ORDER

JAMES G. CARR, District Judge.

This is a habeas corpus case in which, following referral to United States Magistrate Judge Kathleen Burke and her filing of her Report and Recommendation (Doc. 11), the petitioner has filed objections. (Doc. 14).

On de novo review, I find the objections meritless; accordingly, I adopt the R&R as the order of this court and deny the petition.

Discussion

Following a bench trial in the Common Pleas Court of Mahoning County, Ohio, the court found the petitioner guilty of one count of gross sexual imposition and one count of rape. The victim was a mentally impaired young woman. Petitioner's appeal to the Ohio Seventh District Court of Appeals was unsuccessful, as was his effort to seek review in the Ohio Supreme Court.

In his habeas petition, petitioner asserted four grounds for relief: 1) denial of his Sixth Amendment right to a speedy trial; 2) failure to prove all elements of the offenses; 3) a number of erroneous evidentiary rulings denied him a fair trial; and 4) ineffective assistance of trial counsel.

In his objections to the R&R, the petitioner contends that: 1) the reviewing courts in Ohio failed to address his speedy-trial claim; and 2) the Magistrate Judge erred in finding that the state courts had reasonably concluded that the evidence sufficed for a conviction. He also makes a passing objection to Magistrate Judge Burke's determination that his ineffective-assistance claim lacked merit.

First: the state appellate court not only cited the Sixth Amendment, it also addressed the merits of Pyles's federal claim in detail.

To be sure, the court devoted much of its analysis to Ohio law governing speedy-trial claims. But Ohio law on speedy-trial claims is coextensive with the criteria for adjudicating such claims under the Sixth Amendment. See Brown v. Bobby, 656 F.3d 325, 331 (6th Cir. 2011). Accordingly, as the Magistrate Judge correctly held, the state court necessarily adjudicated Pyles's federal speedytrial claim.

Second: like the Magistrate Judge, I agree that petitioner defaulted his sufficiency claim, to the extent it rested on the lack of evidence of the victim's mental impairment, in the Ohio Supreme Court. On the merits, there was, as Magistrate Judge Burke noted, ample evidence that Pyles had raped the victim. (Doc. 11 at 27-28). I therefore find no defect in the state appellate court's assessment of the trial court record and its finding that the evidence sufficed to sustain the petitioner's convictions on both counts.

Third: petitioner has not come close to showing that the state appellate court was unreasonable in rejecting the ineffective-assistance claim. He contends that counsel was deficient for not introducing evidence to impeach the victim, but his objections do not identify the evidence or explain how it would have undermined the victim's testimony. (Doc. 14 at 9).

Furthermore, despite the vagueness of petitioner's objection, I have, sua sponte, undertaken a de novo review of the Magistrate Judge's disposition of the entire ineffective-assistance claim, and I agree entirely with her conclusion that the state court reasonably denied relief.

As the Magistrate Judge noted, petitioner failed to show what his attorney could have done to persuade the trial judge that the victim was not competent to testify. (Doc. 11 at 30). He thus failed to show either deficient performance or prejudice.

Petitioner's claims as to counsel's failure to voir dire certain witnesses, and that counsel should not have let petitioner waive a jury trial because the judge was biased, fare no better. (Id. at 32-33). There is nothing unreasonable about a state court rejecting a Strickland claim that has no basis in the record. State v. Pyles, 2015-Ohio-5594, ¶109 (Ohio App.) (no evidence that witnesses were unqualified to testify); id. at ¶108 (no evidence that trial judge was biased).

Conclusion

It is, therefore,

ORDERED THAT:

So ordered.

REPORT & RECOMMENDATION

Petitioner Ronald Pyles, Jr. ("Petitioner" or "Pyles") brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Pyles is detained at the Southeastern Correctional Institution, Hocking Unit, having been found guilty by the Mahoning County, Ohio, Court of Common Pleas, following a bench trial, of one count of gross sexual imposition and one count of rape. State v. Pyles, Case No. 12 CR 570 (Mahoning Cty. Common Pleas Ct., filed January 10, 2014). At sentencing, the trial court sentenced Pyles to three years on the gross sexual imposition count and ten years on the rape count, to be served concurrently, for a total of ten years in prison. Doc. 5-1, p. 55.

