ORDER

JAMES G. CARR, District Judge.

This is a state prisoner's habeas-corpus case under 28 U.S.C. § 2254.

In September, 2011, a jury in the Common Pleas Court of Wayne County, Ohio, convicted the petitioner, Lonnie Brown, of the aggravated murder of Jamie Hout. The trial court sentenced Brown to life in prison. State v. Brown, 2013-Ohio-2945 (Ohio App.).

After taking a direct appeal and pursuing, unsuccessfully, postconviction relief in the Ohio courts, Brown filed a habeas petition in this court.

He claims, inter alia, that his trial lawyer was ineffective for not subpoenaing or calling as defense witnesses a man named Librado, who allegedly confessed to killing Hout, and Hannah Van Brunt, to whom Librado made the inculpatory statement. He also contends that his appellate lawyer never told him the deadline for filing a postconviction petition, an omission that allegedly caused Brown to file a petition that the state courts rejected as untimely.

Pending is Magistrate Judge Vecchiarelli's Report and Recommendation, which found that Brown's claims are either procedurally defaulted or meritless. (Doc. 37). Brown has filed an objection. (Doc. 40).

For the following reasons, I overrule the objection, adopt the R&R — subject to several important caveats expressed below — as the order of the court, and deny the petition for a writ of habeas corpus.

Background

A. Trial and Direct Appeal

On May 5, 2011, Officer Michael Smith, of the Orrville Police Department, responded to a 911 call about a screaming man outside the home where Hout lived. There he found Brown crying and saying that Hout's dead body was in the living room. Brown, supra, 2013-Ohio-2945, at ¶¶7-8.

Brown told Officer Smith that he and Hout had "a father-daughter type of relationship," and that they usually spoke every day. Id. at ¶8.

Brown had last seen Hout two days previously, on May 3, at her home, when Hout had left "abruptly to `go turn tricks' for some Mexicans." Id. When Brown stopped by Hout's home on May 5 to check on her, he found both the front and back doors locked, which was unusual. Brown found a stool, propped it up to open a back window, and crawled into the kitchen. "When he saw [Hout] lying in the living room, he ran out the front door and yelled for someone to call 911." Id.

Brown also told Officer Smith that, a week earlier, Hout told him that "she had stolen some cocaine from some Guatemalans." Id.

Based on Brown's statement, "the police were focusing their investigation on the Mexicans and Guatemalans who had contact with [Hout]." Id.; see also id. at ¶11 ("Based on [Detective Joshua Hunt's] familiarity with the victim coupled with Brown's statement, Detective Hunt believed that the murder suspect was an Hispanic male with a connection to drugs.").

Police soon concluded, however, that Brown had concocted this story to cover-up his role in killing Hout.

Hout died by strangulation, with contributing factors of blunt- and sharp-force trauma to her head. Id. at ¶13.

Police discovered a broken beer bottle and a smashed candle holder near Hout's body. Further investigation established that there were "two bloody fingerprints positioned upside down on the broken beer bottle neck," and that these prints matched Brown's. Id. at ¶12. Due to the positioning of the prints on the bottle, moreover, a forensic expert concluded that "Brown held the bottle upside down, a position which would have indicated the bottle's use as a weapon." Id. at ¶14.

A second forensic expert testified that she found Hout's blood on Brown's glasses, and that she could not exclude Brown, due to the small sample size, as a contributor to the blood found on the broken beer bottle. Id. at ¶16.

Circumstantial evidence further implicated Brown in the slaying.

A homeless man, Jeremy Kitchen, whom Hout had taken into her home, testified that Hout told him, on May 2, that "she and Brown were having some issues over money." Id. at ¶20. Hout asked Kitchen to come to her house on May 4, but when Kitchen arrived he found the back door — which Hout always left open — locked.

Two of Hout's neighbors testified they saw Brown talking with Hout on May 4 — the day before Brown "discovered" Hout's body and contrary to his claim he had not seen Hout since May 3. Id. at ¶19.

Lisa Corn, who was acquainted with both Brown and Hout, testified that Brown occasionally spent the night at her house. Brown came to her house on May 4 around 8:00 p.m. and took a fortyminute shower. Id. at ¶21. Chris Linkous, a friend of both Corn and Brown, testified that he was at Corn's house on May 4 and that Brown had taken an unusually long shower that night. Id. at ¶23.

Brown presented what he characterizes an alibi defense in the form of testimony from his two sisters, his niece, and his mother.

These witnesses testified that Brown had been in one or all of their presences until 6:30 or 7:00 p.m. on May 5. Id. at ¶¶28-31. Brown's niece then drove Brown to Hout's home and was present when, after going to the back of the house, Brown "ran out of the front door about five seconds later, and began rolling on the ground and yelling hysterically, `She's done.'" Id. at ¶29.

None of the witnesses accounted, however, for Brown's whereabouts on May 4.

Brown testified that he had last seen Hout on May 3, at home.

According to Brown, Hout had "two `dates' scheduled for the evening" of May 3. Id. at ¶33. Twice that night, Hout left the house for about a half-hour each time, after which she returned with crack-cocaine that she and Brown smoked. Hout used Brown's cell phone to make another call, after which they "walked to a big house where Brown sat while Ms. Hout walked down an alley alone because Brown `might scare them off.'" Id. Thereafter:

Id.

Brown denied ever having sex with Hout or being her "pimp."

Brown also testified that, about a week before Hout's murder, she called him and said "she `f'ed up' because she had stolen some drugs from some Guatemalan or Mexican men." Id. at ¶34. According to Brown, Hout "sounded scared and he became scared for her and himself, although he did not explain why." Id.

After hearing this evidence over the course of a four-day trial, the jury convicted Brown of murder and aggravated murder, the latter charged predicated on Brown's having killed Hout during an aggravated burglary. (Doc. 37 at 11). The trial court merged the convictions for sentencing purposes and imposed a life term on the aggravated-murder conviction.

Brown appealed to the Ohio Court of Appeals, Ninth District, but that court rejected his claims that the evidence was insufficient to convict and that the convictions were against the manifest weight of the evidence. Brown, supra, 2013-Ohio-2945, at ¶¶26-47.

Brown then filed a petition for discretionary review in the Ohio Supreme Court, raising the same claims he had raised in the appellate court. The state high court declined jurisdiction. State v. Brown, 136 Ohio St.3d 1560 (2013) (table).

B. Application to Reopen the Direct Appeal

While his appeal was pending in the Ohio Supreme Court, Brown filed an application to reopen his direct appeal. See Ohio App. R. 26(B).

Brown claimed he received ineffective assistance of appellate counsel because his lawyer did not argue that trial counsel was ineffective for failing to: 1) subpoena Librado, who allegedly confessed to killing Hout, and/or Hannah Van Brunt, the fifteen-year-old to whom Librado had admitted his guilt; and 2) request a jury instruction on Brown's alibi. (Doc. 9-1 at 169-78).

To support these claims, Brown attached a copy of a statement Van Brunt gave to police on May 11, 2011. (Id. at 209). According to Van Brunt:

(Id.).

It is undisputed that the prosecution disclosed this statement to Brown's trial attorney during discovery. (Doc. 13-5 at ¶2) (declaration of Assistant Wayne County Prosecuting Attorney John Williams). Because the statement was not a part of the direct-appeal record, however, the state appellate court held that appellate counsel had no basis to argue that trial counsel was ineffective for failing to call Librado or Van Brunt:

(Doc. 9-1 at 212).

Brown tried to renew these claims in the Ohio Supreme Court, but the court declined jurisdiction. State v. Brown, 2014-Ohio-1182 (Ohio 2014).

C. Postconviction Litigation

Brown filed a pro se postconviction petition on January 22, 2014, alleging that trial counsel was ineffective for not subpoenaing or calling either Librado or Van Brunt.

The state trial court rejected the petition on timeliness grounds. (Doc. 9-1 at 242).

Under Ohio law, a postconviction petition is due within "one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication[.]" O.R.C. § 2953.21(A)(2) (West 2014). Because the court reporter's office filed the transcript on January 17, 2012 (Doc. 9-1 at 256-57), Brown's deadline was July 16, 2012; his petition was thus eighteen months late.

