Stalnaker v. Bobby (589 F. Supp. 2d 905, 2008)

MEMORANDUM OF OPINION AND ORDER

DAN AARON POLSTER, District Judge.

Before the Court is the Report and Recommendation (the “R & R”) of Magistrate Judge Greg White. (ECF No. 9.) Pending is the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By A Person In State Custody (the “Petition”), filed on July 23, 2007 by Petitioner Michael A. Stalnaker. (ECF No. 1.) The Magistrate Judge recommends that the Petition be denied as to Ground One but conditionally granted as to that part of Ground Two resting on a Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) claim that Stalnaker was improperly sentenced to “non-minimum” prison terms. Stalnaker and Respondent have each filed Objections to the R & R. (ECF Nos. 11, 13.) For the following reasons, the Objections are DENIED and the Report and Recommendation is ADOPTED.

I. BACKGROUND

On December 5, 2003, the Lake County Grand Jury charged Stalnaker with five counts of rape, six counts of gross sexual imposition, and six counts of furnishing alcohol to a minor. Stalnaker pleaded not guilty to the charges and the matter proceeded to a jury trial where he was found guilty as charged. On May 6, 2004, the trial court sentenced Stalnaker to an aggregate prison term of thirty-three years.

On June 15, 2004, Stalnaker timely appealed the conviction to Ohio’s Eleventh District Court of Appeals (“state appellate court”), alleging seven assignments of error. See State v. Stalnaker, 2005-Ohio-7042, 2005 WL 3610430 (Ohio App. 11 Dist. Dec. 29, 2005). On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) finding a violation of the Sixth Amendment right to trial by jury where the state sentencing statute permitted a judge to increase the defendant’s sentence based upon factual finding of the judge rather than the jury. On December 29, 2005, the state appellate court affirmed Stalnaker’s convictions and sentences.

On January 9, 2006, Stalnaker filed a motion for reconsideration pursuant to App.R. 26(A), which was denied by the state appellate court on January 27, 2006. Also on January 9, 2006, Stalnaker filed a Notice to Certify Conflict with the state appellate court regarding his fifth assignment of error, which raised two claims: 1) whether his sentence was unconstitutional under O.R.C. § 2929.14(B) because it was based on improper judicial fact-finding which increased the sentence beyond the statutory minimum; and 2) whether the imposition of consecutive prison terms was unconstitutional. The state appellate court found a conflict existed only as to the first issue and certified the question to the Ohio Supreme Court. While the certified question was pending, Stalnaker filed a Notice of Appeal with the Ohio Supreme Court.

On February 27, 2006, the Ohio Supreme Court decided State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), in which the Court applied Blakely to Ohio’s sentencing statutes and found portions thereof to be unconstitutional, including O.R.C. §§ 2929.14(B) and (E). On April 26, 2006, the Ohio Supreme Court dismissed the certified question, finding that no conflict existed. State v. Stalnaker, 109 Ohio St.3d 1420, 846 N.E.2d 531, 2006-Ohio-1967 (2006) (table) (cause dismissed). Furthermore, the Ohio Supreme Court dismissed Stalnaker’s appeal, ruling that it did not involve any substantial constitutional question. State v. Stalnaker, 109 Ohio St.3d 1420, 846 N.E.2d 531, 2006-Ohio-1967 (April 26, 2006) (table) (appeal not allowed).

On July 23, 2007, Stalnaker filed the instant Petition asserting two grounds for relief:

1. Petitioner’s trial counsel provided ineffective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, by pursing a bizarre trial strategy that invited the introduction of an avalanche of “bad acts” evidence that tended to establish the accused’s criminal propensity and, in effect, sealed Petitioner’s conviction.

2. Petitioner was sentenced in violation of Petitioner’s constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution based upon judicial findings which were not admitted by Petitioner or proved to the jury beyond a reasonable doubt, contrary to the rule announced by the United States Supreme Court in Blakely v. Washington.

(ECF No. 1.) Respondent filed a Return of Writ (ECF No. 5), and Stalnaker filed a Traverse (ECF No. 8).

On September 24, 2008, Magistrate Judge White issued an R & R recommending that the Court dismiss the Petition as to Ground One but conditionally grant the Blakely claim contained in Ground Two. (ECF No. 9.) The Magistrate Judge concluded that the state appellate court correctly found that trial counsel’s strategy did not amount to ineffective assistance of counsel, and that in any event there was no prejudice to Petitioner because the evidence of his guilt was overwhelming. In light of this conclusion, the Magistrate Judge also denied Petitioner’s request to expand the record in support of the ineffective assistance of counsel claim. However, the Magistrate Judge did conclude that the state appellate court unreasonably applied federal law in affirming a greater-than-minimum sentence based upon the trial court’s finding of facts not admitted by Petitioner nor submitted to and found by the jury.

Stalnaker and Respondent both filed timely Objections to the R & R (ECF Nos. 11, 13). Stalnaker argues that the Magistrate Judge erroneously concluded that trial counsel was not deficient because, reviewing the record as a whole, trial counsel’s strategy was “bizarre” and not “objectively reasonable”. (ECF No. 13 at 2-3.) Stalnaker further argues that the Magistrate Judge erroneously concluded that Petitioner was not prejudiced by trial counsel’s strategy, as the evidence against Stalnaker was not overwhelming enough to negate counsel’s conduct, and that the Magistrate Judge should have granted Petitioner’s request for an expansion of the record to support the ineffective assistance of counsel claim. Finally, Petitioner objects to the Magistrate Judge’s suggestion that Stalnaker’s consecutive sentence claim was procedurally defaulted.