On December 6, 2016, Pyles filed his Petition for Writ of Habeas Corpus setting forth four grounds for relief. Doc. 1, pp. 6-11. On July 14, 2017, Pyles filed a Motion to Expand the Record. Doc. 8. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. As set forth more fully below, a portion of Ground 1 is not cognizable and the remainder fails on the merits; a portion of Ground 2 is procedurally defaulted and the remainder fails on the merits; Ground 3 is withdrawn; and Ground 4 fails on the merits. Thus, the undersigned recommends that Pyles's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED in part and DENIED in part.1 Additionally, Pyles's Motion to Expand the Record (Doc. 8) is DENIED.

I. Background

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

A. State Court Action

1. Underlying Facts

The following summary of underlying facts is taken from the opinion of the Mahoning County Court of Appeals, Seventh Appellate District of Ohio:2

State v. Pyles, 2015 WL 9693891, at ** 1-6 (Ohio Ct. App. Dec. 30, 2015).

2. Procedural History

On May 31, 2012, a Mahoning County Grand Jury issued a secret indictment charging Pyles with two counts of gross sexual imposition, R.C. 2907.05(A)(5) (Counts 1 and 2), and two counts of Rape, R.C. 2907.02(A)(1)(c) (Counts 3 and 4). Doc. 5-1, pp. 5-6. Pyles, through counsel, pleaded not guilty to the charges. Doc. 5-1, p. 9. On December 28, 2012, the state filed a bill of particulars/motion to amend indictment, correcting the date of offense from October 1, 2011, to October 1, 2010. Doc. 5-1, pp. 10, 13.

Pyles moved to inspect the grand jury proceedings. Doc. 5-1, p. 15. At a pretrial conference on June 26, 2012, the trial court gave the state thirty days to respond to three pending motions that Pyles had filed. Doc. 5-1, p. 33. A speedy trial waiver was not executed but the court ruled that the pending motions tolled the speedy trial time. Doc. 5-1, p. 33. At a pretrial conference on August 6, the trial court discussed Pyles's motion for the grand jury transcripts, ordered the state to respond, and the state and defense jointly moved to continue the trial date. Doc. 5-1, p. 34. The trial court noted that the speedy trial time was again tolled. Doc. 5-1, p. 34. On August 28, the trial court ordered the state to advise Pyles's counsel whether the victim or the victim's guardian testified at the grand jury proceeding and to provide the grand jury testimony to the court, if either party did testify. Doc. 5-1, p. 40.

On November 29, 2012, Pyles moved to dismiss the case based on a violation of his speedy trial rights. Doc. 5-1, p. 41. The trial court overruled Pyles's motion. Doc. 5-1, p. 51.

On January 7, 2013, Pyles waived his right to a jury trial and elected to have his case tried to the court. Doc. 5-1, p. 52. During trial, Pyles moved twice for acquittal under Criminal Rule 29, which the court overruled. Doc. 5-1, p. 53. Upon the completion of trial, the court found Pyles guilty of one count of gross sexual imposition and one count of rape, and found insufficient evidence to find Pyles guilty of the remaining charges. Doc. 5-1, pp. 53-54.

On January 23, 2013, the trial court sentenced Pyles to three years on the gross sexual imposition count and ten years for rape, to be served concurrently, for an aggregate sentence of ten years in prison. Doc. 5-1, pp. 55-56.

B. Direct Appeal

Pyles, through new counsel, timely appealed to the Ohio Court of Appeals. Doc. 5-1, p. 57. In his brief, he raised the following assignments of error:

Doc. 5-1, p. 66. On December 30, 2015, the Ohio Court of Appeals affirmed the trial court's judgment. Doc. 5-1, p. 153.

On February 16, 2016, Pyles, pro se, appealed to the Ohio Supreme Court. Doc. 5-1, p. 154. In his memorandum in support of jurisdiction, he raised the following propositions of law:

Doc. 5-1, p. 157. On April 20, 2016, the Ohio Supreme Court declined jurisdiction pursuant to S.Ct.Prac.R. 7.08(B)(4). Doc. 5-1, p. 219.

