ORDER and REPORT AND RECOMMENDATION

NORAH McCANN KING, Magistrate Judge.

Petitioner1 brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 1, Respondent's Return of Writ, Doc. No. 16, Petitioner's Traverse, Doc. No. 30, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Petitioner's motion for an evidentiary hearing, Doc. No. 35, is DENIED. His motions to supplement the record, Doc. Nos. 29, 36, are DENIED. Petitioner's motion to withdraw certain claims from his habeas corpus petition, Doc. No. 43, is GRANTED.

FACTS and PROCEDURAL HISTORY

The Ohio Third District Court of Appeals summarized the facts and procedural history of this case as follows:

State v. Heft, No. 8-09-08, 2009 WL 3720562, at *1-6 (Ohio App. 3rd Dist. Nov. 9, 2009). Petitioner filed a timely appeal, raising the following assignments of error:

Id. at *6-7. On November 9, 2009, the appellate court affirmed the judgment of the trial court.2 Id. On March 10, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Heft, 124 Ohio St.3d 1508 (2010).3

On November 13, 2009, Petitioner filed a petition to vacate judgment. He raised the following claims:

Exhibit 29 to Return of Writ. On January 6, 2010, the trial court dismissed Petitioner's post conviction petition as untimely. Exhibit 32 to Return of Writ. On April 12, 2010, the appellate court affirmed the trial court's judgment. Exhibit 37 to Return of Writ.4 On August 25, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal as not involving any substantial constitutional question. Exhibit 42 to Return of Writ.5

On February 3, 2010, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). He asserted that he had been denied the effective assistance of appellate counsel because his attorney failed to raise on appeal the following claims:

Exhibit 46 to Return of Writ. On March 26, 2010, the appellate court denied Petitioner's Rule 26(B) application. Exhibit 48 to Return of Writ. The state appellate court denied Petitioner's motion for reconsideration, as well as his motion to certify a conflict. Exhibit 51 to Return of Writ. On June 23, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal as not involving any substantial constitutional question. Exhibit 54 to Return of Writ. On May 5, 2010, the trial court issued a Nunc Pro Tunc Judgment Entry of Sentencing, and Amended Nunc Pro Tunc Judgment Entry of Sentencing pursuant to Petitioner's request. Exhibits 55, 56 to Return of Writ. Petitioner filed an appeal from the trial court's Nunc Pro Tunc Judgment Entry of Sentencing. Exhibit 58 to Return of Writ. On June 4, 2010, the appellate court sua sponte dismissed the appeal for lack of jurisdiction. Exhibit 59 to Return of Writ.6 On October 13, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. Exhibit 64 to Return of Writ. On December 1, 2010, the Ohio Supreme Court granted Petitioner's motion for reconsideration on Proposition of Law VII, staying the case pending decision in State v. Lester. Exhibit 66 to Return of Writ. On November 9, 2011, the Ohio Supreme Court dismissed Petitioner's appeal. See State v. Lester, 130 Ohio St.3d 303 (2011), syllabus 2 ("A nunc pro tunc judgment entry issued for the sole purpose of complying with Crim. R. 32(c) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken"). See Notice of Ruling, Doc. No. 33.

On February 1, 2011, Petitioner filed the pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:

On January 31, 2012, Petitioner moved to withdraw claims two, five, seven, nine, eleven, twelve and fourteen. Doc. No. 43. That motion is GRANTED. Petitioner also withdrew claim four as a separate claim. Traverse, at 39.

It is the position of the Respondent that Petitioner's remaining claims are procedurally defaulted, not cognizable in these proceedings, or without merit.7

MOTIONS TO SUPPLEMENT THE RECORD

Petitioner asks that Respondent be directed to supplement the record with a copy of defense exhibits admitted at trial, the defendant's witness list, the prosecution's motion in limine, and Petitioner's April 15, 2008 pre-trial brief. Motion to Add State Records, Doc. No. 29. Petitioner also asks for leave to supplement the record with certain documents attached to the motion, i.e., the defendant's witness list and summary of expected content of proposed defense witness testimony, his pre-trial brief, and a list of potential defense documents supporting an alibi defense. Motion to Supplement the Record with Omitted State Records, Doc. No. 35. According to Petitioner, these documents support his claim that he was denied his right to a speedy trial by showing how he was prejudiced by the State's delay in bringing him to trial. Respondent opposes Petitioner's motion, see Respondent's Opposition, Doc. No. 39, arguing that Petitioner's claims have been waived, that the documents referred to by Petitioner fail to support his claims for relief, and that Petitioner failed to present these documents to the state courts in support of his claims.