Respondent, on the other hand, objects to the Magistrate Judge’s conclusion that the greater-than-minimum sentence predicated on judicial fact-finding violated Blakely. Specifically, Respondent argues that any Blakely error was harmless because upon re-sentencing the judge would impose the same sentence or a greater sentence.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), governs the standards of review for state court decisions involving habeas corpus petitions. AEDPA provides that federal courts cannot grant a habeas petition for any claim that the state court adjudicated on the merits 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 proceeding.” 28 U.S.C. § 2254(d). See also, Miller v. Francis, 269 F.3d 609, 614 (6th Cir.2001).

The United States Supreme Court outlined the proper application of § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To justify a grant of habeas relief under the “contrary to” clause, “a federal court must find a violation of law clearly established by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision.” Miller, 269 F.3d at 614 (internal quotations omitted) (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). Meanwhile, “under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). The proper inquiry for the “unreasonable application” analysis is whether the state court decision was “objectively unreasonable.” Williams, 529 U.S. at 409-11, 120 S.Ct. 1495; McAdoo v. Elo, 365 F.3d 487, 493 (6th Cir.2004). If the state court never addressed an issue raised, this Court must review that issue de novo. Burton v. Renico, 391 F.3d 764, 770 (6th Cir.2004). Where, as here, the last state court decision is silent or neglects to explain its reasons for not granting the requested relief, this Court may assume that it relied on the last reasoned state court decision. Ivory v. Jackson, 509 F.3d 284, 291-92 (6th Cir.2007) (citations omitted). Thus, the Eleventh District Court of Appeals’ rationale will be taken as the state court’s basis for denying relief. Id.

Pursuant to 28 U.S.C. § 636(b)(1), the Court conducts a de novo review of those portions of the R & R to which Stalnaker and Respondent objected. 28 U.S.C. § 636(b)(1); Flournoy v. Marshall, 842 F.2d 875 (6th Cir.1988). Stalnaker’s Petition asserts two grounds for relief. The Court will discuss the objections pertaining to each ground in turn.

III. ANALYSIS

Ground One: Ineffective Assistance of Counsel

In habeas petitions, the question of ineffective assistance of counsel is a mixed question of law and fact and, therefore, the “unreasonable application” prong of § 2254(d)(1) must be applied. Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir.2003). The Supreme Court established the standard to prove ineffective counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where it held that:

First, the [petitioner] must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. 2052. The reviewing court’s scrutiny of counsel’s performance is highly deferential and counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90, 104 S.Ct. 2052; see also, Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (“The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”). To establish the prejudice element, the “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. If the petitioner cannot meet both prongs of the Strickland test, the writ cannot be issued. Id. at 687.

Stalnaker argues that the state court’s application of Strickland was objectively unreasonable in light of the evidence presented. (ECF No. 11.) He’ claims that both prongs of the Strickland test are satisfied and, therefore, he was deprived of his constitutional right to a fair trial.

In an effort to satisfy the first prong of the Strickland test, Stalnaker argues that his trial counsel’s strategy was deficient because it admitted otherwise inadmissible evidence that: (1) he had a previous sexual relationship with another minor female; (2) he had a romantic relationship with at least one other minor female who attended school with the victim; and (3) he had supplied alcohol and drugs to minors, drank alcohol with minors, and permitted his thirteen year old son to sleep with a girl. (ECF No. 11 at 2.) The state appellate court addressed all of these evidentiary issues and determined that the evidence was reasonably related to and supported defense counsel’s trial strategy. State v. Stalnaker, No.2004-L-100, 2005 WL 3610430, 2005-Ohio-7042, ¶ 51-63 (Ohio Ct.App. Dec. 29, 2005). The court held that the strategy was not deficient or illegitimate under the Strickland standard. It explained the “risky” strategy was necessary because of the “overwhelming amount of inculpatory evidence presented by the state.” Id. at 2005 WL 3610430, ¶ 57.

The Court agrees with the Magistrate Judge’s conclusion that the state appellate court correctly applied the Strickland test in finding that counsel’s performance was not constitutionally deficient. The Court agrees with the state appellate court that although defense counsel’s strategy — to use the “bad acts” evidence to cast doubt on the victim’s testimony — ultimately did not work, it does not mean that the strategy was constitutionally unsound. Stalnaker admits that the victim was inconsistent and contradictory. (ECF No. 11 at 3.) Thus, it was not an unreasonable strategy for counsel to attempt to take advantage of these inconsistencies by proving the victim had motive to lie because she was jealous of Stalnaker’s relationship with her classmates. The strategy falls within the wide range of professionally reasonable judgments. See Strickland, 466 U.S. at 689-91, 104 S.Ct. 2052. Therefore, Stalnaker has not established the first prong of the Strickland test.

Even if Stalnaker could establish the first prong of the Strickland test, he must establish that counsel’s deficient performance prejudiced him so as to make the trial unfair and the result unreliable. Strickland, 466 U.S. at 694,104 S.Ct. 2052. In support of the second prong, Stalnaker argues that “there is a reasonable probability that, but for trial counsel’s errors, [he] would not have been convicted on all counts.” (ECF No. 11 at 4.) Again, the Court agrees with the Magistrate Judge’s conclusion that Stalnaker cannot establish prejudice, as the evidence of his guilt was overwhelming. The state appellate court reasoned that even if all the objected to evidence was admitted in error, “such error did not prejudice [Stalnaker] in light of all the properly admitted evidence.” Stalnaker, 2005 WL 3610430, 2005-Ohio-7042, at ¶ 62. The Court has reviewed the record and finds that the state appellate court’s determination — that the possible errors did not result in an unreliable or fundamentally unfair trial — is objectively reasonable in light of the evidence presented. As the Magistrate Judge concluded, the transcript of the controlled call made to Stalnaker with the consent of the victim which corroborated the victim’s allegations, the numerous instant messages and phone calls between Stalnaker and the victim, and the physical evidence of sexual abuse provided overwhelming evidence of Stalnaker’s guilt. Thus, Stalnaker cannot establish the second prong under Strickland, and his objection is without merit.

