ORDER

JAMES R. KNEPP, II, Senior District Judge.

This is a state prisoner habeas corpus case in which Magistrate Judge James R. Knepp, II, has filed a Report & Recommendation. (Doc. 44). Having conducted de novo review of the R&R in light of the petitioner's objections, and for the reasons that follow, I adopt the Magistrate Judge's R&R as the order of this court, deny the petition, and decline to issue a certificate of appealability.

Background

The R&R contains a lengthy excerpt, which I need not re-copy here, from the state appellate court's summary of the evidence leading to the petitioner's conviction in the Mahoning County, Ohio, Court of Common Pleas. His convictions stemmed from various sexual assault charges committed first in the early 1990s in his capacity as a gymnastics coach against two high school students and later, from 2005 until 2007, in his capacity a chiropractor against three adults patients.1 Following a trial, at which the petitioner vigorously contested the evidence against him, the jury found him guilty of: as to Gymnast A, three counts of rape and one count of corruption of a minor; as to Gymnast B, one count of gross sexual imposition; as to Patient B, one count of gross sexual imposition; and as to Patient C, one count of rape. The jury acquitted petitioner of: twelve counts of gross sexual imposition as to Patient A; two counts of gross sexual imposition as to Patient B; and, two counts of rape as to Patient C.2

The court sentenced the petitioner to a total term of forty-three years imprisonment. He received ten years on each of the four rape counts and eighteen months for each of the two gross sexual imposition counts, with all sentences to run consecutively.3

On direct appeal, the court reversed on the basis of insufficiency of the evidence as to the patient-related convictions. It otherwise affirmed. The Ohio Supreme Court denied leave to appeal; it dismissed the petitioner's appeal as not involving any substantial constitutional question. The United States Supreme Court denied petitioner's petition for a writ of certiorari.

Thereafter, the petitioner filed an untimely pro se application to reopen his direct appeal pursuant to Ohio App. R. 26(B).4 The appellate court denied that application and a request for reconsideration. The Ohio Supreme Court denied petitioner's appeal.

Petitioner pro se next filed an original motion and then an amended motion in the trial court for grand jury transcripts, for recusal, and for an evidentiary hearing. He also sought an order finding he had been unavoidably prevented from discovering the evidence on which his motion for a new trial had relied. He further requested leave to file a motion for new trial. The trial court ruled it lacked jurisdiction to rule on the motions.

Petitioner, through counsel, filed a notice of appeal from the trial court's ruling. After a series of intermediate procedural orders, the appellate court affirmed the trial court's judgment in part (finding that res judicata barred petitioner's motion for grand jury transcripts), but that the trial court had jurisdiction, based on the petitioner's allegations of newly discovered evidence, to rule on the motion for leave to file a new trial motion under Ohio R. Crim. P. 33. The Ohio Supreme Court declined to accept jurisdiction of petitioner's appeal of the appellate court's res judicata ruling as to the grand jury transcripts.

Meanwhile, on November 15, 2011, as he was seeking state court post-conviction relief, petitioner filed the instant federal habeas petition. He asserted five grounds for relief, namely:

Due to the presence of unexhausted claims, this court stayed proceedings on February 4, 2013, pending exhaustion.

The petitioner, pro se, moved to disqualify the trial judge from presiding over any further proceedings. The Ohio Supreme Court denied the disqualification motion on the basis, inter alia, of waiver due to untimeliness.

Pursuant to the appellate court's remand, petitioner filed his delayed pro se motion for new trial. Following a hearing the trial court denied the petitioner's new trial motion as meritless. It also ruled that all issues should have been or had been raised on direct appeal and thus were no longer subject to review. The state appellate court affirmed, holding the res judicata barred each assignment of error. That court denied reconsideration. The Ohio Supreme Court declined to accept jurisdiction. The United States Supreme Court denied petitioner's application for certiorari.

Meanwhile, on June 5, 2014, petitioner, pro se, filed a motion for delayed reconsideration, or, in the alternative, a delayed application for reopening his direct appeal. The appellate court denied the application as untimely, holding, inter alia, that the petitioner had failed to establish good cause for the untimeliness. On December 3, 2014, the Ohio Supreme Court declined to accept jurisdiction of petitioner's appeal.

At which point, the petitioner returned to this court — more than three years after first undertaking to exhaust his state court remedies. The Magistrate Judge granted his pro se motion for leave to amend his habeas petition. Counsel withdrew after filing the amended petition. The amended petition asserts twelve grounds for relief:

Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief is available only where a petitioner proves that the state court's adjudication of a claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d).

Relief thus can occur only where the petitioner shows that the state court's conclusion is contrary to a Supreme Court decision of law or the state court decided the case differently than a case, indistinguishable on the facts, that the Supreme Court had decided. Williams v. Taylor, 529 U.S. 362, 405 (2000). The touchstone is whether the state decision was "objectively unreasonable" and not merely erroneous or incorrect. Id. at 409-11.

In addition, state court determinations of state law are not reviewable or cognizable on habeas corpus. The Supreme Court made this principle clear in Estelle v. McGuire, 502 U.S. 62, 67-68 (1991):

Moreover, federal habeas courts will not consider the merits of procedurally defaulted claims, unless the petitioner demonstrates either: 1) cause for and prejudice from the default; or 2) the failure to review the claim would result in a fundamental miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)).

A petitioner may procedurally default on a claim where he either: 1) fails to present his claims during a complete round of state court review; or 2) if the state court declines, due to the petitioner's noncompliance with a state procedural rule, to reach the merits of the claim and the procedural rule is an independent and adequate ground of decision. Id.

Discussion

On review of the petitioner's lengthy and multitudinous objections (Doc. 50), a few things are manifestly apparent: 1) the petitioner misapprehends the very limited standards, set forth immediately above, under which a federal court reviews a habeas claims of federal constitutional error; 2) the petitioner does not understand that a federal court does not review errors of state law, and that state court determinations of state procedural, evidentiary, and substantive law are generally dispositive; and 3) meeting the actual innocence standard requires more — much more — than simply arguing that the jury should and would have reached a different result had it viewed the evidence differently or had other evidence before it.

Respondent asserted in the Return of Writ (Doc. 27) that petitioner had procedurally defaulted Grounds One, Two, Five, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve, and that he cannot show cause, prejudice, or actual innocence to excuse those defaults.

Respondent also contends Grounds Three and Four fail on the merits, and that, in the alternative to a finding of default as to Ground Two, that ground likewise fails on the merits. The Magistrate Judge agreed. I do too.

I deal with the petitioner's objections to the Report & Recommendation in the sequence in which he presents them, and enumerate my discussion accordingly.

Objection One: Magistrate Judge's Errors

The petitioner claims the Magistrate Judge applied the wrong set of charges to a case number. Something of such slight magnitude, having nothing whatsoever to do with the gist of petitioner's claims, is irrelevant and immaterial. There is no merit to Objection One.

Objection Two: Actual Innocence

Petitioner claims the Magistrate Judge applied the wrong standard in determining whether he had defaulted on a claim within his broader actual innocence claim — namely, that the State had improperly redacted part of the petitioner's phone call with Gymnast B.

The Magistrate Judge did not err in his conclusion. Petitioner contends that the State presented a redacted version of his consensually recorded phone conversation with Gymnast B. He also contends that the State withheld portions of her recorded interview with the Boardman Police Department. The redacted versions, he contends, contain exculpatory evidence that would have provided the new evidence he needs — but lacks — to head in the direction of a viable actual innocence claim.

The problem for the petitioner is that these circumstances were either known or were readily ascertainable at trial. With regard to the phone call, he was a participant, and able to inform counsel that portions were missing; counsel could then have sought and received an unredacted version (assuming she did not already have it) for whatever use seemed worthwhile. But the petitioner has failed to claim that he ever notified his lawyer that exculpatory redactions existed. Without that assertion, he cannot fault his lawyer — or the State — for any unawareness on the lawyer's part about possibly useful redacted material.

With regard to the allegation that Gymnast B's interview contains undisclosed exculpatory material, petitioner's trial counsel was well aware of the contents of the interview and in the best position to use, or refrain from using, the alleged exculpatory evidence to aid in her extremely vigorous challenge to the State's case. Indeed, it appears that trial counsel agreed that the complained-of portions of the interview ought to be redacted because their admission into evidence would have violated Ohio's rape shield law. (Doc. 28-1, PageID 2310-11).

But even assuming trial counsel failed to develop the circumstances on which petitioner bottoms his actual innocence claim — existence of exculpatory redactions in recorded conversations — at worst trial counsel failed to perform adequately at trial. Or appellate counsel failed to perform adequately on appeal. But, as discussed infra procedural default bars any such challenges here.

For these reasons and those set forth in the Report & Recommendation, the Magistrate Judge correctly rejected petitioner's actual innocence claim, as well as the predicate claim alleging improper redaction or withholding of various statements by the victims.

Objection Three: Misjoinder

In Ground Two petitioner claims he was "denied due process of law when the trial court denied his motion for relief from improper joinder and the appellate court refused to sever and remand the case even after reversing and vacating convictions on the unrelated charges." The Magistrate Judge agreed with the respondent that petitioner had failed fairly to present his challenge to joinder as a federal constitutional claim.

Petitioner disputes this conclusion, claiming that he met the fair presentation requirement, but I disagree. On direct appeal the petitioner assigned as error that:

(Ex. 30, Doc. 6-2, at 184); (see also Ex. 40, Doc. 6-2, at 350).

Petitioner claims that his passing and opaque reference to a denial of "due process of law" sufficed to call the appellate court's attention to a federal, rather than a state6 constitutional challenge to the joinder of the separate indictments for trial.

The oblique reference to "due process of Law" failed to put the the tribunal on notice as to the possibility that petitioner was asking it to adjudicate his contentions on the basis of federal constitutional principles. In any event, the petitioner's argument in his appellate brief discussed solely state law and cases. Petitioner's arguments to the contrary in his objections are unavailing.

Objection Four: Sufficiency of the Evidence

The petitioner contends that the State's proof, especially with regard to the use of force vis a vis the rape convictions, was insufficient. He objects to the Magistrate Judge's determination that the appellate court's resolution of these issues was not contrary to, or an unreasonable application of, federal law.

Petitioner's objection argues at length that the evidence of record does not sustain a finding of force as to the rape convictions. The Magistrate Judge based his conclusions on a careful, comprehensive, and accurate review of the record. Despite the petitioner's extensive contentions, there is no flaw in those conclusions. I, too, am satisfied that the evidence of record was sufficient to enable a rational trier of fact to find that the State had proved the elements beyond a reasonable doubt.7

The petitioner vigorously called the jurors' attention to how they could view the evidence and, in particular, witness credibility in his favor. He does likewise in his objections. But that is not the issue on habeas review, where I must view the record most favorably to the verdict.

I find no error on the Magistrate Judge's handling of this issue or the result he reached.

Objection Five — Admission of "Wiretap" Evidence

For several reasons the Magistrate Judge found no merit to the admission of the consensually recorded phone conversation between petitioner and Gymnast B.

