United States District Court, S.D. Ohio, Western Division, Dayton
District Judge Thomas M. Rose
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
a habeas corpus case brought pro se by Petitioner
Brian Hawkins pursuant to 28 U.S.C. § 2254. Hawkins
seeks relief from his convictions for rape and kidnapping in
the Common Pleas Court of Montgomery County, Ohio. The case
is ripe for consideration on the Petition (ECF No. 3), the
State Court Record (ECF No. 10), the Return of Writ (ECF No.
11), and Petitioner's Reply (ECF No. 18).
was indicted in May 2015 for the July 2002 rape and
kidnapping of A.J., a person then fifteen years old. After
his motion to dismiss for lack of a speedy trial was denied,
Hawkins was convicted by a jury. The trial judge then merged
the rape and kidnapping counts and sentenced him to ten
appealed to the Second District Court of Appeals which
affirmed the trial court judgment. State v. Hawkins,
2018-Ohio-867 (Ohio App. 2nd Dist. Mar. 9, 2018),
appellate jurisdiction declined, 153 Ohio St.3d 1453,
2018-Ohio-3026 (2018). On June 11, 2018, Hawkins filed an
Application to Reopen his direct appeal to raise nine
assignments of error the omission of which allegedly
constituted ineffective assistance of appellate counsel. On
July 11, 2018, he filed another such application with eleven
omitted assignments of error. The Second District dismissed
both of these as untimely and Hawkins did not appeal to the
Supreme Court of Ohio.
the direct appeal was pending, Hawkins filed a petition for
post-conviction relief under Ohio Revised Code §
2953.21. That petition remained pending when the Return of
Writ was filed here on August 14, 2019 (ECF No. 11, PageID
Petition here, purportedly mailed March 11, 2019, pleads the
following grounds for relief:
Ground 1: The trial court erred in
overruling Mr. Hawkins' motion to dismiss, as the
thirteen year [sic] pre-indictment delay caused actual
prejudice to his right to a fair trial; thus violating his
due process rights.
Supporting Facts: Thirteen year [sic]
pre-indictment delay, without new evidence.
Prosecutor claimed original casefile, mental health and
hospital records missing.
Witnesses deceased and/or unavailable.
Alleged victim not remember incident [sic] and provided
Ground 2: The trial court erred in finding
Mr. Hawkins guilty of rape and kidnap as the convictions are
against the manifest weight of the evidence.
Supporting Facts: Physical evidence supports
events as described by petitioner.
Alleged victim not remember incident [sic] and provided
Court cut short defendant-petitioner's testimony.
Counsel failed to provide notes of investigator's
conversations with alleged victim, subsequently hindering
trial counsel from effective cross-examination
Ground 3: The cumulative effect of errors
deprived Mr. Hawkins of a fair trial warranting a reversal
under the cumulative error doctrine.
Supporting Facts: Thirteen year [sic]
pre-indictment delay, without new evidence.
Court violated state statutes and rules of evidence.
Prosecutorial misconduct, including manipulation, fabrication
and loss of evidence/Brady violation.
Ineffective assistance of counsel.
Ground 4: Hawkins' convictions were
based upon insufficient evidence.
Supporting Facts: No physical evidence.
Alleged victim not remember incident [sic] and testimony
inconsistent and inconclusive with itself.
Withheld exculpatory Brady material.
Prosecutorial misconduct manipulated and fabricated evidence.
Alleged crime scene viewed by jury had significantly changed
after thirteen years.
Exculpatory evidence withheld.
Ground 5: Hawkins' counsel provided
constitutionally ineffective assistance under the Fifth,
Sixth, and Fourteenth Amendments of the United States
Constitution and Article I, Sec. 10 and 16 of the Ohio
Supporting Facts: Trial counsel failed to
call alleged victim to testify at hearing of motion to
dismiss; erred requesting for jury viewing of alleged crime
scene that had significantly changed after thirteen years;
failed to argue for relevant exculpatory evidence; failed to
provide specific notes in order to effectively cross-examine
key witness; failed to object to court's violations of
state statutes and rules of evidence; failed to object to
many instances of prosecutorial misconduct.
