Wright v. Lazaroff (643 F. Supp. 2d 971, 2009)

United States District Court for the Southern District of Ohio 2009-06-25

Citations

Full opinion text

ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on the Report and Recommendation filed by the Magistrate Judge on May 15, 2009 (Doc. 46).

Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir.1981). No objections to the Magistrate Judge’s Report and Recommendation have been filed.

Having reviewed this matter de novo pursuant to 28 U.S.C. 636, this Court finds the Magistrate Judge’s Report and Recommendation to be correct.

Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. The Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) is DENIED with prejudice.

A certificate of appealability should not issue with respect to petitioner’s claims for relief under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in “good faith,” and therefore DENIES petitioner leave to appeal in forma pauper-is upon a showing of financial necessity. See Fed. R.App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.1997).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

TIMOTHY S. HOGAN, United States Magistrate Judge.

Petitioner, a state prisoner, brings this case pro se seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition (Doc. 3), respondent’s return of writ and exhibits thereto (Doc. 27), and petitioner’s traverse. (Doc. 41).

FACTS AND PROCEDURAL HISTORY

This case involves the following facts and proceedings before the trial court, as summarized by the Twelfth District Ohio Court of Appeals:

{¶ 2} On December 3, 2003, appellant visited the home of Anna Cmehil, who was 89 years old. After testing Cmehil’s hearing and taking impressions of her ears, the two agreed that Cmehil would purchase from appellant a hearing aid for the price of $1,500. Cmehil wrote a check, payable to appellant, in the amount of $750 as partial payment. Appellant unexpectedly returned to Cmehil’s home the following day, and told her that he needed to make a new impression of her ear. Cmehil asked for a discounted purchase price, and appellant agreed to lower the price to $1,125 if Cmehil paid the balance that day. Cmehil agreed and wrote another check to appellant in the amount of $375. Cmehil never received a hearing aid from appellant, despite trying to reach him by telephone on several occasions. {¶ 3} On December 12, 2003, appellant visited the home of Walter and Jeanne Engleman, who were 83 and 81 years old respectively. After testing Walter’s hearing and taking impressions of his ears, they agreed that the Englemans would purchase from appellant hearing aids for the price of $3,000. Jeanne wrote a check to appellant for $1,000, and appellant promised to deliver the hearing aids in two weeks. Appellant returned to their home the next day, and told Walter that he needed more money for the deposit on the order. Walter gave him an additional $50 in cash. A few days later, Jeanne asked appellant for a refund, completed and sent to appellant a written cancellation of the contract, and called him to tell him she was canceling the contract. The Englemans did not receive the hearing aids or a refund.

{¶ 4} On December 15, 2003, appellant visited the home of Nellie McQueary, who was 90 years old. After testing McQueary’s hearing and taking an impression of her ear, the two agreed that McQueary would purchase from appellant a hearing aid for the price of $1,500. McQueary wrote appellant a check for $100. The next day, McQueary attempted to reach appellant by telephone so that she could cancel the order. However, McQueary never heard from appellant, and did not receive a hearing aid or a refund.

{¶ 5} On December 23, 2003, appellant visited the home of Leroy Turner, who was 88 years old. After testing Turner’s hearing and taking impressions of his ears, the two agreed that Turner would purchase from appellant hearing aids for the price of $4,000. Turner ■wrote appellant a check for $2,000, but three days later told appellant he wanted to cancel the contract. Appellant agreed to lower the purchase price to $3,000 if Turner paid the balance of the purchase price that day. Turner agreed, and wrote appellant a check for $1,000. On December 29, 2003 appellant returned to Turner’s home and asked Turner for an additional $900. Turner eventually wrote appellant a check for $300, and appellant promised Turner that he would supply him with hearing aid batteries and that he would deliver the hearing aids the following day. However, Turner never received the hearing aids or a refund.

{¶ 6} On January 14, 2004, a grand jury indicted appellant on eight counts of theft from an elderly person in violation of R.C. 2913.02(A)(3) and (B)(3) (“Indictment No. 04CR0022”). On May 19, 2004, a grand jury indicted appellant on four counts of engaging in hearing aid business without license in violation of R.C. 4747.02 (“Indictment No. 04CR00391”). The parties agreed to consolidate the two cases for purposes of trial. After a bench trial, the trial court found appellant guilty on seven of the eight theft counts in Indictment No. 04CR0022 and all four counts in Indictment No. 04CR00391. The trial court sentenced appellant to 12 months for counts 1, 2, 5, and 7 and 11 months for counts 3, 6, and 8 of Indictment No. 04CR0022, with all sentences to be served consecutively. The court sentenced appellant to 90 days for each count of Indictment No. 04CR00391, with the sentences to be served concurrently with the sentences for the theft offenses....

State v. Wright, No. CA2004-08-061, 2005 WL 1799296, at *1-2 (Ohio App. 12th Dist. Aug. 1, 2005). See also Doc. 27, Exhs. 1, 3, 4, 5, 8, 9,10,11.

Direct Appeal

Petitioner, through new counsel, filed a notice of appeal in the Twelfth District Court of Appeals and raised the following assignments of error in his merits brief:

1. The trial court erred to the prejudice of defendant-appellant in failing to dismiss the felony cases against him, on the basis that the State had failed to bring the appellant to trial within speedy trial time limits.

2. The trial court erred to the prejudice of defendant-appellant in the excessive sentence that was ordered.

3. The trial court erred to the prejudice of defendant-appellant in failing to recognize that the state was required to pursue remedies against the appellant in accordance with RC 4747.02, et. seq.

(Doc. 27, Exh. 12). The State filed a response. (Doc. 27, Exh. 13). On August 1, 2005, the Court of Appeals affirmed the judgment of the trial court overruling each of petitioner’s assignments of error. (Doc. 27, Exh. 14, Case No. C-060318).

