âa knowing and voluntary guilty plea waives all non-
jurisdictional defects in the proceedings, including a claim of ineffective assistance of counsel
that does not relate to the voluntariness of the pleaâ) (citing United States v. Stiger, 20 F.
Appâx 307, 308-09 (6th Cir. 2001)); Flores v. Turner, No. 3:19-CV-02608, 2023 WL
4746323, at *11 (N.D. Ohio Jan. 13, 2023) (holding that petitionerâs guilty plea barred
ineffective assistance of counsel claim where claim was based on actions taken during pre-
plea period), report and recommendation adopted, 2023 WL 4744277 (N.D. Ohio July 25,
2023). Thus, to the extent Mr. Harrell argues that his trial counsel was ineffective in failing
to file pretrial motions, subpoena evidence, locate favorable witnesses, or object to the
prosecutionâs use of allegedly privileged information, Mr. Harrell has waived those
arguments.
Mr. Harrell also argues that his counsel provided ineffective assistance in connection
with the plea process itself. In particular, he asserts that his counsel failed to advocate for Mr.
Harrell and instead left Mr. Harrell to argue that he was being coerced into taking a plea. Mr.
Harrellâs challenge to his counselâs performance in connection with the plea itself is not
waived, and I will address his argument on the merits.
A petitioner claiming ineffective assistance of counsel must show that: (1) counselâs
representation âfell below an objective standard of reasonableness,â such that he was not
performing as counsel guaranteed under the Sixth Amendment; and (2) counselâs deficient
performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984).
Under the first prong, the petitioner must overcome the âstrong[] presum[ption that counsel]
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.â Id. at 690. For prejudice, the petitioner must show that there was a
âreasonable probability that, but for counselâs unprofessional errors, the result of the
proceeding would have been different.â Id. at 694.
The Strickland standard is âextremely deferentialâ because ââcounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.ââ Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir.
2017) (quoting Strickland, 466 U.S. at 690). â[T]he goal is not to ensure that a criminal
defendant be afforded perfect counsel, but rather âto ensure that the adversarial testing process
works to produce a just result under the standards governing decision.â Id. (quoting
Strickland, 466 U.S. at 687).
Strickland applies at the guilty plea stage. Indeed, the Supreme Court has held that,
â[b]efore deciding whether to plead guilty, a defendant is entitled to âthe effective assistance
of competent counsel.ââ Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). To prevail on a Strickland claim in the guilty plea
context, a petitioner âmust show that there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to trial.â Hill v.
Lockhart, 474 U.S. 52, 59 (1985). âIn the Sixth Circuit, a petitioner âcannot make that
showing merely by telling [the court] now that she would have gone to trial then if she had
gotten different advice.ââ Shimel v. Warren, 838 F.3d 685, 698 (6th Cir. 2016) (quoting Pilla
v. United States, 668 F.3d 368, 373 (6th Cir. 2012)). Rather, the petitioner must demonstrate
that âa decision to reject the plea bargain would have been rational under the circumstances.â
Padilla, 559 U.S. at 372. The test is an objective one, made âwithout regard for the
idiosyncrasies of the particular decisionmaker.â Hill, 474 U.S. at 59-60 (quotations omitted).
âThe rationality of such a rejection is typically based on multiple factors, including the
strength of the evidence against a defendant, the lack of viable defenses, and the benefits of
the plea bargain.â Plumaj v. Booker, 629 F. Appâx 662, 667 (6th Cir. 2015) (citing Pilla, 668
F.3d at 373).
Mr. Harrell raised his ineffective assistance of counsel argument before the Ninth
Appellate District, which addressed it on the merits. Where a state court reaches the merits of
an ineffective assistance of counsel claim, federal habeas courts provide an additional layer
of AEDPA deference to that adjudication under § 2254(d). See Perkins v. McKee, 411 F.
Appâx 822, 828 (6th Cir. 2011). The Sixth Circuit has emphasized the double layer of
deference that federal courts must give state courts in reviewing federal ineffective assistance
of counsel claims under AEDPA:
As a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state courtâs 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 fairminded disagreement. ⊠An ineffective-
assistance claim can function as a way to escape rules of waiver and forfeiture and
raise issues not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very
adversary process the right to counsel is meant to serve. ⊠Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counselâs actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Stricklandâs deferential standard.
Id. (quoting Harrington, 131 S.Ct. 770, 786-88).
In rejecting Mr. Harrellâs argument that he received the ineffective assistance of trial
counsel, the Ninth Appellate District held as follows:
{¶22} âA defendant who pleads guilty waives the right to raise issues related to
ineffective assistance of counsel on appeal unless they resulted in an involuntary
plea.â Troyer, 2022-Ohio-1903, at ¶ 17. To prove ineffective assistance of counsel, a
defendant must establish that: (1) his counsel's performance was deficient, and (2) the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). See also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (Strickland test
applies when a defendant challenges the effectiveness of counsel in connection with
a guilty plea). Counsel's performance is deficient if it falls below an objective standard
of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph
two of the syllabus. âA defendant who has pleaded guilty must demonstrate prejudice
by showing âthat there is a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial.ââ State v.
Bloodworth, 9th Dist. Summit No. 29025, 2019-Ohio-1222, ¶ 4, quoting State v.
Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 89, quoting Lockhart at 59.
{¶23} Mr. Harrell argues that he received ineffective assistance of counsel because
his counsel did not argue zealously on his behalf in favor of his initial attempt to plead
no contest and his later attempt to withdraw his guilty pleas. He notes that his counsel
âceded the role of advocate to [him] on multiple occasionsâ and stood by silently while
he âengaged in lengthy discourse and argument to the trial judge.â According to Mr.
Harrell, this matter âmight have had a different outcomeâ if his counsel had advocated
on his behalf. He also argues that his counsel's failure to effectively advocate âmay *
* * have played a role in his feeling of being coerced into taking a plea he did not
agree to.â
{¶24} Mr. Harrell's arguments regarding the prejudice prong of Strickland are
specious at best. The thrust of his argument appears to be that, had his counsel argued
more effectively on his behalf, he would have prevailed on the merits of his arguments
(i.e., that he would have been permitted to plead no contest or to withdraw his pleas).
In the context of a guilty plea, however, ââineffective assistance will only be found to
have affected the validity of [a] plea when it precluded the defendant from entering
the plea knowingly and voluntarily.ââ State v. Gegia, 157 Ohio App.3d 112, 2004-
Ohio-2124, ¶ 17 (9th Dist.), quoting State v. Doak, 7th Dist. Columbiana Nos. 03 CO
15, 03 CO 31, 2004-Ohio-1548, ¶ 55. That is because guilty pleas waive âissues
related to ineffective assistance of counsel on appeal unless they resulted in an
involuntary plea.â Troyer at ¶ 17. Mr. Harrell has made no attempt to explain why his
pleas were not knowingly and voluntarily entered. See App.R. 16(A)(7); State v. Neitz,
9th Dist. Medina No. 18CA0024-M, 2019-Ohio-439, ¶ 9. Though his brief includes
statements that he pleaded guilty because he felt coerced, he has not developed those
arguments in the context of ineffective assistance of counsel. His vague assertion that
his counsel's failure to advocate more effectively on his behalf âmay * * * have played
a role in his feeling of being coercedâ is insufficient to establish that his pleas were
involuntary. As previously noted, Mr. Harrell had a full hearing before entering his
pleas and specifically acknowledged that his pleas were not the result of any force,
threats, or promises. This Court will not construct an argument on Mr. Harrell's behalf.
See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,
1998). Because he has not established that he sustained prejudice as a result of any
allegedly deficient performance on the part of his counsel, this Court rejects his
ineffective assistance of counsel argument. See Neitz at ¶ 9; State v. Tyburski, 9th Dist.
Lorain No. 18CA011291, 2018-Ohio-4248, ¶ 17. Mr. Harrell's third assignment of
error is overruled.
(ECF No. 19-1, Exhibit 15).
Applying the double layer of deference under AEDPA, the Ninth Appellate Districtâs
holding was not contrary to or an unreasonable application of governing law. The Ninth
Appellate District applied the correct legal standard, citing Strickland and cases holding that
a defendant has the right to the effective assistance of counsel at the plea stage. The Ninth
Appellate District also reasonably concluded that Mr. Harrell failed to show either that his
trial counselâs allegedly deficient performance during the plea hearing led him to accept a
plea that he otherwise would have rejected or that the trial court would have granted his
motion to withdraw his plea had his counsel been more effective. And because the Ninth
Appellate District did not err in holding that Mr. Harrell failed to demonstrate prejudice under
Strickland, I need not consider whether his counselâs performance was deficient. See
Strickland, 466 U.S. at 697 (âa court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficienciesâ). Accordingly, I alternatively recommend that the Court deny Mr. Harrellâs first
ground for relief on the merits.
B. Ground Two: Due Process
In his second ground for relief, Mr. Harrell argues that his due process rights under
the Fifth and Fourteenth Amendments were violated. Mr. Harrellâs due process claim appears
to have three components: (1) he was coerced into accepting the plea; (2) his counsel refused
to file pretrial motions and briefs; and (3) he was denied access to the trial transcripts during
his direct appeal. Respondents again argue that Mr. Harrell procedurally defaulted on this
claim in its entirety and that it is without merit. I will address each argument in turn.
1. Procedural Default
â[F]ederal courts ordinarily may not âconsider a claim in a habeas petition that was
not âfairly presentedâ to the state courtsâ absent cause and prejudice to excuse the procedural
default.â Nian v. Warden, N. Cent. Corr. Inst., 994 F.3d 746, 751 (6th Cir. 2021) (quoting
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). â[I]t does not suffice to only present
the claim to a state trial court; rather, the petitioner must raise the claim in state court and
âpursue [it] through the stateâs ordinary appellate review procedures.â Id. at 751-52 (quoting
Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009)). âTo determine whether a petitioner has
fairly presented a claim in state court, [a court] ask[s] whether the petitioner: (1) relied upon
federal cases employing constitutional analysis; (2) relied upon state cases employing federal
constitutional analysis; (3) phrased the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific constitutional right; or (4) alleged facts
well within the mainstream of constitutional law.â Hand v. Houk, 871 F.3d 390, 418 (6th Cir.
2017).
