David A. Nesser, Jr v. States District Court for the : Southern District of Ohio Jeffrey Wolfe, Warden

The Honorable William O. Bertelsman, United States District Judge for the Eastern District*
of Kentucky, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0190n.06
No. 07-3932
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID A. NESSER, JR. :
:
Petitioner-Appellant, :
: ON APPEAL FROM THE UNITED
v. : STATES DISTRICT COURT FOR THE
: SOUTHERN DISTRICT OF OHIO
JEFFREY WOLFE, WARDEN, :
:
Respondent-Appellee. :
BEFORE: MOORE, KETHLEDGE, Circuit Judges; BERTELSMAN, District Judge.*
BERTELSMAN, District Judge:
Petitioner-Appellant, David A. Nesser, Jr., appeals the district court denial of his petition for
habeas corpus relief under 28 U.S.C. § 2254. Nesser was convicted in Ohio state court in 2002 for
three counts of gross sexual imposition and sentenced to nine years’ imprisonment. Nesser contends
that the district court erred in rejecting his claim that his sentence was unconstitutionally imposed,
that his trial and appellate counsel were ineffective, and that any procedural defaults should be
excused because he is actually innocent.
We AFFIRM.

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The victim was the son of a woman with whom Nesser was living at the time. At the time1
of these offenses, Nesser was on non-reporting probation for a felony conviction in Florida for “lewd
and lascivious acts in front of a child.”
See Ohio Appellate Rule 26(B)(7).2
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Ohio State Court Proceedings
Petitioner-Appellant, David A. Nesser, Jr. (“Nesser”), was indicted in August 2001 in
Licking County, Ohio on three counts of gross sexual imposition involving a three-year-old boy in
violation of Ohio Revised Code § 2907.05. A jury convicted Nesser of these charges, and he was1
sentenced on October 3, 2002 to three, three-year terms, to run consecutively.
Nesser’s counsel filed a Notice of Appeal, but the appeal was dismissed for want of
prosecution because Nesser’s counsel failed to file an appellate brief.
On December 30, 2004, Nesser filed a pro se application to reopen his appeal on the grounds
of ineffective assistance of counsel under Ohio Appellate Rule 26(B). By entry dated February 15,
2005, the Ohio Court of Appeals granted Nesser’s motion to reopen, vacated the prior order of
dismissal, and ordered the case to proceed “as if on initial appeal.”2
Nesser was appointed appellate counsel, who filed a brief on Nesser’s behalf on June 17,
2005. This brief stated one Assignment of Error: “The trial court erred in ordering consecutive
service of Nesser’s prison terms.” The brief did not raise a claim under Blakely v. Washington, 542
U.S. 296 (2004), which had been decided on June 24, 2004.

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This appeal also attempted to raise issues included in the Ohio Court of Appeals decision3
of August 18, 2005.
3
On August 18, 2005, the Court of Appeals affirmed the trial court judgment. Nesser did not
appeal to the Ohio Supreme Court.
On December 9, 2005, Nesser filed a second pro se motion to reopen his appeal under Ohio
Appellate Rule 26(B). Therein, he raised new claims that his sentence was unconstitutional under
Blakely and that his second appointed counsel was ineffective for failing to raise a Blakely issue in
the reopened appeal. The Court of Appeals denied Nesser’s motion as successive and barred by res
judicata. Nesser filed a timely appeal of this denial to the Ohio Supreme Court, which the Court
dismissed on March 29, 2006, as not involving any substantial constitutional question.3
In 2005, while his direct appeal was pending, Nesser filed three post-conviction petitions in
the state trial court. The first, filed on June 3, 2005, argued that he had been denied effective
assistance of trial counsel because his attorney failed to prepare for trial or interview witnesses. The
trial court denied that petition on July 7, 2005. Nesser did not appeal from this denial.
On August 1, 2005, Nesser filed a second Motion for Post-Conviction Relief with the state
trial court, arguing that his sentence violated Blakely. The trial court denied that motion, finding
Blakely inapplicable and the motion barred by res judicata. Nesser did not appeal this ruling.
Finally, on April 4, 2006, Nesser filed a state habeas corpus petition in the Ohio Supreme
Court, asserting that his sentence violated Blakely. On May 24, 2006, the Ohio Supreme Court
dismissed that petition sua sponte.