On August 15, 2005, petitioner filed a pro se motion for reconsideration pursuant to Ohio App. Rule 26(A). (Doc. 27, Exh. 15). Although initially denying the application as untimely, the Ohio Court of Appeals later reconsidered and denied petitioner’s motion on the merits. (Doc. 27, Exhs.16,17,18).

Petitioner, through new counsel, filed a timely notice of appeal in the Ohio Supreme Court. (Doc. 27, Exh. 19). Petitioner raised the following proposition of law in his memorandum in support of jurisdiction:

1. The trial court does not have the authority to impose non-minimum, consecutive prison terms on a person convicted of fourth- and fifth-degree felonies in the absence of a finding beyond a reasonable doubt of the factors in R.C. 2929.13(B)(2), 2929.14(E)(4).

(Doc. 27, Exh. 20). The State filed a response. (Doc. 27, Exh. 21). On December 28, 2005, the Ohio Supreme Court stayed the appeal pending decisions in “Supreme Court Case Nos. 04-1771, State v. Quinones, and 04-1568, State v. Foster ” (Doe. 27, Exh. 22). On May 3, 2006, the Ohio Supreme Court reversed the judgment of the Ohio Court of Appeals and remanded petitioner’s case for resentencing consistent with State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). (Doc. 27, Exh. 23).

Ohio Appellate Rule 26(B) Application to Reopen Direct Appeal

Petitioner filed a pro se application to reopen the direct appeal on the basis of ineffective assistance of appellate counsel under Ohio Appellate Rule 26(B) raising the following assignments of error:

1. The Appellant was denied the effective assistance of appellate counsel when appellate counsel failed to challenge and argue the appellant’s denial to a complete record on appeal.

2. Appellant was denied the effective assistance of appellate counsel when appellate counsel failed to raise the significant and obvious issue of sufficiency of the evidence and weight of the evidence as issues for review on appeal.

3. The Appellant was denied the effective assistance of counsel when his appellate counsel failed to assign as error the violations of consecutive sentencing under R.C. 2929.14 through the mandates of R.C. 2953.08 to the substantial prejudice of the appellant in violation of his Fourteenth Amendment rights to Due Process under the United States Constitution.

4. Appellant was denied protections of Due Process when his appellate counsel failed to raise issue with the court’s sentencing decision to provide jail time credit under separate entry and further failed to protect appellants rights in raising the fact that the court never provided the promised entry allowing jail time credit under separate entry in time for Appellant’s appeal of right.

(Doc. 27, Exh. 24). The State filed a response to which petitioner replied. (Doc. 27, Exhs.25, 26). On January 5, 2006, the Ohio Court of Appeals denied the application to reopen. (Doc. 26).

Petitioner did not file an appeal to the Ohio Supreme Court.

Post-Conviction Petition in the Trial Court

Meanwhile, on April 4, 2005, petitioner filed a pro se petition to vacate judgment and set aside sentence presenting two claims for relief:

1. Defendant-Petitioner was deprived of his right to a fair trial/appeal in violation of his Sixth Amendment rights.

2. Defendant-Petitioner was deprived of his right to a fair sentencing hearing due to the ineffective assistance of counsel in violation of his Sixth Amendment right.

(Doc. 27, Exh. 30). The Ohio Public Defender filed a notice of appearance for the representation of petitioner for the petition. (Doc. 27, Exh. 31). On August 24, 2005, the trial court found the petition was without merit and denied relief. (Doc. 27, Exh. 32).

First Federal Habeas Corpus Petition

Petitioner filed a Petition for Writ of Habeas Corpus with the United States District Court of Ohio, Southern District, Eastern Division, on May 10, 2006, setting forth two grounds for relief:

GROUND ONE: Petitioner was denied a fair appeal in violation of the Fifth and Fourteenth Amendments and is confined in violation thereof.

Supporting Facts: The record of the trial and sentencing proceedings filed in the Clermont County Court of Appeals, contained omissions, inaccuracies and other alterations.

GROUND TWO: Petitioner is confined in violation of his Sixth Amendment right to the effective assistance of counsel.

Supporting Facts: Defense counsel failed to object to Court’s use of Presentence Investigation Report during sentencing which erroneously stipulated that Petitioner was on probation at the time of his offenses.

(Doc. 27, Exh. 60). Relying on petitioner’s representation that he had not been served with the trial court’s order denying him post-conviction relief, the State filed a motion to dismiss the petition to allow petitioner to file an appeal to the Ohio Court of Appeals. (Doc. 27, Exh. 61). Petitioner agreed that dismissal was appropriate on this basis and also so that he could raise claims related to his resentencing. (Doc. 27, Exh. 62). On January 8, 2007, the United States District Court granted the State’s motion to dismiss and petitioner’s request for dismissal. (Doc. 27, Exh. 63).

Post-Conviction Petition in the State Courts of Appeal

Meanwhile, and prior to the District Court’s decision, petitioner filed a pro se notice of appeal and a motion for leave to file a delayed appeal in the Twelfth District Court of Appeals on July 17, 2006. (Doc. 27, Exhs.33, 34). The State filed a memorandum in opposition to which petitioner replied. (Doc. 27, Exhs.35, 36). On August 10, 2006, the Court of Appeals summarily denied petitioner’s motion for leave to file delayed appeal. (Doc. 27, Exh. 37).

Petitioner filed a timely pro se appeal to the Supreme Court of Ohio. (Doc. 27, Exh. 38). In his memorandum in support of jurisdiction, petitioner argued that the Ohio Court of Appeals abused its discretion in denying him a delayed appeal. (Doc. 27, Exh. 39). On December 13, 2006, the Supreme Court of Ohio denied petitioner leave to appeal. (Doc. 27, Exh. 40).