C. Application to Reopen Appeal pursuant to Rule 26(B)

On February 29, 2016, while his appeal was pending in the Ohio Supreme Court, Pyles. pro se, filed an Application to Reopen Appeal pursuant to Ohio App. R. 26(B) with the Ohio Court of Appeals. Doc. 5-1, p. 220. He alleged that he received ineffective assistance of appellate counsel when appellate counsel failed to set forth the following assignments of error:

Doc. 5-1, pp. 221-226. On May 4, 2016, the state Court of Appeals issued an opinion denying Pyles's Application to Reopen. Doc. 5-1, pp. 233-238. Pyles moved for reconsideration but the Ohio Court of Appeals denied his motion. Doc. 5-1, pp. 239, 246.

On June 8, 2016, Pyles appealed to the Ohio Supreme Court. Doc. 5-1, p. 247. In his memorandum in support of jurisdiction, he raised the following propositions of law:

Doc. 5-1, p. 250. On July 27, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.C.Prac.R. 7.08(B)(4). Doc. 5-1, p. 279.

E. Federal Habeas Petition

On December 6, 2016, Pyles, pro se, filed his Petition for a Writ of Habeas Corpus. Doc. 1. He listed the following grounds for relief:

Doc. 1, pp. 6-11. On May 12, 2017, Respondent filed a Return of Writ (Doc. 5). Pyles filed a Traverse on July 11, 2017 (Doc. 7) and a Motion to Expand the Record (Doc. 8), to which Respondent filed a reply (Doc. 9).

II. Standard of Review under AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petitioner must meet certain procedural requirements in order to have his claims reviewed in federal court. Smith v. Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). "Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim." Daniels v. United States, 532 U.S. 374, 381 (2001). Although procedural default is sometimes confused with exhaustion, exhaustion and procedural default are distinct concepts. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state remedies are "still available at the time of the federal petition." Id. at 806 (quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). In contrast, when state court remedies are no longer available, procedural default rather than exhaustion applies. Williams, 460 F.3d at 806.

Exhaustion. A federal court may not grant a writ of habeas corpus unless the petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A). A state defendant with federal constitutional claims must fairly present those claims to the state courts before raising them in a federal habeas corpus action. 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); see also Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)) ("[f]ederal courts do not have jurisdiction to consider a claim in a habeas petition that was not `fairly presented' to the state courts"). A constitutional claim for relief must be presented to the state's highest court in order to satisfy the fair presentation requirement. See O'Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). In order to satisfy the fair presentation requirement, a habeas petitioner must present both the factual and legal underpinnings of his claims to the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the petitioner must present his claims to the state courts as federal constitutional issues and not merely as issues arising under state law. See, e.g., Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987); Prather v. Rees, 822 F.2d 1418, 1421 (6th Cir. 1987).

Procedural Default. Procedural default may occur in two ways. Williams, 460 F.3d at 806. First, a petitioner procedurally defaults a claim if he fails "to comply with state procedural rules in presenting his claim to the appropriate state court." Id. In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), the Sixth Circuit provided four prongs of analysis to be used when determining whether a claim is barred on habeas corpus review due to petitioner's failure to comply with a state procedural rule: (1) whether there is a state procedural rule applicable to petitioner's claim and whether petitioner failed to comply with that rule; (2) whether the state court enforced the procedural rule; (3) whether the state procedural rule is an adequate and independent state ground on which the state can foreclose review of the federal constitutional claim and (4) whether the petitioner can demonstrate cause for his failure to follow the rule and that he was actually prejudiced by the alleged constitutional error. See also Williams, 460 F.3d at 806 ("If, due to the petitioner's failure to comply with the procedural rule, the state court declines to reach the merits of the issue, and the state procedural rule is an independent and adequate grounds for precluding relief, the claim is procedurally defaulted.") (citing Maupin, 785 F.2d at 138).

Second, "a petitioner may procedurally default a claim by failing to raise a claim in state court, and pursue that claim through the state's `ordinary appellate review procedures.'" Williams, 460 F.3d at 806 (citing O'Sullivan, 526 U.S. at 848). "If, at the time of the federal habeas petition, state law no longer allows the petitioner to raise the claim, the claim is procedurally defaulted." Id. While the exhaustion requirement is technically satisfied because there are no longer any state remedies available to the petitioner, see Coleman v. Thompson, 501 U.S. 722, 732 (1991), the petitioner's failure to have the federal claims considered in the state courts constitutes a procedural default of those claims that bars federal court review. Williams, 460 F.3d at 806.