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In State v. Foster, 845 N.E.2d 470 (2006), the Ohio Supreme Court declared unconstitutional4
Ohio statutes requiring judicial fact-finding before imposing maximum and consecutive prison
terms.
4
B. Federal Court Proceedings
On June 30, 2006, Nesser filed the instant pro se petition for writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, challenging his conviction and sentence. As grounds for this petition, Nesser
alleges: (1) violation of Blakely and the Sixth Amendment because his sentence was based upon
findings of the trial court alone; (2) denial of due process, equal protection and constitutional rights
by the Ohio courts; (3) the decision of the Ohio Supreme Court in State v. Foster violates due4
process and the separation of powers doctrine; (4) ineffective assistance of counsel; and (5) denial
of constitutional rights because his trial was unfair and he is actually innocent.
On April 16, 2007, the United States Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending that Nesser’s petition be denied and dismissed as unexhausted and
procedurally defaulted. As to Nesser’s first three claims, which all substantively allege Blakely
violations, the Magistrate Judge noted that Nesser had not raised any of these claims in his reopened
state appeal; instead, he had argued only that his sentence was improper and disproportional given
the seriousness of his offense and the danger he posed to the community.
However, the Magistrate Judge noted that Nesser, in his second motion to reopen his appeal,
had alleged both that he was denied effective assistance of counsel in his reopened appeal and that
his sentence violated Blakely. Further, although Nesser, in his appeal to the Ohio Supreme Court,
appeared to be attempting to appeal both the state appellate court’s denial of his first appeal as well

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as its denial of the second motion to reopen, such attempt to raise any Blakely issue therein would
have been futile because the Ohio Supreme Court normally does not entertain claims not raised
below. Thus, the Magistrate Judge noted that Nesser should be deemed to have exhausted his Ohio
state court remedies for his Blakely claim.
However, the Magistrate Judge recommended that Nesser’s Blakely claims were nonetheless
procedurally barred because: (1) the Ohio Supreme Court refused to hear Nesser’s Blakely claim in
his January 17, 2006 appeal; (2) Nesser had not demonstrated cause for his failure to raise a Blakely
claim in his reopened appeal; (3) although Nesser raised a Blakely claim in his August 1, 2005 post-
conviction petition, the state trial court denied that claim, Nesser did not appeal, and Ohio does not
permit delayed appeals in post-conviction proceedings; and (4) although Nesser raised a Blakely
claim in his state habeas petition, Ohio does not permit issues that could have been litigated on
appeal to be presented through a habeas petition.
As to Nesser’s other claims, the Magistrate Judge recommended that they be dismissed
because, although Nesser had raised them in his post-conviction proceedings, he never appealed the
rulings disposing of them.
Nesser filed pro se objections to the R&R which, other than asserting actual innocence, made
no substantive challenge to the Magistrate Judge’s analysis.
By order dated June 19, 2007, the district court overruled Nesser’s objections. The court
noted that, while a claim of actual innocence can in some instances provide a basis for habeas relief
even where the petition is otherwise procedurally barred, Nesser’s assertion of innocence was not
supported by the record at trial. That record, the district court recounted, contains explicit evidence

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Given that the district court dismissed Nesser’s claims as procedurally defaulted, a recent5
decision of this court calls into question whether the COA should have been granted in this matter.
See Webb v. Mitchell, 586 F.3d 383, 401 (6th Cir. 2009).
6
that Nesser did, in fact, commit the offenses for which he was charged and that he admitted the same
to the detective who investigated the case. The district court thus dismissed Nesser’s petition.
Nesser filed a timely notice of appeal, and the district court thereafter granted Nesser’s
motions for a certificate of appealability (“COA”) and to proceed in forma pauperis.5
ANALYSIS
This court reviews de novo the district court’s dismissal of a petition for habeas corpus.
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009) (citation omitted).
A. Exhaustion and Procedural Default
“Ordinarily, state prisoners must exhaust available state remedies by, among other things,
fairly presenting their federal claims to the state courts before petitioning for a federal writ of habeas
corpus.” Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009) (citations omitted). “Due to
longstanding policies of comity and respect between state and federal courts, a habeas petitioner
must give the state courts the first opportunity to consider and rule upon the federal claims the
prisoner wishes to use to attack his state court conviction.” Id. (citation omitted).
“In situations in which a petitioner has failed to fairly present federal claims to the state
courts, and a state procedural rule now prohibits the state court from considering them, the claims
are considered procedurally defaulted.” Id. (citation omitted). “While in such situations the
exhaustion requirement is technically satisfied because there are no longer any state remedies