Resentencing

On October 25, 2006, the trial court re-sentenced petitioner to his original sentence. (Doc. 27, Exh. 41). Petitioner filed a notice of appeal and motion for delayed appeal in the Twelfth District Ohio Court of Appeals under Case Nos.2007CA-037 and 2007CA-038. Both cases were consolidated. (Doc. 27, Exhs.42-45, 47). The state appellate court granted leave to appeal, noting that the Clermont County Public Defender had been appointed to represent petitioner. (Doc. 27, Exh. 46). Petitioner objected to the appointment of the Clermont County Public Defender’s Office and requested appointment of private counsel or the state public defender’s office. (Doc. 27, Exh. 48). In June 2007, petitioner filed a pro se motion for leave to file a supplemental brief pursuant to App. R. 16(C). (Doc. 27, Exh. 49). The Court of Appeals denied both motions. (Doc. 27, Exhs.50, 51). Petitioner, through counsel, raised the following assignments of error in his brief:

1. The trial court erred in finding prison to be consistent with the purposes and principles of sentencing.

2. The trial court erred in sentencing appellant to consecutive prison terms as the record does not support such a sentence.

3. The trial court violated appellant’s constitutional rights by imposing a sentence in contravention with the Sixth and Fourteenth Amendments of the U.S. Constitution and the ex post facto clause.

(Doc. 27, Exh. 52). The State filed a response. (Doc. 27, Exh. 53). On March 3, 2008, the Ohio Court of Appeals overruled the assignments of error and affirmed the judgment of the trial court. (Doc. 27, Exh. 54).

Petitioner filed a timely pro se appeal to the Ohio Supreme Court and reasserted the second and third claims from his appellate brief as his propositions of law. (Doc. 27, Exh. 58, 59). The Ohio Supreme Court denied leave to appeal on July 9, 2008. (Doc. 27, Exh. 67).

Second Federal Habeas Corpus Petition

On January 18, 2008, petitioner filed the instant Petition for Writ of Habeas Corpus setting forth 46 grounds for relief. (Doc. 3). This matter is now ripe for review.

STANDARD OF REVIEW

On federal habeas review, the factual findings of the state appellate court are entitled to a presumption of correctness in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). See McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir.2001). This Court is bound by the state court adjudications unless those decisions are contrary to or an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir.1998).

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits in state court unless the adjudication either:

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).

The phrases “contrary to” and “unreasonable application” have independent meanings:

A federal habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the law set forth in ... [Supreme Court] cases, or if it decides a ease differently that we have done on a set of materially indistinguishable facts. The court may grant relief under the ‘unreasonable application’ clause if the state court correctly identifies the governing legal principle from ... [the Supreme Court’s] decisions but unreasonably applies it to the facts of a particular case. The focus on the latter inquiry is whether the state court’s application of clearly established federal law is objectively unreasonable ... and an unreasonable application is different from an incorrect one.

Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citation omitted).

However, if a state court does not articulate the reasoning behind its decision or fails to address the constitutional issues, the federal court must look at the state court’s decision and conduct an independent inquiry into whether the state court reached a decision contrary to clearly established federal law or based its decision on an unreasonable determination of the facts in light of the evidence presented. Schoenberger v. Russell, 290 F.3d 831, 835 (6th Cir.2002); Harris v. Stovall, 212 F.3d 940, 943 & n. 1 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001). The review is not a full de novo review of the claims, but is deferential to the state court’s determination. Id.

GROUND ONE: Petitioner was denied and/or deprived of his right to a fair and direct criminal appeal in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and is confined in violation thereof.

Ground One of the petition asserts that petitioner was denied his right to a fair direct appeal because the record and transcript contained inaccuracies and alterations. Petitioner asserts that the omissions from the record and trial transcript include:

—a copy of his 1996 tax return, schedule C, profit or loss from business (Doc. 3 at 7);

—testimony by petitioner that he used an old tax return because it was the only one his mother could find (Doc. 3 at 7);

—defendant’s Exhibit F failed to include test results of an audiogram of defense witness Woodrow Gillman (Doc. 3 at 9);

—cross-examination testimony from victim Anna Cmehil that she had spoken with petitioner about her late order (even though on direct exam she testified she had trouble contacting him) (Doc. 3 at 9);

—petitioner’s rebuttal testimony that he made a phone call to Ms. Cmehil on December 30, 2003 only days before his arrest (to show petitioner was staying in frequent contact with Ms. Cmehil, and to rebut Cmehil’s testimony that she “never received a hearing aid from appellant, despite trying to reach him by telephone on several occasions” as set forth in the Ohio Court of Appeals’ decision) (Doc. 3 at 9-10);

■ — testimony from Ms. Cmehil that her son David had also spoken with petitioner (Doc. 3 at 11);

—the transcript at pages 206-207 omits the substance of a sidebar conversation and misidentifies the speakers concerning hearsay testimony given by Detective Lori Saylor who testified about a conversation with petitioner’s supplier of hearing aids to the effect that petitioner was aware payment had to accompany the order for Ms. Cmehil’s hearing aid and that no payment had been received and therefore the manufacturing of Ms. Cmehil’s hearing aid had not begun. (Doc. 3 at 11-12) (Petitioner argues he testified that he was on a cash on delivery system, not cash on order system, and that the hearsay testimony from Detective Saylor was the only direct evidence of petitioner’s intent and was highly prejudicial);

• — testimony from prosecution witness Deputy Steve Seng to the effect that the prosecutor, and not Seng, redacted a witness statement from Deputy Seng’s report (Doc. 3 at 12-13);

—testimony from victim Larry Turner which contradicted earlier testimony and which contradiction was allegedly reflected in trial counsel’s handwritten notes (Doc. 3 at 14);

