Boyd v. Warden, Madison Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ROBERT BOYD,
Petitioner, 	: 	Case No. 1:25-cv-00455
- vs - 	District Judge Jeffery P. Hopkins
Magistrate Judge Michael R. Merz
WARDEN, Madison Correctional
Institution,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Robert Boyd, is before the Court on
Petitioner’s Objections (“Objections,” ECF No. 39) to the pending Report and Recommendations
which recommends dismissal (“Report,” ECF No. 29). District Judge Hopkins has recommitted
the case for a supplemental report considering the Objections (ECF No. 40).
Petitioner has structured his Objections as a re-argument of all the claims that he has made
at various stages in the case to show he is not guilty of the crimes of which he has been convicted.
That is not the purpose of a set of objections to a dispositive Report. Rather, Fed.R.Civ.P. 72(b)
requires an objecting litigant make specific objections to the Magistrate Judge’s Report:
Under the Walters rule [United States v. Walters, 638 F.2d 947 (6th
Cir. 1981)], only specific objections to the Report will be preserved
for appellate review. Smith v. Detroit Fed'n of Teachers, Local 231,
829 F.2d 1370, 1373 (6th Cir. 1987). This is because our "function
is to review the case presented to the district court, rather than a
better case fashioned after a district court's unfavorable order." Hall
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v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 753 (6th Cir.
2011) (internal quotation marks and citation omitted).
Henson v. Warden, 2015 U.S. App. LEXIS 13444 *7 (6th Cir. 2015); Willis v. Sullivan, 931 F.2d
390, 401 (6th Cir. 1991). This Supplemental Report will respond to each of the Objections made
by Petitioner and point out where they appear to be directed to rulings by other courts before the
case reached this Court.
Boyd begins his Objections with eight pages he labels “The Facts Given [sic] Rise To This
Case Are As Follows” (PageID 2745-51). 	This statement of facts contains no references
whatsoever to the recorded evidence in the case, despite the facts that Boyd has been served with
copies of the transcripts and the Order for Answer in the case requires record references (ECF No.
5, PageID 144). 	The Order for Answer emphasizes the importance of citing to the record.
Particularly in deciding whether the state court’s decision in the case is based on an objectively
unreasonable determination of the facts, the Court needs record references to the evidence on
which Petitioner relies. 	He has provided none. 	In the Report the Magistrate Judge called
Petitioner’s attention to this failure (ECF No. 29, PageID 2680, fn 2), but he has failed to correct
it in his Objections.
The charges on which Petitioner was convicted were recited by the Ohio Seventh District
Court of Appeals in its decision affirming the convictions:
[*P2] Appellant was indicted on two counts of rape for purposefully
compelling two victims to submit to sexual conduct by force or
threat of force. See R.C. 2907.02(A)(2),(B) (first-degree felonies).
Count one related to anal sex with victim A, who was 17 years old
at the time of the March 31, 2017 incident. Count two related to anal
sex with victim B, who was 14 years old at the time of an April 17,
2016 incident. As to victim B, Appellant was also charged with
gross sexual imposition for touching this boy's penis by force or
threat of force. See R.C. 2907.05(A)(1),(C) (fourth-degree felony).
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[*P3] Three counts of disseminating matter harmful to juveniles
were brought based on Appellant's texting of photographs of his
penis to victim C, who was 16 years old at the time of the March
2017 communications. See R.C. 2907.31(A)(1),(F) (first-degree
misdemeanors). Appellant was also charged with nine counts of
illegal use of a minor in nudity-oriented material for possessing or
viewing certain photographs found on a hard drive during the
execution 	of 	search 	warrants 	at 	his 	residence. 	See 	R.C.
2907.323(A)(3),(B) (fifth-degree felonies).
State v. Boyd, 2022-Ohio-3523 (2022). A jury convicted Boyd on all but one of the disseminating
counts and he was sentenced to 24.5 years imprisonment. Id. at ¶ 5.
Analysis
Objection One: Procedural Default
Boyd begins his Objections with a discussion of procedural default (ECF No. 39, PageID
2753-54). Respondent pleaded procedural default as follows:
The Warden argues that Boyd’s grounds for relief are defaulted as
follows: Ground 1- partially defaulted as to counts 2 and 3, Ground
2 -partially defaulted as to a challenge to social media search
warrants other than Instagram, Ground 4- entirely defaulted, Ground
5- entirely defaulted, Ground 6- entirely defaulted, Ground 7 –
partially defaulted, Ground 8-entirely defaulted, Ground 9-entirely
defaulted.