Petitioner's motions to supplement the record, Doc. Nos. 29, 36, are DENIED. Consideration of the documents referred to by Petitioner is not required for the resolution of his speedy trial claim. For reasons discussed infra, this Court concludes that Petitioner's claim that he was denied a speedy trial has been waived or, alternatively, is plainly without merit because it presents only an issue of state law.

FAIR PRESENTMENT

In claim one, Petitioner asserts that he was denied his right to a speedy trial. Respondent contends that this claim has been waived because Petitioner failed to raise the issue as one of federal constitutional magnitude in the state courts; instead, according to Respondent, Petitioner argued only that his convictions violated Ohio's speedy trial statutes.

In order to satisfy the habeas corpus exhaustion requirement, a petitioner must fairly present the substance of each constitutional claim to the state courts as a federal constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). Although the fair presentment requirement is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999), it is rooted in principles of comity and federalism designed to allow state courts the opportunity to correct the state's alleged violation of a federal constitutional right that threatens to invalidate a state criminal judgment. In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000). However, general allegations of the denial of a constitutional right, such as the right to a fair trial or to due process, are insufficient to satisfy the "fair presentment" requirement. Id.

Here, the record reflects that Petitioner argued his claim in the state courts as one regarding the alleged violation of state law. He referred to neither federal cases supporting his claim nor to state cases relying on the federal right to a speedy trial. Petitioner did generally refer to the Sixth Amendment guarantee of a speedy trial, arguing that "[b]oth the United States and Ohio Constitutions guarantee an accused the right to a speedy trial" and "[t]he Ohio Constitution mirrors the wording of the U.S. Constitution, in that they both state the accused has a right to a `speedy and public trial by an impartial jury.'" Brief of Appellant, Exhibit 18 to Return of Writ, at 11. Thereafter, however, Petitioner presented his claim only in terms of an alleged violation of Ohio's speedy trial statute, restricting his argument to an analysis of the proper calculation of days under O.R.C. § 2945.71. Moreover, and contrary to Petitioner's characterization of the state court record, the state appellate court reviewed his claim only for an alleged violation of state law. See State v. Heft, 2009WL 3720562, at *9, 10.8 This Court is not persuaded by Petitioner's argument that the state appellate court's brief statement recognizing that both the Ohio and the United States Constitutions guarantee to a criminal defendant the right to a speedy trial establishes that he preserved his federal claim for habeas corpus review. Moreover, Petitioner did not raise his claim as one of federal constitutional magnitude in his Rule 26(B) proceedings. See Exhibit 45 to Return of Writ.

Petitioner argues that Ohio's statutory right to a speedy trial and the federal constitutional right to a speedy trial, the elements of which are set forth in Barker v. Wingo, 407 U.S. 514 (1972), are co-extensive, and that a denial of Ohio's speedy trial statute necessarily implicates the denial of the federal constitutional right to a speedy trial. See Traverse. In other words, Petitioner contends that, by raising this claim as one arising under state law, he has preserved his federal claim for review in these proceedings. See id. This Court disagrees. "[T]he United States Supreme Court has found explicitly that there is `no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.'" Kerby v. Brunsman, No. 3:08cv287, 2011 WL 3566121, at *10 (S.D. Ohio April 28, 2011)(quoting Barker, 407 U.S. at 523)(concluding that the petitioner had failed to fairly present a federal speedy trial claim to state courts merely by raising the claim under state law).

This Court therefore concludes that Petitioner has waived claim one for federal habeas corpus review.

To the extent that Petitioner asserts an alleged violation of state law, this claim fails to present an issue appropriate for federal habeas corpus relief. A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). "`[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure'" in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such are not the circumstances here.

PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no longer present the relevant claims to a state court, the petitioner also waives the claims for purposes of federal habeas review unless he or she can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether procedural default is a bar to a habeas petitioner's claims. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986); see also Scuba v. Brigano, 259 F. App'x. 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin ). Specifically, the United States Court of Appeals for the Sixth Circuit requires the district courts to engage in the following inquiry:

Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if "the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner" may still obtain review of his claims on the merits if he establishes: (1) a substantial reason to excuse the default and (2) that he was actually prejudiced by the alleged constitutional error. Id. `Cause' under this test "must be something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some factor external to the defense [that] impeded [ ] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753. This "cause and prejudice" analysis also applies to failure to raise or preserve issues for review at the appellate level or failure to appeal at all. Id at 750.

Nevertheless, "`[i]n appropriate cases' the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration.'" Murray, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1892)). Petitioners who fail to show cause and prejudice for procedural default may nevertheless be entitled to review of their claims if they can demonstrate that a court's refusal to consider a claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001) (same). This fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find [defendant] guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995).

In claim three, Petitioner alleges that the indictment was unconstitutionally vague and failed to provide him notice of the charges or to inform him of the nature and cause of the accusations against him. In claim ten, Petitioner asserts that the statute under which he was convicted is vague and over broad. Petitioner properly raised these claims on direct appeal; however, the state appellate court reviewed the claims for plain error only, due to Petitioner's failure to raise the objections before the trial court:

State v. Heft, 2009 WL 3720562, at *11-13.

The United States Court of Appeals for the Sixth Circuit has held that plain error review does not constitute a waiver of the state's procedural default rules. Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).

Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D. Ohio 2007). Although the state appellate court, reasoning in the alternative, dismissed petitioner's claim on the merits, such alternative ruling does not forgive the waiver or otherwise revive the claim for purposes of habeas corpus review. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding"); Bowling v. Parker, 344 F.3d 487, 498 (6th Cir. 2003) (where state court's dismissal of claim on merits constitutes an alternative holding, federal habeas court will consider the claim procedurally defaulted).

Petitioner argues that he objected to the indictment as unconstitutionally vague and properly preserved his claim for review. The record, however, fails to support this argument. In making this argument, Petitioner refers to his counsel's statement, made during a discussion of jury instructions:

Id. at 51, Exhibit 5 to Traverse. In the view of this Court, neither of these exchanges constitutes an objection to the adequacy of the indictment sufficient to preserve these claims for federal habeas corpus review. Thus, Petitioner has waived claims three and ten.

In claim twelve, Petitioner asserts that he was convicted in violation of the Fourth Amendment because a courthouse employee improperly went through his house without a search warrant. This claim, which does not appear on the face of the record, would properly be raised in post conviction proceedings; however, Petitioner failed to raise this claim in his petition for post conviction relief. See Exhibit 29 to Return of Writ. Any attempt by Petitioner at this point to raise this claim in a successive and untimely post conviction petition would most surely be barred. O.R.C. § 2953.23 provides in relevant part:

Petitioner has not established that he can meet this standard here. Under these circumstances, the state courts were never given the opportunity to enforce the procedural rule at issue due to the nature of Petitioner's procedural default.

The procedural rules barring this claim from federal habeas corpus review constitute adequate and independent state grounds for denying relief. The state courts must be given a full and fair opportunity to remedy alleged constitutional defects. The time requirement for filing post conviction actions and the requirement that all available claims be raised in the first such proceeding serves the state's interests in finality and in ensuring that claims are adjudicated at the earliest possible opportunity.

Petitioner has waived his right to present claims three, ten and twelve for federal habeas corpus review. He can still secure review of these claims on the merits if he demonstrates cause for his failure to follow the state procedural rules as well as actual prejudice from the constitutional violations that he alleges. In the view of this Court, Petitioner has failed to demonstrate either cause for his procedural defaults or actual prejudice resulting from the alleged constitutional violations.

Beyond the four-part Maupin analysis, this Court is required to consider whether this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333 (1992). After review of the record, the Court does not deem this to be such a case.