—petitioner’s testimony about his food allergies: omits the phrase “to over fifty different foods” from the phrase “I’m allergic” (Doc. 3 at 15-16) (to support his other testimony that it was hard for him to work during a two week period in December 2003);

—trial counsel’s statement that petitioner wrote him a letter about the theft of his tools (Doc. 3 at 17-18) (to support his theory that the theft made it hard to conduct business);

—a “boisterous” missing phrase “OH YEAH!” made by the prosecutor during heated questioning (Doc. 3 at 20);

—a statement from prosecutor Anthony Brock to the effect that petitioner had made some restitution which came out of bond money. (Doc. 3 at 20);

—the trial judge’s refusal to share an Indiana probation report with trial counsel or petitioner at sentencing (Doc. 3 at 21); and

—the trial judge’s statement, “That doesn’t mean this isn’t theft.” in response to trial counsel’s argument on penalties (which petitioner argues shows the trial judge’s “strong predisposition towards the petitioner being guilty of theft”)(Doc. 3 at 23).

Respondent contends Ground One is proeedurally defaulted and waived for purposes of habeas corpus review.

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 defendant with federal constitutional claims must first fairly present those claims to the state courts for consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam,); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A constitutional claim for relief must be presented to the state’s highest court in order to satisfy the fair presentation requirement. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir.), cert. denied, 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985). If the petitioner fails to do so, he may have waived the unraised claims for purposes of federal habeas corpus review. See Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir.1989).

The doctrine of procedural default provides:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, 111 S.Ct. 2546, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996).

Federal courts may not consider “contentions of federal law that are not resolved on the merits in the state proceeding due to petitioner’s failure to raise them as required by state procedure.” Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If petitioner fails to fairly present his claims through the requisite levels of state appellate review to the state’s highest court, or commits some other procedural default to preclude review of the merits of petitioner’s claims by the state’s highest court, and if no avenue of relief remains open or if it would otherwise be futile for petitioner to continue to pursue his claims in the state courts, the claims are subject to dismissal with prejudice as waived. See O’Sullivan, 526 U.S. at 847-48, 119 S.Ct. 1728; Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir.1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir.1989). The Sixth Circuit applies a four-part test to determine if a claim is proeedurally defaulted:

(1) 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; (2) the court must determine whether the state courts actually enforced the state procedural sanction; (3) it must be decided 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; and (4) 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 is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir.2001), cert. denied, 535 U.S. 1031, 122 S.Ct. 1639, 152 L.Ed.2d 647 (2002) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986)).

In determining whether a state court rested its holding on a procedural default so as to bar federal habeas review, “the last state court rendering a judgment in the case must have based its judgment on the procedural default.” Simpson v. Jones, 238 F.3d 399, 406 (6th Cir.2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Couch v. Jobe, 951 F.2d 94, 96 (6th Cir.1991)). Normally, a federal habeas court will find that a petitioner procedurally defaulted if the last state court rendering a decision makes a plain statement to that effect. Harris, 489 U.S. at 261, 109 S.Ct. 1038. No such statement is necessary, however, if the petitioner failed to present the relevant issues to the state court. Id. at 263 n. 9, 109 S.Ct. 1038; see also Teague v. Lane, 489 U.S. 288, 297-298, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion)(“The rule announced in Hams v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding.”). In that event, the federal habeas court may hold the claim procedurally defaulted “if it is clear that the state court would hold the claim proeedurally barred.” Harris, 489 U.S. at 263 n. 9, 109 S.Ct. 1038.

If, because of a procedural default, a petitioner can no longer present his claims to a state court, he has waived them unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional errors, or that failure to consider the claims will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In the instant case, the Court finds that Ground One is proeedurally defaulted because petitioner failed to timely appeal this claim, which was asserted in his post-conviction petition, to the Ohio Court of Appeals and his motion for delayed appeal was summarily denied by the appellate court. Under Ohio law, a delayed appeal is not available in civil proceedings. See Ohio Rule of Appellate Procedure 5(A). The Supreme Court of Ohio has specifically held that “a delayed appeal pursuant to App. R. 5(A) is not available in the appeal of a post-conviction relief determination ... [and] that post-conviction relief proceedings will be governed by the Ohio Rules of Appellate Procedure as applicable to civil actions.” State v. Nichols, 11 Ohio St.3d 40, 43, 463 N.E.2d 375, 378 (1984). Since petitioner failed to timely file an appeal from the trial court’s denial of his post-conviction petition and Ohio does not permit delayed appeals from post-conviction relief determinations, the first Maupin factor is met as there is a state procedural rule applicable to petitioner’s claim. The second Maupin factor is satisfied as the Ohio Court of Appeals actually enforced the state procedural rule when it summarily denied petitioner’s motion for a delayed appeal. Although the state appellate court did not explain its reasons for denying the motion for delayed appeal, this Court may presume that the state court would not have ignored its own procedural rule disallowing delayed appeals from post-conviction proceedings. Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir.1996). The inapplicability of delayed appeals under Ohio App. R. 5(A) for denials of post-conviction relief is firmly established and regularly followed by Ohio courts. See Carley v. Hudson, 563 F.Supp.2d 760, 776 (N.D.Ohio 2008) (and cases cited therein). Accordingly, petitioner has procedurally defaulted the claim for relief asserted in Ground One of the petition.

As “cause” for the default, petitioner asserts the state clerk of court failed to provide him with timely notice of the trial court’s decision on his post-conviction motion so that he could timely appeal to the Ohio Court of Appeals. (Doc. 3 at 6). Respondent argues that even assuming petitioner has established cause for the default, he nevertheless fails to show how he has been prejudiced by the failure to consider this claim.

