REPORT AND RECOMMENDATION

CHELSEY M. VASCURA, Magistrate Judge.

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

Facts and Procedural History

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

State v. Taylor, No. 14AP-254, 2015 WL 3857079, at *1-3 (Ohio App. 10th Dist. June 23, 2015). On June 23, 2015, the appellate court affirmed the judgment of the trial court. Id. On October 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Taylor, 143 Ohio St.3d 1502 (Ohio 2015). On September 22, 2015, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 6-1, PageID# 221.) On February 18, 2016, the appellate court denied the Rule 26(B) application. (PageID# 236.) On June 15, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Taylor, 146 Ohio St.3d 1417 (Ohio 2016); (PageID# 275.)

On August 11, 2016, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied his right to a speedy trial (claim one); that the trial court improperly failed to merge firearm specifications, and he was denied the effective assistance of counsel because his attorney failed to raise the issue (claim two); that he was denied the effective assistance of trial counsel because his attorney failed to have DNA tested (claim three); and that he was denied the effective assistance of appellate counsel (claim four). Petitioner additionally asserts that the evidence is constitutionally insufficient to sustain his convictions and that his convictions are against the manifest weight of the evidence. See Reply (ECF No. 9, PageID# 772-777.) It is the position of the Respondent that these claims fail to provide relief or are procedurally defaulted.

State-Law Claims

Petitioner asserts that he was denied the right to a speedy trial. To the extent that Petitioner asserts the alleged violation of state law, this claim does not provide him relief. See Jackaway v. Woods, No. 15-cv-11491, 2016 WL 304739, at *3 (E.D. Mich. Jan. 26, 2016)("[a] violation of a state speedy trial law by state officials, by itself, does not present a cognizable federal claim that is reviewable in a habeas petition")(citing Burns v. Lafler, 328 F.Supp.2d 711, 722 (citing Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994), cert. denied., 514 U.S. 1024 (1995); Wells v. Petsock, 941 F.2d 253, 256 (3rd Cir. 1991), cert. denied, 505 U.S. 1223 (1992)); Younker v. Warden, No. 1:10-cv-875, 2011 WL 2982589, at *10 (S.D. Ohio June 24, 2011)(claims based solely on a violation of Ohio's speedy trial statute do not present a cognizable federal constitutional claim subject to review in habeas corpus proceedings)(citing Norris v. Schotten, 146 F.3d 314, 328-29 (6th Cir.), cert. denied, 525 U.S. 935 (1998)) (other citations omitted). This Court reviews a state prisoner's habeas corpus petition only on the grounds 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 does 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). Moreover, 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), cert. denied, 488 U.S. 1011 (1989). "`[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure'" in considering a habeas petition. Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)(quoting Panzavecchia v. Wainwright, 658 F.2d 337, 340 (11th Cir. 1984)). "Generally, a federal habeas court sitting in review of a statecourt judgment should not second guess a state court's decision concerning matters of state law." Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001)(citing Gall v. Parker, 231 F.3d 265, 303 (6th Cir. 2000)("[p]rinciples of comity and finality equally command that a habeas court cannot revisit a state court's interpretation of state law, and in particular, instruct that a habeas court accept the interpretation of state law by the highest state court on a petitioner's direct appeal"), cert. denied, 533 U.S. 941 (2001)), cert. denied, 535 U.S. 940 (2002). "[T]his Court must defer to and is bound by the state courts' determination that Ohio's speedy trial statute was not violated[.]" Younker, 2011 WL 2982589, at *10 (citing Caddy v. Ohio, No. 3:07cv339, 2010 WL 2640073, at *3 (S.D.Ohio May 18, 2010)(internal citations omitted), adopted, 2010 WL 2629797 (S.D. Ohio June 29, 2010)(Black, J.).

Likewise, to the extent that Petitioner presents a claim that his conviction is against the manifest weight of the evidence, this issue does not provide a basis for relief. See Williams v. Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016)(citing Nash v. Eberlin, 258 F. App'x 761, 765, n.4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2017 WL 525561, at *5 (N.D. Ohio Feb. 9, 2017)(citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio)("[w]hether a conviction is against the manifest weight of the evidence is purely a question of Ohio law")); see also Taylor v. Warden, Lebanon Correctional Inst., No. 2:16-cv-237, 2017 WL 1163858, at *10-11 (S.D. Ohio March 29, 2017) (same) (citations omitted).

Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—as opposed to one based upon insufficient evidence—requires the appellate court to act as a "thirteenth juror" and review the entire record, weigh the evidence, and consider the credibility of witnesses to determine whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Since a federal habeas court does not function as an additional state appellate court, vested with the authority to conduct such an exhaustive review, petitioner's claim that his convictions were against the manifest weight of the evidence cannot be considered by this Court.

Procedural Default

Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). 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 state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982 (per curiam)(citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas . . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the state so that the state has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present `the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)), cert. denied, 544 U.S. 928 (2005). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case-that is, they are "procedurally defaulted."

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, the Court must decide whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94, 99-100 (6th Cir.), cert. denied, 474 U.S. 831 (1985).

Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must "`be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'" Edwards, 529 U.S. at 452 (quoting Murray, 477 U.S. at 479). That is because, before counsel's ineffectiveness will constitute cause, "that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted." Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir.), cert. denied, 546 U.S. 1017 (2005). Or, if procedurally defaulted, petitioner must be able to "satisfy the `cause and prejudice' standard with respect to the ineffective-assistance claim itself." Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000). The Supreme Court explained the importance of this requirement:

Edwards, 529 U.S. at 452-53.

If, after considering all four factors of the Maupin test, the court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless "review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray, 477 U.S. at 495-96), cert. denied, ___ U.S. ____, 135 S.Ct. 1545 (2015).

Petitioner asserts that he was denied his constitutional right to a speedy trial, that the trial court improperly failed to merge firearms specifications as constituting allied offenses of similar import, and that he was denied the effective assistance of trial counsel. However, Petitioner failed to raise these same claims on direct appeal, where he was represented by new counsel. He may now no longer do so under Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). Additionally, the United States Court of Appeals for the Sixth Circuit has held that Ohio's doctrine of res judicata constitutes an adequate and independent state ground to preclude federal habeas corpus review. See Williams v. Bagley, 380 F.3d 932, 966-67 (6th Cir. 2004)(citing Greerl, 264 F.3d at 673; Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001); Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir.), cert. denied, 528 U.S. 946 (1999)), cert. denied, 544 U.S. 1003 (2005). This Court has consistently determined that Ohio's res judicata rules serve important state interests in the finality of criminal convictions. See, e.g. Davis v. Morgan, No. 2:15-cv-00613, 2016 WL 6493420, at *11 (S.D. Ohio Nov. 2, 2016), adopted and affirmed, 2017 WL 56034 (S.D. Ohio Jan. 5, 2017). Petitioner has thereby procedurally defaulted the foregoing claims for relief.

He may still secure review of the merits of his claims 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. "[P]etitioner has the burden of showing cause and prejudice to overcome a procedural default." Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001)(citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999)(internal citation omitted)). A petitioner's pro se status, ignorance of the law, and ignorance of procedural requirements are insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.), cert. denied, 543 U.S. 989 (2004). Instead, in order to establish cause, a petitioner "must present a substantial reason that is external to himself and cannot be fairly attributed to him." Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007), cert. denied sub nom., Hartman v. Bobby, 554 U.S. 924 (2008).

As cause for his procedural default, and in habeas corpus claim four, Petitioner asserts the denial of the effective assistance of appellate counsel. This Court will consider the merits of that claim, in order to determine whether Petitioner can establish cause and prejudice for his procedural default.

Standard of Review

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the Antiterrorism and Effective Death Penalty Act ("the AEDPA") govern this case. The United State Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16 (2013)(quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010)("AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt") (internal quotation marks, citations, and footnote omitted).

The AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state court decision either

28 U.S.C. § 2254(d).

Further, under the AEDPA, the factual findings of the state court are presumed to be correct:

28 U.S.C. § 2254(e)(1)

Accordingly, "a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir.) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006), cert. denied, 551 U.S. 1134 (2007)), cert. denied, ___ U.S. ____, 134 S.Ct. 315 (2013). The United States Court of Appeals for the Sixth Circuit has summarized these standards as follows:

Id. at 748-49. The burden of satisfying the AEDPA's standards rests with the petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).

