United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Merz Magistrate Judge
DECISION AND ORDER
J. Dlott United States District Judge
habeas corpus case, brought pro se by Petitioner
Lavon Oden under 28 U.S.C. § 2254, is before the Court
on Petitioner's Objections (ECF No. 10), to the
Magistrate Judge's Report and Recommendations (the
"Report," ECF No. 9), recommending that the
Petition be dismissed with prejudice.
Court has reviewed the findings and conclusions of the
Magistrate Judge and has considered de novo all of
the filings in this case with particular attention to the
issues as to which Petitioner has lodged objections. Having
done so, the Court determines that the Magistrate Judge's
recommendations should be adopted.
First Ground for Relief, Oden asserts the trial court erred
in admitting hearsay testimony in violation of the
Confrontation Clause. The Report recommended dismissing this
ground as procedurally defaulted because no contemporaneous
objection was made at trial and no mention of the
Confrontation Clause was made on direct appeal.
objects that his Confrontation Clause claim was fairly
presented to the First District because it was argued in
terms "sufficiently particular to allege a denial of the
specific constitutional right in question and alleged facts
well within the mainstream of the pertinent constitutional
law." (Objections, ECF No. 10, PageID 1937.) He also
asserts his trial counsel's failure to make
contemporaneous objections was ineffective assistance of
trial counsel, dealt with in Ground Three. Id.
there had been no contemporaneous objection, the First
District reviewed Oden's second assignment for plain
error and found none in light of the "significant
admissible evidence of guilt . . ." State v.
Oden, No. C-150387 (1st Dist. Sep. 23,
2016)(copy at State Court Record, ECF No. 4, PageID 160).
Oden objects to the Report's deference to this decision
on the ground that the appellate court did not explain how it
reached this evaluation and claims the remaining evidence
"lacks merit to sustain this petitioner's
conviction." (Objections, ECF No. 10, PageID 1938).
However, Petitioner does not in his own turn explain why this
is so. Craig, the out-of-court witness whose identification
is complained of, was not the only witness to the shooting.
Id. at PageID 158.
Second Ground, he asserts he was denied a fair trial when the
court refused to declare a mistrial over an asserted
violation of a separation of witnesses order. The Magistrate
Judge found that the state court decision on this issue was
not an objectively unreasonable application of the relevant
Supreme Court precedent, particularly of Justice Story's
"manifest necessity" holding in United States
v. Perez, 22 U.S. (9Wheat) 579 (1824), and was therefore
entitled to deference under 28 U.S.C. § 2254(d)(1) as
enacted by the AEDPA.
Objections, Oden discounts the holding of the First District
that there was no proof of violation of the separation of
witnesses order and that, in any event, conversation between
Boston and Craig was not between witnesses subject to the
separation order because Craig never testified. Oden
emphasizes that Craig may have influenced Boston's
testimony. Perhaps so, but that would not have been a
violation of the separation of witnesses order, again because
Craig never testified and Boston certainly could have been
cross-examined about the sources or origins of his own
testimony. In any event, Oden's claim that this was
somehow a "structural error" is unsupported by any
citation to Supreme Court authority labeling errors of this
character as structural.
Third Ground claims ineffective assistance of trial counsel
in various respects. The Report found that the Ohio First
District Court of Appeals had decided this claim on the
merits and its decision was not an objectively unreasonable
application of Strickland v. Washington, 466 U.S.
668 (1984). In attempting to overcome the First
District's denial of his ineffective assistance of trial
counsel claims and thereby prove excusing cause for the lack
of contemporaneous objections, Oden argues the First District
should have applied United States v. Cronic, 466
U.S. 648 (1984), to evaluate his ineffective assistance of
trial counsel claims, instead of Strickland. But
counsel's failure to make an objection does not amount to
a complete denial of representation which would lead to a
presumption of prejudice. The record shows defense counsel
spent considerable effort subjecting the State's case so
"meaningful adversarial testing," including
employment of experts on relevant cell tower technology and
Four, Five, and Six of the Petition raise claims of
ineffective assistance of appellate counsel. The Report
concluded these claims were procedurally defaulted by
Oden's failure to appeal to the Supreme Court of Ohio
from the First District's denial of his Application to
Reopen under Ohio R. App. P. 26(B). In his Objections, Oden
admits he did not timely appeal from the denial, but pleads
with this Court to give him an opportunity to prove that
failure to timely appeal was the fault either of the
appellate court staff or the prison staff. The Petition in
this case was filed June 15, 2018, more than eighteen months
ago. He has known since the Return of Writ was filed August
10, 2018, that the State was claiming a procedural default
because no appeal was filed. Oden gives no explanation about
why this should not have been adequate opportunity to prove
it is hereby ORDHRKD that the Petition herein be dismissed
with prejudice and that Petitioner be denied a certificate of
appeal ability. The Court hereby certifies to the Sixth
Circuit Court of Appeals that any appeal from this Order
would be ...