Ground 6: The trial court denied Hawkins his
right to due process and a fair trial in violation of the
Fifth and Fourteenth Amendment to the United States
Constitution and Article I, Sec. 16 of the Ohio Constitution.
Supporting Facts: Trial court permitted
viewing of alleged crime scene that had significantly changed
after thirteen years; cut short the testimony of
defendant-petitioner in pretrial motion to dismiss hearing,
as well as during trial; violated Ohio statutes and rules of
Ground 7: Prosecutor misconduct so infected
these proceedings with unfairness as to make the resulting
conviction a denial of due process.
Supporting Facts: Prosecutor withheld
exculpatory evidence, violating Brady;
misrepresented evidence; produced false evidence.
Ground 8: Appellate counsel was ineffective
for failing to present issues not fully considered that
should have been that prove an unreliable process was used to
obtain a wrongful criminal conviction prejudicing appellate
Supporting Facts: Appellate counsel failed
to properly and thoroughly demonstrate in detail issues as
well as dead bang winning issues specifically requested by
defendant-petitioner that show due process violations were
used to unconstitutionally convict defendant-petitioner,
inter alia: trial counsel was unprepared at motion to dismiss
hearing and at trial; trial counsel failed to object to many
due process violations, including thirteen year [sic]
pre-indictment delay, hearsay, confrontation, prosecutorial
misconduct that materially influenced trial; trial counsel
failed to investigate case, including not motioning for
discovery, or Brady exculpatory evidence; trial
counsel failed to object to trial court's plain errors,
including unconstitutional sidebars and violations of Ohio
statutes; trial court failed to issue and trial counsel
failed to request necessary case specific jury instructions;
appellate counsel also failed to use 11-R evidence trial
court specifically reserved for appeal; trial and appellate
counsel refused to provide defendant-petitioner with all
judgment entries and transcripts of proceedings.
(Petition, ECF No. 3, PageID 39-52.)
Hawkins pleads eight numbered grounds for relief, many of his
grounds contain sub-claims which are logically and legally
related to different constitutional rights than the right
claimed in the ground itself. The Magistrate Judge believes
it will be useful to eliminate from further consideration
those claims and sub-claims which have not been preserved for
decision on the merits.
habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 6 (2010); Lewis
v. Jeffers, 497 U.S. 764, 780 (1990); Barclay v.
Florida, 463 U.S. 939 (1983); Smith v.
Phillips, 455 U.S. 209, 221 (1982). "[I]t is not
the province of a federal habeas court to reexamine state
court determinations on state law questions. In conducting
habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of
the United States." Estelle v. McGuire, 502
U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor,
23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.).
of the claims made by Hawkins are not for federal
constitutional violations and therefore not cognizable in
this proceeding. They are as follows:
Two claims that Hawkins' conviction is against the
manifest weight of the evidence. A weight of the evidence
claim is not a federal constitutional claim. Johnson v.
Havener, 534 F.2d 1232 (6th Cir. 1986);
Ob'Saint v. Warden, Toledo Correctional Inst.,
675 F.Supp.2d 827, 832 (S.D. Ohio 2009).
Three makes a claim of cumulative error. As in Sheppard
v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011),
Hawkins “argues that the cumulative effect of these
errors rendered his trial fundamentally unfair.”
Id. Post-AEDPA, however, that claim is not
cognizable in habeas corpus. Id., citing Moore
v. Parker, 425 F.3d 250, 256 (6th Cir. 2005).
Cumulative error claims are not cognizable because the
Supreme Court has not spoken on the issue. Williams v.
Anderson, 460 F.3d 789, 816 (6th Cir. 2006),
citing Moore, supra.
Two and Three should therefore be dismissed for failure to
state a federal constitutional claim on which relief can be
granted in a habeas corpus case.
procedural default doctrine in habeas corpus is described by
the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an adequate and
independent state procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate
cause of the default and actual prejudice as a result of the
alleged violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722');">501 U.S. 722, 750 (1991);
see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not
raise on federal habeas a federal constitutional rights claim
he could not raise in state court because of procedural
default. Wainwright v. Sykes, 433 U.S. 72, 86-87
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982).