In conclusion, the state appellate court’s application of Strickland was not objectively unreasonable based on the evidence presented. Thus, Stalnaker’s first objection is denied. Moreover, the Court overrules Petitioner’s related objection to the Magistrate Judge’s denial of Petitioner’s request for leave to expand the record in support of his ineffective assistance of counsel claim. The Court agrees with the Magistrate Judge that the record need not be expanded in light of the ruling on the ineffective assistance of counsel claim.

Ground Two: Greater-Than-Minimum and Consecutive Sentences

1. Exhaustion Requirement

Before a state prisoner may seek a writ of habeas corpus, he must exhaust his state court remedies by fairly presenting all of his constitutional claims to the highest state court, and to all appropriate prior state courts. 28 U.S.C. § 2254(b)-(c); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.1990). On January 9, 2006, Stalnaker filed a Notice to Certify Conflict with the state appellate court claiming that the use of judicial fact-finding to justify both greater-than-minimum and consecutive sentences violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The court determined a conflict existed regarding Stalnaker’s greater-than-minimum sentencing objection and certified the question to the Ohio Supreme Court.

The R & R concluded that the greater-than-minimum sentence objection was procedurally exhausted. (ECF No. 9 at 20.) Neither party has objected to the Magistrate Judge’s determination and the Court adopts the R & R’s conclusion. Respondent argued, however, that Stalnaker’s consecutive sentence objection was procedurally defaulted. The Magistrate Judge opined that Respondent may be correct, but that certifying the conflict to the Ohio Supreme Court may have brought the entire case, including Petitioner’s consecutive sentence claim, before the Supreme Court for review. Ultimately, the Magistrate Judge determined that his recommendation on minimum sentencing “render[ed] it unnecessary to rule” on whether the consecutive sentence question was defaulted. (ECF No. 9 at 27.)

The Court concludes that the consecutive sentence claim has not been defaulted. Under Ohio procedural law, by certifying the record, the entire case, not merely the certified question, goes before the Ohio Supreme Court for review. Twin City Fire Insurance Co. v. Adkins, 400 F.3d 293, 300 (6th Cir.2005); Brown v. Borchers Ford, Inc., 50 Ohio St.2d 38, 39, 361 N.E.2d 1063 (Ohio 1977) (“Certification of the record of the case to the Supreme Court, because of a conflict between judgments of the Courts of Appeals upon any question, brings the entire case, not merely the certified question, before this court for review.”); see also, State v. Volpe, 38 Ohio St.3d 191, 192, 527 N.E.2d 818 (Ohio 1988). Consequently, both Stalnaker’s greater-than-minimum and consecutive sentencing questions were before the Ohio Supreme Court, which held that a conflict did not exist and dismissed the “cause.” (ECF No. 5, Ex. 34); State v. Stalnaker, 109 Ohio St.3d 1420, 846 N.E.2d 531, 2006-Ohio-1967 (April 26, 2006) (table) (cause dismissed). Accordingly, Stalnaker’s consecutive sentence claim has not been defaulted either.

2. Merits

Stalnaker argues that his sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the trial court imposed greater-than-minimum, consecutive sentences based upon judicial fact-finding not admitted by him or found by the jury beyond a reasonable doubt. Respondent concedes that Blakely applies to Stalnaker’s sentence because the case was on direct appeal when Blakely was decided. (ECF No. 5 at 36 (“Since Stalnaker’s sentencing had not yet become final at the time of the Blakely decision, Blakely applies to Stalnaker’s sentencing.”).)

In Blakely, the United States Supreme Court held that a statutory sentencing scheme that permits sentence enhancements based on judicial fact-finding is unconstitutional. Blakely, 542 U.S. at 303, 124 S.Ct. 2531. However, the state appellate court failed to apply Blakely to Stal-naker’s sentence. Furthermore, while Stalnaker’s direct appeal to the Ohio Supreme Court was pending on the Motion to Certify the Conflict, the Ohio Supreme Court ruled on State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). In Foster, the Court struck down certain provisions of Ohio’s sentencing guidelines that permitted sentencing enhancements based on judicial fact-finding, and thus violated Blakely. Important to this case, the Court severed O.R.C. § 2929.14(B) and (E)(4), allowing trial courts full discretion to impose a prison sentence within the statuary range and no longer required findings for imposing consecutive sentences or those beyond the statutory minimum. Id. at 31, 845 N.E.2d 470. The Foster Court held that its ruling must be applied to all cases on direct review or not yet final. Id. However, in this case, the Ohio Supreme Court denied Stalnaker’s Motion to Certify and dismissed the cause, after the Court’s decision in Foster.

There is no question that Stalnaker was sentenced under sentencing statutes that violated Blakely with regard to sentence enhancement. Stalnaker was sentenced under O.R.C. § 2929.14(B) which provided that a trial judge must “impose the shortest prison term authorized, unless certain enhancements are applicable.” He was subject to a statutory presumptive prison term on the substantive offense convictions, and the statutory presumptive minimum term he faced for each rape conviction was three years, under O.R.C. § 2929.14(A)(1), and for each gross sexual imposition conviction was one year, under O.R.C. § 2929.14(A)(3). Yet, the state trial court imposed eight-year sentences on each of the five substantive rape offenses and three-year sentences on each of the six gross sexual imposition offenses, after engaging in judicial fact-finding of the sort that Blakely found to be unconstitutional. Under the Ohio sentencing scheme in place when Stalnaker was sentenced, the state trial court was required to engage in judicial fact-finding before enhancing a sentence above the statutory presumed minimum. See Foster, 109 Ohio St.3d at 19-20, 845 N.E.2d 470 (“Under R.C. 2929.14(B)(2) ... a court is not authorized to exceed the shortest prison term unless it makes the additional findings.”)