CLAIM SIX

In claim six, Petitioner asserts that the evidence was constitutionally insufficient to sustain his convictions on gross sexual imposition as charged in counts three and four of the indictment.9 Although Respondent did not raise the issue, the Court notes that Petitioner argued in the state appellate court only that the evidence was constitutionally insufficient to sustain his conviction on gross sexual imposition as charged in count three of the indictment. Thus, for reasons discussed supra, Petitioner has waived this Court's review of any claim that the evidence was constitutionally insufficient to sustain his conviction on gross sexual imposition as charged in count four of the indictment.10

The state appellate court rejected this claim, reasoning in relevant part as follows:

State v. Heft, 2009 WL 3720562, at *18-20.

The factual findings of the state appellate court are presumed to be correct.

28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented.

. 28 U.S.C. § 2254(d) . In order to obtain habeas corpus relief, a petitioner must show that the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Bobby v. Dixon, ___ S.Ct. ___, 2011 WL 5299458, at *1 (Nov. 7, 2011)(quoting Harrington v. Richter, 562 U.S. ___, ___ 131 S.Ct. 770, 786-87 (2011)). This bar is "difficult to meet" because "habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). In short, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Before a criminal defendant can be convicted consistent with the United States Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine whether the evidence was sufficient to support a conviction, this Court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, at 326). "[A] reviewing court `faced with a record that supports conflicting inferences must presume — even if it does not appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. (quoting Jackson, at 326).

Federal habeas courts must afford a "double layer" of deference to state court determinations about the sufficiency of the evidence to sustain a conviction. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009), deference is due the jury's finding of guilt because the standard, announced in Jackson v. Virginia, is whether "viewing the trial testimony and exhibits 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." Even if a de novo review of the evidence leads to the conclusion that no rational trier of fact could have so found, a federal habeas court "must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." See also White v. Steele, 602 F.3d 707, 710 (6th Cir.2009). This is a substantial hurdle for a habeas corpus petitioner to overcome and Petitioner has not done so.

Petitioner raises in this Court the same arguments that he raised in the Ohio Court of Appeals. He complains that there was no physical evidence or corroborating witnesses, and he asserts that the State failed to prove all of the elements of the offense charged because there was no evidence that he touched the alleged victim or experienced sexual arousal or sexual gratification from the actions alleged, as is required under the definition of "sexual contact."11 See Traverse. This Court disagrees. As discussed by the state appellate court, the alleged victim testified that Petitioner pulled her covers off, pulled her pants down and kissed her all over her body. Trial Transcript, at 171. Petitioner persisted in trying to kiss her "lower and lower." Id. at 172. She attempted to prevent him from doing so, but "he succeeded in everything that he tried." Id. He succeeded at sexually abusing her and kissing her. Id. The testimony of the alleged victim, if believed, is sufficient to sustain Petitioner's conviction for gross sexual imposition. Moreover, "circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006).

Claim six is without merit.

CLAIM EIGHT

In claim eight, Petitioner asserts that he was denied the effective assistance of appellate counsel. The Petition suggests that Petitioner intends to raise in this action the same claims that he raised in his Rule 26(B) proceedings, i.e., that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal: 1) a claim that he was denied a fair trial when the trial court permitted transcripts in the jury room during deliberations; 2) he was denied his right to a speedy trial; 3) prosecutorial misconduct during opening and closing argument; and 4) denial of a fair trial due to cumulative error. See Exhibit 45 to Return of Writ.12 The state appellate court rejected Petitioner's ineffective assistance of appellate counsel claim in relevant part as follows:

Exhibit 48 to Return of Writ.

The right to counsel guaranteed by the Sixth Amendment is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:

Strickland v. Washington, 466 U.S. at 687; see also Blackburn v. Foltz, 828 F.2d 1177 (6th Cir.1987). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.

To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 697. Because a petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if a court determines that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.

The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). "`[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). Of course, not every decision made by appellate counsel can be insulated from review merely by categorizing it as strategic. The Court of Appeals for the Sixth Circuit has identified the following considerations that ought to be taken into account in determining whether counsel on direct appeal performed reasonably competently:

Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir.1999). The Sixth Circuit cautioned, however, that this list is not exhaustive and need not produce a certain "score." Id. at 428.