Brown filed a notice of appeal, but the state appellate court dismissed the notice as untimely. He then tried filing a second notice of appeal and a motion for leave to take a delayed appeal, but the court of appeals denied the motion and dismissed the appeal. (Doc. 9-1 at 255). It explained that Appellate Rule 5(A), which allows delayed appeals in criminal cases, does not apply in postconviction cases. (Id.).

Brown did not appeal to the Ohio Supreme Court

D. Federal Habeas Proceedings

Brown's petition raised what he styled as, and what the Magistrate Judge accepted to be, five grounds for relief. (Doc. 1 at 2-3, 7). In my view, however, the petition raises two grounds for relief, with one ground resting on four different factual predicates:

(Id.).

1. Construing the Petition

After the Warden filed her return, Brown filed motions to expand the record, appoint counsel, and hold an evidentiary hearing. (Docs. 10, 14).

In an order disposing of these motions, Magistrate Judge Vecchiarelli determined that Brown's pleadings "can be reasonably construed to assert" not only a claim that appellate counsel was ineffective for failing to argue that trial counsel was ineffective, but also an independent ineffective-assistance-of-trial-counsel claim based on the failure to call Librado and/or Van Brunt. (Doc. 19 at 2).

The Magistrate Judge chided the respondent for "entirely fail[ing] to address" the merits of that claim in her return, and for contending "in a perfunctory manner, with little analysis" that any trial-counsel claim was procedurally defaulted. (Id.).

Citing the "complicated nature of the procedural issues involved in [Brown's] ineffective assistance of trial counsel claim, as well as the lack of factual development regarding the claim and the issue of whether his appellate counsel failed to properly advise him of the state post-conviction procedures[,]" the Magistrate Judge appointed counsel for Brown. (Id. at 3).

The appointment order directed counsel to address three issues: 1) whether appellate counsel told Brown about the time limits for filing a § 2953.23 petition; 2) whether appellate counsel was ineffective vis-a-vis that question; and 3) whether trial counsel was ineffective for not calling Van Brunt or Librado. (Id. at 4). Once counsel filed his brief, the Magistrate Judge terminated his appointment.

2. The R&R

a. Defaulted Claims

Magistrate Judge Vecchiarelli concluded that Brown procedurally defaulted, in three different ways, his claim that trial counsel was ineffective for not calling Librado and/or Van Brunt.

First, Brown raised that claim in a postconviction petition that the state trial court found was untimely. (Doc. 37 at 28). Second, the Ohio Court of Appeals dismissed Brown's appeal from the denial of postconviction relief because the appeal itself was untimely, and because Appellate Rule 5(A) does not provide for delayed appeals in postconviction cases. (Id. at 29-30). Third, Brown failed to appeal to the Ohio Supreme Court and thus did not present the trial-counsel claim in one full round of state-court review.

The Magistrate Judge then held that Brown could not establish cause and prejudice to excuse the default. (Id. at 30-36).

Brown argued that appellate counsel did not tell him how to calculate the deadline for filing a postconviction petition. According to Brown, that omission provided cause and prejudice under Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014), which held that an appellate lawyer's failure to tell his client that the limitations period for filing a postconviction begins with the filing of the record on appeal excused a procedural default.

The Magistrate Judge rejected that argument in light of the evidence that appellate counsel had told Brown precisely when the deadline to file a postconviction petition was.

In a letter to Brown dated December 5, 2011, appellate counsel advised him about the postconviction process and explained that any such petition "must be filed within 180 days of the date the transcript becomes available." (Doc. 24-1 at 17). Then, on January 25, 2012, counsel sent Brown a letter with the subject line "post conviction petition deadline July 2012, Ohio Public Defender." (Id. at 16). Counsel explained that if Brown had:

Id. (emphasis in original).

(Doc. 37 at 35).

The Magistrate Judge then held that Brown defaulted, by never arguing in state court, his appellate-counsel claim based on the alleged failure to advise Brown about the time limits for filing a postconviction petition. (Id. at 37).

b. Preserved Claims

Magistrate Judge Vecchiarelli then turned to the merits of Brown's preserved claims.

She rejected his actual-innocence claim as noncognizable. (Id. at 40-41).The Magistrate Judge then held that, assuming one could construe this claim as a sufficiency-of-the-evidence claim, the Ohio Court of Appeals reasonably determined that the evidence supported Brown's convictions. (Id. at 41-46).

The Magistrate Judge then found that the state appellate court reasonably rejected Brown's ineffective-assistance-of-appellate-counsel claims.

First, because there was no evidence in the direct-appeal record showing that Librado had confessed to Van Brunt, Magistrate Judge Vecchiarelli recognized that direct-appeal counsel could not, consistent with Ohio law, argue that trial counsel was ineffective for not calling either witness. (Id. at 50; see also id. at 50 n.14 ("As the state appellate court noted, Ohio law requires that claims based on evidence outside the record be raised in a post-conviction petition," not on direct appeal.).

Second, because the trial court did, in fact, instruct the jury on Brown's alibi defense (Doc. 9-4 at 57), the Magistrate Judge ruled appellate counsel had not basis to argue trial counsel was ineffective for not requesting such an instruction. (Doc. 37 at 50-51).

Standard of Review

Because Brown has filed an objection, I must make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). I may also "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

Discussion

At the outset, I have grave doubts about the Magistrate Judge's determination that Brown's petition and related pleadings "can be reasonably construed to assert that [Brown] received ineffective assistance of trial counsel" based on counsel's failure to subpoena or call as witnesses Librado and/or Van Brunt.

Brown's petition is clear: he seeks relief only on the ground that appellate counsel was ineffective for not arguing trial counsel erred in failing to subpoena or call these witnesses. The petition contains no claim that trial counsel was ineffective.

To be sure, the appellate-counsel claim is closely bound up with the merits of the trialcounsel claim. When a criminal defendant or habeas petitioner alleges an attorney was ineffective for not pursuing a given issue, the strength or weakness of that issue sheds light on the reasonableness of counsel's overall performance. As a result, whether counsel was, in fact, ineffective, depends in no small part on the merits of the underlying and unpursued claim.

But it does not follow that it is reasonable to construe a habeas petition alleging that counsel was ineffective for failing to raise Claim X as also alleging, as an independent ground for habeas relief, Claim X. Cf. Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008) (arguing in state court that counsel was ineffective for not pursuing a given issue does not give state court a fair opportunity to decide the underlying claim).

Nevertheless, given the absence of an objection from the Warden, the difficult relation-back issue that would arise were I to rule that Brown's petition did not plead a trial-counsel claim,1 and the clear and insurmountable procedural default that blocks my review of that claim, I will assume the Magistrate Judge properly construed the petition as raising a trial-counsel claim and turn to Brown's objections.

A. Cause to Excuse Brown's Default of the Trial-Counsel Claim

1. No Obligation to Appeal under Ohio Law

Brown first objects to the Magistrate Judge's ruling that he could not show cause to excuse the default blocking review of his ineffective-assistance-of-trial-counsel claim based on the failure to call Librado and Van Brunt. (Doc. 40 at 17-18).

While Brown admits that his state postconviction petition was untimely, he claims that, once the trial court denied the petition on that basis, he was "then released from any further obligation to appeal the trial court's denial of his untimely [petition] to the state appellate court[.]" (Id. at 18) (emphasis in original). To support this argument, Brown relies on State v. King, 2007-Ohio-6233 (Ohio App.), and O.R.C. § 2953.21.

King and § 2953.21 are beside the point, as they deal with the procedures for filing a successive postconviction petition under Ohio law. Moreover, it is federal law and the fairpresentment rule that required Brown to present his trial-counsel claim to each level of the Ohio courts.

Brown indisputably having failed to present his claim that trial counsel was ineffective for not calling Librado or Van Brunt to either the Ohio Court of Appeals or the Ohio Supreme Court, the claim is, as Magistrate Judge Vecchiarelli found, procedurally defaulted.2

2. Counsel's Advice re. Postconviction Petition

Brown next objects to the Magistrate Judge's finding that appellate counsel properly advised Brown of when his postconviction petition was due, and thus that Brown had not shown cause and prejudice to excuse his default of the trial-counsel claim. (Doc. 40 at 19-20).

According to Brown, counsel told him that, if he wanted to file a postconviction petition, he must have an attorney representing him, and that he could not file the petition pro se. (Id.).