Each of those reasons was correct. Those reasons, with which I agree, were: 1) to the extent petitioner claims that the recording violated Ohio law, the claim was not cognizable;8 2) the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), precludes habeas review of Fourth Amendment claims; and 3) well-settled Supreme Court precedent upholds the lawfulness under the Fourth Amendment of one-party surreptitious consent recording of phone conversations.

As to the first basis: state court determinations of state law are not reviewable on habeas corpus. Estelle, supra, 502 U.S. at 67-68.

Second, in Stone, supra, the Supreme Court held that federal habeas corpus review is not available to state prisoners who received "the opportunity for full and fair consideration" of their claims in state court. 428 U.S. at 486. Petitioner received such opportunity in the trial court.

Moreover, as the Magistrate Judge correctly concluded, "whether an investigation violated the Fourth Amendment has no bearing on whether the defendant is guilty." Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013) (citing Stone, 428 U.S. at 490).

Finally, though I need not reach the issue, as the foregoing is dispositive of the petitioner's objection to the admission of the recorded conversation, there was, quite simply, no Fourth Amendment violation. E.g., United States v. White, 401 U.S. 745, 752 (1971).

There is, accordingly, no merit to petitioner's Objection Five.

Objection Six: Jury Related Issues

In Ground Five petitioner asserts a due process violation based on: improper jury instructions, "ex post facto" decision making, and "packing and fixing." The Magistrate Judge found that procedural default barred these claims. The petitioner objects to his conclusion as to default.

His decision was correct: each of the facts on which petitioner bases his jury-related claims was known at time of trial. The time to raise them was at trial and on direct appeal. Each could have ben presented on direct appeal; because they were not, procedural default applies.

Moreover, though I need not proceed further, the general rule is that alleged errors in jury instructions, which, as here, involve interpretations of state law, not federal constitutional law, are not cognizable in a habeas corpus proceeding. E.g., Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The same is true with regard to challenges to voir dire proceedings. See Estelle, supra, 502 U.S. at 67-68. Likewise, decisions as to exclusion of jurors, which petitioner's "packing" claim raises, are generally not cognizable in a habeas proceeding. Ransom v. Davis, 613 F.Supp. 430, 431 (D. Tenn. 1984).

There was no error with regard to the Magistrate Judge's conclusions as to Ground Five.

Objection Seven — Judicial Bias

Petitioner's Ground Nine alleges bias on the part of the trial judge. In his objection he contends that his various state court challenges to the trial judge's impartiality in the state courts were well-founded. Such unremedied bias, he asserts, deprived him of his due process right to a fair trial.

The Magistrate Judge found that petitioner, who was clearly aware of the instances of alleged bias while in the trial court, had procedurally defaulted on this claim. That is correct: the petitioner failed to raise the issue in a timely manner. Moreover, the state appellate court found his allegations of bias not well taken, with the appellate court dismissing the petitioner's claim on the basis of res judicata. State v. Dew, 2016-Ohio-274, ¶¶32-33 (Ohio App. 2016).

The Magistrate Judge's conclusion that the petitioner committed procedural default was correct.

Moreover, though I need not have done so in light of the default, I have reviewed the instances of putative bias that the petitioner sets forth in his objections. Neither singly nor in sum do those instances add up to a due process violation. While he may have perceived them as such, they were not violative of his right to a fair trial before an impartial tribunal.

Objection Eight — New Trial Motion

Petitioner's new trial motion was the first instance in which he raised the issues his petition presented as Grounds Six, Ten, and Twelve. The Magistrate Judge found that res judicata precluded federal habeas review as to those grounds. That decision was correct, despite the the petitioner's contentions in his objections that no such bar existed, so that his claims deserve review on the merits.

Petitioner contends that his claim of actual innocence negates the Magistrate Judge's conclusions. Given my finding supra as to his actual innocence claim, and the Magistrate Judge's thorough and correct disposition of that claim, petitioner cannot rely on that unsuccessful contention to support his claim as to denial of his new trial motion.

The petitioner's objections contend that the state courts misapplied state procedural law in denying his new trial motion. A claim that a state court erred in applying its own procedural rules is not cognizable on habeas review. Gipson v. Haas, ___ F. App'x ____, 2018 WL 2251730, *3 (6th Cir. 2018).

Among other things, the Magistrate Judge properly concluded that the appellate court found, contrary to petitioner's contention, that he had not been unavoidably prevented from discovering relevant evidence. Petitioner contends that this was so because the appellate court could not grant him leave to file such a new trial motion without making such a finding.

The record reflects, however, that the state courts made the opposite finding. Indeed, the courts found as a matter of fact that the evidence that he claims was newly discovered was, or could have been, known to him during trial. The appellate court affirmed the dismissal of the new trial motion on the basis of procedural default.

Petitioner's objections contend that he produced "clear and convincing proof" that the state courts erred. They did not: their application of res judicata principles complied with Ohio law, see, e.g., State v. Perry, 10 Ohio St.2d 175 (1967), which, in any event, is for the state courts, not a federal habeas court, to determine.

Petitioner continues to emphasize that, as to Ground Twelve, alleged spoliation of the evidence overcomes the procedural bar. As the Magistrate Judge correctly pointed out, however, it does not. The state courts having preclusively found petitioner had actual or constructive knowledge of the non-record evidence, the petitioner cannot overcome the res judicata bar because in Ohio, "evidence attached in support of a claim not raised on direct appeal must be relevant, material, and unavailable to the petitioner in time to support his claim at trial or on direct appeal." Van Hook v. Anderson, 127 F.Supp.2d 899, 918 (S.D. Ohio 2001) (citing State v. Scudder, 131 Ohio App.3d 470, 475 (1998) and State v. Lawson, 103 Ohio App.3d 307, 315 (1995)) (emphasis in original in part and supplied in part).

There is no merit to petitioner's objections to the Magistrate Judge's conclusions as to the state court's res judicata rulings and the application of the default bar here.

Objection Nine — Trial Court Jurisdiction/Vindictive Prosecution

Ground Seven of the petition asserts that the trial court lacked subject matter jurisdiction and raises a vindictive prosecution claim. As with other grounds, this habeas claim is based on facts available before petitioner's direct appeal, but were not included in that appeal. Because petitioner could have raised, but did not raise, these claims on direct appeal, the Magistrate Judge concluded they were procedurally defaulted.

That was clearly a correct decision.

The gravamen of this claim is that the first indictment charged petitioner on the basis of a revised statute that had not been enacted at the time of the events giving rise to his ultimate conviction. He successfully moved for dismissal, after which the grand jury returned a superseding indictment that cured that defect.

Petitioner claims that the original dismissal was on the basis of actual innocence — which it was not — and that the superseding indictment reflected prosecutorial vindictiveness. This background, he contends, left the trial court without subject matter jurisdiction.

Though all these facts were available for presentation on direct appeal, the petitioner did not raise them in that proceeding. This, as the Magistrate Judge correctly determined, constituted a procedural default barring review in this court. There is no merit to the petitioner's ninth objection.

Objection Ten — Ineffective Assistance of Appellate Counsel

Ground Eight of the petition claims that the petitioner was deprived of his right to effective assistance of counsel on direct appeal because the attorney failed to: 1) include the unredacted recording of his conversation with Gymnast B in the record; 2) raise ineffective assistance of trial counsel; 3) raise vindictive prosecution; 4) raise denial of grand jury transcripts; and 5) submit "complete arguments" on direct appeal.

The Magistrate Judge found that procedural default — namely noncompliance with Oh. App. R. 26(B) — constituted a preclusive procedural default as to his motion for delayed appeal. The Magistrate Judge was correct.

To be sure, petitioner sought to take a delayed appeal under Oh. R. App. P. 26(B)(1), and he included this claim in his proposed appeal. But he did not do so within the mandatory time period under that Rule, namely "within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time."

The appellate court dismissed the application for untimeliness, holding that petitioner had not shown good cause for the late filing. This was, as the Magistrate Judge found, an adequate and independent state ground justifying a finding of default. This accords with Sixth Circuit law. See Parker v. Bagley, 543 F.3d 859, 862 (6th Cir. 2008); Wilson v. Hurley, 382 F. App'x 471, 475 (6th Cir. 2010) (unpublished); Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir. 2012) (unpublished).

Instead of acknowledging the default and its preclusive effect, petitioner, as he does throughout his objections, focuses his arguments on the putative merits of his contentions. But those arguments are not relevant to a review of the Magistrate Judge's R&R.

The Magistrate Judge also found that petitioner had failed to meet his burden of showing cause for and prejudice from this procedural default. Petitioner's excuse was that his incarcerated status kept him from being able to obtain necessary affidavits and other evidence within Rule 26(B)(1)'s time period. This is not a sufficient basis for finding cause. E.g., Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004).

Petitioner claims he only learned of appellate counsel's ineffectiveness when appealing the denial of his new trial motion. The state court found this contention unavailing, as, without explanation, petitioner had delayed filing the application for nearly another four months. In the court's view, even if petitioner had had good cause initially for missing the deadline, he had not shown cause for his additional delay.

Objection Eleven — Access to Grand Jury Transcripts

The Magistrate Judge likewise found, as to Ground Eleven, that the petitioner could and should have included Ground Eleven, relating to the trial court's refusal to grant his request for grand jury transcripts, in his direct appeal. His failure to do so, the Magistrate Judge concluded, constituted procedural default. This was clearly so, as petitioner was well aware before trial that the trial court was rebuffing his efforts to procure the transcripts for use at trial.

That petitioner's objection contends that his actual innocence claim, as related to his ex post facto challenge to the original indictment (and the inter-related vindictive prosecution/lack of jurisdiction) claims excuse his default is unavailing. As previously discussed, the Magistrate Judge's conclusions as to those claims were correct. That being so, their putative merit has no bearing on the petitioner's default as to his Ground Eleven.

Conclusion

The Magistrate Judge's review of the entire record, the manifold pleadings and proceedings in the state courts and here, and consideration of the petitioner's petition and its twelve claims was careful and comprehensive. On de novo review of Report & Recommendation and the petitioner's objections thereto, I find that, in every respect, the Magistrate Judge's Report & Recommendation is correct.

It is, accordingly,

ORDERED THAT

So ordered.

REPORT AND RECOMMENDATION

INTRODUCTION

Pro se Petitioner Gregory Dew ("Petitioner"), a prisoner in state custody, filed an Amended Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 ("Amended Petition"). (Doc. 18). Respondent Charmaine Bracy1, Warden of the Trumbull Correctional Institution ("Respondent") filed an Answer/Return of Writ (Doc. 27) and Petitioner filed a Reply/Traverse (Doc. 35). Petitioner has also filed several additional motions, see Docs. 24, 26, 30, 33, 34, 42, to which Respondent has responded, see Doc. 37, and Petitioner has replied, see Doc. 41. The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Non-document entry dated November 14, 2017). For the reasons discussed below, the undersigned recommends the Petition be DENIED in its entirety. In an Order filed concurrently with this Report and Recommendation, the undersigned addresses Petitioner's pending motions (Docs. 24, 26, 30, 33, 34, 42).