Nothing in the record indicates that Stalnaker admitted to the facts upon which the state trial court enhanced his sentence. By enhancing Stalnaker’s sentence on judicially-found facts, the state trial court violated the United States Supreme Court’s holding in Blakely, and Stalnaker was prejudiced by the additional years added to his statutory presumptive prison sentence. Therefore, his greater-than-minimum sentence is contrary to clearly established law, and habeas relief on the merits is appropriate.

3. Harmless Error

Respondent argues that even if the Blakely claim for the greater-than-minimum sentence has merit, it is a harmless error. The Court first notes that it agrees with Respondent’s contention that the R & R did not apply the proper standard of review to the harmless error analysis. (ECF No. 13 at 1-2.) The Magistrate Judge, quoting United States v. Oliver, 397 F.3d 369, 381 (6th Cir.2005) Cciting Fed.R.Crim.P. 52(a)), concluded that in the Sixth Circuit, “an error may be harmless only where the government is able to prove that none of the defendant’s substantial rights have been affected by the error.” (ECF No. 9 at 24.) Moreover, the Magistrate Judge noted that a remand for a sentencing error is required unless “the Court ‘is certain that any such error was harmless — i.e. any such error did not affect the [trial court’s] selection of the sentence imposed.’ ” (Id. quoting United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.2005) (internal citation omitted).) As noted by Respondent, the cases cited by the Magistrate Judge involved federal convictions on direct review, not state trial court convictions on collateral and habeas review.

The Magistrate Judge should have applied the standard of review set out by the United States Supreme Court in Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007). In Fry, the Supreme Court held that a federal habeas court “must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ... standard set forth in Brecht [v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)].” Fry, 127 S.Ct. at 2328. The standard is whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (citation omitted ). “If, however, ‘the matter is so evenly balanced’ that the habeas court has ‘grave doubt’ as to the harmlessness of the error, it should ‘treat the error, not as if it were harmless, but as if it affected the verdict.’ ” Hereford v. Warren, 536 F.3d 523, 533 (6th Cir.2008) (citing O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).

Nevertheless, even applying the Brecht standard, the Court agrees with the Magistrate Judge that the constitutional error is not harmless. Respondent explains that Ohio state courts may now sentence above the statutory presumptive minimum without explicitly engaging in Blakely-violative. judicial fact-finding in the wake of Foster. (ECF No. 13); Foster, 109 Ohio St.3d at 30, 845 N.E.2d 470 (holding Ohio courts are now free to impose enhanced or consecutive sentences without making the previously-required findings of fact). Respondent argues that upon re-sentencing, Stalnaker’s sentence will most likely remain the same or increase, so the error is harmless. In support of this position, Respondent relies on case law from federal district courts in Ohio, where habe-as relief was denied to petitioners with sentencing circumstances similar to Stal-naker’s. The Court rejects Respondent’s argument.

Respondent’s primary support for this argument is Judge Gwin’s decision in Shafer v. Wilson, No. 1:06-CV-648, 2007 WL 315760, 2007 U.S. Dist. LEXIS 6597 (N.D.Ohio Jan. 30, 2007). In Shafer, Judge Gwin denied habeas relief to the petitioner who argued that his sentence violated Blakely. Judge Gwin reasoned that the Blakely error was harmless and therefore non-prejudicial because the petitioner could not show that he would receive a more favorable sentence on remand under the post-Foster sentencing scheme. However, other federal district courts in Ohio have come to the opposite conclusion, expressly rejecting Shafer’s reasoning and holding that the possibility of a higher sentence on remand did not render harmless the error in a Blakely-violative sentence. See Cvijetinovic v. Eberlin, No. 04-CV-2555, 2008 WL 918576, *20-23, 2008 U.S. Dist. LEXIS 26483, *63-72 (N.D.Ohio Mar. 31, 2008) (listing and discussing cases). The courts rejecting Shafer “reasoned that the fact that an error could be harmless does not satisfy the harmless error standard.” Id. at 2008 WL 918576 at *22, 2008 U.S. Dist. LEXIS 26483 at *69. In Villagarcia v. Warden, Noble Corr. Inst, No. 05-CV-810, 2007 WL 1028528, 2007 U.S. Dist. LEXIS 23796 (S.D.Ohio March 30, 2007), Judge Frost explained that the “possibility of a different sentence must logically preclude any habeas court from saying for a certainty that error is harmless.” Furthermore, Judge Gwin has “expressly retreated from his opinion in Shafer and adopted the reasoning articulated in Villa-garcia.” Cvijetinovic, 2008 WL 918576 at *23, 2008 U.S. Dist. LEXIS 26483 at *71 (quoting Crotts v. Bradshaw, No. 1:06—CV-2519, 2007 WL 3283841, *17, 2007 U.S. Dist. LEXIS 79044, *46 (N.D.Ohio Oct. 30, 2007)) (stating that “[t]he Court agrees with the criticism of Shafer .... While the state sentencing court may impose the same sentence, it may also choose to impose a different one, as such the Court does not find the error harmless”).

The Court has previously agreed, and continues to agree, with the Cvijetinovic and Villagarcia analysis. See Cooper v. Hudson, 2008 WL 2001282, No. 3:07CV610 (N.D.Ohio, May 5, 2008). For a harmless error to exist, the court must be sure that the error had no or very slight effect. O’Neal v. McAninch, 513 U.S. 432, 435-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Respondent is correct that because Stalnaker will be sentenced under Ohio’s current sentencing scheme, the state trial court could increase Stal-naker’s prison term, without stating findings to justify the enhancement. On the other hand, Stalnaker could receive a lower sentence. The Court cannot presume to know what another judicial officer will do. Therefore, Respondent cannot meet its burden of proof that the Blakely error was harmless. Accordingly, Respondent’s objection is overruled and the Court adopts the R & R as to Ground Two for the greater-than-minimum sentences objection.