(Return of Writ, ECF No. 21, PageID 2535).
The Magistrate Judge found it unnecessary to adjudicate the procedural default defense as
to Grounds Two and Three because merits consideration of those claims is barred by Stone v.
Powell, 428 U.S. 465 (1976)(Report, ECF No. 29, PageID 2679-80).
Petitioner did not offer excusing cause and prejudice to overcome his procedural defaults,
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but turned instead to his claim of actual innocence. The Report held that an actual innocence claim
requires presenting new reliable evidence of the sort described in Schlup v. Delo, 513 U.S. 298,
319 (1995), and noted that Boyd had presented no new evidence at all. (ECF No. 29, PageID 2681).
Boyd asserts that procedural default doctrine is a matter of comity and not jurisdictional so
that federal courts retain the power to decide procedurally defaulted claims (Objections, ECF No.
39, PageID 2753, citing Reed v. Ross, 468 U.S. 1 (1984)). 	Nevertheless, that power must be
exercised within the doctrinal structure created by Supreme Court precedent. That is to say, when
Supreme Court and Sixth Circuit precedent dictate a finding of procedural default in a given case,
the lower courts must follow that precedent. In Reed itself the Court held:
Where, as in this case, a defendant has failed to abide by a State's
procedural 	rule 	requiring 	the 	exercise 	of 	legal 	expertise 	and
judgment, the competing concerns implicated by the exercise of the
federal court's habeas corpus power have come to be embodied in
the “cause and prejudice” requirement: When a procedural default
bars litigation of a constitutional claim in state court, a state prisoner
may not obtain federal habeas corpus relief absent a showing of
“cause and actual prejudice.” Engle v. Isaac, supra, 456 U.S., at 129,
102 S.Ct., at 1572; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977). See id., at 91–94, 97 S.Ct., at 2508–
2510 (BURGER, C.J., concurring); id., at 94–95, 97 S.Ct., at 2510–
2511 (STEVENS, J., concurring). (Cf. id., at 98–99, 97 S.Ct., at
2512–2513 (WHITE, J. concurring in judgment).
468 U.S. at 11.
Since Reed, of course, the Court has added proof of actual innocence as a means of avoiding
procedural default. McQuiggin v. Perkins, 569 U.S. 383 (2013). In his Reply, Boyd relied upon
a claim of actual innocence, but provided no new evidence. In his Objections, he turns to “cause
and prejudice” doctrine, claiming it was factors external to him which prevented him from
complying with Ohio procedural rules. He discusses the post-trial delays in obtaining access to
the discovery the State provided pre-trial (Objections, ECF No. 39, PageID 2753). However, once
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again, he provides no record references or other evidentiary support for his claims. 	Cause and
prejudice must be proved, not just asserted.
Boyd’s actual innocence argument is made repeatedly in his Objections, but the way in
which it is argued shows Boyd does not understand the doctrine as the Supreme Court has
announced it. 	Merely claiming that one is actually innocent has no impact on habeas corpus
proceedings. Nor is a claim of actual innocence supported by new evidence sufficient to overturn
a conviction. Proof (not just a claim) of actual innocence enables a habeas petitioner to overcome
procedural defaults, including the statute of limitations, but it does not entitled a petitioner to have
his conviction overturned. 	Most of the arguments for his innocence which Boyd makes in his
Objections would be perfectly proper if made to the jury and in that context could lead to acquittal.
But in habeas corpus the federal court cannot re-weigh the evidence and enter an acquittal.
The Report found Ground Four on prejudicial joinder was defaulted because it was not
raised on direct appeal (Report, ECF No. 29, PageID 2694). The Report also found Boyd’s speedy
trial claim, made in Ground Five, was procedurally defaulted because not raised on direct appeal.