FACTUAL BACKGROUND

For the purposes of habeas corpus review of state court decisions, findings of fact made by a state court are presumed correct and can only be contravened if the habeas petitioner shows, by clear and convincing evidence, erroneous factual findings by the state court. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. Here, the Ohio Seventh District Court of Appeals, Mahoning County, set forth the following facts:

State v. Dew, 2009 WL 4756342, at *1-16 (Ohio Ct. App.). Petitioner asserts he can show by clear and convincing evidence some of these facts are incorrect. See Doc. 35, at 20-22. The undersigned has reviewed the facts Petitioner asserts he can contradict by clear and convincing evidence and finds that they either rely on facts outside the record, or any asserted error in the factual findings would not affect the outcome herein.

PROCEDURAL HISTORY

State Court Conviction

On March 22, 2007, Petitioner was indicted by a Mahoning County, Ohio grand jury on three counts of sexual battery in violation of O.R.C. § 2907.03(A)(9)(B) (Case No. 07 CR 378). (Ex. 1, Doc. 6-2, at 1-2). Petitioner filed a motion to dismiss the indictment because the statutory section used to indict Petitioner did not exist at the time of the alleged offense, and Petitioner could not have been found to have violated the statute at issue based upon his status as a coach. (Ex. 2, Doc. 6-2, at 3-9). Petitioner's motion to dismiss was sustained. (Ex. 3, Doc. 6-2, at 10); see also Doc. 33-2, at 2-10. In the meantime, the grand jury issued a superseding indictment, charging Petitioner with three counts of rape, and one count each of corruption of a minor and gross sexual imposition, O.R.C. §§ 2907.02(A)(2)(B), 2907.04(A), and 2907.05(A)(1), respectively. (Ex. 4, Doc. 6-2, at 11-12). Petitioner plead not guilty to the charges in the superseding indictment. (Ex. 5, Doc. 6-2, at 13-15). Prior to trial, Petitioner filed a motion for notice of the state's intention to use evidence (Ex. 6, Doc. 6-2, at 16-19), which was sustained (Ex. 7, Doc. 6-2, at 20). The state also filed an amended bill of particulars. (Doc. 33-3). On July 31, 2007, Petitioner filed a motion to inspect grand jury proceedings (Ex. 8, Doc. 6-2, at 21-31), which the state opposed (Ex. 9, Doc. 6-2, at 32-37). The trial court ordered the grand jury proceedings be transcribed, sealed, and delivered to the trial court judge for inspection. (Ex. 10, Doc. 6-2, at 38). After inspection, the trial court ruled there was no indication of misconduct by the prosecuting attorney or the grand jury, and ordered the transcripts resealed and returned to the court reporter to maintain as an exhibit for appeal, if necessary. (Ex. 11, Doc. 6-2, at 39). The court also noted it had previously determined that Petitioner failed to demonstrate a particularized need for the transcripts. Id.

On October 11, 2007, Petitioner was indicted again, by secret indictment, on fifteen counts of gross sexual imposition, in violation of O.R.C. § 2907.05(A)(1)(B) (Case No. 07 CR 1262) for conduct similar to that alleged in Case No. 07 CR 378 (Ex. 12, Doc. 6-2, at 40-44). These charges related to alleged acts between Petitioner and gymnasts. On November 20, 2007, a superseding indictment was filed in Case No. 07 CR 1262, charging Petitioner with fifteen counts of sexual imposition, in violation of O.R.C. § 2907.05(A)(1)(B) and three counts of rape, in violation of O.R.C. § 2907.05 (A)(2)(B). (Ex. 13, Doc. 6-2, at 45-50). These charges related to acts between Petitioner and chiropractic patients.

On November 26, 2007, in Case No. 07 CR 378, Petitioner filed a motion to suppress evidence — a recorded telephone conversation between himself and a victim — and requested a statement of essential factual findings. (Ex. 14, Doc. 6-2, at 51-57). Petitioner also filed a motion to dismiss that case due to the time lapse since the alleged violations. (Ex. 15, Doc. 6-2, at 58-71). In addition, Petitioner filed a motion for relief from improper joinder. (Ex. 16, Doc. 6-2, at 72-82). The state opposed each motion. (Exs. 17-19, Doc. 6-2, at 83-98). The trial court held a suppression hearing (Doc. 6-5), and subsequently overruled all three motions. (Ex. 20, Doc. 6-2, at 99-100).

On February 28, 2008, the state filed a motion to introduce other acts evidence in both cases. (Ex. 21, Doc. 6-2, at 101-10), which Petitioner opposed (Ex. 22, Doc. 6-2, at 111-15). After a pre-trial and exchange of discovery, the trial court overruled the state's motion to introduce other acts. (Ex. 23, Doc. 6-2, at 116). The State also filed: 1) a motion to correct a clerical error in the indictment; 2) a notice of intent to use specified evidence; and 3) a notice of supplemental authority regarding the motion to amend the indictment. (Ex. 24-26, Doc. 6-2, at 117-52).

A jury trial commenced and upon the state resting, Petitioner moved for acquittal. (Ex. 27, Doc. 6-2, at 153). The trial court overruled the motion. Id. In Case No. 07 CR 378, Petitioner was found guilty of three counts of rape, one count of corruption of a minor, and one count of gross sexual imposition. (Ex. 28, Doc. 6-2, at 154-56). In Case No. 07 CR 1262, Petitioner was found guilty of one count of gross sexual imposition and one count of rape. Id. On April 1, 2008, Petitioner was sentenced to an aggregate term of 43 years' incarceration. Id.

Direct Appeal

Petitioner filed a timely notice of appeal to the Seventh District Court of Appeals in Mahoning County ("Case No. 08 MA 62"). (Ex. 29, Doc. 6-2, at 157). In his appellate brief, represented by new counsel, Petitioner presented three assignments of error:

(Ex. 30, Doc. 6-2, at 158-98). The State filed a brief in opposition (Ex. 31, Doc. 6-2, at 199-238), and Petitioner filed a reply (Ex. 32, Doc. 6-2, at 239-55).

On July 23, 2009, the court of appeals issued a judgment entry remanding the case to the trial court to issue a time-stamped sentencing entry in compliance with State v. Baker, 119 Ohio St.3d 97. (Ex. 33, Doc. 6-2, at 256-57). On July 27, 2009, the trial court issued a sentencing entry complying with Baker, sentencing Petitioner to an aggregate term of 43 years' incarceration. (Ex. 34, Doc. 6-2, at 258-60).

The court of appeals then issued an opinion finding Petitioner's first two assignments of error without merit, but Petitioner's third assignment of error (sufficiency) meritorious as it pertained to the patient-related convictions. (Ex. 35, Doc. 6-2, at 261-300); Dew, 2009 WL 4756342. Specifically, the appellate court held: 1) the trial court properly denied the motion to suppress as Ohio law allows police to record a phone conversation between a consenting informant and a non-consenting defendant without a warrant; and 2) the trial court did not abuse its discretion by denying Petitioner's motion for relief from improper joinder, since the evidence of each set of crimes was simple and direct; but the appellate court reversed and vacated Petitioner's convictions in Case No. 07 CR 1262 because they were not supported by sufficient evidence. Id. Reconsideration was also denied. See Exs. 36-38, Doc. 6-2, at 301-46.

On January 14, 2010, Petitioner filed a timely notice of appeal, through his direct appeal counsel, to the Ohio Supreme Court. (Ex. 39, Doc. 6-2, at 347-48). In his memorandum in support of jurisdiction, Petitioner presented three propositions of law:

(Ex. 40, Doc. 6-2, at 350). The state filed a waiver of memorandum in response. (Ex. 41, Doc. 6-2, at 369). On March 10, 2010, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. (Ex. 42, Doc. 6-2, at 370).

Petitioner then filed a timely petition for writ of certiorari in the United States Supreme Court (Ex. 43, Doc. 6-2, at 371), which was denied (Ex. 44, Doc. 6-2, at 372).

First Application to Reopen (Ohio App. R. 26(B))

On November 14, 2011, Petitioner filed an untimely pro se application to reopen his direct appeal pursuant to Ohio App. R. 26(B) and raised two assignments of error:

(Ex. 45, Doc. 6-2, at 375, 382) (capitalization altered).2

On January 31, 2012, the state court of appeals denied Petitioner's application to reopen because Petitioner failed to demonstrate good cause for his untimely appeal, which was filed two years after the deadline expired. (Ex. 46, Doc. 6-2, at 423-26). Petitioner then filed an application for reconsideration of the order denying his application to reopen, see Doc. 27, at 233, which the appellate court denied (Ex. 127, Doc. 27-2, at 362-64).

On June 15, 2012, Petitioner appealed to the Ohio Supreme Court. (Ex. 66, Doc. 12-1, at 1). He raised two propositions of law in his memorandum in support of jurisdiction:

(Ex. 67, Doc. 12-1, at 11). The Ohio Supreme Court denied and dismissed the appeal, initially and on reconsideration, as not involving any substantial constitutional question (Ex. 69, 71, Doc. 12-1, at 32, 37).

Motion for New Trial (Ohio Crim. R. 33(B))

In November 2011, Petitioner pro se motion in the trial court for grand jury transcripts,4 for recusal, and for an evidentiary hearing. See Ex. 128, Doc. 27-2, at 380 (docket sheet). He also requested an order finding he had been unavoidably prevented from discovering the evidence upon which he relied in his motion for a new trial, and requested leave to file a motion for new trial. (Ex. 49, Doc. 6-2, at 448-51). Specifically, Petitioner claimed he was prevented from obtaining a professional evaluation of jury venire, grand jury transcripts, and a forensic comparison of interrogation recordings. Id. He alleged this evidence showed entitlement to a new trial. Id. The state filed responses in opposition to Petitioner's motions to obtain grand jury transcripts, for recusal, and for an evidentiary hearing. See Exs. 50-52, Doc. 6-2, at 469-83. Petitioner filed replies. (Ex. 53-55, Doc. 6-2, at 484-575)

The trial court ruled it lacked jurisdiction to rule on Petitioner's motions because Petitioner already appealed the case and such issues should have been raised on appeal. (Ex. 56, Doc. 6-2, at 576). On January 17, 2012, in its judgment entry, the trial court noted "[Petitioner's] arguments may be meritorious, however, again, this [c]ourt believes it is without jurisdiction to grant Defendant to relief he has prayed for." (Ex. 57, Doc. 6-2, at 577).

On February 2, 2012, Petitioner, through new counsel, filed a notice of appeal from the trial court judgment entries denying Petitioner's motions on the basis of lack of jurisdiction ("Case No. 12 MA 18"). (Ex. 58, Doc. 6-2, at 578). On February 13, 2012, the court of appeals granted Petitioner 30 days to file supporting memorandum as to whether the two orders were final appealable orders of the trial court, thus permitting it to exercise jurisdiction of the appeal. (Ex. 59, Doc. 6-2, at 581-82). Petitioner did so (Ex. 61, Doc. 6-2, at 585-89); and the State responded (Ex. 62, Doc. 6-2, at 590-92). Petitioner also filed a pro se brief, wherein he raised a single issue for review:

(Ex. 72, Doc. 27-1, at 9).5 In April 2012, the appellate court defined the scope of Petitioner's appeal and ordered the appeal to continue only on the issue of the trial court's denial of his motion for grand jury transcripts. (Ex. 63, Doc. 10-1; Ex.65, Doc. 10-3).