Respondents argue that Mr. Harrell did not fairly present his due process claim
because he did not raise it in his direct appeal to the Ninth Appellate District. To the extent
Mr. Harrellâs claim is based on his counselâs failure to file pre-trial motions or the failure to
provide him with a transcript of the trial proceedings, Respondents are correct, as Mr.
Harrellâs appellate brief omits both arguments. With respect to Mr. Harrellâs argument that
his plea was not knowing and voluntary, however, Respondentsâ argument is not well-taken.
In his brief to the Ninth Appellate District, Mr. Harrell specifically argued that he was coerced
into accepting the plea and that his plea was not voluntary in light of the trial judgeâs alleged
conduct. (ECF No. 19-1, Exhibit 13, PageID # 270-74). In support of his argument, Mr.
Harrell cited State v. Byrd, 63 Ohio St. 2d 288 (1980), which itself cited the Fifth Amendment
and relied on federal cases discussing the constitutional requirement that a plea be knowing
and voluntary. Id. at 291-94. As a result, I conclude that Mr. Harrell fairly presented his
involuntary plea claim to the Ninth Appellate District.
Respondents are nonetheless correct, however, that Mr. Harrell procedurally defaulted
on his claim. As with his first ground for relief, Mr. Harrell failed to timely appeal the Ninth
Appellate Districtâs decision to the Ohio Supreme Court, and the Ohio Supreme Court applied
a state procedural bar when it denied Mr. Harrellâs motion for leave to file a delayed appeal.
(ECF No. 19-1, Exhibit 60; State v. Harrell, 2023-Ohio-1830). As discussed above, the Ohio
Supreme Courtâs denial of Mr. Harrellâs motion for leave to file a delayed appeal results in a
procedural default.
Mr. Harrell attempted to challenge the voluntariness of his plea in several subsequent
filings, including his Rule 26(A) motion for reconsideration, his motion for leave to file a
delayed appeal to the Ninth Appellate District, and his state court habeas petition. (ECF No.
19-1, Exhibits 20, 28, 46). However, the Ninth Appellate District denied Mr. Harrellâs Rule
26(A) motion and motion for leave to file a delayed appeal on procedural grounds. (ECF No.
19-1, Exhibits 23, 34). Moreover, while the Ohio Supreme Court did not explain the basis for
dismissing Mr. Harrellâs state court habeas petition, the petition could not preserve Mr.
Harrellâs claim, as a habeas petition is not a valid mechanism to raise a non-jurisdictional
challenge to a conviction under Ohio law. See Brundage v. Watson, No. 5:22-CV-02086-
BYP, 2025 WL 277755, at *7 (N.D. Ohio Jan. 23, 2025) (report and recommendation)
(holding that state court habeas petition could not âsave [petitionerâs] claims from procedural
defaultâ because âOhioâs writ does not permit non-jurisdictional claims . . . when there is an
adequate legal remedy such as an appeal or postconviction petitionâ).
Mr. Harrell also has not established cause and prejudice to excuse his procedural
default. For the reasons discussed above, he cannot rely on any alleged ineffective assistance
of appellate counsel, as Mr. Harrell procedurally defaulted on his ineffective assistance of
appellate counsel claim by failing to timely file his Rule 26(B) application. Mr. Harrell has
not offered any other basis to excuse his default and has not shown that he is actually innocent
of the charged offenses. Accordingly, I recommend that the Court dismiss Mr. Harrellâs
second ground for relief as procedurally defaulted. In an abundance of caution, I will also
examine Mr. Harrellâs due process claim on the merits.
2. Merits
The Fifth Amendment provides in relevant part that no person âshall . . . be deprived
of life, liberty, or property, without due process of law . . . .â U.S. CONST. amend. V. â[D]enial
of due process is the failure to observe that fundamental fairness essential to the very concept
of justice.â Stumpf v. Robinson, 722 F.3d 739, 748 (6th Cir. 2013) (quoting Lisenba v.
California, 314 U.S. 219, 236 (1941)). âThe Supreme Court has long held that this general
text has âlimited operationâ in criminal contexts because of the many other guarantees that
the Bill of Rights gives to criminal defendants.â Fields v. Jordan, 86 F.4th 218, 235 (6th Cir.
2023) (quoting Medina v. California, 505 U.S. 437, 443 (1992)). âIf these express protections
do not apply, due process bars only those practices that âoffend[ ] some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as fundamental.ââ Id.
(quoting Medina, 505 U.S. at 445).
Judged against that exacting standard, Mr. Harrellâs due process claim fails as a matter
of law. He first argues that his due process rights were violated when his trial counsel failed
to file various pretrial motions. As discussed above, however, Mr. Harrellâs guilty plea bars
him from asserting that argument in this proceeding because it relates solely to an issue that
predates his plea. See Tollett, 411 U.S. at 267.
Mr. Harrellâs argument that the Ohio courts violated his due process rights by failing
to provide him with trial transcripts during his direct appeal similarly fails. The Supreme
Court âhas never held that the absence of a portion of a trial transcript automatically entitles
the defendant to a retrial.â Jackson v. Renico, 179 F. Appâx 249, 252 (6th Cir, 2006).