I have reviewed counsel's letters to Brown (Doc. 24-1 at 3, 5-8, 17) and the Magistrate Judge's findings, and I find no error in the Magistrate Judge's determination that counsel never told Brown he could not file the petition pro se, and that, read in context, counsel's statements about "needing to hire an attorney" meant only that appellate counsel himself would not be handling any collateral litigation.

Brown was clearly on notice of when his postconviction petition was due, having received due and proper advice on that subject from appellate counsel. He therefore has not shown cause and prejudice to excuse the default blocking review of his claim that trial counsel was ineffective for not calling Librado and Van Brunt.

Finally, and in any event, this appellate-counsel claim cannot excuse Brown's default because he never raised it in the Ohio courts. Edwards v. Carpenter, 529 U.S. 446, 453 (2000).3

3. Remainder of Objections

Brown devotes a substantial portion of his objection to discussing the merits of his trialcounsel claim. (Doc. 40 at 24-29). Because that claim is defaulted, these objections are moot.

B. Sufficiency-of-the-Evidence Claim

Brown also objects to the Magistrate Judge's conclusion that the state appellate court reasonably held the evidence was sufficient to convict.4 (Id. at 32-33). According to Brown, there was no evidence "to warrant a guilty finding as to the felony murder count that was predicated on the sole underlying theory of rape[.]" (Id.) (emphasis in original).

This objection is meritless.

The prosecution's theory was that Brown had killed Hout during either a kidnapping or an aggravated burglary (Doc. 9-4 at 51) (trial court's instructions on elements of aggravated-murder charge), and the state appellate court held that the evidence supported an aggravated-murder conviction predicated on aggravated burglary. Brown, supra, 2013-Ohio-2945, at ¶¶25-26. Brown takes no issue with that ruling.

Whether there was also evidence to support an aggravated-murder conviction predicated on rape, a charge on which the prosecution secured an indictment but withdrew before the jury began deliberating, is irrelevant.

Conclusion

It is, therefore,

ORDERED THAT:

So ordered.

REPORT AND RECOMMENDATION (Doc. Nos. 1, 30, 35)

This 28 U.S.C. § 2254 petition is before the magistrate judge pursuant to Local Rule 72.2(b)(2). Before the court is the petition of Lonnie T. Brown ("Brown" or "Petitioner"), for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case of State of Ohio vs. Brown, Case No. 11-CR-127 (Wayne County Oct. 13, 2011). (Doc. No. 9-1 at Ex. 5.) Also pending before the Court are Petitioner's motions for leave to amend the petition (Doc. Nos. 30, 35.) For the following reasons, the magistrate judge recommends that: (1) the petition be DISMISSED; and (2) Petitioner's motions be DENIED.

I. Introduction

The state appellate court that affirmed Petitioner's conviction noted the following facts:

State v. Brown, No. 11CA54, 2013-Ohio-2954, ¶¶ 7-23, 27-40 (Ohio App. Ct. July 8, 2013).

The state appellate court also summarized Petitioner's testimony in his own defense, as well as the testimony offered by his mother, sisters, and niece. Brown's sister Jacqueline Crook testified that she frequently drove Brown to Ms. Hout's home, because he did not drive, and that she did so the evening Ms. Hout was found dead. (Id. at * 7.) She testified Brown lived with their mother and he was in their mother's home around 6:30 p.m. on May 5, 2011, but he left soon thereafter, saying he had to cut someone's grass. (Id.)

Ms. Crook's 19-year old daughter Dishannon Brown testified that she and her mother returned to her grandmother's home on May 5, 2011, between 6:30 and 7:00 p.m. and that Brown was there. (Id. at * 8.) Dishannon testified she then drove Brown to Lisa Corn's home before he was supposed to cut someone's grass. Instead of going to cut grass, however, they took another detour to Ms. Hout's home, because Brown wanted to check on her. Dishannon testified Brown went to the back of the victim's home and ran out the front door about five seconds later, and began rolling on the ground and yelling hysterically, "She's gone." (Id.)

Another of Brown's sisters, Caroline Brown, testified that she lived with her mother along with Brown. Carolyn testified Brown and the victim had a "great" relationship, wherein she called him "dad" and he called her "squirrel." She testified her mother took Brown to work on May 5, 2011, in the morning and picked him up around 3:00 p.m. She further testified that Brown slept at home on May 3 and 4, 2011. She stated that Brown called home around 10:45 p.m. on May 3, 2011, from the victim's home requesting a ride home. (Id.)

Eva Brown testified she is Brown's mother and was his main means of transportation. She testified she drove him to and from work on May 5, 2011, and that he later left her home around 7:00 p.m. to cut someone's grass. (Id.)

Brown testified in his own defense. He described his relationship with the victim as "fine," "my buddy," and the "daughter I never had." He admitted he had problems with drugs and that he and the victim smoked crack cocaine together on a regular basis. He denied ever having sex with the victim or being her pimp. (Id.)

Brown testified he last saw Ms. Hout on May 3, 2011, when she asked him to come over and help her pack because she was being evicted. He testified he and Ms. Hout smoked cocaine together until he decided to leave, allegedly telling Ms. Hout, "[B]aby, we had enough. I had enough. I gotta go." He asserted he did not see Ms. Hout again until he found her dead in her living room two days later. He denied being at her home on May 4, 2011, or talking to someone in a green jeep outside her home on that day. (Id.)

Brown testified Ms. Hout called him on April 28, 2011, to tell him that she "f'ed up" because she had stolen drugs from some Guatemalan or Mexican men. (Id. at * 9.) He testified she sounded scared and he became scared for her and himself, although he did not explain why. Brown denied taking a long shower at Lisa Corn's home on May 4, 2011, claiming the shower occurred a week earlier. He admitted sending a mean-spirited and angry letter to Ms. Corn from jail, but he testified he was merely hurt because she had sold a $7500 LeBron James high school trading card that once belonged to Brown.

Brown described the circumstances of his finding Ms. Hout's body. His niece took him first to Ms. Corn's home where he dropped off some clothes and then to Ms. Hout's home. He knocked on the front door, found it locked, and went to the back door, which was also locked. Brown was surprised the doors were locked because he knew Ms. Hout was only using the home as a "safe house" and that she was not staying there. Because Ms. Hout had painted over all the windows in the home, Brown could not see inside. He saw a stool on the patio and wondered why it was there because he knew he had left that stool in the kitchen. He put the stool under the window, noticed the screen lying on the ground, "popped" the window up, and crawled in backwards. (Id.)

Brown testified he made his way to the living room where he ran into a table, fell, and saw the victim for the first time. When he got up, he realized he had something in his hand, but he was unable to see it because it was dark in the room due to the painted windows. Brown threw the object in his hand and he rolled to the front door, hitting a piece of tin from carpeting he and the victim had pulled up. He thought he might have touched the victim's hand. He admitted he had blood on his hand and eye glasses. Brown then testified it took him a while to open the front door because he was "shaking like a leaf." When he finally got to the porch and down the steps, he tried to call 911 but kept hitting the wrong numbers, so he yelled out for someone else to call. (Id.)

Brown testified he still had blood on him and his shirt when he went to the police station to give a statement. At that time during direct examination, defense counsel asked Brown "Why didn't you tell the cops this?" Brown responded he was a "wreck" at the time. Brown concluded by denying having killed the victim or knowing who did. (Id.)

II. State Court Proceedings

A. Trial Court Proceedings

In May 2011, a Wayne County Grand Jury issued an indictment charging Petitioner with: (1) one count of aggravated murder in violation of Ohio Rev. Code § 2903.01(B);1 and (2) one count of murder in violation of Ohio Rev. Code § 2903.02(A). (Doc. No. 9-1 at Ex. 1.) Petitioner pled not guilty. (Doc. No. 9-1 at Exh. 2.)

On September 9, 2011, Petitioner filed a Notice of Alibi. (Doc. No. 9-1 at Exh. 3.) Jury trial commenced on September 26, 2011 and concluded on September 29, 2011. (Doc. No. 9-1 at Exh. 4.) The trial court instructed the jury regarding Petitioner's alibi defense. (Doc. No. 9-4 at Tr. 455.) On September 29, 2011, the jury convicted Petitioner of both counts in the indictment. (Doc. No. 9-1 at Exh. 4.) On October 13, 2011, the trial court merged the two counts for sentencing, and imposed a term of imprisonment of life without parole on the aggravated murder count. (Doc. No. 9-1 at Ex. 5.) The trial court's sentencing entry also provided that "the offender shall be subject to mandatory five (5) years post release control." (Id.)