Conversely, as to Stalnaker’s consecutive sentence argument, the Court agrees with the Magistrate Judge’s conclusion that the claim is not cognizable on habeas review. See Cvijetinovic v. Eberlin, No. 04-CV-2555, 2008 WL 918576, *27, 2008 U.S. Dist. LEXIS 26483, *63-72 (ND.Ohio Mar. 31, 2008). “The United States Supreme Court has not ruled that the imposition of consecutive sentences, based on judicial fact-finding or not, violates the Sixth Amendment; nor has it extended Apprendi, Blakely, or Booker to consecutive sentences.” Cobbin v. Hudson, No. 05CV2809, 2008 WL 552484, *2 (N.D.Ohio Feb. 26, 2008). The Court has, of course, already concluded that Stalnaker must be re-sentenced. Since Stalnaker will be re-sentenced anyway, this issue does not affect the outcome of the case.

IV. CONCLUSION

For the reasons discussed supra, the Magistrate Judge’s Report and Recommendation is hereby ADOPTED. Stal-naker’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 is GRANTED as to that part of Ground Two of his petition resting on a Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) claim that Stalnaker was improperly sentenced to “non-minimum” prison terms and DENIED as to the remainder of his petition. The Court vacates Stalnaker’s sentences that are above the statutory minimum for rape and gross-sexual imposition, and directs the State of Ohio to re-sentence Stalnaker within ninety (90) days of this decision or, if an appeal is taken from the Court’s ruling, within ninety (90) days of the resolution of the appeal (provided that the Court’s determination stands).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

GREG WHITE, United States Magistrate Judge.

MICHAEL A. STALNAKER, Petitioner, v. DAVID BOBBY, Warden Respondent.

Petitioner, Michael A. Stalnaker, (“Stal-naker”), through counsel, challenges the constitutionality of his conviction in the case of State v. Michael A. Stalnaker, Lake County Common Pleas Case No. 03-0650. He filed a Writ of Habeas Corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254 on July 23, 2007, with the United States District Court for the Northern District of Ohio. On September 28, 2007, Respondent filed his Answer/Return of Writ. (Doc. No. 5.) Stalnaker filed a response on November 27, 2007. (Doc. No. 8.) This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. For reasons set forth in detail below, it is recommended that Stalnaker’s Petition be denied as to Ground One but conditionally granted as to that part of Ground Two resting on a Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) claim that he was improperly sentenced to “non-minimum” prison terms.

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also House v. Bell, 283 F.3d 737 (6th Cir.2002). The state appellate court summarized the facts underlying Stalnaker’s conviction as follows:

Appellant, Michael A. Stalnaker, appeals from the judgments of the Lake County Court of Common Pleas, denying his motion to suppress; convicting him of rape, gross sexual imposition, and furnishing alcohol to minors; and sentencing him to an aggregate prison term of thirty-three years. For the reasons that follow, we affirm.

Appellant was indicted by the Lake County Grand Jury on the following counts: (1) five counts of rape, each a first degree felony in violation of R.C. 2907.02(A)(1)(b); (2) six counts of gross sexual imposition, each a third degree felony in violation of R.C. 2907.05(A)(4); (3) one count of furnishing alcohol to a minor, a first degree misdemeanor in violation of R.C. 4301.69(C)(1) and 4301.99(C); and (4) five counts of furnishing alcohol to a minor, in violation of R.C. 4301.69(A) and 4301.99(1). At his arraignment, appellant pleaded not guilty to the foregoing charges.

The following facts were revealed during trial. At the time the alleged sexual encounters occurred, appellant was forty years old and the victim was twelve years old. Appellant resided in Florida, but often traveled to Lake County, Ohio, to visit his family and children. The victim was friends with appellant’s daughter. In mid-March 2003, the victim was visiting appellant’s daughter. During the visit, the victim viewed appellant’s instant messaging e-mail address on a computer.

When she returned home, the victim began to instant message appellant. Appellant and the victim continued to instant message each other on a daily basis from mid-March until late June 2003. Transcripts of the instant messages established that appellant and the victim engaged in graphic sexual discussions and had professed their love to each other. Also, the victim had emailed appellant a picture of her genitals.

In late June 2003, appellant began to contact the victim via phone. The victim testified that the phone calls again included sexual discussions and appellant professing his love for her. She further testified that phone contact with appellant was on almost a daily basis from late June 2003 until the beginning of September 2003. Cellular phone records established that appellant spent over 1000 hours speaking with the victim.

Appellant and the victim first met in early July 2003, at the Mentor Civic Center. Approximately a week and a half later, appellant arranged a “pool party” at a hotel in Willoughby, Ohio, for his children and their friends. The victim attended the pool party. She testified that appellant had reserved two rooms at the hotel. Appellant was staying in one room, while his children and their friends were staying in the other room. The victim stated that appellant provided her and the other children with alcohol from his room.

Following the pool party, appellant engaged in various sexual encounters with the victim. The victim testified that in early August 2003, she met appellant close to her house at around 1:00 a.m. Appellant drove the victim in his van to a nearby Lake County rest stop. At the rest stop, appellant gave the victim some beer. The victim stated that appellant was lying down with her in the back of the van. She testified that while they both had clothes on, he began to rub his genitals against her genitals. Appellant then attempted to place his hands down her pants, but the victim stopped him. The victim stated that appellant dropped her off near her house at approximately 4:00 a.m.

On or about August 20, 2003, the victim saw appellant’s van at a pool parking lot. When she approached him, he invited her into his van. Appellant proceeded to French kiss the victim and rub her vagina with his hand over her bathing suit.

The victim testified that shortly after the August 20, 2003 sexual encounter, she met appellant near her house at approximately 1:00 a.m. Appellant drove the victim back to the rest stop and they drank Jim Beam Coolers and beer. The victim removed her clothes, and appellant digitally penetrated her vagina and performed cunnilingus on the victim. Appellant then removed his clothes and began to rub his penis against the victim’s vagina. The victim testified that at one point she felt appellant’s penis penetrate her vaginal cavity, but appellant did not ejaculate. Appellant was also fondling the victim’s breasts. At some point, appellant and the victim put on their clothes and used the rest stop restroom. When they returned to the van, appellant again digitally penetrated the victim’s vagina. Appellant then dropped the victim off near her house at approximately 4:00 a.m.