Moreover, â[t]he Sixth Circuit has ruled that a state prisoner seeking federal habeas relief
must demonstrate prejudice due to a missing transcript before a constitutional violation of a
right to a fair trial will be found.â Herron v. Kelly, No. 1:10CV1783, 2013 WL 3245326, at
*11 (N.D. Ohio June 26, 2013). âA petitioner's âfailure to show nothing more than ârank
speculationâ that the transcripts were necessary to a fair appeal precludes any finding of a
constitutional violationâ to support a habeas proceeding.â Id. at *11 (quoting Glover v.
Littlefield, No. 93-3949, 1994 WL 315228, at *2 (6th Cir. June 29, 1994)).
Mr. Harrell cannot show the requisite prejudice here. He does not argue that the State
failed to provide him or his counsel with transcripts necessary to prosecute his direct appeal.
Instead, he argues that his appellate counsel failed to provide Mr. Harrell with the transcripts
for his own review. There is no suggestion that Mr. Harrellâs counsel was prevented from
making any arguments because of missing trial transcripts. Nor does Mr. Harrell cite any
cases for the proposition that his own counselâs alleged failure to give him a copy of the
transcripts constitutes a due process violation that would warrant habeas relief.
That leaves Mr. Harrellâs argument that his plea was involuntary, which Mr. Harrell
did not waive through his plea. See Werth v. Bell, 692 F.3d 486, 495 (6th Cir. 2012) (âafter
the entry of an unconditional plea, a defendant may only attack the courtâs jurisdiction and
the voluntary and intelligent character of the plea itselfâ). â[G]uilty pleas ânot only must be
voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.ââ Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th
Cir. 2009) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). The validity of the
plea must be determined from the âtotality of the circumstances surrounding the plea.â Abdus-
Samad v. Bell, 420 F.3d 614, 631 (6th Cir. 2005) (citing Brady, 397 U.S. 747).
When a habeas petitioner challenges the validity of his plea, âthe state generally
satisfies its burden [to show that the plea was voluntary and intelligent] by producing a
transcript of the state court proceeding,â Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir.
1993). The state courtâs factual finding that the plea was proper is accorded a presumption of
correctness unless the transcript is inadequate to show that the plea was voluntary and
intelligent. Id. at 326-327; see U.S.C. § 2254(e)(1). The petitioner must overcome a heavy
burden if a federal habeas court is to overturn a state court finding that he made a knowing
and voluntary plea. Parke v. Raley, 506 U.S. 20 (1992); Dunn v. Simmons, 877 F.2d 1275
(6th Cir.1989).
The Ninth Appellate District rejected Mr. Harrellâs argument that his plea was coerced
on the merits, holding as follows:
{¶11} Crim.R. 32.1 provides for the withdrawal of a guilty plea prior to sentencing.
Though a presentence motion to withdraw ââshould be freely and liberally granted,ââ
there is no ââabsolute right to withdraw a plea prior to sentencing.ââ State v. Youmans,
9th Dist. Summit No. 29395, 2020-Ohio-1097, ¶ 8, quoting State v. Xie, 62 Ohio St.3d
521, 527 (1992). âThe trial court must conduct a hearing to determine whether the
defendant has demonstrated a reasonable and legitimate basis to withdraw the plea *
* *.â State v. Braley, 9th Dist. Summit No. 29834, 2022-Ohio-2489, ¶ 5. The nature
and scope of that hearing is left to the sound discretion of the trial court. Id.
{¶12} â[A] defendant bears the burden of demonstrating that there is a reasonable and
legitimate basis for withdrawing [his] plea.â State v. Troyer, 9th Dist. Wayne No.
21AP0051, 2022-Ohio-1903, ¶ 7. The determination of whether to grant a presentence
motion to withdraw a plea is entrusted to the discretion of the trial court, and this
Court will review that decision for an abuse of discretion. See Xie at paragraph two of
the syllabus. An abuse of discretion indicates that the trial court was unreasonable,
arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.
{¶13} A trial court does not abuse its discretion by denying a presentence motion to
withdraw a guilty plea when:
(1) the defendant is represented by competent counsel; (2) the trial court provides
the defendant with a full hearing before entering the guilty plea; and (3) the trial
court provides the defendant with a full hearing on the motion to withdraw the
guilty plea, where the court considers the defendant's arguments in support of
his motion to withdraw the guilty plea.
State v. Pamer, 9th Dist. Medina No. 04CA0027-M, 2004-Ohio-7190, ¶ 10. The trial
court must take into consideration ââthe facts and circumstances of each case.ââ State
v. West, 9th Dist. Lorain No. 04CA008554, 2005-Ohio-990, ¶ 22, quoting Pamer at ¶
11. Additional factors the court may consider include:
(1) prejudice that may be suffered by the State, (2) the adequacy of
representation afforded to the defendant, (3) the character of the underlying plea
hearing, (4) the scope of the trial court's consideration of the motion to withdraw,
(5) the timing of the motion, (6) the reasons articulated in the motion to
withdraw, (7) the defendant's understanding of the nature of the charges and the
potential sentences, and (8) whether the defendant may have been not guilty of
the offense or had a complete defense.