B. Direct Appeal

Petitioner, through new counsel, filed a direct appeal, in which he asserted the following relevant assignments of error:

(Doc. No. 9-1 at Ex. 7.)

On July 8, 2013, the state appellate court affirmed Petitioner's conviction. Brown, 2013-Ohio-2945 at ¶ 63.2 Petitioner, pro se, filed a notice of appeal and memorandum in support of jurisdiction in the Ohio Supreme Court, in which he asserted the same five issues described above as propositions of law. (Doc. No. 9-1 at Exs. 10, 11.) On November 6, 2013, the Ohio Supreme Court declined jurisdiction and dismissed Petitioner's appeal. State v. Brown, 996 N.E.2d 987 (Table), 136 Ohio St.3d 1560 (Ohio 2013).

B. Rule 26(B) Application

On October 1, 2013, while his direct appeal was pending in the Ohio Supreme Court, Petitioner, pro se, filed an application to reopen his appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure. (Doc. No. 9-1 at Ex. 14.) He argued that he had received ineffective assistance of appellate counsel in the following ways:

(Id.) In support of his application, Petitioner provided a copy of the May 11, 2011 statement given to police officers by 15-year old Hannah Van Brunt. (Doc. No. 9-1 at p. 209.) The statement read as follows:

(Id.)

On December 12, 2013, the state appellate court denied Petitioner's Rule 26(B) Application, finding he had failed to demonstrate that his appellate counsel provided deficient performance. (Doc. No. 9-1 at Ex. 15.) After unsuccessfully moving the state appellate court for reconsideration (Doc. No. 9-1 at Exs. 16, 17), Petitioner filed a notice of appeal and memorandum in support of jurisdiction in the Ohio Supreme Court (Doc. No. 9-1 at Exs. 18, 19). He asserted the same two bases for ineffective assistance of appellate counsel. (Doc. No. 9-1 at Ex. 19.) On March 26, 2014, the Ohio Supreme Court declined jurisdiction and dismissed Petitioner's appeal. State v. Brown, 5 N.E.3d 668 (Table), 2014-Ohio-1182 (Ohio 2014).

C. Post-Conviction Petition

On January 22, 2014, while his appeal from the appellate court decision denying his Rule 26(B) Application was pending in the Ohio Supreme Court, Petitioner, pro se, filed a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21 in the trial court. (Doc. No. 9-1 at Ex. 22.) He asserted the following claim:

(Id.)

On January 28, 2014, the state trial court denied Petitioner's § 2953.21 petition as untimely. (Doc. No. 9-1 at Ex. 24.) On March 14, 2014, Petitioner filed a notice of appeal (Doc. No. 9-1 at Ex. 25), which the state appellate court dismissed as untimely on April 2, 2014 (Doc. No. 9-1 at Ex. 26). Thereafter, Petitioner filed another notice of appeal and a motion for leave to file a delayed appeal pursuant to Rule 5(A) of the Ohio Rules of Appellate Procedure. (Doc. No. 9-1 at Exs. 27, 28.) On June 26, 2014, the state appellate court denied Petitioner's motion for leave and dismissed his appeal, noting that Rule 5(A) does not apply to post-conviction proceedings. (Doc. No. 9-1 at Ex. 29.) Petitioner did not appeal this ruling to the Ohio Supreme Court.

III. Proceedings in this Court

In June 2014, Petitioner, pro se, filed his § 2254 petition. (Doc. No. 1.) He asserts the following five grounds for relief:

(Id.)

Respondent filed her Answer/Return of Writ on November 20, 2014. (Doc. No. 9). Respondent addressed Petitioner's first ground for relief as both an actual innocence claim and a sufficiency of the evidence claim. (Id. at 14.) Respondent interpreted the remainder of Petitioner's grounds for relief as ineffective assistance of appellate counsel claims, and argued that Petitioner's fourth and fifth grounds for relief are unexhausted. (Id at 36-39.)

On December 16, 2014, Petitioner filed a pro se motion to expand the record, in which he requested that this Court expand the record in this case to include: (1) all written witness statements of Ms. Van Brunt; and (2) the list of the names of all witnesses that Petitioner's trial counsel and the State intended to call during Petitioner's state criminal trial. (Doc. No. 10.) Thereafter, the magistrate judge issued an order directing the State to produce the requested documents. (Doc. No. 12.) On January 15, 2015, the State complied with the magistrate judge's order. (Doc. No. 13.)

In February 2015, Petitioner filed a pro se motion for an evidentiary hearing and appointment of counsel. (Doc. No. 14.) The magistrate judge directed Petitioner to file his Traverse by or on March 26, 2015. (Doc. No. 16.) Petitioner did not file his Traverse. Rather, on April 14, 2015, Petitioner filed a motion to supplement his pleadings in this matter with the affidavit of an individual named Jordan M. Jarvis.3 (Doc. No. 18.)

On July 9, 2015, the Court issued an Order, granting in part and denying in part Petitioner's motions for appointment of counsel, an evidentiary hearing, and an extension of time to file his Traverse. (Doc. No. 19.) Specifically, the Court granted Petitioner's request for appointed counsel but limited the appointment to investigating the issue of procedural default, explaining as follows:

(Id. at 2-3) (emphasis added). Given the complicated nature of the procedural issues involved, the Court determined the interests of justice required appointment of counsel for the limited purpose of investigating and researching whether Petitioner's ineffective assistance of trial counsel claim was procedurally defaulted. (Id.) In the same Order, the Court denied Petitioner's request for an evidentiary hearing without prejudice to refiling.4 (Id. at 4.)

On August 18, 2015, the Court held a telephonic status conference with counsel. (Doc. No. 22.) As reflected in a Minute Order issued that date, the Court ordered Counsel for Petitioner to obtain and file the affidavits of Petitioner's trial and direct appeal counsel stating whether they advised Petitioner regarding the availability of postconviction relief pursuant to Ohio Rev. Code § 2953.21 and, if so, whether they advised Petitioner regarding the relevant time limitations for seeking that relief. (Id.) Petitioner was ordered to file these affidavits by September 7, 2015. (Id.) The Court also directed the parties to brief the issue of procedural default with respect to Petitioner's claim that his trial counsel was ineffective in failing to adduce the testimony of Ms. Van Brunt and/or "Librado." (Id.)

On September 2, 2015, Petitioner filed an affidavit from appellate counsel Clarke Owens, which attaches six letters from Mr. Owens to Petitioner regarding his appeal. (Doc. No. 24.) Thereafter, Petitioner, through counsel, filed his Brief regarding Procedural Default. (Doc. No. 25.) Respondent replied on September 14, 2015. (Doc. No. 26.) On September 23, 2015, Petitioner filed another pro se motion for appointment of counsel, an evidentiary hearing, and an extension of time to file his Traverse. (Doc. No. 27.)

The Court conducted a telephonic status conference with counsel on September 29, 2015. (Doc. No. 28.) During the conference, counsel agreed it was not necessary to conduct an evidentiary hearing on the issue of procedural default. (Id.) The Court instructed Petitioner's counsel that "given the limited scope of counsel's appointment, the Petitioner shall file his Traverse pro se within 45 days." (Id.) In an Order issued separately that same day, the Court expressly denied Petitioner's request for continued appointment of counsel. (Doc. No. 29.) In addition, the Court denied Petitioner's request for an evidentiary hearing on the merits of his petition. (Id.)

On October 15, 2015, Petitioner filed his first pro se motion for leave to amend his habeas petition, seeking to raise the following two additional grounds for relief ("Proposed Grounds Six and Seven"):

(Doc. No. 30-1 at 2.) Shortly thereafter, on October 27, 2015, Petitioner filed his Traverse. (Doc. No. 32.) In addition to addressing the five grounds for relief presented in the original petition, the Traverse also addressed the merits of Petitioner's Proposed Grounds Six and Seven. (Id.)

Respondent filed a brief in opposition on October 30, 2015, in which she argued Petitioner's motion should be denied because the proposed amendments are futile. (Doc. No. 33.) Petitioner filed a reply on November 13, 2015. (Doc. No. 34.)

