United States District Court, N.D. Ohio, Western Division
James T. Howell, Petitioner,
Michelle Miller, Respondent.
MEMORANDUM OPINION AND ORDER
ZOUHARY, U.S. DISTRICT JUDGE
pro se James Howell filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254, asserting nine
grounds for relief (Doc. 1). The case was referred to
Magistrate Judge Kathleen Burke for a Report and
Recommendation (R&R). The State, through Respondent
Warden Michelle Miller, filed a Return of Writ (Doc. 10), and
Howell filed a Traverse (Doc. 14). Judge Burke recommended
this Court dismiss the Petition in part and deny the Petition
in part (Doc. 16), and Howell timely objected (Doc. 17). This
Court has reviewed de novo the portions of the
R&R to which Howell objected. See U.S.C. §
636(b)(1); Hill v. Duriron Co., 656 F.2d 1208, 1213
(6th Cir. 1981).
does not object to the factual background outlined in both
the R&R and the Ohio court of appeals decision, which is
presumed accurate. 28 U.S.C. § 2254(e)(1); Warren v.
Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Therefore,
this Court adopts those facts (Doc. 16 at 2-10).
Petition raises nine grounds for relief, but Howell abandoned
grounds four, five, seven, and nine in his Traverse (Doc. 14
at 16, 18, 22). The R&R recommends this Court dismiss the
Petition with respect to those grounds, as well as portions
of grounds six and eight (Doc. 16). With respect to the
remaining grounds, it recommends this Court deny the Petition
on the merits (id.). Howell objects generally that
the R&R “was illogically reached through formal
& material fallacy” (Doc. 17 at 2). His specific
objections are addressed below.
One: Expert Witness
argues his appellate counsel was ineffective for failing to
raise -- on direct appeal --the issue of whether his trial
counsel was ineffective for not obtaining an expert witness.
The R&R concluded that the Ohio court of appeals decision
rejecting Howell's argument reasonably applied the
Strickland standard, which requires Howell to prove:
(1) “that [appellate] counsel made errors so serious
that counsel was not functioning as the ‘counsel'
guaranteed by the Sixth Amendment”; and (2)
“there is a reasonable probability that, but for
[appellate] counsel's unprofessional errors, the result
of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687 (1984);
see also Kelly v. Lazaroff, 846 F.3d 819, 831-32
(6th Cir. 2017).
raised this appellate ineffective-assistance argument in his
Rule 26(b) application, and the Ohio court of appeals denied
his claim on the merits. This Court's review is therefore
limited to determining whether the decision by the Ohio court
of appeals was contrary to or an unreasonable application of
Supreme Court precedent. Id. at 831.
does not -- and cannot -- argue that the state court applied
the wrong standard (Strickland) or that its
conclusion is contrary to a Supreme Court decision made under
materially indistinguishable facts. Thus, he must show the
state court's application of Strickland to the
facts of his case was unreasonable. Id. His burden
of proof on that issue is “extremely high.”
Id. Indeed, it is not enough to show merely that the
court misapplied the law; rather, the court's decision
“must have been ‘objectively
unreasonable.'” Id. (quoting Wiggins
v. Smith, 539 U.S. 510, 520-21 (2003)). In other words,
all “fairminded jurists” would have to agree the
state court's decision was wrong. Harrington v.
Richter, 562 U.S. 86, 101 (2011). This is a
“doubly deferential standard of review that gives both
the state court and the defense attorney the benefit
of the doubt.” Kelly, 846 F.3d at 832 (quoting
Burt v. Titlow, 134 S.Ct. 10, 13 (2013)). Howell has
not met that burden.
Howell does not even discuss his appellate counsel's
performance; rather his claim for appellate ineffectiveness
appears to rely solely on an inference that, if his trial
counsel was ineffective for failing to obtain an expert, his
appellate counsel must have been ineffective for failing to
raise the issue on appeal. Howell thus focuses his argument
solely on the merits of his underlying claim for ineffective
assistance of trial counsel.
because that issue -- ineffectiveness of trial counsel -- was
not presented on direct appeal, it is procedurally defaulted.
See Coleman v. Thompson, 501 U.S. 722, 731-32
(1991); Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006). Accordingly, this Court cannot grant relief
unless it first finds Howell has demonstrated both cause for
failing to raise the issue on direct appeal and resulting
prejudice. See Kelly, 846 F.3d at 829.
ineffectiveness of appellate counsel can satisfy the
cause-and-prejudice standard, “appellate counsel
[cannot] be ineffective for failing to raise a meritless
claim.” Id. at 827. Thus, if Howell's
underlying claim (trial counsel ineffectiveness) fails, so
too does his argument for avoiding procedural default based
on his appellate counsel's failure to raise the issue.
For that reason, both the state court and the R&R
rejected Howell's claim; each determined Howell's