Petitioner bears the burden of showing he was actually prejudiced by the alleged omissions and alterations of which he complains. Rust v. Zent, 17 F.3d 155, 161-162 (6th Cir.1994). See also United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (a petitioner shoulders “the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”). Where there is “strong evidence of a petitioner’s guilt and a lack of evidence to support his claim,” prejudice is not established. Rust, 17 F.3d at 162 (citing Frady, 456 U.S. at 172, 102 S.Ct. 1584). Petitioner must show “‘a reasonable probability’ that the outcome of the trial would have been different.” Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir.2003) (citing Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

In this case, petitioner has failed to satisfy the prejudice standard for overcoming his procedural default. Initially, the Court notes that the state trial court, in reviewing the petition for post-conviction relief and the alleged omissions and alterations of the record and transcript, concluded that “none of the specific factual claims in the Defendant’s affidavits are borne out by the record” and that petitioner “has failed to demonstrate his claim by means of the submitted evidentiary documents.” (Doc. 27, Exh. 32 at 3). These findings of fact by the trial judge who presided over petitioner’s bench trial, heard the testimony, and reviewed the exhibits, are presumed correct in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004). Petitioner has failed to present clear and convincing evidence persuading the undersigned that the trial judge’s findings are incorrect. Rather, he argues that the lack of any “definitive” finding on the part of the trial judge that the transcript of proceedings was accurate “shows the judge was involved at some stage in the state’s scheme to falsify the record of the trial and original sentencing.” (Doc. 41 at 12). Petitioner’s conclusory allegations are insufficient to meet his burden of showing actual prejudice resulting from the alleged constitutional errors.

Moreover, there is strong evidence of petitioner’s guilt and a lack of evidence supporting his claim. Rust, 17 F.3d at 162. The trial judge determined there was “oveiwhelming” evidence, both direct and circumstantial, of petitioner’s guilt. (Doc. 27, Tr. at 393). A review of the record in this case shows that petitioner was engaged in the selling and fitting of hearing aids during the time period alleged in the indictment and that he did so without being properly licensed. None of the alleged omissions or alterations cited by petitioner in his petition contradict or challenge the evidence supporting the guilty finding on these charges. With respect to the convictions of theft from elderly persons, there is strong evidence showing petitioner visited four elderly persons at their homes and received cash and checks for hearing aids which he failed to deliver to them. The gist of petitioner’s defense was that he did not have the requisite intent to defraud these individuals, but that other circumstances, including his health and the theft of his business tools, prevented him from following through on the contracts. The alleged alterations and omissions set forth in the petition, at most, lend circumstantial support to petitioner’s defense in this case. Yet, the intent element of the theft offenses rested in large part on a question of petitioner’s credibility which the trial judge resolved against petitioner. (Doc. 27, Tr. 393). There was ample evidence from which the trial judge could conclude beyond a reasonable doubt that petitioner had the requisite purpose to deprive these elderly persons of their property by deception under Ohio Rev.Code § 2913.02(A)(3) and (B)(3).

Petitioner has failed to show a reasonable probability that the outcome of his appeal would have been different if the alleged omissions and alterations were included in the record of this case. Mason, 320 F.3d at 629. See also Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.1986). Petitioner has failed to satisfy the prejudice element to overcome the procedural default bar in this case.

Nor has petitioner shown that if his claims are not considered on the merits a “fundamental miscarriage of justice” will occur, that is, that the alleged constitutional violations “probably resulted in the conviction of one who is actually innocent” of the crimes charged. See Murray, 477 U.S. at 495-96, 106 S.Ct. 2639; see also Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); cf. Souter v. Jones, 395 F.3d 577, 597-602 (6th Cir.2005). It is well-established that “ ‘[a]ctual innocence’ means factual innocence, not mere legal insufficiency.” Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir.2006) (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). To establish a credible claim of actual innocence, petitioner must “support his allegations of constitutional error with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. See also Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 427 (6th Cir.2003). Petitioner has failed to present any new, reliable evidence that was not available at his trial showing he is actually innocent of the crimes for which he was convicted. Rather, the “evidence” he presents is evidence he states was in fact presented at trial, but allegedly omitted from the transcript and record on appeal in this case. Petitioner has failed to show this is the “extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. Accordingly, Ground One of the petition is proeedurally defaulted and waived for purposes of federal habeas review.

GROUND TWO: Petitioner was denied the effective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and is confined in violation thereof.

Ground Two of the petition asserts that trial counsel David McCune was ineffective for failing to object to the use of a presentence investigation report which erroneously stated that petitioner was on probation at the time of the offenses during his first sentencing hearing. (Doc. 3 at 26). This claim should be denied as moot because petitioner’s original sentence was reversed by the Ohio Supreme Court and at his new sentencing hearing petitioner through new counsel was granted the opportunity to address any matters related to his sentence.(Doc. 27, Exh. 72, Tr. at 6-12). See Fredette v. Hemingway, 65 Fed.Appx. 929, 931 (6th Cir.2003) (citing United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). See also Pruitt v. Wilson, No. 1:06cv3048, 2008 WL 5378341, at *1 (N.D.Ohio Dee.19, 2008) (state appellate court’s order vacating petitioner’s 2004 sentence and remanding for resentencing under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), rendered petitioner’s habeas claim challenging his 2004 sentence moot; present incarceration resulted from sentence imposed in 2008 after remand, and not on original 2004 sentence). Moreover, since petitioner was granted a new sentencing hearing he suffered no prejudice as a result of counsel’s alleged failure to object to the use of the presentence investigation report at the original sentencing hearing. Thus, petitioner fails to establish an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, Ground Two of the petition should be denied.

GROUND THREE: Due to improprieties committed in the clerk’s office, petitioner was denied a fair review of his conviction and sentence on post-conviction relief, in violation of his due process and/or equal protection rights under the Fourteenth Amendment; and the state appellate corrective process is inadequate or ineffective to protect his rights.