Ineffective Assistance of Appellate Counsel

"In all criminal prosecutions," the Sixth Amendment affords "the accused . . . the right . . . to Assistance of Counsel for his defence." U.S. Const. amend. VI. "Only a right to `effective assistance of counsel' serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principles governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that his counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687; Hale v. Davis, 512 F. App'x 516, 520 (6th Cir.), cert. denied, ___ U.S. ____, 134 S.Ct. 680 (2013). A petitioner "show[s] deficient performance by counsel by demonstrating `that counsel's representation fell below an objective standard of reasonableness.'" Poole v. MacLaren, 547 F. App'x 749, 754 (6th Cir. 2013)(quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted), and citing Strickland, 466 U.S. at 687), cert. denied, ___ U.S. ____, 135 S.Ct. 122 (2014). To make such a showing, a petitioner must overcome the "strong [] presum[ption]" that his counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 687. "To avoid the warping effects of hindsight, [courts must] `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009)(quoting Strickland, 466 U.S. at 689).

Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D. Ohio March 6, 2013). Factors to be considered in determining whether a defendant has been denied the effective assistance of appellate counsel include:

Mapes, 171 F.3d at 427-28 (citations omitted).

The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that, while "`[s]urmounting Strickland's high bar is never . . . easy,' . . ., [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and citing Strickland, 466 U.S. at 689). The Supreme Court instructed that the standards created under Strickland and § 2254(d) are both "`highly deferential,' and when the two apply in tandem, review is `doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

A. Speedy Trial

Petitioner asserts that he was denied the effective assistance of appellate counsel because his attorney failed to assert on appeal that he had been denied the right to a speedy trial. The state appellate court, applying the standard set forth in Strickland, rejected this claim in relevant part as follows:

Memorandum Decision (ECF No. 6-1, PageID# 238-41.)

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial and public trial." U.S. Const. amend. VI. "The Supreme Court has stated that the Sixth Amendment's speedy trial guarantee is `an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.'" Bennett v. Warden, Marion Correctional Inst., 782 F.Supp.2d 466, 479 (S.D. Ohio 2011)(citing United States v. Marion, 404 U.S. 307, 320 (1971)). The protection of the Sixth Amendment is activated "only when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution." Marion, 404 U.S. at 313. The Supreme Court has recognized that the constitutional right to a speedy trial permits some delays depending on the circumstances of each case, and cannot "be quantified into a specified number of days or months." Bennett, 782 F. Supp. 2d at 480 (quoting Barker v. Wingo, 407 U.S. 514, 521-23 (1972)). In Barker, the Supreme Court held that a review court should conduct a "balancing test" to determine whether a criminal defendant has been denied the right to a speedy trial, considering the following four factors: the "[l]ength of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker, 407 U.S. at 530 (footnote omitted). The length of the delay is "a triggering mechanism." Id. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. "The length of the delay is measured from the date of the indictment or the date of the arrest, whichever is earlier." Maples v. Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005) (citations omitted). "A delay approaching one year is presumptively prejudicial and triggers application of the remaining three factors." Id. (citing Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992)).

Petitioner has not demonstrated that the Ohio Court of Appeals' decision contravened or unreasonably applied clearly established federal law as determined by the United States Supreme Court or that it was based on an unreasonable determination of the facts in light of the evidence presented. On May 23, 2013, the State filed the Indictment against him. (ECF No. 6-1, PageID# 74.) Trial commenced approximately nine and one half months later, on March 18, 2014. However, from July 23, 2013, to January 27, 2014, defense counsel waived Petitioner's right to a speedy trial by requesting continuances in order to prepare for trial. Petitioner claims that the prosecutor requested the continuances of the trial date, see Traverse (ECF No. 9, PageID# 760); however, the record contradicts this claim. Moreover, Petitioner has failed to rebut the presumption of correctness afforded to the state appellate court's factual findings explicitly indicating to the contrary. Also, on January 27, 2014, Petitioner signed a waiver of his right to a speedy trial and requested a continuance of the trial date until March 18, 2014, when trial commenced. "Not all delays are susceptible to equal blame." United States v. Schreane, 331 F.3d 548, 553 (6th Cir.)(citing Barker, 407 U.S. at 531), cert. denied, 540 U.S. 973 (2003).