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available to the petitioner . . ., the petitioner’s failure to have the federal claims considered in the
state courts results in a procedural default of those claims that bars federal court review.” Id.
(quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)).
A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to comply with
a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an
adequate and independent state ground for denying review of a federal constitutional claim; and (4)
the petitioner cannot show cause and prejudice excusing the default. Webb, 586 F.3d at 397 (citation
omitted). See also Palmer v. Bagley, 330 F. App’x 92, 100 (6th Cir. 2009) (“The procedural default
bar, as applied in the habeas context, ‘precludes federal courts from reviewing claims that a state
court has declined to address, because of a petitioner’s noncompliance with a state procedural
requirement.’”) (quoting Howard v. Bouchard, 405 F.3d 459, 475 (6th Cir. 2005)), petition for cert.
filed, (Dec. 16, 2009) (No. 09-8207).
B. Blakely Claims
Here, the district court found that Nesser procedurally defaulted his three claims which are
based on alleged violations of Blakely.
The record demonstrates that Nesser did not raise a Blakely claim in his reopened state
appeal, although Blakely had been decided the previous year. Nor did Nesser take a timely appeal
of the August 18, 2005 decision of the Ohio Court of Appeals affirming his sentence. As the
respondent notes, had Nesser done so, his case may then have been pending on direct review at the
time that the Ohio Supreme Court issued its Foster decision in 2006, and the Ohio Supreme Court
might have reviewed his Blakely claim notwithstanding that it was not raised below. See State v.

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We therefore need not reach the adequacy of the Ohio Court of Appeals’s ruling that6
Nesser’s second motion to reopen was improperly “successive.” We also decline to reach the issue
of whether a constitutionally-imposed right to counsel even attached to the proceedings pursuant to
Nesser’s reopened appeal under Ohio Rule of Appellate Procedure 26(B). See Lopez v. Wilson, 426
F.3d 339 (6th Cir. 2005) (en banc); Morgan v. Eads, 818 N.E.2d 1157 (Ohio 2004). In those cited
cases, this court and the Ohio Supreme Court respectively held that Rule 26(b) proceedings are
collateral, post-conviction proceedings, rather than part of the direct criminal appeal, and that there
is thus no right to appointed counsel therein.
8
Buchanan, No. 05 MA 60, 2006 Ohio App. LEXIS 5649, at *18-*21 (Ohio App. Oct. 26, 2006).
Because Nesser failed to take an appeal, however, such review was and is not available. See State
v. Silsby, 894 N.E.2d 667, 670 (Ohio 2008) (review of alleged Foster sentencing error not available
in delayed appeal where action was not pending on direct review at the time Foster was decided).
Nesser also has not demonstrated cause for his failure to raise a Blakely claim in his reopened
appeal. Nesser argues that his second appointed appellate counsel was ineffective for failing to argue
that the fact-finding engaged in by the state trial judge as a basis for imposing consecutive sentences
was improper. We conclude, however, that Nesser cannot show the necessary prejudice for an
ineffective assistance of counsel claim because intervening controlling case law has held that the
Sixth Amendment does not exclude a state’s practice of requiring a judge to find certain facts before
he sentences the defendant to consecutive, rather than concurrent, terms of imprisonment. See Evans
v. Hudson, 575 F.3d 560, 566 (6th Cir. 2009) (discussing Oregon v. Ice, __ U.S. __, 129 S. Ct. 711
(2009)).6
Nesser also procedurally defaulted his Blakely claim in his state post-conviction proceedings.
Although raised in his August 1, 2005 Motion for Post-Conviction Relief, Nesser’s Blakely claim
was rejected by the state trial court, and Nesser failed to appeal that ruling. He can no longer do so