Ground Three asserts that petitioner was denied a fair review of his state court postconviction petition because “a substantial and significant portion of petitioner’s petition for post conviction relief ... is missing” and that the “state appellate corrective process is inadequate or ineffective to protect his rights.” (Doc. 3 at 30).

Petitioner’s allegation of error fails to give rise to a cognizable constitutional claim subject to review in this federal habeas proceeding. The Sixth Circuit has held that “habeas corpus is not the proper means by which prisoners should challenge errors or deficiencies in state post-conviction proceedings.” Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.2001) (rejecting as noncognizable in habeas corpus claim that Ohio’s post-conviction scheme fails to provide defendants an adequate corrective process for reviewing claims of constitutional violations) (citing Kirby v. Dutton, 794 F.2d 245 (6th Cir.1986)), cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Federal habeas review is not available to attack the legality of post-conviction proceedings because such proceedings are not related to a petitioner’s detention. Kirby, 794 F.2d at 247; see also Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.2007); Alley v. Bell, 307 F.3d 380, 387 (6th Cir.2002). Petitioner’s claim “must directly dispute the fact or duration of the confinement.” Kirby, 794 F.2d at 248 (citing Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). A ground for relief that challenges the correctness of a state judicial proceeding and does not dispute the detention itself is not cognizable. See Kirby, 794 F.2d at 247-48.

Petitioner’s claims that his post-conviction relief proceedings were rendered unfair by the omission of exhibits and that “the state appellate corrective process is inadequate or ineffective to protect petitioner’s rights” challenge the correctness of the state post-conviction process and not the conviction itself Allegations of error in this process are not cognizable on federal habeas corpus review. Kirby, 794 F.2d at 247-48. Therefore, Ground Three should be denied.

GROUND FOUR: Petitioner was denied and/or deprived of his appeal as of right on post conviction in violation of his due process and/or equal protection rights under the Fifth and Fourteenth Amendments to the U.S. Constitution; petitioner was denied and/or deprived of the prisoner right of access to the courts in violation of the First and Fourteenth Amendments to the U.S. Constitution.

Ground Four of the petition asserts that the clerk of the state common pleas court altered the appearance docket to erroneously reflect that petitioner had been given proper notice of the Entry overruling his state court petition for post-conviction relief. (Doc. 3 at 35). Petitioner argues that as a result of the clerk’s actions he was deprived of a timely direct appeal and denied his right of access to the courts. (Doc. 3 at 35-39).

For the reasons set forth for the denial of Ground Three of the petition, Ground Four of the petition is not cognizable in habeas corpus and should be denied. See also Crim v. Money, No. 1:05-cv-1465, 2006 WL 2164673, at *5 (N.D.Ohio July 31, 2006) (denying access to the courts claim as not challenging fact or duration of confinement) (citing Young v. Martin, 83 Fed.Appx. 107, 108-09 (6th Cir. Dec.05, 2003)). GROUND FIVE: The process of petitioner’s post-conviction relief investigation and proceedings were fundamentally unfair due to the egregious conduct committed by court appointed counsel on post-conviction, in violation of petitioner’s right to equal protection and due process under the Fourteenth Amendment to the U.S. Constitution; and the state appellate corrective process is inadequate or ineffective to protect petitioner’s rights.

For the reasons set forth in regards to Ground Three of the petition, Ground Five of the petition is not cognizable in habeas corpus and should be denied. To the extent Ground Five also alleges the ineffective assistance of counsel on post-conviction relief, this ground for relief should be denied because petitioner has no constitutional right to counsel on post-conviction relief. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir.2001).

GROUND SIX: The appellate court erred when it failed to take into consideration the statutory mandates of R.C. 4747.13(B), in violation of petitioner’s right to due process under the Fourteenth Amendment to the U.S. Constitution, upon motion for reconsideration.

Ground Six of the petition asserts the Ohio Court of Appeals erred when, on petitioner’s motion for reconsideration of the denial of his direct appeal, the court failed to address petitioner’s third assignment of error raised in the motion for reconsideration concerning the applicability of Ohio Rev.Code § 4747.13(B) and when the clerk of court failed to timely serve him with the court’s decision. (Doc. 3 at 45-46).

To the extent petitioner argues that he was denied due process by the Ohio Court of Appeals’ alleged failure to address in writing his third assignment of error raised in his motion for reconsideration, his sixth ground for relief is without merit. The Ohio Court of Appeals addressed and rejected petitioner’s argument that the state was required to follow the procedures for a complaint against a licensee outlined in Ohio Rev.Code § 4747.13 (which was the third assignment of error in petitioner’s motion for reconsideration) in its initial decision on direct appeal. (Doc. 27, Exh. 14 at 9-10). Petitioner, in his motion for reconsideration, simply attempted to reargue an issue he lost which is an inappropriate basis for a motion for reconsideration. See State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956, 957 (1996) (“An application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court, App. R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law.”). Petitioner has failed to show that he was denied due process by the Court of Appeals’ failure to again address in writing an issue already considered and rejected. “In any event, a criminal defendant has no federal constitutional right to a ruling on every assignment of error because there is no general federal constitutional right to any appeal.” McCoy v. Warden, Lebanon Correctional Inst., No. 1:07cv018, 2008 WL 207847, at *6 (S.D.Ohio Jan.24, 2008) (Barrett, J.) (citing McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894) and Lopez v. Wilson, 426 F.3d 339, 355 (6th Cir.2005)). Likewise, petitioner suffered no prejudice as a result of the clerk of court’s alleged failure to timely serve him with the Court of Appeals’ decision since he was free to raise this particular assignment of error on appeal to the Ohio Supreme Court on his direct appeal, Ground Six is without merit and should be denied.