Braley at ¶ 7. âThis Court has consistently noted that â[a] mere change of heartâ does
not justify the withdrawal of a guilty plea.â Troyer at ¶ 8, quoting State v. West, 9th
Dist. Summit No. 28668, 2017-Ohio-8474, ¶ 7.
{¶14} Mr. Harrell concedes that he received a full hearing before entering his pleas
as well as a hearing on his presentence motion to withdraw his pleas. He also concedes
that he was represented by counsel at both hearings. Mr. Harrell argues that a
reasonable and legitimate basis existed for the withdrawal of his pleas because they
were coerced, the trial court improperly participated in the plea negotiation process,
and his counsel failed to effectively argue on his behalf. Because ineffective assistance
of counsel is the subject of Mr. Harrell's third assignment of error, this Court will
reserve its discussion on that point herein and address Mr. Harrell's arguments about
his trial counsel in the context of his third assignment of error.
{¶15} As previously noted, Mr. Harrell did not enter his pleas until the second day of
trial. Before plea discussions ensued, defense counsel informed the trial court that Mr.
Harrell had filed a grievance against the assistant prosecutor based on his belief that
she had violated his right to counsel. Mr. Harrell then addressed the court directly. He
indicated that the assistant prosecutor had made statements on the record about certain
facts that were only known to him and his counsel. Those facts pertained to a charge
of felonious assault that had been dismissed and was not at issue. Mr. Harrell asked
the court to dismiss his charges because they were all being tried together at the time
of the assistant prosecutor's alleged misconduct. Once the trial court explained why it
would not be dismissing the case, Mr. Harrell asked whether he could plead to a
sentence of community control or time at a community-based correctional facility.
The trial court informed him that his charges would not support a sentence of that
nature. Following additional discussions on an unrelated matter, defense counsel
indicated that Mr. Harrell would be willing to plead no contest to all six of his charges.
{¶16} The trial court immediately informed the parties that it would not accept no
contest pleas from Mr. Harrell. In response, Mr. Harrell stated: âYou want me to plead
guilty? Fine. I'll do it.â A brief exchange then ensued, followed by a break in the
proceedings. Defense counsel ultimately informed the trial court that the parties had
reached an agreement and Mr. Harrell was willing to plead guilty to each of his
charges. The record supports Mr. Harrell's concession that he then received a full plea
hearing. During that hearing, Mr. Harrell confirmed that his pleas were not the result
of any force, threats, or promises. He also confirmed that he had been given adequate
time to consult with his counsel and was satisfied with his counsel's advice.
{¶17} Mr. Harrell sought to withdraw his guilty pleas about two weeks later, and the
trial court addressed his motion at the scheduled sentencing hearing. At the hearing,
Mr. Harrell argued that his pleas were a product of coercion on the part of the court,
the prosecutor, and defense counsel. He argued that his pleas had been coerced
because, when he notified the trial court that the assistant prosecutor had violated his
rights, the court did not attempt to verify that fact. Mr. Harrell also accused the
assistant prosecutor of lying several times during her opening statement. He told the
trial court: âyou had a job, and a duty, and a responsibility to verify whether my rights
had been violated, but you didn't, so that make me feel like you were on [the assistant
prosecutor's] side to push me into -- coercing me to plead guilty to the charges that I
did not commit.â He indicated that he decided to plead guilty because he knew the
trial court was âgoing to continue to allow this prosecutor to prosecute [him] using
unethical means * * *.â Mr. Harrell also indicated that he felt coerced by his counsel
because his counsel did not pursue certain arguments on his behalf. After listening to
Mr. Harrell's arguments, hearing from the State, and referring extensively to the
transcript of the plea hearing, the trial court denied Mr. Harrell's motion to withdraw
his pleas.
{¶18} Having reviewed the record, this Court cannot conclude that the trial court
abused its discretion when it denied Mr. Harrell's presentence motion to withdraw his
guilty pleas. See Xie, 62 Ohio St.3d at 527. Mr. Harrell had a full plea hearing, a full
hearing on his motion to withdraw, and he was represented by counsel at each hearing.
See Pamer, 2004-Ohio-7190, at ¶ 10. Though he claims his pleas were coerced, it was
Mr. Harrell who initiated plea discussions, first by asking about the possibility of
pleading to specific sentences and later by indicating that he would be willing to plead
guilty. The trial court was prepared to go forward with the trial if Mr. Harrell did not
wish to plead, and there is no indication in the record that the court improperly
engaged in plea negotiations. The trial court simply addressed the terms that would
not be acceptable to it if Mr. Harrell were to plead. See Akron v. Hendon, 9th Dist.
Summit No. 22791, 2006-Ohio-1038, ¶ 14. Moreover, during the full hearing Mr.
Harrell received before entering his pleas, he specifically confirmed that his pleas
were not the result of any force, threats, or promises and that he was satisfied with his
counsel's advice. He gave no indication that he did not understand the implications of
his pleas or that he was only pleading guilty because he felt that he would not receive
a fair trial. See Braley, 2022-Ohio-2489, at ¶ 7.