Id. at PageID 2695. 	Ground Six claiming prosecutorial misconduct was also procedurally
defaulted in the same way. Id. at PageID 2696. Finally, the Magistrate Judge found Ground Nine
challenging the jurisdiction of the judge who issued a relevant search warrant was procedurally
defaulted by not being raised on direct appeal. 	Id. at PageID 2698. 	The Objections offer no
excusing cause and prejudice for any of these defaults. Instead, Petitioner “asks that procedural
defaults be overlooked because external factors, impeded his effort to comply with the state
procedural rule, or at the very least, the arguments be considered on its merits and a hearing be
held.” 	(Objections, ECF No. 39, PageID 2754). 	Binding precedent does not allow us to
“overlook” procedural defaults which the State has proved and on which it relies. At the trial court
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level, precedent is not an invitation, it is a command. 	See Hutto v. Davis, 454 U.S. 370, 375
(1982).
Objection Two: Failure to Appoint Counsel
Petitioner’s second objection is that the Magistrate Judge failed to appoint counsel (ECF
No. 39, PageID 2754).
The objection is untimely. The undersigned denied Boyd’s first Motion to appoint counsel
on July 3, 2025 (ECF No. 4). 	Under Fed.R.Civ.P. 72, a litigant’s time to object to Magistrate
Judge orders on non-dispositive matters is fourteen days from the date the order is entered,
extended to seventeen days if the order is served by mail. Thus Boyd’s objection as to appointment
of counsel was due July 20, 2025, but not filed until January 16, 2026.
The objection is also without merit. 	As grounds for denying the appointment, the
undersigned noted the failure to Congress to appropriate sufficient funds to allow appointment of
counsel in all the cases for which appointment is authorized by the Criminal Justice Act, 18 U.S.C.
§3006A. 	Boyd does not dispute that finding, but relies on Ninth Circuit precedent, Rand v.
Rowland, 113 F. 3d 1520 (9th Cir. 1997). Rand does not contain the list of factors for appointment
on which Boyd relies and in fact affirmed a denial of appointment of counsel by the trial court.
The Supreme Court has held we may not command counsel to serve without a fee. Mallard v. U.S.
Dist. Court, S.D. Iowa, 490 U.S. 296 (1989).
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Objection Three: Denial of Request for Discovery
Boyd objects that the undersigned denied his request for discovery (ECF No. 39, PageID
2754-55). 	Boyd lists fourteen categories of documents as to which the undersigned denied
discovery. 	However, he makes no argument as to why the denial was an abuse of discretion,
merely stating that he needs the documents to prove his case.
Objection Four: “Petitioner claims actual innocence on counts 7-15 because his conviction
violates the Ohio Supreme Court ruling in State v Young 1988.”
The referenced decision is State v. Young, 37 Ohio St. 2d 239 (1988). 	Petitioner’s claim
seems to be that if this Court examines the photographs relied on by the State to support his
convictions on Counts 7-15, it will agree with him that possession of those photographs did not
violate Ohio law as interpreted in Young. The difficulty with this argument is that it invites this
Court to substitute its own reading of Ohio law for that of the Seventh District Court of Appeals.
That we may not do. We are bound by the Ohio courts’ interpretation and application of Ohio law.
Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74, 76
(2005)(“We have repeatedly held that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598
(6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785
F.2d 131, 133 (6th Cir. 1986).
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Objection Five: “Petitioner claims actual innocence on counts 7-15 because his conviction
violates the US Supreme Court in Osborne v Ohio 1990.”
In Osborne v. Ohio, 495 U.S. 103 (1990), the Supreme Court upheld an Ohio statute which
forbade possession of photographs of nude minors (in that case a male adolescent) “involving a
lewd exhibition or graphic focus on the minor's genitals.” 	The Seventh District was aware of
Osborne and applied its limitations in evaluating the evidence in this case. State v. Boyd, supra,
at ¶ 69. 	The parties agreed on appeal that the jury had been properly instructed on the limits
required by Osborne. Thus instructed, the jury convicted and the Seventh District affirmed. The
Constitution provides no basis for this Court to overturn the finding of a properly instructed jury
on questions of fact, to wit, do these photographs come within the Osborne limitations?
Objection Six: “The jury was not informed the proper elements to convict on counts 7-15,
contrary to the US Supreme Court in Osborne v Ohio.”
The Seventh District found “The parties agree the trial court's jury instruction properly
limited the statute's operation in the manner described by Young and Osborne.” 	State v. Boyd,
supra, at ¶ 69. Any claim the instruction was improper is precluded by counsel’s agreement to the
contrary.