To overcome a procedural bar, a petitioner must show cause for the default and actual prejudice that resulted from the alleged violation of federal law or that there will be a fundamental miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at 750.

Merits Review. In order to obtain habeas relief under 28 U.S.C. § 2254(d), a petitioner must show either that the state court decision (1) resulted in a decision contrary to, or involving an unreasonable application of, clearly established federal law as determined by the United States Supreme Court ("contrary to" clause); or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings ("unreasonable application" clause). Id.

"Under the `contrary to' clause, a federal habeas court may grant a writ if the state court arrives at a conclusion opposite to that reached by the [United States Supreme] Court on a question of law or [based on] a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "Clearly established federal law" refers to the holdings, not dicta, of the Supreme Court's decisions as of the time of the relevant state court decision, as well as legal principals and standards flowing from Supreme Court precedent. Id. at 412; Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). A state court is not required to cite Supreme Court precedent or reflect an awareness of Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts" such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v. Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not addressed the petitioner's specific claims, a reviewing district court cannot find that a state court acted contrary to, or unreasonably applied, Supreme Court precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70, 77 (2006).

In determining whether the state court's decision involved an unreasonable application of law, the court employs an objective standard. Williams, 529 U.S. at 409. "A state court's determination that a claim lacks merit precludes federal habeas review so long as `fair-minded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). "A state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington, 562 U.S. at 103.

III. Claim Analysis

Pyles sets forth four grounds for relief in his Petition. Doc. 1, pp. 6-11. The undersigned recommends the Court find that a portion of Ground 1 is not cognizable and the remainder fails on the merits; a portion of Ground 2 is procedurally defaulted and the remainder fails on the merits; Ground 3 is withdrawn; and Ground 4 fails on the merits.

A. A portion of Ground 1 is not cognizable and the remainder fails on the merits

In Ground 1, Pyles argues that he was denied his right to a speedy trial under Ohio law and in violation of the Sixth Amendment. Doc. 1, p. 6. To the extent that Pyles alleges a violation of Ohio's speedy trial statute, he fails to raise a cognizable claim for federal habeas relief, as he concedes in his Traverse (Doc. 7, p. 30). See Estelle v. McGuire, 502 U.S. 62, 67-68(1991) ("a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States").

To the extent that Pyles alleges a violation of the Sixth Amendment right to a speedy trial, his claim fails on the merits. The Sixth Amendment to the United States Constitution guarantees a defendant a "speedy and public trial." U.S. Const. Amend. VI; Barker v. Wingo, 407 U.S. 514, 515-516 (1972). In Barker, the Supreme Court refused to establish a set number of days constituting a violation of the speedy trial right. Id. at 523. Instead, the Court established a balancing test in which the conduct of both the prosecution and the defendant are weighed to assess whether a speedy trial violation has occurred based on the length of the delay between the date of indictment or arrest (whichever is earlier) and the date of trial. Id. at 530; see also United States v. Marion, 404 U.S. 307, 320-21 (1971). The following four factors are to be considered under this balancing test: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Barker, 407 U.S. at 530; see also Doggett v. United States, 505 U.S. 647, 651 (1992).

In Ohio, courts consider the state speedy trial provisions found in R.C. § 2945.71 et seq., which Ohio courts consider coextensive with the Sixth Amendment speedy trial requirement. Brown v. Bobby, 656 F.3d 325, 330 (6th Cir. 2011) (citing State v. O'Brien, 516 N.E.2d 218, 220 (Ohio 1987) and State v. Pachay, 416 N.E.2d 589, 591 (Ohio 1980)). R.C. § 2945.71(C)(2) provides, "[a] person against whom a charge of felony is pending . . . shall be brought to trial within two hundred seventy days after the person's arrest." "For purposes of computing time . . . each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days." § 2945.71(E). Section 2945.72 lists instances in which the time limit for bringing an accused to trial may be tolled, including "The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion." § 2945.72(H). "[A]ny time an Ohio court reviews the implementation of a speedy trial statute, it is guided not just by those provisions, but also by the dictates of the Sixth Amendment whether or not it expressly applies the factors laid out in Barker." Brown, 656 F.3d at 331.

Because AEDPA deference applies to a state appellate court's speedy trial analysis on federal habeas review, a court:

Id. at 332-333.