{¶19} At the point Mr. Harrell entered his pleas, the matter was before the court on
the second day of trial. All the witnesses had been subpoenaed, the jury had been
empaneled, and the attorneys had given their opening statements. Thus, significant
judicial resources had already been expended. Rescheduling the trial, reseating a jury,
and resecuring the witnesses for each of Mr. Harrell's six criminal cases would have
been an arduous task. Thus, both the timing of Mr. Harrell's motion and the resulting
prejudice to the State if the matter were to be set for trial again were additional factors
in support of the trial court's decision to deny Mr. Harrell's motion. See id.
{¶20} Upon review, the trial court did not abuse its discretion when it found that Mr.
Harrell failed to establish a reasonable and legitimate basis for the withdrawal of his
pleas. See Troyer, 2022-Ohio-1903, at ¶ 7. While Mr. Harrell may have experienced
second thoughts before his sentencing, ââ[a] mere change of heartâ does not justify the
withdrawal of a guilty plea.â Troyer, 2022-Ohio-1903, at ¶ 8, quoting West, 2005-
Ohio-990, at ¶ 7. The trial court's decision to deny his presentence motion to withdraw
his pleas was not unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d
at 219. Accordingly, Mr. Harrell's second assignment of error is overruled.
(ECF No. 19-1, Exhibit 15).
Applying AEDPA deference, the Ninth Appellate District did not act contrary to or
misapply governing law in holding that Mr. Harrellâs plea was knowing and voluntary. To
the contrary, my independent review of the plea transcript confirms that Mr. Harrell informed
the Court that no one forced him to take the plea or induced him to do so by threats. (ECF
No. 19-2, PageID # 791). Mr. Harrell further informed the Court that he was satisfied with
the performance of his counsel and that he understood he was making a complete admission
of guilt to the charged offenses. Id. at PageID # 791-92. Mr. Harrell further confirmed that he
understood the constitutional rights that he was giving up by pleading guilty. Id. at PageID #
792. In light of his admissions during the plea hearing, Mr. Harrell has not met his heavy
burden of overcoming the state courtâs finding that his plea was knowing and voluntary. I
therefore alternatively recommend that the Court deny Mr. Harrellâs second ground for relief
on the merits.
C. Ground Three: Violation of Privilege Against Self-Incrimination
In his third ground for relief, Mr. Harrell asserts that the trial court violated his Fifth
Amendment privilege against self-incrimination. In particular, Mr. Harrell argues that, during
the first day of his aborted trial, the prosecution referred to information that Mr. Harrell told
his attorney in confidence. Mr. Harrell also argues that the prosecutionâs knowledge of those
facts must have come either from the prosecution illicitly viewing a video of the conversation
or from his lawyer disclosing privileged information to the prosecution. Respondents argue
that Mr. Harrellâs claim is procedurally defaulted and without merit. I agree.
1. Procedural Default
Respondents argue that Mr. Harrell procedurally defaulted on his third ground for
relief because he did not fairly present it to the Ohio courts. I agree. Mr. Harrell did not raise
a self-incrimination claim in his direct appeal to the Ninth Appellate District. (ECF No. 19-
1, Exhibit 13). Nor did Mr. Harrell raise the claim in his Rule 26(A) motion for
reconsideration, his Rule 26(B) application, or his petition to vacate his sentence. (ECF No.
19-1, Exhibits 20, 24, 36).
Mr. Harrell did raise a self-incrimination claim in his motion for leave to file a delayed
appeal to the Ninth Appellate District and his state court habeas petition to the Ohio Supreme
Court. (ECF No, 19-1, Exhibits 28, 46). However, the Ninth Appellate District applied a
procedural bar when it denied Mr. Harrellâs motion for leave to file a delayed appeal as
procedurally improper because the court had already entered judgment on Mr. Harrellâs
appeal. (ECF No. 34). Mr. Harrell did not appeal that ruling to the Ohio Supreme Court. And,
as discussed above, Mr. Harrellâs state habeas petition does not eliminate the procedural
default because habeas petitions under Ohio law cannot be used to bring non-jurisdictional
challenges to a conviction. Brundage, 2025 WL 277755 at *7.
Mr. Harrell also has again failed to demonstrate cause and prejudice to excuse his
procedural default. He cannot rely on the alleged ineffectiveness of his appellate counsel
because Mr. Harrell procedurally defaulted on his ineffective assistance of appellate counsel
claim by failing to timely file his Rule 26(B) application. (ECF No. 19-1, Exhibit 25); Baker,
495 F. Appâx at 565. Nor has Mr. Harrell provided new, reliable evidence demonstrating that
he is actually innocent of the relevant offenses. I recommend that the Court dismiss Mr.
Harrellâs third ground for relief as procedurally defaulted.
2. Merits
In the alternative, I recommend that the Court deny Mr. Harrellâs claim on the merits,
as the claim fails for at least two reasons. First, because the claim relates to an alleged pre-
plea violation, Mr. Harrell waived it by entering an unconditional guilty plea. See Tollett, 411
U.S. at 267; Obermiller v. Shoop, No. 1:19 CV 2193, 2024 WL 4349435, at *32 (N.D. Ohio
Sept. 30, 2024) (holding that, by entering guilty plea, petitioner waived claim that privilege
against self-incrimination was violated by pre-plea introduction of testimony). Second, even
if Mr. Harrell had not waived his self-incrimination claim through the plea, he has not shown
that the prosecution or the trial court violated his right against self-incrimination.