The victim stated that approximately a week later she met appellant near her house around 1:00 a.m. They drove to the rest stop and consumed beers. The victim removed her clothes and appellant digitally penetrated her vagina.

Appellant and the victim then used the rest stop restroom and returned to the van where appellant digitally penetrated the victim’s vagina and fondled her breasts. He returned the victim to her house at approximately 4:00 a.m.

Appellant and the victim engaged in their final sexual encounter on September 4, 2003. The victim testified that appellant picked her up near her house at around 12:30 a.m. She stated that he proceeded to drive his van to the rest stop. At the rest stop, appellant and the victim drank green-melon wine. Appellant again digitally penetrated the victim’s vagina and fondled her breasts. Appellant and the victim removed their clothes and he began to rub his penis against her vagina. On this occasion, appellant asked the victim if she would engage in sexual intercourse with him. The victim told appellant he would have to wait because she planned to have sex with him on his birthday. Appellant returned the victim near her home at approximately 5:30 a.m.

That morning, the victim’s mother discovered the victim attempting to sneak back into the house. The victim’s mother questioned her as to her whereabouts. Ultimately, the victim’s mother suspected sexual abuse. As a result, she notified the police and took the victim to a hospital. At the hospital, a rape kit was administered. The doctor performing the rape kit testified that two fingernail sized lesions were detected within the victim’s vaginal cavity.

Later that afternoon, the victim informed the police that she and appellant had engaged in numerous sexual encounters. The police asked the victim to initiate a “controlled” phone call to appellant. The victim consented and called appellant. A transcript of the recorded phone call corroborated the victim’s allegations with respect to the September 4, 2003 sexual encounter and the ongoing sexual relationship between appellant and the victim.

In particular, appellant apologized repeatedly for scratching the inside of the victim’s vagina with his fingernails. He further stated that he did not like the greenmelon wine consumed at the rest stop. Appellant and the victim also discussed their plan to have sexual intercourse on or near his birthday. Appellant stated that he had attempted to have sex with the victim previously, but she stopped him.

The victim provided additional testimony, on direct-examination, with respect to appellant’s ongoing romantic relationship with a classmate. The victim testified that the relationship was contemporaneous with her sexual relationship with appellant. She also stated that appellant was involved in a romantic relationship with a second classmate before she met him. Appellant’s defense counsel did not object to the foregoing testimony. Finally, the victim testified as to statements she made to a female friend and classmate in late August 2003, regarding her sexual relationship with appellant.

On cross-examination, appellant attempted to establish the victim’s fabrication of the alleged sexual encounters. Specifically, appellant tried to demonstrate that the victim’s allegations were a last ditch effort to keep appellant involved in her life and were also due to her jealousy of appellant’s relationships with her classmates. Also, appellant attempted to show that the improper influences of the victim’s mother, the police, and the child advocate resulted in the victim’s allegations.

Introduced as evidence were appellant’s cell phone record, and hotel/store receipts from outside Ohio, to demonstrate that on certain specific dates he was either not with the victim at the time of the alleged encounters or was not in Ohio. When presented with this evidence, the victim again stated that she could not remember the exact dates the sexual encounters occurred.

Appellant also opened the door to other bad acts by introducing evidence of his contemporaneous relationship with the victim’s classmate. He attempted to use this evidence to demonstrate the victim had fabricated the alleged sexual encounters as she was jealous of appellant’s relationship with the classmate and was attempting to get back at him. The victim’s female friend provided testimony during the trial. Over appellant’s objection, the female friend testified that the victim had stated she believed she was pregnant with appellant’s child. The female friend further testified that the victim asked her how to abort the baby. Also, appellant’s ex-wife testified that appellant often smoked marijuana with his children’s friends and allowed, under his supervision, young boys and girls to sleep together. Appellant’s defense counsel did not object to this testimony.

Appellant’s testimony denied that he had had a sexual relationship with the victim. His testimony attempted to show that he was either not with the victim or was not in Ohio at the time of the alleged sexual encounters. With respect to the “controlled” phone call, appellant stated that he was merely playing along with what the victim was saying and that he had not engaged in a sexual encounter with the victim on that evening. He also testified that he did not provide any of the minors with alcohol at the July 17, 2003 pool party. Following trial, the jury returned a unanimous guilty verdict on all counts. The court entered judgment accordingly, convicting appellant on all counts. After holding a sentencing hearing, the court sentenced appellant to an aggregate prison term of thirty-three years.

(Resp.Exh.l.)

II. Procedural History

A. Conviction

On December 5, 2003, the Lake County Grand Jury charged Stalnaker with five counts of rape in violation of Ohio Revised Code (“O.R.C.”) § 2907.02(A)(1)(b), six counts of gross sexual imposition in violation of O.R.C. § 2907.05(A)(4), and six counts of furnishing alcohol to a minor in violation of O.R.C. § 4301.69(A) and § 4301.99(1). (Resp.Exh.2.)

Stalnaker, represented by counsel, pled “not guilty” and the matter proceeded to a jury trial whereat he was found guilty as charged. On May 6, 2004, the trial court sentenced Stalnaker to an aggregate prison term of 33 years. (Resp.Exh. 43, Tr. 1777-78,1783.)

B. Direct Appeal

On June 15, 2004, Stalnaker, through new counsel, filed a Notice of Appeal with the Court of Appeals for the Eleventh Appellate District (“state appellate court”) presenting seven assignments of error:

1. The trial court committed reversible error when it failed to suppress the “controlled” call between Appellant and [the victim.].