The Ohio Court of Appeals considered Pyles's speedy trial claim as follows:

State v. Pyles, 2015 WL 9693891, at **7-9 (Oh. Ct. App. Dec. 30, 2015).

The Ohio Court of Appeals' consideration of R.C. § 2945.72(H) in calculating speedy trial time is not contrary to federal law. Brown, 656 F.3d at 330-331 (holding that the Ohio Court of Appeals' application of R.C. § 2945.72 is consistent with the speedy trial dictates in Barker). Nor was the Ohio Court of Appeals' calculation of Pyles's speedy trial time an objectively unreasonable application of federal law. As the state Court of Appeals explained, Pyles and the state moved for a joint continuance on August 6, 2012. The trial court granted the request and stated that the time was tolled against Pyles. Concurrently, his time was tolled until August 30, the day that the trial court ruled on his pending motion for grand jury transcripts. But the time against Pyles continued to toll, per the joint request on August 6. Pyles filed a motion for discharge on November 29, which also tolled his speedy trial time. The trial court ruled on Pyles's motion to discharge on January 4, 2013, and trial was held three days later, on January 7.

Pyles concedes that he filed, along with the state, a joint motion to continue trial on August 6, 2012. Doc. 7, p. 31. But he disagrees with the effect of the Ohio Court of Appeals' calculation of the time based on that joint motion. The Ohio Court of Appeals considered the joint motion to be in effect until the trial date, January 7, 2013. Pyles appears to argue that this interpretation is unreasonable because the docket does not reflect that the trial court ever rescheduled the trial date after granting the joint continuance requested on August 6. Doc. 7, p. 31. This argument fails. The fact that a trial date was not set in a judgment entry does not describe a violation of speedy trial rights. See, e.g., State v. Smith, 2004 WL 2588269, at *3 (Oh. Ct. App. Nov. 12, 2004) (rejecting the defendant's argument that his speedy trial time continued to run when trial was continued upon his motion and the trial court failed to journalize entries setting new trial dates).

Moreover, none of the four Barker factors weigh in Pyles's favor. One, Pyles was tried seven months after he was indicted; thus, even without considering the delays attributable to him, this amount of time is not extraordinary. See, e.g., U.S. v. Jackson, 473 F.3d 660, 668 (6th Cir. 2007) ("[N]either a ten- nor a twenty-month delay is extraordinary under our precedents[.]"). Two, the reason for delay was due primarily to Pyles's filings and sole or joint requests for continuances. Three, Pyles asserted his right to speedy trial once—on November 29, when he filed a motion for discharge—and the trial court ruled on his motion on January 4, the day after Pyles filed his reply brief and three days before trial. See Doc. 5-1, p. 51. Four, Pyles does not claim that he was prejudiced. Barker, 407 U.S. at 530; Brown, 656 F.3d at 332. In sum, the Ohio Court of Appeals' decision rejecting Pyles's argument that his speedy trial rights were violated was not unreasonable. Therefore, Pyles's speedy trial claim fails on the merits.

B. A portion of Ground 2 is procedurally defaulted and the remainder fails on the merits

In Ground 2, Pyles argues that there was insufficient evidence to convict him of rape with a person who was unable to consent due to a mental impairment and that the trial court erred when it denied his motion for acquittal. Doc. 1, p. 8. Specifically, Pyles contends that there is evidence showing that the victim "was not so limited in her ability to reason out her actions" and contends that her testimony at a prior hearing was contrary to her testimony at trial. Doc. 1, p. 8.

In reviewing a claim that a petitioner's conviction was not supported by sufficient evidence, the relevant inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any 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) (emphasis in original). Under this standard, deference is due the trier of fact's determination. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). The standard is not whether the trier of fact made the correct guilt or innocence determination but, rather, whether it made a rational decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 402 (1993). Thus, in making a determination as to sufficiency of evidence, a court does "not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury." Brown, 567 F.3d at 205; see also Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). "Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the evidence to exclude every reasonable hypothesis except that of guilt." Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (internal quotations and citations omitted); see also Durr v. Mitchell, 487 F.3d 423, 449 (6th Cir. 2007) ("circumstantial evidence is entitled to equal weight as direct evidence"). On federal habeas review, an additional layer of deference applies. Brown, 567 F.3d at 205; Coleman v. Johnson, 566 U.S. 650 (2012). Accordingly, even if this Court were to conclude that a rational trier of fact could not have found petitioner guilty beyond a reasonable doubt, the Court "must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Brown, 567 F.3d at 205 (emphasis in original); see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).