The Fifth Amendment provides in relevant part that no person âshall be compelled in
any criminal case to be a witness against himself . . . .â U.S. CONST. amend. V. The right to
remain silent is âa fundamental trial right of criminal defendants.â United States v. Verdugo-
Urquidez, 494 U.S. 259, 264 (1990).
Mr. Harrell does not argue that the State introduced incriminating out-of-court
statements that Mr. Harrell made. Instead, he argues that the prosecution and the trial court
discussed facts that, he believes, only could have come from a privileged conversation Mr.
Harrell had with his counsel. Mr. Harrell further asserts that he was so disturbed by the fact
that the prosecution and the trial judge knew about the information that it convinced him the
proceeding was rigged against him, thereby coercing him into accepting a plea.
It is true that the privilege against self-incrimination âbars the introduction of a
criminal defendantâs out-of-court statements obtained by compulsion.â Vega v. Tekoh, 597
U.S. 134, 141 (2022). However, Mr. Harrell does not allege that the prosecution introduced
his out-of-court statementsâwhether obtained under compulsion or otherwiseâinto
evidence. Instead, he argues only that the prosecution and the trial court referenced certain
factual information that, he believes, could only have come from privileged conversations
that he had with his lawyer. Mr. Harrell does not cite to any clearly established Supreme Court
law holding that the Fifth Amendment is violated under those circumstances.
Mr. Harrell further argues that he is entitled to habeas relief because the prosecutionâs
actions constituted prosecutorial misconduct. âProsecutorial misconduct can merit habeas
relief only if the prosecutorâs remarks render the trial so unfair as to be a denial of due
process.â Moore v. Mitchell, 708 F.3d 760, 799 (6th Cir. 2013). â[T]he touchstone of due
process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not
the culpability of the prosecutor.â Smith v. Phillips, 455 U.S. 209, 219 (1982). The
prosecutionâs remarks âmust be examined within the context of the trial to determine whether
the prosecutor's behavior amounted to prejudicial error. In other words, the Court must
consider the probable effect the prosecutor's response would have on the jury's ability to judge
the evidence fairly.â United States v. Young, 470 U.S. 1, 12 (1985). In addition, a harmless
error analysis applies to prosecutorial misconduct claims on habeas review. See Bates v. Bell,
402 F.3d 635, 641 (6th Cir. 2005).
As an initial matter, Mr. Harrell waived his prosecutorial misconduct claim under
Tollett by entering into an unconditional guilty plea. See United States v. Ayantayo, 20 F.
Appâx 486, 488 (6th Cir. 2001) (holding that a defendant waives a prosecutorial conduct claim
by pleading guilty âunless it appears from the face of the indictment or the record at the time
the guilty plea was entered that the government lacked the power to prosecuteâ). Even if he
had not waived the claim, however, Mr. Harrell has not shown that any alleged prosecutorial
misconduct rendered his trial so unfair as to constitute a denial of due process. He has not
provided any concrete evidence establishing that the prosecution invaded his attorney-client
privilege. Even assuming they did, Mr. Harrell has not established that the prosecutionâs
actions impacted the juryâs ability to judge the evidence fairly. I alternatively recommend that
the Court deny Mr. Harrellâs third ground for relief on the merits.
D. Ground Four: Confrontation Clause
In his fourth and final ground for relief, Mr. Harrell asserts that his rights under the
Confrontation Clause of the Sixth Amendment were violated because his counsel failed to
call witnesses that would have been helpful to Mr. Harrellâs defense. I agree with Respondents
that this claim is both procedurally defaulted and without merit.
1. Procedural Default
As with Mr. Harrellâs second and third grounds for relief, Mr. Harrell did not present
his Confrontation Clause claim in his direct appeal to the Ninth Appellate District. Mr. Harrell
did raise the claim in his Rule 26(A) motion for reconsideration and his state court habeas
petition. (ECF No. 19-1, Exhibits 20, 46). However, the Ninth Appellate District denied Mr.
Harrellâs Rule 26(A) motion as untimely. (ECF No. 19-1, Exhibit 23). And, as discussed
above, Mr. Harrellâs state court habeas petition did not fairly present the claim because habeas
petitions are not a valid ground under Ohio law to raise non-jurisdictional challenges to a
defendantâs conviction and sentence. See Brundage, 2025 WL 277755 at *7. Mr. Harrell has
thus procedurally defaulted on his claim.
The cause and prejudice analysis also mirrors the analysis Mr. Harrellâs second for
third grounds for relief. While Mr. Harrell argues that he did not raise the argument in his
direct appeal because he received the ineffective assistance of appellate counsel, he
procedurally defaulted on his ineffective assistance of appellate counsel claim because he did
not timely file his Rule 26(B) application and because the Ninth Appellate District enforced
the procedural bar. (ECF No. 19-1, Exhibit 25). Mr. Harrell does not argue that he has any
other cause to excuse the default. Nor has he provided new, reliable evidence demonstrating
that he is actually innocent. Accordingly, I recommend that the Court dismiss Mr. Harrellâs
fourth ground for relief as procedurally defaulted.