GROUND SEVEN: Petitioner was denied the effective assistance of counsel on appeal to the State Supreme Court wherein counsel failed to raise the issue raised on direct appeal [Third Assignment of Error] that the trial court erred in failing to recognize the state was required to pursue remedies against the petitioner in accordance with R.C. 4747.02 et seq., in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution.

Ground Seven asserts that counsel on appeal to the Ohio Supreme Court failed to raise as a proposition of law that “[t]he trial court erred to the prejudice of defendant-appellant in failing to recognize that the state was required to pursue remedies against the appellant in accordance with RC 4747.02, et. seq.,” the third claim of error asserted on direct appeal to the Ohio Court of Appeals. (Doc. 3 at 49, Doc. 27, Exh. 12). Petitioner’s ineffective assistance of appellate counsel claim is non-cognizable because petitioner had no right to counsel on discretionary appeal to the Ohio Supreme Court. The constitutional right to appointed counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Coleman v. Thompson, 501 U.S. 722, 751-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “There can be a constitutional claim of ineffective assistance of counsel only at a stage of the proceedings when there is a right to counsel under the Sixth Amendment.” Smith v. State of Ohio Dept. of Rehabilitation and Corrections, 463 F.3d 426, 433 (6th Cir.2006) (citing Coleman, 501 U.S. at 752, 111 S.Ct. 2546). Therefore, the ineffective assistance of appellate counsel claim raised as Ground Seven of the petition should be denied.

GROUND EIGHT: The trial court erred in failing to dismiss the R.C. 4747.02 indictments, wherein as a matter of law petitioner could not be convicted of said violations based upon the theft indictments, and appellate counsel and counsel on appeal to the State Supreme Court were ineffective for not raising the issues, in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution. Petitioner’s trial was rendered fundamentally unfair due to the theft convictions which were predicated on the same questions of law and fact as the convictions on the hearing aid indictments.

To the extent Ground Eight raises a claim that petitioner’s appellate counsel in the Ohio Supreme Court provided ineffective assistance, this claim should be denied for the reasons set forth for the denial of Ground Seven.

Ground Eight also alleges that the trial court erred in failing to dismiss petitioner’s indictment for engaging in a hearing aid business without a license under Ohio Rev.Code 4747.02 because the offense requires the sale of the hearing aid which did not occur in this case. Petitioner failed to raise this claim on direct appeal and has therefore procedurally defaulted the claim. See Lordi v. Ishee, 384 F.3d 189, 194 (6th Cir.2004); Rust, 17 F.3d 155, 160-61.

Although petitioner argues that appellate counsel was ineffective for failing to raise this issue on direct appeal, his ineffective assistance of counsel claim cannot serve as cause for his procedural default or as an independent claim for relief because this ground has in itself been procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Petitioner raised the ineffective assistance of appellate counsel claim in his Rule 26(B) motion to reopen his direct appeal, but procedurally defaulted this claim when he failed to appeal the denial of his Rule 26(B) motion to the Ohio Supreme Court. Petitioner never filed a notice of appeal from the denial of his motion to reopen and may not now file a delayed appeal under Rule II, Section 2(A)(4)(b), Rules of Practice of the Supreme Court of Ohio (“The provision for delayed appeal applies to appeals on the merits and does not apply to appeals involving posteonviction relief....”). Therefore, his ineffective assistance of appellate counsel claim cannot serve as cause for his procedural default.

Petitioner again argues that his procedural default should be excused because he is “actually innocent” of the crime of engaging in the hearing aid business without a license. (Doc. 41 at 53). Petitioner contends that the offense requires the actual sale of a hearing aid, meaning the actual transference of a hearing aid to the buyer, and the theft indictment established that no sale of a hearing aid ever occurred. Id.

Petitioner presents no new evidence of his innocence. Schlup, 513 U.S. at 327, 115 S.Ct. 851. Instead, petitioner reiterates the argument he made before the trial court on his Rule 29 motion for acquittal (Doc. 27, Tr. 221-222) alleging the “legal insufficiency” of his conviction under Ohio Rev.Code § 4747.02 and not his “factual innocence” on the basis of new, reliable evidence. Absent new evidence of innocence, “even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Schlup, 513 U.S. at 316, 115 S.Ct. 851. Since actual innocence requires a showing of factual innocence, and not mere legal insufficiency, Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), petitioner’s argument does not excuse the procedural default of Ground Eight of the petition. Accordingly, Ground Eight of the petition is proeedurally defaulted and waived.

GROUND NINE: As a matter of law the petitioner could not be convicted of the crime of theft by deception and engaging in the hearing aid business without a license based upon the same conduct or act, and appellate counsel on direct appeal was ineffective for not raising the issue, in violation of the Sixth amendment and due process under the Fourteenth Amendment to the U.S. Constitution.

For the reasons set forth above with respect to Ground Eight of the petition, Ground Nine of the petition should be denied.

GROUND TEN: As a matter of law the petitioner could not be convicted of the crime of theft by deception and engaging in the hearing aid business without a license based upon the same conduct or act, and counsel on appeal to the State Supreme Court was ineffective for not raising the ineffectiveness of trial and appellate counsel in failing to raise the issue, in violation of the Sixth Amendment and Fourteenth Amendments to the U.S. Constitution.

For the reasons set forth above with respect to Ground Seven of the petition, Ground Nine of the petition should be denied.

GROUND ELEVEN: The appellate court erred to the substantial prejudice of the appellant-petitioner wherein it failed to consider the requisite culpable mental state of mind for commission of theft, and failed to consider the merits thereof raised upon petitioner’s motion for reconsideration, in violation of due process under the Fourteenth Amendment to the U.S. Constitution.