“Absent cause and prejudice, ‘a federal habeas
petitioner who fails to comply with a State's rules of
procedure waives his right to federal habeas corpus
review.'” Boyle v. Million, 201 F.3d 711,
716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996);
Murray v. Carrier, 477 U.S. 478, 485 (1986);
Engle, 456 U.S. at 110; Wainwright, 433
U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court-that is, claims that
the state court denied based on an adequate and independent
state procedural rule. E.g., Beard v. Kindler, 558
U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is
an important “corollary” to the exhaustion
requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those
cases in which a state prisoner fails to exhaust state
remedies, a habeas petitioner who has failed to meet the
State's procedural requirements for presenting his
federal claims has deprived the state courts of an
opportunity to address” the merits of “those
claims in the first instance.” Coleman [v.
Thompson, ] 501 U.S. [722, ] 731-732, 111 S.Ct. 2546,
115 L.Ed.2d 640[(1991)]. The procedural default doctrine thus
advances the same comity, finality, and federalism interests
advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
“A claim may become procedurally defaulted in two
ways.” Williams v. Anderson, 460 F.3d 789, 806
(6th Cir. 2006). First, a claim is procedurally
defaulted where state-court remedies have been exhausted
within the meaning of § 2254, but where the last
reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state
procedural rule. Id. Second, a claim is procedurally
defaulted where the petitioner failed to exhaust state court
remedies, and the remedies are no longer available at the
time the federal petition is filed because of a state
procedural rule. Id.
Lovins v. Parker, 712 F.3d 283, 295 (6th
Ohio law, ineffective assistance of trial counsel claims or
indeed any constitutional claims that depend on evidence
outside the appellate record must be raised in a petition for
post-conviction relief under Ohio Revised Code § 2953.21
because evidence cannot be added to the record on direct
appeal. State v. Madrigal, 87 Ohio St.3d 378, 390-91
(2000); State v. Hartman, 93 Ohio St.3d 274, 299
(2001); State v. Keith, 79 Ohio St.3d 514, 536
(1997), citing State v. Scott, 63 Ohio App.3d 304,
308 (1989). Conversely, constitutional claims including
ineffective assistance of trial counsel claims which are
supported by the appellate record must be raised on direct
appeal and will be barred by res judicata if
attempted to be raised later in post-conviction. State v.
Reynolds, 79 Ohio St.3d 158, 161 (1997); State v.
Steffen, 70 Ohio St.3d 399, 410 (1994); State v.
Lentz, 70 Ohio St.3d 527 (1994); In re T.L.,
2014-Ohio-1840, ¶ 16, 2014 Ohio App. LEXIS 1804
(8th App. Dist. 2014).
response to Ground Five, ineffective assistance of trial
counsel, the Warden notes that Hawkins preserved for review
five alleged instances, but notes that he also asserts that
his trial attorney “failed to object to court's
violations of state statutes and rules of evidence” and
“failed to object to many instances of prosecutorial
misconduct.” (Return, ECF No. 11, PageID 2267). These
claims are unspecific as to particular occasions of alleged
trial counsel omissions. More importantly, the Warden notes
that all of these omissions would have been apparent in the
direct appeal record, but were not raised in that proceeding.
Under those circumstances, the claims are barred by
Ohio's criminal res judicata doctrine.
Eighth Ground for Relief, Hawkins claims he received
ineffective assistance of appellate counsel when his direct
appeal attorney failed to raise a number of meritorious
assignments of error on direct appeal. The Warden asserts
these claims are barred by Hawkins' procedural default in
failing to raise them in the correct manner under Ohio law,
that is, by including them in a properly filed application to
reopen the direct appeal under Ohio R. App. P. 26(B).
Warden asserts that Hawkins' failures, which the First
District Court of Appeals held against him, were in filing in
an untimely manner, exceeding the ten-page limit established
in the Rule, and failing to attach relevant portions of the
record (Return, ECF No. 11, PageID 2282-83). Furthermore,
after that adverse decision, Hawkins failed to timely appeal
to the Supreme Court of Ohio. Id. at PageID 2284.
excusing cause, Hawkins claims the Clerk of Courts
“filed with a false cover page on top of
Petitioner's actual cover page.” (Reply, ECF No.