2. Merits
Alternatively, I recommend that the Court deny Mr. Harrellâs claim on the merits. The
Confrontation Clause provides that âthe accused shall enjoy the right . . . to be confronted
with the witnesses against him.â U.S. CONST. amend. VI. The Supreme Court has âheld that
this bedrock procedural guarantee applies to both federal and state prosecutions.â Crawford
v. Washington, 541 U.S. 36, 42 (2004). The Confrontation Clause also applies both to in-
court testimony and to out-of-court statements introduced at trial. Id. at 50-51.
In Crawford, the Supreme Court held that the Confrontation Clause applies only to
statements that are âtestimonial,â meaning statements that involve â[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.â Id. at 51 (quoting 2
N. Webster, An American Dictionary of the English Language (1828)). If hearsay evidence
is testimonial, âthe Sixth Amendment demands what the common law required: unavailability
and a prior opportunity for cross-examination.â Id. at 68. Thus, after Crawford, â[t]he
Confrontation Clause bars the admission of out-of-court testimonial statements made by an
unavailable witness when those statements are offered to prove the truth of the matter asserted
and when the defendant did not have a previous opportunity to cross-examine the witness.â
Berry v, Capello, 576 F. Appâx 579, 585 (6th Cir. 2014) (citing Crawford, 541 U.S. at 53-
54).
Mr. Harrellâs Confrontation Clause claim fails for at least two reasons. First, as noted
above, Mr. Harrell pled guilty, which means that he has waived his ability to challenge any
alleged pre-plea constitutional violations. See Tollett, 411 U.S. at 267; Sellers v. Ruehlman,
No. 1:07-CV-00842, 2009 WL 347654, at *4 (S.D. Ohio Feb. 10, 2009) (âpetitionerâs guilty
plea forecloses the Confrontation Clause challenge in this habeas corpus proceedingâ) (report
and recommendation). Second, Mr. Harrellâs claim fails because he does not allege that the
trial court admitted out-of-court testimonial statements without giving him the opportunity to
cross-examine the witness. Instead, he argues only that his trial counsel failed to call witnesses
that Mr. Harrell believes would have been favorable to his defense. Because Mr. Harrell does
not identify any âtestimonialâ out-of-court statements that were offered against him for the
truth of the matter asserted, his Confrontation Clause claim fails as a matter of law.
VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY
A. Legal Standard
As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not
appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate
of appealability. The statute further provides that â[a] certificate of appealability may issue .
. . only if the applicant has made a substantial showing of the denial of a constitutional right.â
28 U.S.C. § 2253(c)(2).
Although the statute does not define what constitutes a âsubstantial showingâ of a
denial of a constitutional right, the burden on the petitioner is obviously less than the burden
for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the
courts that have considered the issue have concluded that â[a] âsubstantial showingâ requires
the applicant to âdemonstrate that the issues are debatable among jurists of reason; that a court
could resolve the issues (in a different manner); or that the questions are adequate to deserve
encouragement to proceed further.ââ Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)
(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that
certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts, 28 U.S.C. foll. § 2254, provides that â[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.â Rule 11(a),
28 U.S.C. foll. § 2254. âIf the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).â Id.; see also 28 U.S.C.
§ 2253(c)(3) (âThe certificate of appealability under [§ 2253(c)(1)] shall indicate which
specific issue or issues satisfy the showing required by [§ 2253(c)(2)].â). In light of the Rule
11 requirement that the court either grant or deny the certificate of appealability at the time
of its final adverse order, a recommendation regarding the certificate of appealability issue is
included here.
B. Analysis
Mr. Harrell has not made a substantial showing of a denial of a constitutional right for
the reasons set forth above. Because jurists of reason would not find these conclusions
debatable, I recommend that no certificate of appealability issue in this case.
VII. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Court DISMISS and/or DENY
Mr. Harrellâs petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend
that the Court not grant him a certificate of appealability.
Dated: April 4, 2025 /s/ Jennifer Dowdell Armstrong
Jennifer Dowdell Armstrong
U.S. Magistrate Judge
NOTICE TO PARTIES REGARDING OBJECTIONS
Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judgeâs proposed findings,
recommendations or report made pursuant to Fed. R. Civ. P. 72(b)
within fourteen (14) days after being served with a copy thereof, and
failure to file timely objections within the fourteen (14) day period
shall constitute a waiver of subsequent review, absent a showing of
good cause for such failure. Such party shall file with the Clerk of Court,
and serve on the Magistrate Judge and all parties, written objections which
shall specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis for
such objections. Any party may respond to another partyâs objections
within fourteen (14) days after being served with a copy thereof. The
District Judge to whom the case was assigned shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. The District Judge need conduct a new hearing only in
such District Judgeâs discretion or where required by law, and may
consider the record developed before the Magistrate Judge, making a
determination on the basis of the record. The District Judge may also
receive further evidence, recall witnesses or recommit the matter to the
Magistrate Judge with instructions.
Id. (emphasis added).
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. Secây of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate
the arguments in briefs submitted to the magistrate judge. âA reexamination of the exact same
argument that was presented to the Magistrate Judge without specific objections âwastes
judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates
Act.ââ 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).
 Case Information
- Court
- N.D. Ohio
- Decision Date
- April 4, 2025
- Status
- Precedential