Petitioner contends the Ohio Court of Appeals erred when it denied his motion for reconsideration and thereby failed to consider the merits of the issue of culpability presented for review. (Doc. 3 at 62). The Court of Appeals declined to consider the merits of the culpability issue because petitioner failed to raise it on appeal. (Doc. 27, Exh. 18). Petitioner disagrees with the Court of Appeals, stating “the court raised or addressed the issue itself in denying relief on direct appeal. The court stated in its August 1, 2005 Opinion confirming petitioner’s convictions that the crime of theft was complete once the petitioner deprived the victims of their money by deception.” (Doc. 3 at 62).

If, as petitioner argues, the Ohio Court of Appeals already addressed the culpability issue on direct appeal, petitioner was not deprived of due process by the Court of Appeals’ failure to again address the issue on petitioner’s motion for reconsideration. In any event, petitioner’s challenge to the propriety of the proceedings on his motion for reconsideration addresses collateral matters unrelated to his detention and is not cognizable on habeas corpus review. Kirby, 794 F.2d at 247.

GROUND TWELVE: Petitioner was denied the effective assistance of counsel on appeal to the State Supreme Court wherein counsel failed to raise petitioner’s first assignment of error (2nd issue presented for review) previously raised on direct appeal, in violation of the Sixth Amendment right to effective assistance of counsel and the Fourteenth Amendment right to due process.

Petitioner’s ineffective assistance of appellate counsel claim is non-cognizable because petitioner had no right to counsel on discretionary appeal to the Ohio Supreme Court. The constitutional right to appointed counsel extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Coleman v. Thompson, 501 U.S. 722, 751-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “There can be a constitutional claim of ineffective assistance of counsel only at a stage of the proceedings when there is a right to counsel under the Sixth Amendment.” Smith v. State of Ohio Dept. of Rehabilitation and Corrections, 463 F.3d 426, 433 (6th Cir.2006) (citing Coleman, 501 U.S. at 752, 111 S.Ct. 2546). Therefore, the ineffective assistance of appellate counsel claim raised as Ground Twelve of the petition should be denied.

GROUND THIRTEEN: Petitioner was denied the effective assistance of counsel on appeal to the State Supreme Court wherein counsel failed to raise petitioner’s second assignment of error previously raised on direct appeal of the excessive sentence, in violation of the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

For the reasons stated with respect to Ground Twelve of the petition, Ground Thirteen of the petition should be denied as noncognizable.

GROUND FOURTEEN: Petitioner was denied the effective assistance of appellate counsel wherein counsel failed to challenge and argue the petitioner’s denial to a complete and accurate record on appeal in violation of the Sixth and Fourteenth Amendments; and the appellate court erred wherein said appeal was decided on misinformation in the official appeal record, in violation of petitioner’s right to due process under the Fourteenth Amendment to the U.S. Constitution.

Petitioner asserts that appellate counsel was ineffective for failing to argue on direct appeal that petitioner was denied a full record on appeal when a sidebar conference was not recorded and made part of the record on appeal. (Doc. 3 at 71). Petitioner raised his ineffective assistance of appellate counsel claim in his application to reopen the direct appeal under Ohio App. R. 26(B). However, petitioner procedurally defaulted this claim of error when he failed to appeal the denial of his Rule 26(B) application to the Ohio Supreme Court. As discussed above, petitioner has failed to show cause or prejudice excusing the procedural default, or a fundamental miscarriage of justice. Therefore, Ground Fourteen of the petition should be denied. GROUND FIFTEEN: Petitioner’s trial was fundamentally unfair and the integrity thereof violated by improprieties by the judge (trier of fact) wherein he knowingly allowed the state to engage in a surreptitious sidebar discussion with defense counsel, in violation of the Fourteenth Amendment to the U.S. Constitution. And the state appellate corrective process is inadequate to protect his constitutional rights.

Ground Fifteen of the petition asserts that the trial transcript at pages 206-207 omits the substance of a sidebar conversation and misidentifies the speakers concerning hearsay testimony given by Detective Lori Saylor. Detective Saylor testified that during a conversation with petitioner’s supplier of hearing aids, the supplier informed Detective Saylor that the supplier “had called Mr. Wright and informed him that they needed payment.” (Tr. at 206). Defense counsel’s hearsay objection was sustained by the trial court. Id. At that point, a sidebar conference ensued which, according to petitioner, was not transcribed in full. Following this sidebar, defense counsel withdrew the objection stating, “Your Honor, after 1 discussed it with Mr. Wright, we’ve agreed to withdraw the objection.” (Tr. at 207, line 10-11).

Petitioner asserts that the sidebar conversation between the prosecutor, defense counsel, and the trial judge raised petitioner’s suspicions that something “fishy” was going on. (Doc. 41, Exh. 6, Wright Aff., ¶ 8). Petitioner states that he testified he was on a cash on delivery system, not a cash on order system, and that the hearsay testimony from Detective Saylor was the only direct evidence of petitioner’s intent and was highly prejudicial to his defense.

First, petitioner procedurally defaulted this claim by failing to raise it on direct appeal to the Ohio Court of Appeals. As discussed above, petitioner has failed to show cause or prejudice excusing the procedural default, or a fundamental miscarriage of justice.

Second, petitioner does not dispute that he conferred with his lawyer immediately following the trial court’s initial ruling and “assumed he [defense counsel] knew what he was doing” when defense counsel withdrew the objection. (Doc. 41, Exh. 6, Wright Aff., ¶2). By withdrawing the objection, petitioner waived any claim of error as to the admission of the hearsay testimony and cannot now claim the admission of such testimony violated his right to a fair trial.

GROUND SIXTEEN: Petitioner was denied the effective assistance of appellate counsel, in violation of the Sixth and Fourteenth Amendments; and the state appellate corrective process is ineffective to protect petitioner’s rig