Petitioner complains that his attorney failed to raise on appeal a claim that he was denied a fair trial because the trial court, in response to a request from the jury, permitted the jury to review the transcripts of the testimony of the alleged victim during deliberations. A jury's review of the transcripts of trial testimony during deliberations does not, however, violate Ohio law. See State v. Smoot, No. 2588, 1989 WL 138412, at *5 (Ohio App. Nov. 17, 1989); State v. Cox, No. CA2005-12-513, 2006 WL 3345421, at *3 (Ohio App. 12th Dist. Nov. 20, 2006)(trial court's decision to provide jury with transcript of the testimony of a witness falls within the discretion of the trial court); State v. McCoy, 2010 WL 4884442, at *8 (Ohio App. 1st Dist. Dec. 1, 2010)(reading of certain witnesses' testimony to the jury is not grounds for mistrial). Moreover, and as noted by Respondent, the trial court provided the jury with the transcript Petitioner's own testimony, in addition to that of the alleged victim, Trial Transcript, at 374; 378-79, and cautioned the jury that it should consider the testimony of all witnesses. Id. at 373. Under these circumstances, Petitioner cannot establish either that his attorney performed in a constitutionally unreasonable manner or that he was prejudiced by his attorney's failure to raise this claim on appeal.

Petitioner also asserts that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that the prosecutor acted improperly during closing argument. First, Petitioner complains that the prosecutor vouched for the alleged victim when the prosecutor stated, during closing argument, "I submit to you, Sara told you the truth, that the defendant did these things to her." See Exhibit 45 to Return of Writ; Trial Transcript, at 353.13 The prosecutor's argument was not inappropriate. There was nothing improper about the prosecutor arguing for the truthfulness of the alleged victim, based on the credibility of her trial testimony.

Second, Petitioner complains of statements, made during opening and closing argument, referring to a "role reversal." See Exhibit 45 to Return of Writ. During opening statement, the prosecutor stated in relevant as follows:

Trial Transcript, at 70. During closing argument, the prosecutor argued:

Id. at 349-350. Petitioner's claim in this regard is clearly without merit. There was nothing inappropriate about the prosecutor arguing that Petitioner began sexually abusing his stepdaughter after her mother had suffered a stroke and the child began taking on the responsibilities of her mother.

Finally, Petitioner alleges that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim of cumulative error. The record fails to reflect either error or cumulative error.

In short, Petitioner has failed to establish the ineffective assistance of appellate counsel.

Claim eight is without merit.

CLAIM THIRTEEN

In claim thirteen, Petitioner alleges that he was denied his right to confront witnesses because the prosecutor "testified/stated" during opening or closing arguments to facts that were not introduced during trial. Additionally, Petitioner contends that "the prosecutor stated during closing arguments to an alleged `role reversal' which Petitioner believes appears to be a psychological theory that was not introduced during trial." Petition, at 28. Petitioner has withdrawn this claim except "to the extent it supports" his claim of insufficiency of the evidence. Motion to Withdraw, Doc. No. 43, p. 1. This claim does not alter this Court's conclusion, as discussed supra, that Petitioner's claim of insufficiency of the evidence is without merit.

CLAIM FIFTEEN

In claim fifteen, Petitioner alleges that he was denied due process and equal protection because he was denied "a valid final appealable order." Petition, at 31. Petitioner specifically contends that the trial court's April 2, 2009, judgment entry of sentence was not a valid final appealable order because the judgment did not include the trial judge's signature, failed to include a statement concerning the manner of conviction as required under Ohio's Rules of Criminal Procedure and otherwise failed to comply with Ohio law. This claim presents an issue regarding only the alleged violation of Ohio law. It therefore fails to present an issue appropriate for federal habeas corpus review. See Pulley v. Harris, supra, 465 U.S. at 41.

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's motion for an evidentiary hearing, Doc. No. 35, is DENIED. Petitioner's motions to supplement the record, Doc. Nos. 29, 36, are DENIED. Petitioner's motion to withdraw certain habeas corpus claims, Doc. No. 43, is GRANTED.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.