On February 1, 2016, Petitioner filed his second pro se motion for leave to amend habeas petition, in which he sought to add a claim of insufficient evidence ("Proposed Ground Eight"). (Doc. No. 35.) Respondent filed a response on February 2, 2016, noting that she had previously addressed Petitioner's first ground for relief as a sufficiency of the evidence claim in the Return. (Doc. No. 36.)

IV. Motions to Amend

It is well established that Rule 15 of the Federal Rules of Civil Procedure applies to a habeas petitioner's request for leave to amend his petition. Mayle v. Felix, 545 U.S. 644, 655 (2005). See also Glenn v. Coleman, 2014 WL 4983661 at * 5 (N.D. Ohio Oct. 6, 2014 (Helmick, J. adopting report and recommendation of White, M.J.); Shank v. Mitchell, 2013 WL 3208554 at *3 (S.D. Ohio June 24, 2013). Under Rule 15(a), a party may amend his or her pleadings once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15. Otherwise, the party may amend only with the opposing party's written consent or by leave of court, which "shall be freely given when justice so requires." Id. See also Mayle, 545 U.S. at 655.

As Respondent has already filed her Answer/Return of Writ, leave of court must be obtained before Petitioner may amend his petition. In determining whether leave should be granted, a habeas court should consider several factors, including "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Coe v. Bell, 161 F.3d 320, 341 (6th Cir.1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.1994.)) See also Powers v. Beightler, 2010 WL 649623 at * 1 (N.D. Ohio Feb. 19, 2010) (Pearson, J.) (Pearson, J.). If a proposed amendment lacks merit on its face, it is deemed futile. See e.g., Moss v. United States, 323 F.3d 445, 475 (6th Cir. 2003). In the Sixth Circuit, leave to amend a pleading may be denied on grounds of futility only if the amended pleading would not withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Kottmyer v. Maas, 436 F.3d 684, 691-92 (6th Cir. 2006); Hall v. Clipper, 2011 WL 2671310 at * 11 (N.D. Ohio July 8, 2011) (Vecchiarelli, M.J.).

A. Motion for Leave to Amend to Add Ineffective Assistance of Trial Counsel Claims (Doc. No. 30)

In his first motion for leave to amend, Petitioner seeks to add two claims of ineffective assistance of trial counsel based on counsel's alleged failure to (1) investigate and subpoena Ms. Van Brunt and/or "Librado" ("Proposed Ground Six"); and (2) request an alibi defense jury instruction ("Proposed Ground Seven"). (Doc. No. 30.)

Respondent argues Petitioner's proposed amendment should be denied as futile because both grounds are procedurally defaulted. (Doc. No. 33.) She also maintains that allowing Petitioner to raise Proposed Ground Seven would be futile because an alibi instruction was, in fact, given at trial. (Id. at 4.)

With regard to Petitioner's Proposed Ground Six, this Court already has construed the petition and related motions filed by Petitioner as asserting that Petitioner received ineffective assistance of trial counsel when his trial counsel failed to call Ms. Van Brunt and/or "Librado" as alibi witnesses at trial. (Doc. No. 19.) This is essentially identical to Petitioner's Proposed Ground Six. Thus, leave to amend is not necessary as to Proposed Ground Six as this Court has already construed the petition as raising this claim. It is recommended, therefore, that Petitioner's motion for leave to amend his petition to include this claim be denied as moot.

With regard to Proposed Ground Seven (i.e., ineffective assistance of trial counsel based on counsel's failure to request an alibi jury instruction), it is recommended that Petitioner's motion for leave to amend be denied as futile. As Respondent correctly notes, and as discussed in more detail below, the trial court did, in fact, instruct the jury regarding alibi. (Doc. No. 9-4 at Tr. 455.) Accordingly, and in the absence of any meaningful argument to the contrary, the Court finds that allowing Petitioner to amend his Petition to include this claim would be futile as it is factually inaccurate and lacks merit on its face.

It is, therefore, recommended that Petitioner's motion for leave to amend his habeas petition (Doc. No. 30) to assert Proposed Grounds Six and Seven be DENIED.

B. Motion for Leave to Amend to Add Insufficiency of the Evidence

Claim (Doc. No. 35)

In his second motion for leave, Petitioner seeks leave to amend his petition to add a claim for insufficiency of the evidence (Proposed Ground Eight). (Doc. No. 35.) Petitioner addressed the merits of this ground in his motion. (Id.) Respondent submitted a response, in which she explains that she briefed Ground One as an insufficiency of the evidence claim in the Return. (Doc. No. 36.) Respondent does not appear to oppose Petitioner's motion and states that she will rest on her previously submitted analysis of this claim. (Id. at 2.)

It is recommended that Petitioner's motion for leave to amend petition to add a claim for insufficiency of the evidence be denied as moot. In the Return, Respondent construes Petitioner's first ground for relief as asserting an insufficiency of the evidence claim and addresses it on the merits. The Court agrees with Respondent that Ground One can reasonably be construed as raising an insufficiency of the evidence claim and addresses it as such below. Thus, leave to amend the petition to add this claim is unnecessary and it is recommended that Petitioner's motion (Doc. No. 35) be DENIED as moot.

V. Procedural Issues

A. Jurisdiction

A state prisoner may file a § 2254 petition in "the district 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." 28 U.S.C. § 2241(d). The Court of Common Pleas of Wayne County, Ohio sentenced Petitioner. (Doc. No. 9-1 at Ex. 5.) Wayne County is within this Court's geographic jurisdiction. See 28 U.S.C. § 115(a). Accordingly, this Court has jurisdiction over Petitioner's § 2254 petition.

B. Exhaustion and Procedural Default

A state prisoner must exhaust all available state remedies or have no remaining state remedies available prior to seeking review of a conviction via federal habeas corpus. See 28 U.S.C. § 2254(b) and (c); Castille v. Peoples, 489 U.S. 346, 349 (1989); Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir. 1991). The exhaustion requirement is properly satisfied when the highest court in the state in which petitioner was convicted has been given a full and fair opportunity to rule on all the petitioner's claims. See Manning v. Alexander, 912 F.2d 878, 881-83 (6th Cir. 1990). If any state procedures for relief remain available, the petitioner has not exhausted his state remedies, and, generally, a federal court must dismiss his petition. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Where, however, there are no longer any state court remedies still available to a petitioner with respect to a particular claim, this Court may deem that claim procedurally defaulted. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996) ("Because the exhaustion requirement `refers only to remedies still available at the time of the federal petition,' Engle v. Isaac, 456 U.S. 107, 125, n.28 (1982), it is satisfied `if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law,' Castille[, 489 U.S. at 351].").

Generally, a federal court must decline to review "contentions of federal law . . . not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). When a petitioner "has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for 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, 750 (1991).

If the State argues that a petitioner has procedurally defaulted a claim, the Court must conduct a four-step analysis to determine whether the petitioner has indeed defaulted and, if so, whether the procedural default may be excused:

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).

In his fourth and fifth grounds for relief, Petitioner contends his appellate counsel was ineffective in failing to: (1) notify Petitioner of the existence of Ms. Van Brunt's statement; and (2) advise Petitioner regarding the possibility of pursuing post-conviction relief pursuant to Ohio Rev. Code § 2953.21, including the relevant time limitation and the triggering event for the filing deadline.

As noted above, the Court construes these grounds as raising two separate types of claims. First, based on the arguments presented in the petition and related motions, this Court construes grounds four and five as asserting ineffective assistance of trial counsel based on trial counsel's failure to investigate or subpoena Ms. Van Brunt and/or "Librado" as alibi witnesses at trial. (Doc. No. 19.) Second, the Court construes these grounds as asserting ineffective assistance of appellate counsel based on appellate counsel's alleged failure to advise Petitioner regarding the existence of Ms. Van Brunt's statement and the time deadlines and triggering events for pursuing postconviction relief. For the following reasons, the Court finds both Petitioner's ineffective assistance of trial counsel and ineffective assistance of appellate counsel claims should be dismissed as procedurally defaulted.