In July 2012, Petitioner, through appellate counsel, filed a merit brief in which he raised one assignment of error:

(Ex. 73, Doc. 27-1, at 35-41). The state filed an answer brief (Ex. 74, Doc. 27-1, at 42-50), and Petitioner replied (Ex. 75, Doc. 27-1, at 51-57). On November 9, 2012, the appellate court modified its April 2012 judgment to allow Petitioner to supplement his brief to also argue the issue of the trial court's jurisdiction to rule on Petitioner's motion for leave to file a delayed motion for new trial. (Ex. 76, Doc. 7-1, at 58-61). Because Petitioner did not file a supplemental brief in accordance with the court's order, the appellate court noted it would proceed only on the issue raised in his original brief. (Ex. 77, Doc. 27-1, at 62). However, the appellate court then recognized that Petitioner's previously-filed pro se brief, filed in Case No. 12 MA 25, had been consolidated with the appeal, and therefore the court would "consider Dew's pro se arguments regarding the trial court's ruling on the motion for leave to file a delayed Crim R. 33 motion for new trial." (Ex. 78, Doc. 27-1, at 67).

On June 17, 2013, the appellate court affirmed the trial court's judgment in part (holding that Petitioner's complaint alleging the denial of grand jury transcripts was barred by res judicata), and reversed and remanded in part (holding that the trial court had jurisdiction to rule on the motion for leave to file a Criminal Rule 33 motion based on newly discovered evidence). (Ex. 78, Doc. 27-1, at 63-74). Petitioner's motion for reconsideration (Ex. 79, Doc. 27-1, at 75-89) was denied (Ex. 81, Doc. 27-1, at 93-94).

Petitioner, again through counsel, filed a timely notice of appeal to the Ohio Supreme Court. (Ex. 82, Doc. 27-1, at 95-96). In his memorandum in support of jurisdiction, Petitioner set forth a single proposition of law:

(Ex. 83, Doc. 27-1, at 98-116). The state filed a waiver of memorandum in response. (Ex. 84, Doc. 27-1, at 117). On November 6, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4). (Ex. 85, Doc. 27-1, at 118).

Initial Federal Habeas Corpus Proceedings

On November 15, 2011, when he was simultaneously pursuing state post-conviction relief, Petitioner initiated the instant federal action seeking a writ of habeas corpus pursuant 28 U.S.C. § 2254. (Doc. 1). He asserted five grounds for relief:

(Doc. 1). Respondent filed an Answer/Return of Writ, noting, inter alia, the Petition was a mixed petition, containing both exhausted and unexhausted claims. See Doc. 6. Petitioner replied. (Doc. 8). On February 4, 2013, the court stayed the case pending exhaustion. (Doc. 14).

Motion to Disqualify

Subsequently, Petitioner, pro se, filed a motion to disqualify the trial judge from presiding over any further proceedings. (Ex. 89, Doc. 27-1, at 126-73). The Ohio Supreme Court denied the disqualification request, ruling Petitioner had "waived his right" to object to the trial judge because he had filed his disqualification affidavit too late, and that Petitioner had nothing pending before the trial judge. (Ex. 90, Doc. 27-1, at 174-75). Petitioner's motion for reconsideration of that decision was also denied. (Ex. 91, Doc. 27-1, at 177-79).

Affidavit Charging the Offense Committed

In August 2012, Petitioner filed an "Affidavit Charging the Offense Committed Pursuant to R.C. 2935.09" with the Mahoning County Clerk of Courts. (Doc. 33-4). In it, he sought to have charges brought against a detective and prosecutor involved in his case. Id.

Return to Motion for New Trial (Ohio Crim. R. 33(B))

Pursuant to the appellate court's remand, see Ex. 78, Doc. 27-1, at 63-74, on June 24, 2013, Petitioner filed his delayed motion for new trial. See Ex. 92, Doc. 27-1, at 180 (trial court order granting Petitioner leave to file his motion for new trial). In his memorandum in support, Petitioner, pro se, presented four issues:

(Ex. 93, Doc. 27-1, at 181-228). The trial court held a hearing on August 26, 2013, at which Petitioner appeared with counsel. See Doc. 28-6 (transcript of hearing). At the hearing, the trial court overruled Petitioner's first three issues as res judicata, id., at 68-72, but requested additional briefing on the fourth issue, id. at 71-73. The parties submitted post-hearing briefs. (Exs. 94-97, Doc. 27-1, at 389-472; Ex. 98, Doc. 27-2, at 1-10).

On October 31, 2013, the trial court overruled Petitioner's motion for a new trial. (Ex. 99, Doc. 27-2, at 11-12). The court held that Petitioner had failed to establish the merits of his claims, and that all of the issues "should have been or were raised on direct appeal and, as such, said issues may not now be presented." Id. at 11.

Petitioner, pro se, filed a timely notice of appeal. (Ex. 100, Doc. 27-2, at 13). In his pro se6 merit brief, Petitioner raised three assignments of error:

(Ex. 104, Doc. 27-2, at 29). The State filed an Answer Brief (Ex. 105, Doc. 27-2, at 91-128), and Petitioner filed a Reply (Ex. 106, Doc. 27-2, at 129).

On January 21, 2016, the state appellate court affirmed the trial court's decision holding each of Petitioner's arguments barred by res judicata. (Ex. 107, Doc. 27-2, at 156-74). Petitioner filed a motion for reconsideration. (Ex. 108, Doc. 27-2, at 175-207). The State filed a response. (Ex. 109, Doc. 27-2, at 208-15). On March 4, 2016, the appellate court denied reconsideration. (Ex. 110, Doc. 27-2, at 216-26).

On March 29, 2016, Petitioner, pro se, filed a timely notice of appeal to the Ohio Supreme Court. (Ex. 111, Doc. 27-2, at 227-28). In his memorandum in support of jurisdiction, Petitioner set forth five proposition of law:

(Ex. 112, Doc. 27-2, at 229-77) (capitalization altered). The State filed a waiver of memorandum in response. (Ex. 113, Doc. 27-2, at 278). On June 15, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4). (Ex. 114, Doc. 27-2, at 279).

Second Application to Reopen (Ohio App. R. 26(B))

Meanwhile, on June 5, 2014, Petitioner, pro se, filed a motion for delayed reconsideration, or in the alternative, a delayed application for reopening his direct appeal. (Ex. 115, Doc. 27-2, at 280-96). In it, he alleged appellate counsel was ineffective for "failure to ensure the preservation of the original recording of a wiretap, improperly redacted at trial and timely objected by defense counsel, for the trial/appellate record in Appellant's direct appeal." Id. at 280. The State filed a response (Ex. 116, Doc. 27-2, at 297-304), and Petitioner filed a reply (Ex. 117, Doc. 27-2, at 305-09). On September 5, 2014, the appellate court denied the application. (Ex. 118, Doc. 27-2, at 310-13). Therein, the appellate court held that Petitioner's motion for delayed reconsideration: was meritless; was a second application for reopening (which the rules did not provide for); and that he had failed to establish good cause for his untimeliness. Id. Petitioner's motion for reconsideration (Ex. 119, Doc. 27-2, at 314-18), was denied. (Ex. 122, Doc. 27-2, at 326-27).

Petitioner filed, pro se, a timely notice of appeal to the Ohio Supreme Court. (Ex. 123, Doc. 27-2, at 328-29). In his memorandum in support of jurisdiction, Petitioner advanced five propositions of law:

(Ex. 124, Doc. 27-2, at 336-59). The State filed a waiver of memorandum in response. (Ex. 125, Doc. 27-2 at 360). On December 3, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4). (Ex. 126, Doc. 27-2, at 361).

Return to Federal Court

Following the Ohio Supreme Court's June 15, 2016 decision declining jurisdiction of Petitioner's final appeal, see Ex. 114, Doc. 27-2, at 279, Petitioner filed a notice of exhaustion of state court remedies, and motion for leave to amend his habeas petition. (Doc. 16). This district court granted the motion for leave. (Doc. 17). In his Amended Petition, filed pro se,7 Petitioner presents twelve grounds for relief:

(Doc. 18, at 5-19) (capitalization altered). Respondent filed an Answer/Return of Writ to the Amended Petition (Doc. 27), and Petitioner filed a Traverse/Reply. (Doc. 35).

Petitioner has also filed, since the filing of his Amended Petition several additional motions. Docs. 24, 26, 30, 33, 34, 42. Respondent filed a joint response to the first five motions (Doc. 37), and Petitioner replied (Doc. 41). These motions are addressed in an Order filed concurrently to this Report and Recommendation.

The undersigned therefore turns to the Amended Petition. (Doc. 18).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "dictates a highly deferential standard for evaluating state-court rulings which demands that state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005). An application for habeas corpus cannot be granted for a person in custody pursuant to a state conviction unless the adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d). Thus, a court may grant habeas relief if the state court arrives at a conclusion that is contrary to a decision of the Supreme Court on a question of law, or if the state court decides a case differently than did the Supreme Court on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).

The appropriate measure of whether a state court decision unreasonably applied clearly established federal law is whether that state adjudication was "objectively unreasonable" and not merely erroneous or incorrect. Williams, 529 U.S. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir. 2000). "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Harrington v. Richter, 562 U.S. 86, 102 (2011). To obtain "habeas corpus from a federal court, 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 fairminded disagreement." Id. at 103.

DISCUSSION

Respondent contends Petitioner has procedurally defaulted Grounds One, Two, Five, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve, and he cannot show cause, prejudice, or actual innocence to excuse those defaults. Respondent also contends Grounds Three and Four fail on the merits. Finally, Respondent contends Ground Two, in the alternative, also fails on the merits. Petitioner, in reply, contends his grounds are not defaulted, and he can overcome any default through a showing of cause and prejudice or actual innocence. For the reasons discussed below, the undersigned recommends the Petition be denied in its entirety.

Procedural Default

Petitioners must exhaust state court remedies prior to raising claims in federal habeas corpus proceedings. See 28 U.S.C. § 2254(b), (c). This requirement is satisfied when a petitioner has given "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to "fairly present" federal claims so that state courts have a "fair opportunity" to apply controlling legal principles to the facts bearing upon a petitioner's constitutional claim. See id.; Picard v. Connor, 404 U.S. 270, 275-77 (1971). 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). The claims must also be presented to the state courts as federal constitutional claims. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). In reviewing the state court proceedings to determine whether a petitioner has "fairly presented" a claim to the state courts, courts have looked to the petitioner's:

Whitings v. Burt, 395 F.3d 602, 613 (6th Cir. 2005).

Related to exhaustion is the issue of procedural default. First, a petitioner may procedurally default a claim by failing to comply with state procedural rules in presenting his claim to the appropriate state court. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). If, due to 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. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Second, a petitioner may procedurally default a claim by failing to raise the claim in state court, and pursue that claim through the state's "ordinary appellate review procedures." Boerckel, 526 U.S. at 847. To fairly present claims in the Ohio courts, a petitioner must raise his federal constitutional claims in direct or delayed appeals to the Ohio Court of Appeals and the Ohio Supreme Court. See Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004).