18, PageID 2322, asking the Court to compare ECF No. 10,
PageID 493 with PageID 532.) “Additionally, the Clerk
jumbled the pages of Petitioner's Application. (Doc. 10,
PageID here listed in the order originally intended to have
appeared: 532-44, 498-500, 497, 494-96, 502-15, 549, 551-74,
545-48, 516-20, 524, 521-22, 527-29, 501, 531.”
August 15, 2018, the Second District Court of Appeals had
before it Hawkins' delayed application for reopening
which he had filed on July 11, 2018. State v.
Hawkins, Appellate No. 27019 (State Court Record, ECF
No. 10-1, PageID 634 et seq.). In it the court noted
that its decision on direct appeal affirming the conviction
had been entered March 9, 2018. Id. at ECF No. 637.
The court found Hawkins had filed a document labeled
“Reply” in Appellate No. 26962 on June 11, 2018,
and noted that that appellate case had been dismissed for
lack of jurisdiction. Id.
referenced document appears in the State Court Record at Ex.
46, PageID 493-97 and bears Appellate No. CA 026962 in what
appears to be Hawkins' handwriting. It appears that the
pages were misordered in filing (assuming they appear in the
State Court Record as they appear in the files of the
Montgomery County Clerk of Courts) because PageID 532, which
appears to be a title page for Hawkins' Application for
Reopening, bears no date stamp from the Clerk. Ordinarily a
Clerk's date stamp would be on the first page. Here the
Court of Appeals Clerk's date stamp appears on PageID
493, a page Hawkins labeled “Reply.”
that misordering came about, it does not provide excusing
cause. The Second District denied the Application not because
it was not in order, but because it was not timely. Hawkins
told the court of appeals he was late because of lack of
funds, but the court rejected that excuse, considering
“the many documents he has had the ability, and has
chosen, to file.” (Opinion, State Court Record, ECF No.
10-1, PageID 639). It also held against him the fact that he
had filed in excess of ten pages and had failed to attach the
required portions of the record. As noted by Respondent, Ohio
has a legitimate interest independent of federal law in
having claims of ineffective assistance of appellate counsel
presented in an orderly fashion that permits appropriate
consideration. Aside from the prolixity of the filing,
failure to timely file a 26(B) application has been held by
the Sixth Circuit to be an adequate and independent ground of
state decision. Hoffner v. Bradshaw, 622 F.3d 487,
504-505 (6th Cir. 2010).
and apart from the deficiencies in filing the 26(B)
application, Hawkins also defaulted his ineffective
assistance of appellate counsel claims by never appealing to
the Supreme Court of Ohio from the Second District's
denial. Here again Hawkins blames that failure on the
clerk's misordering (Reply, ECF No. 18, PageID 2323). He
attaches a document labeled “Notice of Delayed Appeal
of Appellant Brian Hawkins” which shows it was received
by the Clerk of the Supreme Court of Ohio on October 16,
2018. (State Court Record, ECF No. 18, PageID 2326.) He also
attached a document labeled “Notice of Appeal”
which bears “received” stamps of September 27,
2018, and October 16, 2018. Id. at PageID 2327. He
attaches no correspondence from the Supreme Court Clerk
explaining why neither of these documents was filed, but
states in his Reply that it is because the Clerk of the
Supreme Court “is required to refuse to file an [sic]
delayed appeal of an [sic] 26(B) Application for reopening .
. . which is what the Clerk did.” (Reply, ECF No. 18,
PageID 2323.) Failure to file an appeal to the Supreme Court
of Ohio from an adverse ruling of a court of appeals within
forty-five days is an adequate and independent state ground
of decision. Bonilla v. Hurley, 370 F.3d 494, 497
(6th Cir. 2004).
the unspecific claims of ineffective assistance of trial
counsel in Ground Five and all of the claims of ineffective
assistance of appellate counsel in Ground Eight are
procedurally defaulted and should be dismissed on that basis.
One: Pre-Indictment Delay
offense in suit happened in July 2002 and Hawkins was not
indicted until May 2015. Claiming that this delay deprived
him of his rights under the Due Process Clause of the
Fourteenth Amendment, Hawkins filed a pre-trial motion to
dismiss on that basis. Having been unsuccessful in the state
courts, he reiterates that claim in his First Ground for
Relief. The Warden concedes the claim is preserved for merits
review here and contends the Second District's decision
is entitled to ...