1. Fourth and Fifth Grounds for Relief-Ineffective Assistance of Trial Counsel

Petitioner does not contest that his ineffective assistance of trial counsel claim based on trial counsel's failure to investigate or subpoena Ms. Van Brunt or "Librado" is procedurally defaulted. Petitioner first raised this claim in his January 2014 petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.21. (Doc. No. 9-1 at Exh. 22.) The state trial court denied the petition as untimely on January 28, 2014. (Doc. No. 9-1 at Exh. 24.) Petitioner filed a notice of appeal on March 14, 2014, which the state appellate court dismissed as untimely.5 (Doc. No. 9-1 at Exhs. 25, 26.) Petitioner then filed a motion for delayed appeal pursuant to Ohio App. R. 5(A), which was denied on the grounds that Rule 5(A) does not apply to post-conviction proceedings. (Doc. No. 9-1 at Exhs. 27, 28, 29.) Petitioner did not appeal to the Ohio Supreme Court.

Respondent argues this claim is "procedurally defaulted twice over for Brown's failure to present a timely post-conviction petition (as determined by the state courts) and Brown's subsequent failure to appeal that decision to the Supreme Court of Ohio." (Doc. No. 26 at 3.) The Court agrees.

Petitioner does not dispute that his post-conviction petition was untimely. The state trial court decision reflects that the court relied on the time requirement to decline to review Petitioner's claim on the merits. (Doc. No. 9-1 at Exh. 24.) Accordingly, the first and second elements of Maupin are satisfied. Finally, Ohio's timeliness requirements in post-conviction proceedings constitute an independent and adequate state ground for declining to review the merits of a petitioner's claims. See Wolff v. Tibbles, 2014 WL 2694227 at * 14 (N.D. Ohio June 13, 2014) (adopting the report and recommendation of Vecchiarelli, M.J.); Townsend v. Gansheimer, 2009 WL 589332, * 7 (N.D. Ohio March 9, 2009) (adopting the report and recommendation of Perelman, M.J.). Thus, Petitioner's ineffective assistance of trial counsel claim is procedurally defaulted for the reason that his post-conviction petition was untimely filed and the state trial court declined to review the petition on that basis.

This claim is further defaulted due to Petitioner's failure to timely appeal the denial of his post-conviction petition to the state appellate court. The state appellate court denied Petitioner's appeal as untimely under Ohio App. R. 4(A). (Doc. No. 9-1 at Exh. 26.) It then denied Petitioner's subsequent motion for delayed appeal on the grounds that Ohio App. R. 5(A) does not apply to post-conviction proceedings. (Doc. No. 9-1 at Exh. 29.) As Petitioner failed to timely file an appeal from the trial court's denial of his post-conviction petition and Ohio does not permit delayed appeals from post-conviction relief determinations, the first Maupin factor is met as there is a state procedural rule applicable to petitioner's claim. The second Maupin factor is satisfied as the state appellate court actually enforced the state procedural rule when it denied Petitioner's motion for a delayed appeal on that basis.

The third Maupin factor, whether the state procedural rule is an adequate and independent state ground, is also satisfied. Ohio App. R. 5(A)'s inapplicability to civil cases, and specifically, post-conviction relief proceedings, is firmly established and regularly followed by Ohio courts. See Carley v. Hudson, 563 F.Supp.2d 760, 776 (N.D. Ohio 2008) (adopting report and recommendation of Vecchiarelli, M.J.) (citing State v. Williams, 2006 WL 2949011, at *1 (Ohio Ct. App. 2006) ("Because post-conviction proceedings are civil in nature, App.R. 5(A) may not be used to seek leave from the denial of a post-conviction action where the time for an appeal as of right as provided in App.R. 4 has passed."); State v. Johnson, 2007 WL 2983890, at *1 (Ohio Ct. App. October 15, 2007) ("[T]he Supreme Court of Ohio has specifically held that App.R. 5(A) is not available on appeals regarding a post-conviction relief determination."); State v. Nichols, 11 Ohio St.3d 40, 43, 463 N.E.2d 375 (Ohio 1984)).

Petitioner's ineffective assistance of trial counsel claim is, therefore, procedurally defaulted for the additional reason that he failed to timely appeal the denial of his postconviction petition; Ohio law does not permit delayed appeals from the denial of a postconviction petition; and the state appellate court dismissed his post-conviction petition on that basis. Finally, this claim is further defaulted because Petitioner failed to appeal the state appellate court's decision to the Ohio Supreme Court and there is no mechanism for him to do so now.

Accordingly, for all the reasons set forth above, Petitioner's ineffective assistance of trial counsel claim is procedurally defaulted and should be dismissed on that basis, unless he can establish cause and prejudice to excuse the default.

Relying on Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014), Petitioner argues his appellate counsel's failure to advise him of the time deadlines and triggering events for pursuing post-conviction relief establishes cause for the default of this claim. (Doc. No. 25.) In Gunner, the petitioner was convicted of drug-trafficking offenses and sentenced to two concurrent ten-year mandatory-minimum sentences. (Id. at 513-14.) Prior to trial, Gunner followed his trial counsel's advice and refused a plea agreement that would have eliminated the mandatory-minimum sentence of ten years and subjected him to a potential sentence of three to ten years. (Id. at 514.) Gunner claimed he was never told the trial judge would have been obligated to consider giving him the minimum sentence of three years had he pled guilty or that he would have had the right under the plea agreement to appeal a ten-year sentence. (Id.) Gunner's counsel, who was retained for the trial and direct appeal, did not advise Gunner of the filing of the trial transcript or of the 180-day filing deadline for post-conviction proceedings, which passed without any filing. (Id. at 515.)

Gunner thereafter filed a habeas petition asserting counsel was constitutionally ineffective for failing to recommend accepting the plea agreement. The district court denied the claim as procedurally defaulted. (Id.) Relying on Wilson v. Hurley, 382 Fed. Appx. 471 (6th Cir. 2010), the district court held that "because petitioner did not have a right to an attorney in the post-conviction proceeding, his attorney on direct appeal had no obligation to advise him of the time limit for pursuing that remedy." (Id.)

The Sixth Circuit reversed. At the outset, after referring to Wilson as non-binding precedent, the Sixth Circuit stressed that:

(Id. at 515-16.) The court then determined that, under the circumstances of that case, counsel should have been aware that Gunner would have wanted to file a petition for post-conviction relief regarding the plea agreement. Relying on Smith v. State of Ohio Dept. of Rehabilitation and Corrections, 463 F.3d 426 (6th Cir. 2006), the court noted that the Supreme Court has established "that trial counsel has a constitutional duty to consult with clients about filing an appeal" when there is reason to believe the client would want to appeal. (Id. at 518) (citing Smith, 463 F.3d at 434). Under such circumstances, "an attorney is required to advise the defendant `about the advantages and disadvantages of taking an appeal' and to make `a reasonable effort to discover the defendant's wishes.'" (Id.) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 471, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). Such advice is "particularly critical because the failure of counsel to provide it [can] `arguably [lead] not to a judicial proceeding of disputed reliability, but rather to the forfeiture of [an appellate] proceeding itself.'" (Id.) (quoting Roe, 528 U.S. at 483).

The Gunner court reasoned that "the date of an event on direct appeal"—i.e., the date on which the trial transcript was filed with the state appellate court—"that triggers the time for the filing of a post-conviction petition constitutes . . . an important development" about which counsel has a duty to consult with his client under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (Id. at 518.) On this basis, the court deemed it irrelevant "that the information related to a possible proceeding that [direct-appeal counsel] would not have been obligated to pursue." (Id. at 517.)

In the instant case, Petitioner argues that, under Gunner, appellate counsel was required to notify him of both (1) the date on which the trial transcript was filed in state appellate court, and (2) the fact that he had 180 days from that date to file a postconviction petition pursuant to Ohio Rev. Code § 2953.21. While Petitioner acknowledges appellate counsel advised him of the 180 day filing deadline, he maintains appellate counsel failed to either inform of the date the transcript was filed or otherwise provide him with the exact filing deadline for a post-conviction petition. Petitioner argues that appellate counsel was, therefore, ineffective and this ineffectiveness serves as cause to excuse the default of this claim. (Doc. No. 25.)

Respondent disputes Petitioner's reading of Gunner, and argues that "[i]n this case, [appellate] counsel clearly advised Brown of the possibility that Brown could file a post-conviction petition and that there was an 180 day time limit, and this should be sufficient." (Doc. No. 26 at 7.)