2. Appellant was denied the effective assistance of counsel, and was denied a fair trial in violation of the Ohio and United States Constitutions through the absence of objection to the introduction of inflammatory, prejudicial and irrelevant “bad act” evidence which was not admissible under Evidence Rule 404(B).

3. The trial court erred in denying Appellant’s motion for a directed verdict of acquittal on that count of the indictment which alleged Appellant had provided alcohol to [the victim] at the pool party of July 17, 2003.

4. The trial court committed reversible error when over Appellant’s objection it permitted [K.P.] to testify concerning hearsay statements allegedly made by [the victim.]

5. Appellant’s sentence was imposed in violation of Appellant’s constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution.

6. Each of the guilty verdicts herein were against the manifest weight of the evidence and, accordingly, in violation of Appellant’s constitutional rights.

7. Appellant’s convictions were based on insufficient evidence and, therefore, should be reversed.

(Resp.Exhs.14,16.)

On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) finding a violation of the Sixth Amendment right to trial by jury where a Washington sentencing statute permitted a judge to impose a longer sentence after making certain findings of fact than would be allowed without such findings.

On December 29, 2005, the state appellate court affirmed Stalnaker’s conviction. (Resp.Exhs.l, 19.)

On January 9, 2006, Stalnaker, through counsel, filed a motion for reconsideration pursuant to App.R. 26(A). (Resp.Exh.20.) The state appellate court denied reconsideration on January 27, 2006. (Resp.Exh.24.)

Also, on January 9, 2006, Stalnaker, through counsel, filed a Notice to Certify Conflict with the Eleventh Appellate District as to his fifth assignment of error concerning his sentencing. (Resp.Exh.21.) Stalnaker raised two Blakely issues: 1) whether his sentence was unconstitutional under O.R.C. § 2929.14(B) as it was based on improper judicial fact findings which increased the sentence beyond the statutory minimum; and 2) whether the imposition of consecutive prison terms was unconstitutional. The state appellate court found a conflict existed only as to the first issue and therefore certified the following question to the Ohio Supreme Court: “Whether the judicial findings mandated under R.C. 2929.14(B)' are unconstitutional in light of the United States Supreme Court’s decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.” (Resp.Exh.25.)

While the certified question was pending before the Ohio Supreme Court, Stalnaker also filed, through counsel, a Notice of Appeal with the Supreme Court of Ohio on February 13, 2006, presenting two propositions of law:

1) A criminal defendant is denied the effective assistance of counsel in violation of the Sixth Amendment when trial counsel engaged in a bizarre trial strategy that invited the introduction of “bad acts” evidence that tended to establish the accused’s criminal propensity and in effect sealed the defendant’s conviction.

2) An appellant is denied his constitutional right to an open court under Article I, Section 16 of the Ohio Constitution when an appellate court fails to adequately consider and address each of the arguments submitted by the appellant in support of a claim of ineffective assistance of counsel.

(Resp.Exhs.29, 30.)

On February 27, 2006, the Ohio Supreme Court decided State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), in which the Court applied Blakely to Ohio’s sentencing statutes and found portions thereof to be unconstitutional including O.R.C. §§ 2929.14(B) and (E).

On April 26, 2006, the Supreme Court of Ohio determined that no conflict existed and also dismissed Stalnaker’s appeal as not involving any substantial constitutional question. (Resp.Exhs.32, 33.)

C. Federal Habeas Petition

On July 23, 2007, Stalnaker filed a Petition for Writ of Habeas Corpus and asserted the following grounds for relief:

GROUND ONE: Petitioner’s trial counsel provided ineffective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, by pursuing a bizarre trial strategy that invited the introduction of an avalanche of “bad acts” evidence that tended to establish the accused’s criminal propensity and, in effect, sealed Petitioner’s conviction.

GROUND TWO: Petitioner Michael Stalnaker was sentenced in violation of Petitioner’s constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution based upon judicial findings which were not admitted by Petitioner or proved to the jury beyond a reasonable doubt, contrary to the rule announced by the United States Supreme Court in Blakely v. Washington.

(Doc. No. 1.)

III. Exhaustion and Procedural Default

State prisoners must exhaust their state remedies prior to raising claims in federal habeas corpus proceedings. See 28 U.S.C. § 2254(b),(c). This requirement is satisfied “when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). However, if relief is no longer available in state court, exhaustion can be rendered moot: “If no remedy exists, and the substance of a claim has not been presented to the state courts, no exhaustion problem exists; rather, it is a problem of determining whether cause and prejudice exist to excuse the failure to present the claim in the state courts.” Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994); see Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001).

Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, or where 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, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A claim may become procedurally defaulted in two ways. Id. 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. Id.; 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. Id.

Second, a petitioner may also procedurally default a claim by failing to raise a claim in state court and pursue that claim through the state’s “ordinary appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). If, at the time of the federal habeas petition, state law no longer allows the petitioner to raise the claim, the claim is proeedurally defaulted. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This second type of procedural default is often confused with exhaustion. Exhaustion and procedural default, however, are distinct concepts. AEDPA’s exhaustion requirement only “refers to remedies still available at the time of the federal petition.” Engle, 456 U.S. at 125 n. 28, 102 S.Ct. 1558. Where state court remedies are no longer available to a petitioner because he failed to use them within the required time period, procedural default and not exhaustion bars federal court review. Id. In Ohio, a petitioner is not entitled to raise claims in post-conviction proceedings where those claims could have been raised on direct appeal. Id. Thus, if an Ohio petitioner failed to raise a claim on direct appeal, which could have been raised, the claim is proeedurally defaulted. Id.

Furthermore, Ohio court have relied upon the doctrine of res judicata to dismiss constitutional claims that are raised for the first time in state post-conviction. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). A determination in the Ohio courts that a claim is res judicata in a state post-conviction petition amounts to a procedural default on a federal habeas corpus claim and requires a petitioner to show cause and prejudice for his default. Norris v. Schotten, 146 F.3d 314 (6th Cir.1998); Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998); Ewing v. McMackin, 799 F.2d 1143, 1149-51 (6th Cir.1986).