The Ohio Court of Appeals considered Pyles's sufficiency claim and his claim that his convictions were against the manifest weight of the evidence:

Pyles, 2015 WL 9693891, at **9-12.

1. Pyles's claim that there was insufficient evidence that the victim had a mental impairment is procedurally defaulted

In his brief on direct appeal to the Ohio Court of Appeals, Pyles argued two sub-claims under his insufficiency of the evidence claim: (1) that there was insufficient evidence to show that the victim had a substantial mental impairment, a requirement of the crimes Pyles was convicted of (Doc. 5-1, pp. 77-78); and (2) that there was insufficient evidence to show that "sexual conduct or contact even occurred" between himself and the victim (Doc. 5-1, p. 79). In his memorandum in support of jurisdiction to the Ohio Supreme Court, Pyles only argued the second sub-claim, i.e., that there was insufficient evidence to show that any sexual conduct or contact ever occurred between himself and the victim. Doc. 5-1, pp. 166-167. He did not allege the first sub-claim, insufficient evidence that the victim had a substantial mental impairment. In fact, in his memorandum to the Ohio Supreme Court Pyles repeatedly characterizes the victim as having a substantial mental impairment. See Doc. 5-1, pp. 159, 161, 166.

Because Pyles did not present his first sub-claim to the Ohio Supreme Court, his first sub-claim is procedurally defaulted. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (In order to satisfy the fair presentation requirement, a habeas petitioner must present both the factual and legal underpinnings of his claims to the state courts); Williams v. Bagley, 380 F.3d 932, 969 (6th Cir. 2004) (finding that "raising the flag of procedural misconduct in state court" does not "preserve [the] right to press any particular allegations of misconduct in federal court," citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998)).

Pyles submits that he was not required to include all of his arguments in his memorandum in support of jurisdiction to the Ohio Supreme Court because the memorandum is supposed to "bring forth the highlights of the case and state the constitutional issues that may interest the general public. It does not want argument in total for the reasons why the Appellant was prejudiced by the Court until the Merit brief is filed." Doc. 7, p. 9. The undersigned disagrees insofar as Pyles suggests that he was not required to present his legal and factual arguments to the Ohio Supreme Court in his memorandum in support of jurisdiction. See S.Ct.Prac.R. 7.02(C) ("A memorandum in support of jurisdiction shall contain all of the following:. . . . A thorough explanation of why a substantial constitutional question is involved . . ."; "A statement of the case and facts"; and "A brief and concise argument in support of each proposition of law."); Boddie v. Warden, Chillicothe Corr. Inst., 2015 WL 1757305, at *2 (S.D.Oh. April 17, 2015) (failure to raise issues in a memorandum in support of jurisdiction to the Ohio Supreme Court per S.Ct.Prac.R. 7.02 results in procedural default).

Pyles does not argue cause or prejudice to excuse the procedural default. He does contend that "he is the victim of a manifest miscarriage of justice." Doc. 7, pp. 27, 29. In support of this assertion he reproduces portions of the trial transcript, which, he asserts, proves that the victim admitted that she had previously given inconsistent testimony regarding whether Pyles had sexual relations with her. Doc. 7, p. 28. This testimony was presented at trial and is not new evidence of actual innocence, as required to show manifest injustice to overcome procedural default. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (to overcome a procedural bar based on a fundamental miscarriage of justice, a petitioner must produce new reliable evidence that was not presented at trial to support his allegations of constitutional error).3

Pyles procedurally defaulted the first sub-claim of Ground Two.