Maples, 427 F.3d at 1026. The record fails to reflect that the delay in bringing Petitioner to trial was motivated either by bad faith on the part of the government or the desire to seek a tactical advantage. To the contrary, the record indicates that most of the delay in bringing Petitioner to trial was caused by the defense, in order to prepare. Accordingly, the reasons for the delay do not support a Sixth Amendment violation. Moreover, On October 28, 2013, Petitioner was released on a recognizance bond.1 Petitioner does not allege, and the record does not reflect, that his defense was impaired by the delay in bringing him to trial. Therefore, weighing the factors set forth in Barker, Petitioner has failed to establish the denial of the right to a speedy trial under the Sixth Amendment. Petitioner likewise cannot establish the denial of the effective assistance of appellate counsel based on his attorney's failure to raise the issue.

B. Merger of Firearm Specifications

Petitioner also asserts that he was denied the effective assistance of counsel because his attorney failed to argue on appeal that the trial court should have merged all of the firearm specifications. The state appellate court rejected this claim in relevant part as follows:

Memorandum Decision (ECF No. 6-1, PageID# 241-42.)

Petitioner argues that his sentences on all charges should have been merged at sentencing as allied offenses of similar import. According to Petitioner, he committed only one actual criminal offense, and therefore only one penalty should have been imposed. (ECF No. 9, PageID# 765.) This claim plainly fails.

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause has been interpreted as protecting criminal defendants from successive prosecutions for the same offense after acquittal or conviction, as well as from multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). The traditional test for double jeopardy claims is the "same elements" test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932)(requiring the court to determine whether each charged offense "requires proof of an additional fact which the other does not"). The Blockburger test is designed to address the situation where closely connected conduct results in multiple charges under separate statutes. Under Blockburger, the critical question is whether the multiple charges in reality constitute the same offense. Thus, the Blockburger test focuses on whether the statutory elements of the two crimes charged are duplicative. If the elements of the two statutes are substantially the same, then double jeopardy is violated by charging the defendant under both.

However, "[w]here two offenses are the same for Blockburger purposes, multiple punishments can be imposed if the legislature clearly intended to do so." Bates v. Crutchfield, No. 1:15-cv-817, 2016 WL 7188569, at *5 (S.D. Ohio Dec. 12, 2016)(citing Garrett v. United States, 471 U.S. 773, 779 (1985); Ohio v. Johnson, 467 U.S. 493, 499 (1984); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Albernaz v. United States, 450 U.S. 333, 344 (1981); White v. Howes, 586 F.3d 1025, 1035 (6th Cir. 2009), cert. denied, 560 U.S. 945 (2010)). Thus, "[e]ven if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end." Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013)(citing Johnson, 467 U.S. at 499 n. 8; Hunter, 459 U.S. at 368-69). Moreover, "[w]hen assessing the intent of a state legislature, a federal court is bound by a state court's construction of that state's own statutes." Id. (citing Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989)).

Bates, 2016 WL 7188569, at *5.

Count Ones through Five involved the alleged victim, Domonique Washington, and charged Petitioner with aggravated robbery, in violation of O.R.C. § 2911.01; robbery, in violation of O.R.C. § 2911.02(A)(2), (3);2 and kidnapping, in violation of O.R.C. § 2905.01; and Count Five charged him with the rape, in violation of § 2907.02. Counts Six through Nine involved the alleged victim, Rommel Martin, and charged Petitioner with aggravated robbery; robbery; and kidnapping. All of the foregoing charges contained firearm specifications. Count Ten charged Petitioner with having a weapon while under disability, in violation of O.R.C. § 2923.13. Indictment (ECF No. 6-1, PageID# 82.) However, as discussed by the state appellate court, the trial court sentenced Petitioner on two counts of aggravated robbery against different victims (merging the remaining counts of robbery and kidnapping involving those victims); having a weapon while under disability; rape; and on the firearm specifications related to his convictions on aggravated robbery and rape against Domonique Washington. Petitioner's sentence on the aggravated robbery of Rommel Martin was to run concurrently to the other sentences imposed.