To overcome procedural default a petitioner must establish: 1) "cause for the default," and 2) "actual prejudice from it." Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). "To show cause for the default, a petitioner must show more than mere error, he must establish a substantial reason to excuse the default." Id. Cause "must be something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753 (1991).

Ground One

In Ground One, Petitioner alleges "a claim of actual innocence based on new evidence and the claim of actual innocence is also related to multiple Constitutional violations." (Doc. 18, at 5-6). Respondent contends Ground One is procedurally defaulted.

First, as Respondent points out (Doc. 27, at 42), and Petitioner seemingly acknowledges (Doc. 25, at 34-35), a free-standing claim of actual innocence is not independently cognizable in a habeas case. See Herrera v. Collins, 506 U.S. 390, 400 (1993). The undersigned will address Petitioner's claim of innocence below as it relates to an excuse to overcome the default of his procedurally defaulted grounds.

Second, however, in the supporting facts, Petitioner elaborates that he is challenging the alleged improper redaction of a recording played for the jury. See Doc. 18, at 5-6 ("The evidence was improperly and intentionally removed from the recording prior to it being heard by the jury, impairing its value and misleading the jury and the court."). He alleges that the redacted portions of the recording — containing an interview between a victim and a police detective — contained exculpatory evidence. Id.

Petitioner did not present this claim during either his direct appeal, or in a post-conviction motion. Rather, he first presented the claim in his (untimely) Application to Reopen. See Ex. 45, Doc. 6-2, at 375 (arguing appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim regarding failure "to evaluate and object to playing an altered recording of a wiretap at trial after the State intentionally redacted exculpatory evidence"). Id. An ineffective assistance of appellate counsel claim to a state court does not, however, preserve the underlying claim raised. See Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008). That is, even had Petitioner's application to reopen been timely, raising such a claim of ineffective assistance of appellate counsel would not have preserved the underlying ineffective assistance of trial counsel for failure to object to improper redacting/withholding of exculpatory evidence claim. Because this claim was not presented to the state courts on direct appeal, and he cannot now raise the claim under Ohio law, it is procedurally defaulted.

Ground Two

In Ground Two, Petitioner alleges he was "denied due process of law when the trial court denied his motion for relief from improper joinder and the appellate court refused to sever and remand the case even after reversing and vacating convictions on the unrelated charges". (Doc. 18, at 7). In his supporting facts, Petitioner contends he "was severely prejudiced and did not receive a fair trial as required by the U.S. Constitution." Id. Respondent contends Ground Two is defaulted because Petitioner did not "fairly present" it as a federal Constitutional claim before the state court.

On direct appeal, Petitioner presented a claim to the trial court regarding improper joinder: "Appellant was Severely Prejudiced and Denied Due Process of Law When the Court Denied his Motion for Relief from Improper Joinder, Refused to Sever the Unrelated Charges, and Forced Appellant to Try the Cases Together Before One Jury." (Ex. 30, Doc. 6-2, at 184); see also Ex. 40, Doc. 6-2, at 350. Although Petitioner used the words "due process of law", the argument presented to the appellate court was presented entirely based on Ohio law, arguing the trial court abused its discretion, and violated Ohio Rule of Evidence 404(B), and Ohio Criminal Rules 8(A), 13, and 14. Id. at 184-88. The same was true in Petitioner's brief to the Ohio Supreme Court, which again argued joinder violated Ohio law. (Ex. 40, Doc. 6-2, at 362-64). In the conclusion of his brief to the Ohio Supreme Court, Petitioner stated that the joinder "was in violation of the Ohio Rules of Criminal Procedure, Appellant's constitutional rights, and established case law." Id. at 364.

The undersigned agrees with Respondent that this claim was not "fairly presented" to the state court as a federal constitutional claim. On appeal, Petitioner did not cite federal case law, phrase the claim in terms "sufficiently particular to allege a denial of a specific constitutional right", or allege "facts well within the mainstream of constitutional law." Whitings, 395 F.3d at 615. Although Petitioner did use the words "due process" and "constitutional rights", the Sixth Circuit has held that an "isolated allusion to `constitutional rights to due process and a fair trial' . . . fail[] to afford the [state] courts adequate notice that [a petitioner] intended to invoke the Due Process Clause." Katt v. Lafler, 271 F. App'x 479, 482 (6th Cir. 2008); see also Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (where a petitioner alleged that he had been deprived of "due process and a fair trial by an impartial jury" and cited the Sixth and Fourteenth Amendments, he had not "fairly presented" a federal claim to the state courts); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir.2004) ("[G]eneral allegations of the denial of rights to a `fair trial' and `due process' do not `fairly present claims' that specific constitutional rights were violated.") (internal citations omitted); see also Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir.1995) ("A lawyer need not develop a constitutional argument at length, but he must make one; the words `due process' are not an argument."). Although Petitioner is correct that his trial counsel, in the original "Motion for Relief from Improper Joinder", cited federal constitutional law, see Ex. 16, Doc. 6-2, at 72-82, Petitioner's later filings did not alert the appellate courts to the constitutional nature of his claim. Petitioner contends he "further presented the issue as that of denying him a fair trial, which is the very core of the U.S. Constitution" (Doc. 35, at 41), but such an allusion to a "fair trial" is insufficient, see, e.g., Blackmon, 394 F.3d at 400. The state appellate court, when presented with Petitioner's claim of improper joinder, understandably analyzed that claim solely under state law without undertaking any constitutional analysis. Although Petitioner's constitutional claim arises out of the same circumstances as his state law claim, his failure to alert the state appellate courts to the constitutional ramifications of his improper joinder claim means that he did not fairly present that claim to the state court. See Boerckel, 526 U.S. at 842; McMeans, 228 F.3d at 681; Koontz, 731 F.3d at 368. Ground Two is therefore procedurally defaulted.

Grounds Five, Six, Seven, Nine, Ten, Eleven and Twelve

Ground Five asserts a due process violation based on improper jury instructions and "ex post facto" decision making. (Doc. 18, at 10). Ground Six asserts a Sixth and Fourteenth Amendment violation based on "the intentional fixing or packing of the jury". Id. at 11. Ground Seven asserts a due process violation because Petitioner was "wrongfully convicted by a court that lacked subject matter jurisdiction" and that he was vindictively prosecuted. Id. at 12. Ground Nine alleges bias on the part of the trial judge. Id. at 14-15. Ground Ten alleges the State failed to provide Petitioner or the trial court "a true, accurate and usable copy" of his discovery, namely the DVD recording of his interrogation. Id. at 16. Ground Eleven asserts Petitioner was denied due process when he was denied grand jury transcripts. Id. at 17-18. And Ground Twelve alleges a due process violation in the form of prosecutorial judge shopping. Id. at 18-19. Respondent contends these grounds are all procedurally defaulted due to Petitioner's failure to raise them on direct appeal.

Each of these claims was based on facts available to Petitioner at the time of his direct appeal, and thus, should have been raised in his direct appeal. See Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001). As the Buell court explained:

Id. As discussed in greater detail below, Petitioner did not raise these claims on direct appeal, see Ex. 30, Doc. 6-2, at 158-98, and any attempt to raise them now would be barred by res judicata, see Perry, 10 Ohio St.3d at 175-76.

Grounds Five, Six, Ten, and Twelve

Petitioner raised several of these claims (Grounds Five, Six, Ten, and Twelve) for the first time in his Motion for New Trial. See Ex. 93, Doc. 27-2, at 181-228. Petitioner contends these claims were based on evidence outside the record and the state court, in granting him leave to file his new trial motion, made a finding that he was "unavoidably prevented from discovering relevant evidence." See Doc. 35, at 45. He contends this is so because the appellate court could not grant him leave to file such a new trial motion without making such a finding. Id. The record reflects, however, that the state courts made the opposite finding.

In November 2011, Petitioner filed a motion for a new trial and requested an order finding he had been unavoidably prevented from discovering the evidence upon which he relied in his motion for a new trial. (Ex. 49, Doc. 6-2, at 448-51). The trial court initially held it lacked jurisdiction to consider Petitioner's motions (Ex. 56-57, Doc. 6-2, at 576-77), but the appellate court reversed, finding the trial court had jurisdiction, see Ex. 78, Doc. 27-1, at 63-69. Pursuant to the appellate court's remand, the trial court noted it was "compelled to sustain Defendant's Cr. Rule 33 `Motion for Leave to File a Delayed Motion for New Trial Based upon Newly Discovered Evidence[]'" and granted Petitioner leave to file his motion. (Ex. 92, Doc. 27-1, at 280).

Following briefing, the trial court held a hearing. (Doc. 28-6). At the hearing, the trial court specifically ruled on three of Petitioner's claims. First, the trial court ruled that Petitioner should have presented his "jury packing" claim earlier. Id. at 26 ("Court further finds pursuant to [C]riminal Rule 33(B) that the defendant was able to discover this prior to the impaneling of the jury and did not do that. This is not newly discovered evidence by the definition of newly discovered evidence in Criminal Rule 33."). Second, regarding Petitioner's jury instruction claim, the Court ruled it was a matter "that could have been and should have been raised on appeal but were not or . . . to some extent were raised on appeal." Id. at 68. Third, the court overruled Petitioner's claim of judge shopping, noting that Petitioner had presented no evidence. Id. at 69. Fourth, the court overruled Petitioner's claim of regarding the prosecution's withholding of a DVD of Petitioner's interrogation. Id.

Additionally, at the hearing, the court and counsel discussed if there had been a determination regarding whether Petitioner had been unavoidably prevented from discovering the evidence he attempted to submit:

(Doc. 28-6, at 66-68). The trial court then ordered briefing on whether Petitioner's conviction violated ex post facto principles. Id. at 71. After receiving post-hearing briefs regarding the ex post facto issue, the trial court overruled Petitioner's motion for a new trial in its entirety. (Ex. 99, Doc. 27-2, at 11) ("Defendant's entire Motion for New Trial involves issues that either should have been or were raised on direct appeal and, as such, said issues may not now be pursued."). Moreover, the state court, on appeal, ultimately rested its decision on Petitioner's new trial motion on a procedural default. (Ex. 107, Doc. 27-2, at 157) ("As each of Appellant's arguments have been raised on direct appeal or should have been so raised, they are barred by res judicata."); id. at 173 ("Each of Appellant's arguments within his Crim. R. 33 motion are barred by res judicata."). On reconsideration, the appellate court explicitly addressed Petitioner's argument regarding newly discovered evidence:

Id. at 219-20.

Thus, Petitioner's contention that he somehow could not have presented these grounds on direct appeal is foreclosed by the state court determination. The state court unequivocally held that Petitioner's claims were barred by res judicata. Ohio's rules regarding res judicata, see, e.g., State v. Perry, 10 Ohio St.2d 175 (1967), have been consistently held to be an adequate and independent state law ground foreclosing federal habeas review. See Hanna v. Ishee, 694 F.3d 596, 614 (6th Cir. 2012); Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell, 274 F.3d at 349; Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000).