2. Pyles's claim that there was insufficient evidence that the rapes occurred fails on the merits

In his second sub-claim in Ground 2, Pyles argues that there was insufficient evidence presented at trial to show that the rapes occurred. Doc. 1, p. 8; Doc. 7, p. 15. In support of his claim, he argues that the victim gave prior inconsistent testimony at a Civil Protection Hearing about whether Pyles had sexual relations with her. Doc. 7, p. 23. But the Ohio Court of Appeals observed that the victim had testified at trial that Pyles had coached her about what to say at the Civil Protection Hearing. See Doc. 5-1, p. 117. The Ohio Court of Appeals detailed other evidence presented at trial that corroborated the victim's trial testimony: the victim had disclosed the sexual abuse to her teacher, her service support administrator from the Mahoning County Board of Mental Retardation and Developmental Disabilities, and the police, and her testimony at trial was consistent with what she had previously told them; Pyles had told the victim's therapist that he did not have sex with the victim before Pyles was even accused of having sex with the victim; and Pyles admitted that he was impotent, which corresponded with the victim's description of Pyles's penis as "mushy" and "soft." Finally, the Ohio Court of Appeals commented that the trial court, as the factfinder in Pyles's bench trial, was in the best position to assess the witness's credibility. See Brown, 567 F.3d at 205 (When considering a sufficiency of evidence claim, a court "does not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury."). Pyles also argues that there was no physical evidence linking him with the victim (Doc. 7, p. 15), but circumstantial evidence alone is sufficient to support a conviction. See Johnson, 200 F.3d at 992.

In sum, the Ohio Court of Appeals' determination was not unreasonable; "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. Pyles's second sub-claim in Ground Two fails on the merits.

C. Ground 3 is withdrawn

In Ground 3, Pyles argues that cumulative error with respect to evidentiary rulings occurred at trial, violating his right to a fair trial. Doc. 1, p. 9. In his Traverse, Pyles states that he "respectfully withdraws this Ground for Relief." Doc. 7, p. 30.

D. Ground 4 fails on the merits

In Ground 4, Pyles argues that he was denied his constitutional right to counsel due to errors that trial counsel made, including counsel's alleged failure to: seek preliminary rulings on the victim's competency, offer assistance to Pyles with respect to the decision to waive a jury trial, and to voir dire expert witnesses called by the state. Doc. 1, p. 11.

The Ohio Court of Appeals considered this claim:

Pyles, 2015 WL 9693891, at *16-17. In its discussion of the victim's competency, the Ohio Court of Appeals had explained earlier in its decision:

Competency of O.H.

Hardie at ¶ 13.

Id., at *12-14. Pyles does not challenge these findings by the Ohio Court of Appeals. He merely reiterates that his trial counsel "offered no evidence nor sought any kind of preliminary ruling on [the victim's] competency" and criticized counsel for failing to ask questions at the competency hearing. Doc. 7, p. 35. He doesn't explain what sort of questions counsel should have asked. As the Ohio Court of Appeals observed, the victim was able to answer the questions she was asked and demonstrated that she knew the difference between the truth and a lie. In short, the Ohio Court of Appeals' finding that the trial court did not err in determining that the victim was competent to testify was not unreasonable, nor was the Ohio Court of Appeals' further finding that trial counsel was not ineffective for failing to rebut the victim's competency.

The Ohio Court of Appeals' decision with respect to the remainder of Pyles's claims in Ground 4 continued as follows:

Pyles, 2015 WL 9693891, at *16-18.

The Ohio Court of Appeals' decision was not unreasonable. To start, Pyles does not explain why he believes that trial counsel should have offered "expert testimony of his own on the issue of [the victim's] substantial impairment," let alone explain what an unidentified expert would have testified to. The state Court of Appeals accurately stated that counsel's decision to rely on cross-examination instead of calling an expert witness does not constitute ineffective assistance. See, e.g., Harrington, 562 U.S. at 107-109 (counsel's choice to forego an expert was sound trial strategy entitled to deference).

As for Pyles's claim of ineffective assistance based on counsel's failure to offer legal assistance when Pyles waived a jury trial before a judge who had demonstrated previous bias towards Pyles, the state Court of Appeals found nothing in the record to support Pyles's allegation of bias on the part of the court. In his statement of facts in his Traverse, Pyles alleges that, sometime after 2005, his church was asked to house a recently released pedophile which resulted in an "uproar in the community" and "lawsuits being filed against the Church, and one being unsuccessfully prosecuted by a then local attorney and James C. Evans, who later became a Judge in Mahoning County Court of Common Pleas, and was assigned the instant underlying case in these proceedings." Doc. 7, p. 5. It is not clear from Pyles's assertion what role exactly he alleges that the trial court judge played in the alleged lawsuits previously filed against Pyles's church or further explain his purported allegation of bias. He does not explain why he believes "counsel should have at least made a record, showing that no bias was present" (Doc. 7, p. 35) and how the failure to make a record showing no bias was ineffective assistance and prejudiced Pyles, as required under Strickland. Moreover, as the Ohio Court of Appeals explained, Pyles, not counsel, waived the right to a jury trial in accordance with Ohio law. The Ohio Court of Appeals' finding that Pyles did not show that his attorney was ineffective because Pyles waived a jury trial was not unreasonable.