The Court need not decide this issue. Even assuming Petitioner's reading of Gunner is correct, the facts of this case reveal that appellate counsel was not ineffective. On December 2, 2011 (after the notice of appeal had been filed but before the filing of the transcript), appellate counsel Clarke Owens sent Petitioner a letter6 explaining, in relevant part, as follows:

Dear Mr. Brown:

I don't have the transcript yet, and I have no idea how many pages it will be, but I suspect it will be long. The reporter has filed a request for a 30-day extension to file it. It was due today originally, but I expect it will be coming in any day between now and early January. The Court of Appeals ordinarily will not pay for the cost of sending you a copy of the transcript. Pertinent parts of the transcript are usually referred to or quoted in the briefs.

(Doc. No. 24-1 at 17.)

On January 25, 2012, Mr. Owens sent a letter to Petitioner with the following re line: "post conviction petition deadline July 2012, Ohio Public Defender." (Doc. No. 24-1 at 16.) Therein, Mr. Owens advised Petitioner that "if you have information about someone that you think killed Ms. Hout, and if you learned about this information since the trial, you should contact the Ohio Public Defender" about filing a post-conviction petition. (Id.) Mr. Owens reminded Petitioner that he (Owens) would not file the postconviction petition but stated that the Ohio Public Defender would file one "if there is enough evidence to warrant it." (Id.) Finally, Mr. Owens expressly advised Petitioner in this letter that the deadline for the Ohio Public Defender to file a post-conviction petition was July 16, 2012. (Id.)

On March 15, 2012, Mr. Owens wrote to Petitioner again, this time enclosing a copy of the transcript. (Doc. No. 24-1 at 7.) Mr. Owens also enclosed a document entitled "Appeals As of Right: Facts & Misconceptions." (Id. at 9.) Among other things, that document explained that "[o]ther motions, such as a post-conviction petition alleging Constitutional violations, must also be filed in the trial court. A post-conviction petition may be filed simultaneously with a direct appeal." (Id.)

On March 26, 2012, Mr. Owens sent Petitioner a copy of the State's appellate brief. (Doc. No. 24-1 at 6.) That brief contains clear references to the transcript throughout. (Doc. No. 9-1 at Exh. 8.)

Given the totality of the foregoing correspondence, Petitioner cannot genuinely assert that he first learned his transcript had been filed in January 2014, when he filed his post-conviction petition. The correspondence directly contradicts Petitioner's claim that appellate counsel failed to timely and adequately inform Petitioner of both the triggering event and the time requirements for the filing of a post-conviction petition.7 Accordingly, Petitioner's claim that his counsel did not adequately inform him of the filing deadline lacks merit.

Petitioner argues, however, that appellate counsel was nonetheless ineffective because he misled Petitioner into believing he was required to retain an attorney to file a post-conviction petition. In support of this argument, Petitioner emphasizes a sentence in appellate counsel's December 2011 letter, which states that "you would need to hire an attorney to" file a post-conviction petition. (Doc. No. 24-1 at 17.)

The Court rejects Petitioner's argument. In the December 2011 letter, Mr. Owens advises Petitioner that "[t]here is no appointment of counsel for a post-conviction petition, in most cases, and I am not appointed to do one." (Doc. No. 24-1 at 17-18.) Read in this context, Mr. Owens' subsequent statement that Petitioner "would need to hire an attorney" to file a post-conviction petition is simply reiterating that counsel would not be appointed for the purpose of filing such a petition. Nothing in Mr. Owens' letter suggests that Petitioner was precluded from filing his post-conviction petition pro se.8

Accordingly, the Court finds Petitioner is unable to demonstrate cause to excuse the default of this claim based on ineffective assistance of appellate counsel. Moreover, the Court further finds Petitioner is unable to demonstrate prejudice. Even if Petitioner's failure to timely file his post-conviction petition could be excused due to appellate counsel's alleged ineffectiveness, the record reflects Petitioner thereafter failed to timely appeal the denial of post-conviction petition to the state appellate court and, further, failed to appeal the state appellate court's denial of his motion for delayed appeal to the Ohio Supreme Court.

Accordingly, and for all the reasons set forth above,9 Petitioner's ineffective assistance of trial counsel claims set forth in grounds four and five should be dismissed as procedurally defaulted.10

2. Fourth and Fifth Grounds for Relief-Ineffective Assistance of Appellate Counsel

To the extent grounds four and five of the petition are asserted as independent ineffective assistance of appellate counsel claims, the record reveals Petitioner did not raise these claims in state court and, thus, they are not exhausted. The claims are also procedurally defaulted, as there is no method through which Petitioner could now assert them in state court. Under Ohio law, a defendant may assert ineffective assistance of appellate counsel via an application to reopen his appeal pursuant to Rule 26(B) of Ohio's Rules of Appellate Procedure. In this case, Petitioner has already filed one Rule 26(B) Application, which the appellate court denied on the basis that Petitioner failed to establish that his appellate counsel's performance was deficient. A second application to reopen would be barred by res judicata under Ohio law. State v. Carter, 757 N.E.2d 362, 363-64, 93 Ohio St.3d 581, 582 (Ohio 2001). The Sixth Circuit has determined that, for the purpose of determining procedural default, the doctrine of res judicata is an independent and adequate state ground. See, e.g., Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000).

Accordingly, Petitioner has procedurally defaulted his ineffective assistance of appellate counsel claims in grounds four and five. As Petitioner cannot show cause and prejudice to excuse the default of these claims, it is recommended they should be dismissed as procedurally defaulted.

VI. The Merits of Petitioner's Remaining Claims

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") altered the standard of review that a federal court must apply when deciding whether to grant a writ of habeas corpus. As amended, 28 U.S.C. § 2254(d) provides:

A writ of habeas corpus may issue only if the state court's decision is contrary to clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence. See Carey v. Musladin, 549 U.S. 70 (2006); Williams v. Taylor, 529 U.S. 362, 379-90 (2000). Law is "clearly established" only by holdings of the Supreme Court, not its dicta, and the law must be clearly established at the time of the petitioner's conviction. See Carey, 549 U.S. at 74.

Courts must give independent meaning to the phrases "contrary to" and "unreasonable application of" in § 2254(d)(1):

Williams, 529 U.S. at 404-05 (emphasis added by the quoting court). A decision is "contrary to" clearly established federal law if it reaches a conclusion opposite to that reached by Supreme Court holdings on a question of law or if it faces a set of facts materially indistinguishable from relevant Supreme Court precedent and still arrives at an opposite result. Id. at 405-06. A decision involves an unreasonable application of federal law only if the deciding court correctly identifies the legal principle at issue and unreasonably applies it to the facts of the case at hand. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). "In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable." Id. at 520-21 (internal citations and quotation marks omitted).

B. First Ground for Relief

In his first ground, Petitioner argues he is entitled to habeas relief because he is actually innocent of the offenses of which he was convicted. The State addresses this ground as raising both actual innocence and insufficiency of the evidence claims. As noted above, the Court similarly construes ground one as raising both claims and will address each in turn, below.

1. Actual Innocence

Petitioner asserts that he "is completely innocen[t] of the crimes." (Doc. No. 1 at 2.) Respondent maintains this claim should be dismissed on the basis that "actual innocence" has not been recognized as a stand-alone habeas claim. (Doc. No. 9 at 17-18.)

The Sixth Circuit has repeatedly held that actual innocence is not cognizable as a free-standing habeas claim, particularly in the context of non-capital proceedings.11 See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007). See also Thomas v. Perry, 553 Fed. App'x 485, 486 (6th Cir. Jan. 15, 2014) ("Thomas' freestanding claim of actual innocence based on newly discovered evidence is not cognizable on federal habeas review"); Sitto v. Lafler, 2008 WL 2224862 at * 1 (6th Cir. May 28, 2008) ("[W]e continue to adhere to the rule that a free-standing innocence claim is not cognizable for habeas review"); Wright v. Stegall, 2007 WL 2566047 at * 3 (6th Cir. 2007) ("Since the Supreme Court has declined to recognize a freestanding innocence claim in habeas corpus, outside the death-penalty context, this court finds that petitioner's claim is not entitled to relief under available Supreme Court precedent."); Hoop v. Jackson, 2015 WL 6735895 at * 22 (S.D. Ohio Nov. 4, 2015) ("Case law in the Sixth Circuit establishes that the Supreme Court of the United States has never recognized a free-standing or substantive actual innocence claim."); Carter v. Bradshaw, 2015 WL 5752139 at * 51 (N.D. Ohio Sept. 30, 2015) (Pearson, J.); Keenan v. Bagley, 2012 WL 1424751 at fn 28 (N.D. Ohio April 24, 2012) (Katz, J.); Johnson v. Kelly, 2015 WL 1298711 at * 11 (N.D. Ohio March 23, 2015) (Zouhary, J., adopting report and recommendation of Baughman, M.J.)