Petitioner asserts, in essence, that the Ohio court's application of the procedural bar of res judicata was incorrect, because he supported these claims with evidence outside the record. Petitioner is correct that under Ohio law, post-conviction issues supported by evidence outside the record may not be subject to a res judicata bar. See State v. Smith, 17 Ohio St.3d 98, 101, n.1 (1985). But, there is also "Ohio case law supporting the position that, in order to overcome the bar of res judicata, evidence attached in support of a claim not raised on direct appeal must be relevant, material, and unavailable to the petitioner in time to support his claim at trial or on direct appeal." Van Hook v. Anderson, 127 F.Supp.2d 899, 918 (S.D. Ohio 2001) (citing State v. Scudder, 131 Ohio App.3d 470, 475 (1998) and State v. Lawson, 103 Ohio App.3d 307, 315 (1995)) (emphasis in original); see also West v Bradshaw, 2016 WL 8139591, at *18 (N.D. Ohio) ("All of the facts going to these issues were available to West prior to trial, so they could have been raised in a motion to suppress evidence. Any argument that trial counsel failed to raise them could have been made on direct appeal, making them res judicata."), report and recommendation adopted by 2017 WL 497611. As the district court in Van Hook explained: "[Petitioner] has not demonstrated, and it cannot seriously be argued, that this evidence [in the form of newspaper articles] was unavailable to him at the time of his trial." Id. Likewise here, the appellate court concluded Petitioner's evidence was not newly discovered, or unavailable on direct appeal. See Ex. 107, Doc. 27-2, at 219-20. As such, the undersigned concludes Petitioner has not shown the state court incorrectly applied the res judicata bar. Thus, these grounds are procedurally defaulted.

Grounds Seven, Nine, Eleven

Grounds Seven (trial court lacked subject matter jurisdiction/vindictive prosecution), Nine (judicial bias), and Eleven (denial of grand jury transcripts) were similarly based on facts available to Petitioner prior to his direct appeal, but were not included in that appeal. Ground Seven was raised to the appellate court after the denial of Petitioner's motion for new trial, Ex. 104, Doc. 27-2, at 23-88, Ground Nine was raised in the form of an affidavit to disqualify to the Ohio Supreme Court, and again on denial of Petitioner's motion for new trial. See Ex. 89, Doc. 27-1, at 126-73; Ex. 104, Doc. 27-2, at 23-88. And Ground Eleven was raised first in a motion to obtain grand jury proceedings before trial. (Ex. 8, Doc. 6-2, at 21-31).

Because these claims were based on information available to Petitioner at the time of his direct appeal, but were not raised, they are procedurally defaulted, Buell, 274 F.3d at 349.

Ground Eight

In Ground Eight, Petitioner alleges ineffective assistance of appellate counsel for failing to: 1) ensure the entire record was properly filed (namely, the unredacted version of the audio recording); 2) argue ineffective assistance of trial counsel; 3) argue vindictive prosecution; 4) argue denial of grand jury transcripts; and 5) provide "complete arguments" on direct appeal. See Doc. 18, at 13-14. Under Ohio law, claims of ineffective assistance of appellate counsel must be filed under an Ohio Appellate Rule 26(B) "Application to Reopen" the appeal based on the ineffectiveness. See Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012) (citing State v. Murnahan, 63 Ohio St.3d 60 (1992)). Petitioner attempted to do so here, but failed to comply with Rule 26(B)'s timing requirement, which requires the application be filed "within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." Ohio App. R. 26(B)(1). See Ex. 45, Doc. 6-2, at 375.

The appellate court dismissed Petitioner's application, finding it untimely, and holding he had not demonstrated good cause for the untimely filing. See Ex. 46, Doc. 6-2, at 423-26. The Sixth Circuit has recognized that the timeliness requirement of Ohio Appellate Rule 26(B) is an adequate and independent state ground. Parker v. Bagley, 543 F.3d 859, 862 (6th Cir. 2008); see also Baker v. Bradshaw, 495 F. App'x 560, 566 (6th Cir. 2012) ("[W]e have previously held that an untimely Rule 26(B) application is an adequate and independent state ground that results in a claim being procedurally defaulted."). Further, the Sixth Circuit has held an Ohio court's holding that a petitioner failed to establish good cause for purpose of Rule 26(B) is an adequate and independent state law ground foreclosing review of a federal constitutional claim. Wilson v. Hurley, 382 F. App'x 471, 475 (6th Cir. 2010); Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir. 2012) ("Ohio law has provided sufficient guidance on what constitutes a `good cause' for a late filing under Rule 26(B) and the time constraints of Rule 26(B) [have been] firmly established and regularly followed.") (internal quotations and citations omitted) (alteration in original). Thus, Ground Eight is procedurally defaulted.

Cause and Prejudice

Ground Eight

As cause to excuse the default of Ground Eight, Petitioner alleges first, that his incarceration and need to gather evidence prevented him from timely filing. See Doc. 25, at 52 ("While Petitioner did state that he was incarcerated, his reasoning for delay was due to the Rule requiring affidavits, which required outside assistance."). Second, he asserts that he only learned of his appellate counsel's ineffectiveness (in failing "to ensure that a complete record was filed from the direct appeal") when he filed an appeal of the denial of his motion for new trial. Id. Finally, Petitioner asserts that the procedural bar should not apply because his motions were also labeled as "Motions for Reconsideration" under Ohio Appellate Rule 26(A). See id.

Preliminarily, a prisoner's "pro se status", "ignorance of the law and procedural requirements", or a "mistaken belief" about procedural requirements do not provide cause to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004).

As to Petitioner's contention that he only learned of appellate counsel's ineffectiveness when appealing the denial of his new trial motion, the state court explained:

(Ex. 118, Doc. 27-2, at 313). Thus, this cannot serve as cause to excuse his default.

Petitioner's contention that the procedural bar should not apply because he also labeled his 26(B) applications as "motions for reconsideration" is similarly unavailing. It is up to the Ohio court to interpret Ohio law. And the Ohio court here clearly enforced the procedural timing bar. See Ex. 46, Doc. 6-2, at 423; Ex. 118, Doc. 27-2, at 311; see also Ex. 118, Doc. 27-2, at 312 ("The Appellate Rules make no provisions for successive motions for reconsideration; thus Dew's motion can be rejected on this basis alone.").

Thus, Petitioner has failed to show cause and prejudice to overcome the procedural default of his ineffective assistance of appellate counsel claim. And, because Ground Eight is defaulted, this ineffective assistance of appellate counsel claim may also not provide cause and prejudice to overcome any other defaulted claim. See Goldberg v. Money, 692 F.3d 534, 537 (6th Cir. 2012) (citing Edwards v. Carpenter, 529 U.S. 446, 453 (2000)).

Ground One

Although Petitioner presents several arguments regarding the allegedly—improper redacting of the recording played at trial, he offers no sufficient cause to overcome his procedural default of this claim. Petitioner concedes he had the full (unredacted) audio recording before trial. See Ex. 115, Doc. 27-2, at 282 ("In the filing of Dew's Appellant Brief . . . he included an exact copy of the original recording of the wiretap given to him in pretrial discovery and a copy of the parts of the recording that were played at trial[.]"); see also Doc. 18, at 6 (asserting only that "[t]here is no record of the state providing the defense with a copy of the altered recording prior to playing it at trial").8 To the extent Petitioner seeks to assert ineffective assistance of trial counsel for failing to object, or to introduce redacted portions of the tape at trial, such a claim was not raised on direct appeal, and thus cannot serve as cause. See Edwards, 529 U.S. at 453. And, even though Petitioner attempted to raise an ineffective assistance of appellate counsel claim for failure to raise an ineffective assistance of trial counsel claim on this basis, see Ex. 45, Doc. 6-2, at 375: 1) an ineffective assistance of appellate counsel claim does not preserve the underlying claim made, Davie, 547 F.3d at 312; and 2) Petitioner's ineffective assistance of appellate counsel claim is itself defaulted as discussed above. Thus, Petitioner has not shown cause to excuse the default of Ground One.

Grounds Ten and Twelve

As cause to excuse his default of Grounds Ten, and Twelve, Petitioner seemingly asserts ineffective assistance of trial counsel. See Doc. 35, at 58 ("Petitioner changed counsel prior to trial. New counsel was only provided the audio recording, having been told it was equivalent. Trusting the State, who has a duty to disclose the truth . . . trial counsel never reviewed the audio recording in comparison with the video."); Id. at 59 ("Counsel was placated and misled by the provision of a reduced and redacted audio recording, which defense counsel took at the word of the State to be equivalent when clearly it was not."). First, the state court found, in ruling on Petitioner's motion for new trial, that the DVD was provided to Petitioner before trial (acknowledging his argument that he was unable to open the file). (Ex. 107, Doc. 27-2, at 162). And, as the appellate court stated, "it was the defense's obligation at the time to inform the court if the video could not be viewed." Id. As discussed above with regard to Ground One, Petitioner never raised an ineffective assistance of trial counsel claim on direct appeal. And a never—presented, or defaulted claim of ineffective assistance of trial counsel cannot serve as cause to overcome the default of other grounds. Goldberg, 692 F.3d 537 (citing Edwards, 529 U.S. at 453). As such, Petitioner cannot show cause to overcome the default of Grounds Ten, and Twelve.

Ground Five

As cause for to excuse the default of Ground Five (ex post facto jury instructions), Petitioner asserts that because the trial court accepted evidence on his Motion for New Trial, such a claim was necessarily new. See Doc. 35, at 60-61. But, as noted above, the state court found Petitioner had not relied upon "newly discovered evidence." And this "cause" does not explain Petitioner's failure to raise this issue on direct appeal, when it was based entirely on the jury instructions as they were read by the trial court. Thus, the undersigned finds Petitioner has not shown cause to excuse the default of Ground Five.

Ground Six

As cause to excuse the default of Ground Six—his challenge to the jury venire—Petitioner asserts that "public records had to be collected", "an expert witness for the statistical evaluation of the evidence had to be found and secured", and "monies raised to pay for the evaluation and affidavit as required for compliance by Crim.R. 33." (Doc. 35, at 61). But, a prisoner's pro se status and financial status cannot serve as cause as they are not external objective factors. Cause must be "a substantial reason to excuse the default," Hall, 563 F.3d at 236. And it "must be something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753. The reasons Petitioner asserts for not promptly raising this claim are not "substantial reasons" "external to the petitioner" but rather matters within his control. Moreover, Petitioner's asserted cause does not speak to the Ohio appellate court's finding that he had offered `no explanation as to why he could not obtain [the evidence offered] from in a more timely manner" and it was "implausible that it would take such a long period of time". (Ex. 107, Doc. 27-2, at 165).

Ground Seven

As cause to excuse the default of Ground Seven (lack of subject matter jurisdiction and vindictive prosecution), Petitioner asserts that subject matter jurisdiction may be raised at any time. See Doc. 18, at 12-13; Doc. 35, at 62. Petitioner is incorrect. For a claim to be addressed on federal habeas review, a Petitioner must first fairly present that claim to the state courts. See Boerckel, 526 U.S. at 842; McMeans, 228 F.3d at 681; Koontz, 731 F.3d at 368. The purpose of this requirement "is to `provide the state courts with a "fair opportunity'" to apply controlling legal principles to the facts bearing upon his constitutional claim.'" Duncan v. Henry, 513 U.S. 364, 270 n.1 (1995) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). Petitioner has not shown cause for the default of Ground Seven.