Pyles's last claim, that trial counsel was ineffective for failing to voir dire the state's expert witnesses, fares no better. Pyles does not identity what purpose would have been served had counsel challenged the experts' qualifications. It cannot be said that the Ohio Court of Appeals' determination that nothing in the record suggested that any of witnesses were unqualified to testify was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington, 562 U.S. at 103. See, e.g., Bowers v. Michigan, 2017 WL 1531958, at *3 (6th Cir. Apr. 28, 2017) (finding that the state court's determination that the record was devoid of evidence showing that the expert witness was unqualified when denying the petitioner's ineffective assistance of counsel claim was not unreasonable).

The Ohio Court of Appeals applied the Strickland standard to Pyles's ineffective assistance of counsel claims and its conclusions were not unreasonable. Ground 4 fails on the merits.

E. Motion to Expand the Record

Pyles filed a Motion to Expand the Record (Doc. 8), seeking to include the transcript from the Civil Protection Hearing that was held in April 2011, prior to his trial, and documents that he claims are the victim's school records and assessments of the victim by school officials. Alleged copies of the transcript and documents were attached to the Motion to Expand the Record.

Rule 7(a) of the Rules Governing Section 2254 Cases permits a habeas petitioner to supplement the record with any documents "relevant to the determination of the merits of the petition." Expansion of the record in habeas cases "is not mandatory . . . and is left to the discretion of the trial judge." Beuke v. Houk, 537 F.3d 618, 653 (6th Cir. 2008) (quoting Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988)). However, when a claim has been adjudicated on the merits by the state court, a federal habeas court is limited to the record that was before the state court that adjudicated the claim. Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (discussing § 2254(d)(1)); Moore v. Mitchell, 708 F.3d 760, 780 (6th Cir. 2013).

Because the Ohio Court of Appeals adjudicated Pyles's claims on the merits, this Court is limited to the record that was before the Ohio Court of Appeals. Id. Pyles concedes that the state trial court did not admit the Civil Protection Hearing transcript into evidence. See Doc. 1, p. 9 (Ground Three of Pyles's Petition, wherein he complains that the trial court erred by not admitting the Civil Protection Hearing transcript into evidence); see also Pyles, 2015 WL 9693891, at *15-16 (rejecting, on the merits, Pyles's argument that the trial court erred by not admitting the Civil Protection Hearing transcript into evidence). Pyles also admits that the Civil Protection Order transcript was not included in the record reviewed by the Ohio Court of Appeals. Doc. 8, p. 2. Thus, the Court cannot consider the Civil Protection Hearing transcript submitted by Pyles with his motion. Pinholster, 563 U.S. at 185. In any event, counsel did cross examine the victim using the transcript and that cross examination is part of the record and was considered by the Ohio Court of Appeals.

As for the victim's purported school records (unauthenticated and dated four years prior to Pyles's trial), Pyles asserts that the "critical nature of these documents show the actual innocence of the Petitioner and take away all speculation of guilt on his part." Doc. 8, p. 3. First, Pyles does not allege that these documents were part of the state court record and the undersigned finds no mention of them by the Ohio Court of Appeals. Thus, under Pinholster, the Court may not consider these documents. Moreover, the victim's purported school records do not show that Pyles is actually innocent of gross sexual imposition and rape.

Pyles's motion to expand the record is denied.

IV. Conclusion and Recommendation

For the reasons stated above, the undersigned recommends that Pyles's habeas Petition be DISMISSED in part and DENIED in part because a portion of Ground 1 is not cognizable and the remainder fails on the merits; a portion of Ground 2 is procedurally defaulted and the remainder fails on the merits; Ground 3 is withdrawn; and Ground 4 fails on the merits. Pyles's Motion to Expand the Record (Doc. 8) is DENIED.