Plainly, the trial court's imposition of sentence does not violate the Double Jeopardy Clause. The offenses of rape, aggravated robbery, and having a weapon while under disability, all require different elements, or proof of facts, under the Blockburger test and/or involve separate victims. Further, the trial court's imposition of sentences on firearm specifications related to his aggravated robbery and rape convictions does not violate the Double Jeopardy Clause. See, e.g., Stevens v. Warden, Lebanon Correctional Institution, No. 3:12-cv-00034, 2014 WL 111174, at *7 (S.D. Ohio Jan. 10, 2014)(multiple three-year sentences on separate firearm specifications involving same gun does not violate Double Jeopardy Clause); Carter v. Carter, 59 F. App'x 104, 106 (6th Cir. 2003)(Ohio judiciary reasonably concluded that the multiple sentences imposed for the firearms specifications did not violate the Double Jeopardy Clause). Therefore, Petitioner has failed to establish the denial of the effective assistance of appellate counsel due to his attorney's failure to raise this issue on appeal.

Petitioner also argues that the trial court failed to make statutorily required findings to support the imposition of more than minimum and consecutive terms of incarceration. Traverse (ECF No. 9, PageID# 768.) Petitioner did not raise this issue on direct appeal, and he did not present it in his Rule 26(B) application. Therefore, he has procedurally defaulted the claim for review in these proceedings, and he has failed to establish cause for this procedural default. Moreover, the claim involves a matter of state law, and, therefore, it does not provide a basis for relief. See Cisco v. Warden, Chillicothe Correctional Institution, No. 2:14-cv-02025, 2015 WL 7295434, at *12 (S.D. Ohio Nov. 19, 2015)(citing Estelle v. McGuire, 502 U.S. at 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); Pulley, 465 U.S. at 41.

C. Ineffective assistance of trial counsel

Petitioner asserts that he was denied the effective assistance of appellate counsel because his attorney failed to raise a claim of the denial of the effective assistance of trial counsel. The state appellate court rejected this claim in relevant part as follows:

Memorandum Decision (ECF No. 6-1, PageID# 242-43.)

As discussed by the state appellate court, the record does not support Petitioner's claim that defense counsel performed in a constitutionally ineffective manner in regard to DNA evidence. Petitioner has failed to establish the denial of the effective assistance of appellate counsel for failing to raise the issue on appeal.

Petitioner argues that his attorney improperly prevented Deonte Christian from testifying as a defense witness. Traverse (ECF No. 9, PageID# 770.)3 Again, it does not appear that Petitioner previously raised this claim in the state courts, and, therefore, it is procedurally defaulted. Moreover, the record does not indicate that Christian would have provided exculpatory evidence for the defense.

Therefore, Petitioner has failed to establish that he was denied the effective assistance of appellate counsel. He has likewise failed to establish cause for his procedural defaults.

Actual Innocence

Petitioner may still secure review of these claims on the merits, if he establishes that it is "more likely than not" that new evidence, not previously presented, would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005); Schlup v. Delo, 513 U.S. 298, 326-27 (1995).

Souter, 395 F.3d at 589-90 (footnote omitted). Petitioner does not meet these standards here. After an independent review of the record, the Court does not deem this to be so extraordinary a case as to relieve petitioner of his procedural default.

Sufficiency of the Evidence

Petitioner asserts that the evidence is constitutionally insufficient to sustain his convictions. The state appellate court rejected this claim as follows:

State v. Taylor, 2015 WL 3857079, at *8-10.

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). In determining whether the evidence was sufficient to support a petitioner's conviction, a federal habeas court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992)(citing Jackson, 443 U.S. at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, 443 U.S. 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, 443 U.S. at 326).

Moreover, federal habeas courts must afford a "double layer" of deference to state court determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009), cert. denied, 558 U.S. 1114 (2010), deference must be given, first, to 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." Second, and 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." Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir.), cert. denied, 562 U.S. 868 (2010). This is a substantial hurdle for a habeas petitioner to overcome, and Petitioner has not done so.

For the reasons addressed by the state appellate court, this Court likewise concludes that, when viewing all of the evidence in the light most favorable to the prosecution, the evidence is constitutionally sufficient to sustain Petitioner's convictions.

Recommended Disposition

Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 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.