Accordingly, to the extent Petitioner's first ground for relief asserts a stand alone claim of actual innocence, this claim should be dismissed as non-cognizable.

2. Sufficiency of the Evidence

The Court construes Petitioner's first ground for relief to also assert that there was insufficient evidence to support his conviction for aggravated murder. In his Traverse and related motions, Petitioner appears to argue he is entitled to habeas relief on this claim because the jury should have credited the alibi testimony presented by his family members, as well as his own testimony that he did not murder Ms. Hout.

A petitioner who claims that the evidence at trial was insufficient for a conviction must demonstrate that, "after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir. 2000). The role of the reviewing court in considering such a claim is limited:

Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) (internal citations omitted). Moreover, it is well established that `"attacks on witness credibility are simply challenges to the quality of the government's evidence and not to the sufficiency of the evidence.'" Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States v. Adamo, 742 F.2d 927, 935 (6th Cir.1984)).

Consistent with these principles, the Supreme Court recently emphasized that habeas courts must review sufficiency of the evidence claims with "double deference:"

Coleman v. Johnson, ___ U.S. ___, ___, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012). Under this standard, "we cannot rely simply upon our own personal conceptions of what evidentiary showings would be sufficient to convince us of the petitioner's guilt," nor can "[w]e . . . inquire whether any rational trier of fact would conclude that petitioner. . . is guilty of the offenses with which he is charged." Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Rather, a habeas court must confine its review to determining whether the state court "was unreasonable in its conclusion that a rational trier of fact could find [petitioner] guilty beyond a reasonable doubt based on the evidence introduced at trial." Id. (emphasis in original) (citing Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)).

In its decision affirming his conviction, the state appellate court applied the following standard:

This Court recognizes:

State v. Brown, 2013 WL 3455669 at * 1.

Here, Brown was convicted of aggravated murder in violation of Ohio Rev. Code § 2903.01(B), which states in pertinent part: "No person shall purposely cause the death of another * * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping * * * [or] aggravated burglary * * *." The state appellate court limited its review of the underlying felony to aggravated burglary, which Ohio law defined as follows: "No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another [.]" Ohio Rev. Code § 2911.11(A)(1).12

The state appellate court then reviewed the evidence at trial, as set forth in Section I, supra, and concluded as follows:

Brown, 2013 WL 3455669 at * 6-7.

Upon a careful and thorough review of the trial transcript, the Court finds the state appellate court reasonably determined that the jury could have found Brown guilty of aggravated murder. In resolving this claim, the state appellate court accurately summarized the evidence of record and correctly identified the applicable law. While Petitioner argues the jury should have acquitted him on the basis of the alibi testimony presented by himself and his family members, the credibility of witnesses' testimony was outside the scope of the state appellate court's consideration of Plaintiff's claim of insufficient evidence. Martin, 280 F.3d at 618. Rather, the state appellate court properly considered all of the evidence in the light most favorable to the State and determined there was sufficient evidence to convict him. The standard of review applied by the state appellate court coincides with the standard for sufficiency of the evidence set forth in Jackson. Petitioner points to no federal legal precedent requiring the state appellate court, in the context of a challenge to the sufficiency of the evidence, to engage in the evidence-weighing that he requests.

Accordingly, the state court reasonably applied clearly established case law when it considered Petitioner's argument that there was insufficient evidence to support his conviction, and there is no basis for this Court to conclude that the state court decision in this case was contrary to, or involved an unreasonable application of, clearly established federal law. Petitioner's first ground for relief lacks merit.

C. Second and Third Grounds for Relief-Ineffective Assistance of Appellate Counsel

In his second and third grounds for relief, Petitioner argues his appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel based on trial counsel's failure to (1) investigate and/or subpoena Ms. Van Brunt or Librado to testify at trial (ground two); or (2) request an alibi defense jury instruction (ground three). (Doc. No. 1.)

In assessing claims of ineffective assistance of counsel, courts apply the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both that his counsel's performance was deficient, and that the allegedly ineffective assistance caused him prejudice:

Strickland, 466 U.S. at 687. This standard applies "regardless of whether a [p]etitioner is claiming ineffective assistance of trial counsel or ineffective assistance of appellate counsel." Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).

Where, as here, a state court correctly identifies Strickland as the standard for assessing a petitioner's ineffective assistance claim, in order for the petitioner to receive habeas relief, the state court's ruling must be an unreasonable application of the Strickland standard. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) ("The question is not whether a federal court believes the state court's determination under Strickland was incorrect but whether that determination was unreasonable — a substantially higher threshold.") (internal quotation marks omitted). Because the performance and prejudice components of the Strickland test are mixed questions of law and fact, they are subject to de novo review by a habeas court. Carter v. Bell, 218 F.3d 581, 591 (6th Cir. 2000). Federal habeas courts, however, must also employ "a `doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 13 (2013); see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403 (2011) ("Our review of the [state court's] decision is thus doubly deferential. We take a highly deferential look at counsel's performance through the deferential lens of § 2254(d).") (internal citations and quotation marks omitted).

1. Alibi Witnesses (Ground Two)

Petitioner first asserts appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel based on trial counsel's failure to investigate or subpoena Ms. Van Brunt and/or "Librado" to testify at trial. As noted above, Ms. Van Brunt prepared a written statement to police indicating that a person identified as "Librado" accused Ms. Hout of stealing cocaine out of his (Librado's) lock box. (Doc. No. 13-1 at 1.) According to Ms. Van Brunt's statement, Librado then stated, in reference to Ms. Hout, that "I had to do what I had to do" and "I am going to jail soon." (Id.)

Petitioner raised this claim in his App. R. 26(B) Application. (Doc. No. 9-1 at Exh. 14.) The state appellate court addressed it on the merits, as follows:

(Doc. No. 9-1 at Exh. 15.)

The Court finds the state appellate court's decision was not contrary to, or an unreasonable application of, clearly established federal law. Pursuant to Ohio App. R. 9(A), the record on appeal consists of "[t]he original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court." Petitioner does not direct this Court's attention to any document in the record on appeal indicating that "Librado" confessed to murdering Ms. Hout or that Ms. Van Brunt was a witness to this alleged confession.13

Thus, the state appellate court was not unreasonable in determining that appellate counsel was precluded from raising ineffective assistance of trial counsel premised on the failure to subpoena these witnesses.14 Clearly, then, the state appellate court was not unreasonable in further concluding that appellate counsel's failure to raise this issue on direct appeal did not constitute deficient performance under the first prong of Strickland.

Accordingly, Petitioner's second ground for relief is without merit.

2. Alibi instruction (Ground Three)

In his third ground for relief, Petitioner argues appellate counsel was ineffective for failing to assert ineffective assistance of trial counsel based on trial counsel's failure to request an alibi defense instruction. (Doc. No. 1 at 3.) Respondent argues this argument is factually without merit because the state trial court did, in fact, instruct the jury on alibi.

Petitioner raised this claim in his App. R. 26(B) Application. (Doc. No. 9-1 at Exh. 14.) The state appellate court addressed it on the merits and denied it, finding Petitioner had failed to show appellate counsel's performance fell below an objective standard of reasonableness under the first prong of Strickland. (Doc. No. 9-1 at Exh. 15.)

The Court finds this claim is without merit. As Respondent correctly notes, the trial court did instruct the jury regarding alibi, as follows:

(Doc. No. 9-4 at Tr. 455.) Petitioner does not acknowledge the above instruction or explain why he believes it is insufficient as a matter of law.

Because the trial court did, in fact, instruct the jury regarding alibi, appellate counsel would have had no basis for asserting ineffective assistance of trial counsel based on the failure to request such an instruction. Accordingly, the Court finds Petitioner's third ground for relief is without merit.15

VII. Conclusion.

For all the reasons set forth above: (1) the petition should be DISMISSED; and (2) Petitioner's motions to amend (Doc. Nos. 30, 35) should be DENIED as moot.