Ground Eleven

It is unclear what Petitioner asserts as cause for the default of Ground Eleven (due process violation from denial of grand jury transcripts). See Doc. 35, at 62-64.

To the extent this ground asserts an error of state law in denying Petitioner the transcripts, such a claim is not cognizable. See Estelle, 502 U.S. at 67-68. Moreover, to the extent Petitioner asserts the post-trial denial of the grand jury transcripts violated his due process rights, such a claim also fails. "There is no clearly established Supreme Court precedent recognizing a constitutional right to obtain access to grand jury transcripts under any circumstances." Lang v. Bobby, 2015 WL 1423490, at *56 (N.D. Ohio). "[M]isapplication of state law is not cognizable in a federal habeas proceeding unless a petitioner can prove that the error deprived him of a fair trial or proceeding." Russell v. Anderson, 2008 WL 4534144, at *6 (N.D. Ohio) (concluding that the petitioner failed to establish a due process violation based on the trial court's denial of his request for grand jury transcripts). Additionally, to the extent he argues ineffective assistance of (trial or appellate) counsel, such otherwise—defaulted claims cannot serve as cause to excuse this default. See Edwards, 529 U.S. at 543.

Grounds Two and Nine

Petitioner does not appear to present any argument regarding cause to overcome his default of Grounds Two (improper joinder) or Nine (judicial bias). See Doc. 35, at 60 (arguing "Petitioner has already down that his second ground was presented as a constitutional claim in the state courts[.]"); Doc. 35, at 61-62 (re-arguing the alleged merits of Ground Nine).

Actual Innocence

Petitioner also asserts he can overcome any procedural default through a showing of "actual innocence". See Doc. 35, at 73-95. The undersigned finds, however, that Petitioner's actual innocence argument, arises primarily from Petitioner's mistaken contention as to the element of "force" or "threat of force" relevant to his crimes of conviction.

In support of his argument, Petitioner points to some evidence in the record, and other evidence he seeks to add to the record through a motion to expand. (Doc. 24). See Doc. 35, at 73-95. Specifically, Petitioner focuses on an interview between one of the victims and a police detective, which he alleges contains "highly exculpatory evidence", and which (as described earlier) he alleges the state improperly redacted for trial. Petitioner also focuses on the fact that the state sought a superceding indictment.

Respondent asserts that the recording is not new reliable evidence "that would demonstrate that no reasonable juror would have found him guilty had said `new' evidence been considered at trial." (Doc. 27, at 56); see also Doc. 37, at 8-9. Moreover, Respondent contends the superseding indictment provides no proof of innocence (Doc. 37, at 8); much of the evidence Petitioner alleges demonstrates the relationships were consensual was cumulative of that presented at trial, id. at 11; and former gymnast Ms. Morrow's affidavit is not proof of innocence, id. at 11-12. In conclusion, Respondent asserts: "That [Petitioner] seeks to admit more cumulative `evidence showing that the gymnasts were not `physically forced' to submit to him, or that they `loved' and `respected' him will not affect the jury's determination." Id. at 13.

A showing of actual innocence permits a federal habeas court to excuse the expiration of the statute of limitations and consider the merits of the petition. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013) ("[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations."). "In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief." Id.

The Supreme Court has repeatedly counseled that actual innocence is an exception rarely granted, and only in the most extraordinary circumstances. See Schlup v. Delo, 513 U.S. 298 324 (1995) (because new reliable evidence is unavailable "in the vast majority of cases, claims of actual innocence are rarely successful"); see also House, 547 U.S. 518, 538 (2006) ("The Schlup standard is demanding and permits review only in the `extraordinary' case.") (quoting Schlup, 513 U.S. at 327).

To make a showing of actual innocence, a habeas petitioner must show "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 327. In order to advance a credible actual innocence claim, however, the petitioner must support his allegations with "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324. In determining whether it is more likely than not that no rational juror would have convicted the petitioner in light of the new evidence, a court must assess the probative value of the new evidence and consider it in light of the evidence submitted at trial. House, 547 U.S. at 538. A court must consider all of the evidence "without regard to whether it would necessarily be admitted under `rules of admissibility that would govern at trial,'" id. at 538 (quoting Schlup, 513 U.S. at 327-28), but must nevertheless pay "due regard to" the "unreliability of" any of the evidence, Schlup, 513 U.S. at 328 (internal quotation marks omitted). "Based on this total record, the court must make `a probabilistic determination about what reasonable, properly instructed jurors would do.'" House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329). The "`new evidence' need not be newly discovered evidence, however, but simply may be `evidence that was not presented to the fact-finder during trial, i.e, newly presented evidence.'" Aldridge v. Phillips, ___ F. App'x ___, 2017 WL 5256221, at *1 (6th Cir.) (citing Cleveland v. Bradshaw, 693 F.3d 626, 622 (6th Cir. 2012)).

As the Supreme Court has stated, "`actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). Similarly, a claim of legal innocence is insufficient to raise a miscarriage of justice claim. Calderon v. Thompson, 523 U.S. 538, 559 (1998) ("[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.") (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).

The undersigned finds Petitioner's argument is essentially a legal insufficiency argument presented as a factual innocence argument. The bulk of Petitioner's argument is that he was innocent of the rape and gross sexual imposition charges because there was no evidence of force. And, he contends, the redacted recording and other evidence bolster his claims that the interactions were consensual and not forced. But, as discussed further below with regard to the sufficiency of the evidence claim, the appellate court's decision forecloses Petitioner's argument that proof of physical force was required for conviction.

And, he has not presented the type of "new reliable evidence" envisioned by Schlup, 513 U.S. at 324, such that no rational juror would have convicted him in light of the new evidence. House, 547 U.S. at 538. That is, he has not presented "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence— that was not presented at trial." Id.

Additionally, the fact that the State sought and received a superseding indictment is similarly not exculpatory evidence. According to Petitioner, "the State took the same evidence back to a grand jury and somehow coerced and misled them to vindictively elevate the the [sic] pending charges to rape, add the charge of corruption of a minor, and charge one count of GSI related to T.V." (Doc. 35 at 80). Most simply put, return of a superseding indictment does not, despite Petitioner's allegations to the contrary, equate to the State "falsely accusing and indicting" him. Nor does a superseding indictment filed after a motion to dismiss an original indictment, without more, prove vindictive prosecution.

As to the recording, Petitioner asserts the redaction withheld the truth from the jury — namely, that the victims allegedly consented. Petitioner claims in particular that in the redacted portion of the recording a victim had told the prosecution that she "loved and respected" him during the abuse period. (Doc. 35, at 126). Petitioner contends this statement was "exculpatory" evidence that the prosecutor withheld from him. Id. But, at Petitioner's trial, as he acknowledges, both victims testified that "they loved [him] and that he was respected by everyone who knew him." See Doc. 35, at 147. In addition, the victims testified that they did not feel petitioner "physically forced" them to do anything, as he had never "held a gun to their head." Dew, 2009 WL 4756342, at *6. Moreover, Petitioner's attorney cross-examined the victims extensively. See id. at *3, *6.

Therefore, even assuming arguendo that the redacted portions of the interview recordings contain what Petitioner claims they do, the jury heard corresponding testimony from the victims directly during trial. Such evidence would merely be cumulative, and the undersigned finds that it — in conjunction with the other evidence Petitioner points to — would not show it to be more likely than not that no rational juror would have convicted Petitioner in light of such evidence.9 As such, Petitioner's default of the above grounds cannot be excused by a showing of actual innocence.

Merits

Having determined that Grounds One, Two, Five, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve are procedurally defaulted and Petitioner cannot show cause and prejudice to excuse the default, or actual innocence to overcome the default, the undersigned turns to the two remaining (non-defaulted) grounds: Grounds Three and Four. Finally, the undersigned also addresses the merits of Ground Two in the alternative.

Ground Three: Sufficiency of the Evidence

In Ground Three, Petitioner contends there was insufficient evidence to support his convictions because the state failed to prove the required element of force. Petitioner also contends, in conjunction, that the court gave an improper jury instruction. Petitioner properly raised and exhausted this claim on direct appeal, see Ex. 30, Doc. 6-2, at 158-98 & Exs. 39-40, Doc. 6-2, at 347-48, and thus it is preserved for federal habeas review. Respondent contends, however, that this claim fails on the merits, as the state court decision was neither contrary to, nor an unreasonable determination of federal law under 28 U.S.C. § 2254.

The standard for sufficiency of evidence 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." Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. Consistent with the deference given to the trier of fact's resolution of conflicts in evidence, "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume— even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326; see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983).

As such, the reviewing court is not permitted to reweigh evidence or in any way substitute its own opinion for that of the trier of fact. United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)). "[T]he Jackson inquiry does not focus on 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, 506 U.S. at 402 (emphasis in original). Due process is satisfied as long as such evidence is enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a reasonable speculation that the petitioner is guilty of the charged crime. Newman v. Metrish, 543 F.3d 793, 796-97 (6th Cir. 2008).

Moreover, it is important to note the double deference applicable; first, the deference accorded to the trier of fact's verdict by Jackson, and second, the deference to the state court's consideration of the verdict under AEDPA. See Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008); see also Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (finding even if a rational trier of fact could not have found petitioner guilty, the habeas court must defer to the state appellate court's sufficiency determination so long as it is reasonable). "[T]he Jackson v. Virginia standard is so demanding that `[a] defendant who challenges the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.'" Davis, 658 F.3d at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

Further, generally speaking, a state court's interpretation of the propriety of a jury instruction under state law does not entitle a habeas claimant to relief. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[T]he fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief."). And, it is well-settled that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas review." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (reiterating the holding in Bradshaw). State courts are the final arbiters of state law and federal courts generally will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The exception is when a jury instruction is so flawed as a matter of state law as to "infect[ ] the entire trial" in such a way that the conviction violates federal due process. Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

The state appellate court addressed Petitioner's sufficiency claim and state-law manifest weight claims together (and therein addressed the jury instruction):

Manifest Weight

Dew, 2009 WL 4756342, at *20-27.

First, as to the allegedly improper jury instruction, Petitioner has not shown the state court's decision to be contrary to or an unreasonable application of federal law, or that it rendered his trial unfair or amounted to a fundamental miscarriage of justice. The trial court instructed the jury:

(Doc. 28-5, Trial Tr. Vol V, at 903-05); see also id. at 911-13.

On direct appeal, Petitioner argued that the trial court's instruction allowed the jury to make an inference of force solely based the relationship between a coach and a gymnast, but the appellate court disagreed:

Dew, 2009 WL 4756342, at *22; see also id. ("Although the caselaw holds that a somewhat lesser showing of force is required when the defendant stands in a position of authority over the victim, the focus of the inquiry is whether the victim's will was overcome by fear or duress.").