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because Ohio does not permit delayed appeals in post-conviction proceedings, and this is an
adequate and independent ground upon which to deny relief. See Stojetz v. Ishee, 389 F. Supp.2d
858, 885-86 (S.D. Ohio 2005) (citing State v. Nichols, 463 N.E.2d 375, 378 (Ohio 1984)).
Finally, although Nesser asserted a Blakely claim in his state habeas petition filed on April
4, 2006, it is well-established under Ohio law that sentencing errors are not jurisdictional and thus
are not cognizable in state habeas petitions. State ex rel Shackleford v. Moore, 878 N.E.2d 1035,
1036 (Ohio 2007) (citing earlier cases so holding). Rather, such errors must be raised via appeal or
in post-conviction proceedings. Id.
For these reasons, the district court correctly held that Nesser is procedurally barred from
seeking federal habeas relief based on alleged violations of Blakely.
C. Ineffective Assistance of Trial Counsel
Nesser also procedurally defaulted his claim for ineffective assistance of trial counsel, the
fourth basis for his petition in this matter. Although he raised this claim in his first post-conviction
proceeding, he failed to appeal from the state trial court’s denial of his motion. As already noted,
Nesser may not take a delayed appeal from that denial.
D. “Actual Innocence”
An exception to the bar of exhaustion and procedural default exists in “exceedingly narrow”
circumstances where a “petitioner can show that a constitutional violation has probably resulted in
the conviction of a factually innocent person.” Pudelski v. Wilson, 576 F.3d 595, 606 n.2 (6th Cir.
2009) (citation omitted). To establish a claim of actual, factual innocence, the petitioner must
present new evidence that shows that it is more likely than not that no reasonable juror would have

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convicted him in the light of the new evidence. Id. (citation omitted). This standard is “demanding
and permits review only in the ‘extraordinary’ case.” Id. (quoting House v. Bell, 547 U.S. 518, 538
(2006)).
Nesser presented to the district court no new evidence, much less evidence which would
make it more likely than not that a reasonable jury would not have convicted him in light thereof.
Nesser merely reargued the evidence that was before the Ohio jury in a light which, he argues,
suggests his innocence. The district court noted that such a showing was insufficient, and that the
record contained strong evidence of Nesser’s guilt, including his confession.
The district court thus correctly rejected Nesser’s claim of actual innocence as a basis for his
petition.
For the foregoing reasons, we AFFIRM.

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KAREN NELSON MOORE, Circuit Judge, concurring. Although I concur with the
majority’s denial of Nesser’s petition for writ of habeas corpus, I disagree with its treatment of the
case’s procedural history. I therefore write separately to make clear that by “vacat[ing] the [March
25, 2003] prior order of dismissal” and ordering that Nesser’s “matter . . . proceed as if on initial
appeal,” Joint Appendix (“J.A.”) Vol I at 58, the Court of Appeals of Ohio treated the appeal
commencing on June 17, 2005, as Nesser’s first appeal of right. As a result, the Ohio Court of
Appeals’ subsequent dismissal of Nesser’s December 9, 2005 Rule 26(B) motion as res judicata was
patently erroneous. See J.A. Vol. I at 93. At no other point would Nesser have been able to
challenge the effectiveness of the appellate attorney who litigated his June 17, 2005 appeal and who
failed to raise the Blakely-related claims.
Given that the June 17, 2005 appeal was Nesser’s appeal of right, Nesser had a right to
effective assistance of counsel during that appeal. It is undisputed that Nesser’s appellate counsel
failed to raise the Blakely-related claims currently before the panel, and Nesser now argues that the
ineffective assistance of that counsel can serve as cause and prejudice to excuse his procedural
default. Even assuming that his appellate counsel was deficient in failing to raise the Blakely-related
claims, I agree with the majority that Nesser cannot show the necessary prejudice. Intervening
controlling case law has held that “‘the Sixth Amendment does not exclude’ a state’s practice of
requiring a judge to find certain facts before she [or he] can sentence a defendant to consecutive,
rather than concurrent, terms of imprisonment,” which is the practice that Nesser challenges. Evans
v. Hudson, 575 F.3d 560, 566 (6th Cir. 2009) (quoting and discussing Oregon v. Ice, – U.S. –, 129

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S. Ct. 711, 714–15 (2009)). For these reasons, I concur with the majority’s judgment and would
deny Nesser’s petition.

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