Respondent acknowledges that Ground One is exhausted but contends that Ground Two is unexhausted and thereby waived in habeas.

IV. Analysis

A. Standard

This case is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The relevant provisions of AED-PA state:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (1996). Clearly established federal law is to be determined by the holdings of the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005). However, an explicit statement by the Supreme Court is not mandatory; rather, “the legal principles and standards flowing from [Supreme Court] precedent” also qualify as “clearly established law.” Ruimveld, 404 F.3d at 1010 (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir.2002)).

A state court’s decision is contrary to clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. 1495. By contrast, a state court’s decision involves an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id However, a federal district court may not find a state court’s decision unreasonable “simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.” Id at 411, 120 S.Ct. 1495. Rather, a federal district court must determine whether the state court’s decision constituted an objectively unreasonable application of federal law. Id at 410-12, 120 S.Ct. 1495. “This standard generally requires that federal courts defer to state-court decisions.” Strickland v. Pitcher, 162 Fed.Appx. 511, 516 (6th 2006) (citing Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998)).

B. Ground One

Stalnaker contends that he was denied effective assistance when his counsel allowed “bad acts” evidence to be admitted during trial. Furthermore, Stalnaker claims that the state courts had not conducted a proper cumulative effects analysis.

Respondent argues that the state court adjudication was not an objectively unreasonable application of the Strickland standard and there was no due process violation.

1. State Court Analysis

The state appellate court concluded that Stalnaker was not denied effective assistance of counsel and stated:

Under his second assignment of error, appellant argues that he was denied a fair trial due to ineffective assistance of counsel. In support of this argument, appellant cites to his defense counsel’s failure to object to various instances of other bad acts evidence and defense counsel’s failure to issue a motion in limine to reduce the amount of such evidence.

Appellant first contends that his defense counsel was ineffective because he opened the door for the introduction of other bad acts evidence, and failed to object to such evidence, regarding appellant’s prior and contemporaneous relationships with the victim’s classmates. Specifically, appellant argues that by opening the door and failing to object, his defense counsel allowed for multiple admissions of evidence as to his relationships with the victim’s classmates.

This portion of appellant’s second assignment of error is not well-taken, as defense counsel’s allowance of other bad acts evidence in this instance involved trial strategy. Specifically, one of appellant’s trial strategies was clear-establish the victim as an imaginative twelve-year-old who was jealous of appellant’s relationship with her classmates, thereby providing, her an improper motive to fabricate the sexual encounters. To support this theory, evidence of appellant’s contemporaneous and prior relationships with the victim’s classmates was necessary.

Moreover, evidence of appellant’s contemporaneous relationship with a classmate was used by counsel in attempting to establish that appellant was not with the victim when the sexual encounters allegedly took place. In particular, defense counsel tried to demonstrate that appellant was talking with a classmate via phone when some of the sexual encounters allegedly occurred.

Defense counsel’s strategy was reiterated during closing argument. The closing argument again evaluated appellant’s relationship with the victim’s classmates to establish that the victim fabricated her allegations due to jealousy.

Defense counsel’s use of appellant’s pri- or relationships with the victim’s classmates clearly represented a questionable and risky trial strategy. However, “debatable strategic and tactical decisions will not form the basis of a claim for ineffective assistance of counsel, even if there had been a better strategy available. * * * In other words, errors of judgment regarding tactical matters do not substantiate a defendant’s claim of ineffective assistance of counsel.” (Internal citations omitted.) Swick at 5-6. A reviewing court must refrain from second-guessing strategical decisions and presume that counsel’s performance falls within the wide range of reasonable legal assistance. State v. Adkins, 5th Dist. No. CA-906, 2002 WL 1773153, 2002-Ohio-3942, at ¶ 20 (2002), citing Strickland. Accordingly, hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time of trial, as there are numerous strategies by which counsel can provide effective assistance of counsel in any given case. Adkins at ¶ 21, citing Strickland.

Although defense counsel’s strategy allowed the prosecution to introduce evidence of other bad acts, clearly counsel believed this risk was outweighed by the advantage of establishing his defense theories. Due to the overwhelming amount of inculpatory evidence presented by the state, defense counsel was left with relatively few options. Accordingly, he attempted to establish his theories of a jealous, motivated victim, and that appellant was not with the victim when the sexual encounters allegedly occurred, via evidence of appellant’s relationships with the victim’s classmates. Again, we must refrain from attempting to ascertain whether defense counsel’s strategy was appropriate. We will not question counsel’s implementation of this risky trial strategy, as such strategy falls within a wide range of reasonable legal assistance. Accordingly, appellant cannot claim that his defense counsel’s strategy regarding the relationships with the victim’s classmates resulted in ineffective assistance of counsel. This portion of appellant’s second assignment of error is not well-taken.

Assuming defense counsel’s failure to object to the testimony of appellant’s ex-wife was error, such error did not prejudice appellant in light of all the properly admitted evidence. As will be established under our analysis of appellant’s sixth and seventh assignments of error, there was substantial evidence which demonstrated an on-going sexual relationship between appellant and the victim. This evidence included testimonial evidence, countless instant messages between appellant and the victim, records of voluminous phone calls between appellant and the victim, the “controlled” phone call, and physical evidence of sexual abuse. Accordingly, counsel’s failure to object to the de minimus testimony of appellant’s ex-wife fails to establish that there existed a reasonable probability the results of the trial would have been different had an objection been made. This portion of appellant’s second assignment of error is also not well-taken.

Based upon the foregoing analysis, appellant did not receive ineffective assistance of counsel. Specifically, defense counsel’s opening the door for other bad acts evidence, and failure to object did not result in ineffective assistance of error. Thus, counsel’s failure to file a motion in limine to limit the stated other bad acts evidence also did not result in ineffective a