Petitioner contends that the state court's reliance on the term "psychological force" is improper as it "is not found in Ohio law." (Doc. 35, at 112). But this argument asks the Court to delve into the interpretation of Ohio law. To the extent Petitioner contends the appellate court was incorrect as a matter of state law, such a claim is not cognizable on federal habeas review. See Estelle, 502 U.S. at 67-68. Because the state court held the instruction was correct under state law, 2009 WL 4756342, at *22, and that determination is binding on this court, Bradshaw, 546 U.S. at 76, Petitioner cannot demonstrate that the use of the instruction violated his rights under the federal constitution. See Bagby v. Sowders, 894 F.2d 792, 795 (6th Cir. 1990) ("[W]here, as here, the highest court of a state has reviewed a defendant's request for a lesser included offense instruction and concluded that it is not warranted by the evidence elicited at trial, that conclusion is axiomatically correct, as a matter of state law. Accordingly, the circumstances that would induce a federal court to overturn the state court determination would need to be extraordinary, indeed."); Compare Davis v. Morgan, 89 F. App'x 932, 936 (6th Cir. 2003) ("Specifically, Davis argues that the Kentucky Supreme Court erred in determining that the jury instructions were proper because that determination was based on an incorrect interpretation of Shannon and an improper retroactive application of Barbour. It is not the province of this Court, however, to second-guess the Kentucky Supreme Court's interpretation of its own state law."); Weissert v. Palmer, 2015 WL 5680149, at *50 (W.D. Mich) (rejecting due process argument based on contention that jury instruction on element "was incorrect under state law, relying on the wrong set of Michigan cases" because "[t]he Michigan Court of Appeals held that, under Michigan law, the instruction . . . was correct" and it was "not the province of a federal habeas court to re-examine state-law determinations on state-law questions."); Washington v. Burt, 2015 WL 5162167, at *4 (E.D. Mich.) ("[I]t is not for this Court to decide whether a state court instruction constitutes a correct statement of the elements of a state offense under state law" and "[w]here a state appellate court has assessed the necessity and adequacy of a particular jury instruction under state law, a federal habeas court cannot question that finding.").

Here, the state court found the trial court's jury instruction accurately described state law requirements for a showing of force or threat of force. 2009 WL 4756342, at *22. The state appellate court's resolution of this issue was not contrary to, or an unreasonable application or federal law. See 28 U.S.C. § 2254(d).10

And, the undersigned finds the state court's determination regarding the sufficiency of the evidence on the element of force or threat of force was not contrary to, nor an unreasonable application of the federal law in Jackson and its progeny. First, the two victims testified. And, as the appellate court found, they testified as to Petitioner's status as an authority figure, control over their lives, comparatively larger stature, and manipulation and grooming over time. See Dew, 2016 WL 4756342, at *22-23. Moreover, Gymnast A testified that she was intimidated by Petitioner because of his size and because he told her he carried weapons. Id. at *22. And Gymnast B testified to an incident in which Petitioner would not let her down from a gym platform unless she professed her love. Id. at *23. Thus, the appellate court's conclusion that "[a]ny rational trier of fact could have found beyond a reasonable doubt" that each gymnast's "will was overcome by fear or duress", id. at 22 & 23, was supported by the record. This is so even though Petitioner cites to other evidence in the record he contends undermines this conclusion and shows consent, or a different interpretation of the evidence presented. See Doc. 35, at 113-48. It is not this Court's role to reweigh the evidence, or resolve conflicts in the evidence. Jackson, 443 U.S. at 326; Brown, 567 F.3d at 205.11

Presuming here (as a habeas court must), that the jury resolved all conflicts in the record in favor of the prosecution, the state court's finding that there was sufficient evidence in the record to support the "force or threat of force" element of rape and gross sexual imposition—as defined by Ohio law—was not "far out of line with the very general standard set forth in Jackson v. Virginia" so as to require habeas relief. Davis, 658 F.3d at 535. Therefore, the undersigned finds that the state court decision was neither an unreasonable application of, nor contrary to, federal law regarding sufficiency of the evidence. This is particularly so given the "double deference" applicable to a sufficiency challenge under AEDPA.12

Ground Four: Due Process/"Wiretap" Evidence

In Ground Four, Petitioner contends his Due Process rights were violated when a "wiretap" recording of a phone call between Petitioner and the victim was used at his trial. Respondent contends this ground is not cognizable: 1) to the extent it asserts that the recording was improper under state laws; and 2) to the extent it raises a Fourth Amendment issue, under Stone v. Powell, 428 U.S. 465 (1976).

Before trial, and on direct appeal, Petitioner raised this issue under the Fourth Amendment. See Ex. 30, Doc. 6-2, at 173-74; Ex. 40, Doc. 6-2, at 359-62; see also Doc. 6-5 (transcript of suppression hearing). Petitioner also referenced "due process", "equal protection, and "full faith and credit", but presented his argument primarily under the Fourth Amendment. The state appellate court found no Fourth Amendment violation:

Motion to Suppress

{¶ 75} In his first assignment of error, Dew argues:

Dew, 2009 WL 4756342, at *17-18.

First, to the extent Petitioner alleges the telephone recording violates state law, such a claim is not cognizable in federal habeas proceedings. See Estelle, 502 U.S. at 67-68 ("[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Thus, to the extent Petitioner alleges the recording of the phone call violated California or Pennsylvania law, see Doc. 18, at 9 ("Both CA and PA require consent from all parties prior to recording a conversation."), or that the appellate court misapplied Ohio law, see Doc. 35, at 162 ("Ohio law violated and misapplied"), such a claim is not cognizable before this Court.13

Second, the Supreme Court's rule in Stone v. Powell, provides that federal habeas corpus review is not available to state prisoners who received "the opportunity for full and fair consideration" of their claims in state court. 428 U.S. 465, 486 (1976). The reasons behind this rule are two-fold. First, "the key purpose of federal habeas corpus is to free innocent prisoners. But whether an investigation violated the Fourth Amendment has no bearing on whether the defendant is guilty." Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013) (citing Stone, 428 U.S. at 490). And second, "exclusion is a prudential deterrent prescribed by the courts, not a personal right guaranteed by the Constitution. Any deterrence produced by an additional layer of habeas review is small, but the cost of undoing final convictions is great" Id. (citing Stone, 428 U.S. at 493). Stone requires the district court to determine whether state procedure in the abstract provides full and fair opportunity to litigate, and Ohio procedure does. The district court must also determine if Petitioner's presentation of a claim was frustrated because of the failure of the state mechanism. Habeas relief is allowed if an unanticipated and unforeseeable application of a procedural rule prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept of a "full and fair opportunity", held:

Id. at 526. The Sixth Circuit in Good further clarified the interpretation of Stone's "opportunity" language: "[W]e make clear that the Powell `opportunity for full and fair consideration means an available avenue for the prisoner to present his claim to the state courts, not an inquiry into the adequacy of the procedure actually used to resolve that particular claim." Id. at 639. Here, Petitioner was given, and took advantage of, the full and fair proceedings in the Ohio courts to litigate his Fourth Amendment claims. He filed a motion to suppress (Ex. 14, Doc. 6-2, at 51-57), the trial court held a suppression hearing (Doc. 6-5), and Petitioner appealed this issue, Dew, 2009 WL 4756342, at *17-18. Accordingly, to the extent Petitioner alleges the recording violating his Fourth Amendment rights, such a claim is not cognizable and provides no basis for federal habeas relief.14

Third, although the Court need not reach the Fourth Amendment question because Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim, Stone, 428 U.S. at 486, the undersigned notes that it is well established that "[a] telephone call can be monitored and recorded without violating the Fourth Amendment so long as one participant in the call consents to the monitoring." United States v. Novak, 531 F.3d 99, 101 (1st Cir. 2008) (O'Connor, J., sitting by designation); see also United States v. Workman, 80 F.3d 688, 694 (2d Cir.1996) ("Only a single participant in a conversation need agree to monitoring in order to satisfy the requirements of the Fourth Amendment."); cf. United States v. White, 401 U.S. 745, 752 (1970) (surreptitious recording of in-person conversation does not violate the Fourth Amendment where one party to the conversation consents to monitoring); Manetta v. Macomb County Enforcement Team, 141 F.3d 270, 276 (6th Cir. 1998) ("[N]either the United States Constitution nor any federal statute prohibits law enforcement officials from recording or listening to phone conversations so long as one of the parties to the conversation has consented."). Thus, the appellate court's determination that Petitioner's constitutional rights were not violated by the introduction of the recording—to which one party (the victim) consented—is not contrary to, or an unreasonable application of federal law.

The undersigned therefore recommends Ground Four of the Petition be denied.

Ground Two: Improper Joinder

As described above, the undersigned finds Petitioner's claim regarding improper joinder was not fairly presented to the state courts, and therefore defaulted. Alternatively, the undersigned concludes the Ground may also be denied on the merits.

In Ground Two, Petitioner assets he was denied due process when the trial court denied his motion for relief from improper joinder. The state appellate court considered and rejected Petitioner's the claim under state law:

Dew, 2009 WL 4756342, at *18-20.

Improper joinder does not, by itself, violate the federal Constitution. United States v. Lane, 474 U.S. 438, 446, n. 8 (1986). The Supreme Court in Lane suggested in passing that misjoinder could rise "to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." Id. The Sixth Circuit noted that this language in Lane concerning a court's failure to sever criminal charges is simply dicta and thus not clearly established federal law. See Mayfield v. Morrow, 528 F. App'x 538, 541-42 (6th Cir. 2013). Because "`clearly established Federal law' for purposes of § 2254(d)(1) refers to `the holdings, as opposed to the dicta, of [the Supreme] Court's decisions [.],'" id. (quoting Williams, 529 U.S. at 412), the Sixth Circuit concluded a habeas petitioner could not rely on Lane to obtain habeas relief on his claim that he had been deprived of his right to a fair trial when the judge denied his motion to sever different rape charges. Id. The Ninth Circuit has likewise held that a habeas petitioner could not rely on the Supreme Court's dicta in Lane to obtain habeas relief on an improper misjoinder claim, particularly where that dicta was merely mentioned as a comment in a footnote of the opinion. See Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010).

Given the lack of holdings by the Supreme Court on the issue of whether a state court violates a habeas petitioner's due process rights by joining together unrelated criminal charges in a single trial, the Ohio appellate court's rejection of Petitioner's improper joinder claim was not an unreasonable application of clearly established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008). As such, even if the Court were to find Petitioner had not defaulted Ground Two, such a claim fails on the merits.

CONCLUSION AND RECOMMENDATION

Following review, and for the reasons stated above, the Court recommends the Petition be denied in its entirety. And, for the reasons stated in the Order filed concurrently with this Report and Recommendation, the undersigned GRANTS Petitioner's: Motion to Correct the Record (Doc. 33), and Motion to Amend Motion to Expand the Record (Doc. 34), and DENIES Petitioner's: Motion to Expand the Record Pursuant to Rules Governing 2254 Cases, Rule 7 (Doc. 24); Motion for Discovery Pursuant to Rules Governing 2254 Cases, Rule 6 (Doc. 26); Motion for an Order for the Production of Records (Doc. 30); and Motion for the Court to Take Judicial Notice (Doc. 42).

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen days of service of this notice. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).