Objection No. 7: Petitioners claim of actual innocence on counts 5 & 6 because a conviction
violates the Ohio Supreme Court's ruling in American Booksellers Foundation v Cordray.
Boyd was convicted of sending photographs of his penis to C.J. who at the time was sixteen
years old. In considering Boyd’s appeal as to these two counts of conviction, the Seventh District
wrote:
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{¶61} Next, Appellant contends there was insufficient evidence to
support 	counts 	five 	and 	six, 	the 	misdemeanor 	counts 	of
disseminating matter harmful to juveniles. (Appellant was acquitted
of the count four disseminating charge.) The pertinent statutory
division states: “No person with knowledge of its character or
content, shall recklessly do any of the following: (1) Directly sell,
deliver, furnish, disseminate, provide, exhibit, rent, or present to a
juvenile * * * any material or performance that is obscene or harmful
to 	juveniles 	* 	* 	*.” 	R.C. 	2907.31(A)(1),(F) 	(first-degree
misdemeanor if the material is harmful; felony if the material is
obscene). The state agrees the mental state of recklessness also
applies to the recipient's status as a juvenile.
{¶62} “A person acts recklessly when, with heedless indifference to
the consequences, he perversely disregards a known risk that his
conduct is likely to cause a certain result or is likely to be of a certain
nature.” R.C. 2901.22(C). “A person is reckless with respect to
circumstances 	when, 	with 	heedless 	indifference 	to 	the
consequences, he perversely disregards a known risk that such
circumstances are likely to exist.” Id. This “likely” mental state for
recklessness merely involves “good reason for expectation or belief”
(and is easier to show than the higher “probably” mental state). State
v. Young, 8th Dist. Cuyahoga No. 85224, 2005-Ohio-3584, 2005
WL 1653586, ¶ 17, citing Staff Note to R.C. 2901.22(C).
{¶63} The indictment alleged these counts occurred on or about
March 14, 2017. The investigating officer testified that after seizing
Appellant's cell phone while executing the search warrant at the
residence in May 2017, he discovered Appellant texted photographs
of his penis to a juvenile. (Tr. 590). The officer testified these
photographs were sent in March of 2017 (and said he could look at
the printout of the text history to check the day of the month). (Tr.
556-557). When the police confronted Appellant about the texted
photographs, Appellant voiced his mistaken belief it was legal
because the minor was 16 (apparently assuming the law on sexual
conduct applied to disseminating). (Tr. 573).
{¶64} Victim C testified he was 16 years old when he responded to
Appellant's 	Craigslist 	advertisement, 	which 	was 	captioned 	to
suggest Appellant was looking for a homosexual encounter. They
originally used both email and texts, exchanging photographs of
their genitals and making plans to meet. (Tr. 389-393, 399-402,
408). While testifying, the juvenile recipient reviewed the recovered
March 2017 texts sent to him by Appellant and identified two
photographs 	of 	Appellant's 	penis 	and 	two 	photographs 	of
Appellant's shirtless torso. (Tr. 394, 400-402); (St.Ex. 15-18).
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{¶65} While viewing the printout of recovered texts, victim C also
testified he told Appellant he was only 16 in a March 29, 2017 text.
(Tr. 412). Appellant responded to the age disclosure by texting:
“High school, then”; “16 is legal in Ohio”; and “I don't mind the
age.” (Tr. 404). They met for their second sexual encounter after the
text about being 16. (Tr. 409). The juvenile recipient believed they
exchanged photographs again after this disclosure, but he also
seemed to indicate the state's packet of evidence contained all the
photographs 	he 	received 	from 	Appellant 	(and 	the 	recovered
photographs were sent before the disclosure). (Tr. 411, 413).
{¶66} 	Appellant's 	sufficiency 	argument 	revolves 	around 	his
contention there was no evidence he was reckless as to the
recipient's age of 16 because the recipient testified he initially told
Appellant he was 19 years old. (Tr. 391). As the state points out, the
victim told Appellant he did not have a driver's license, he was in
school, and he lived with his family. (Tr. 396). Notably, Appellant
previously spent time with the victim in person when they met for a
sexual encounter in late 2016. (Tr. 392). The jury saw a photograph
the juvenile sent to Appellant depicting what the juvenile looked like
in March 2017, when Appellant sent the juvenile photographs of his
penis. (St.Ex. 14); (Tr. 396-399).
{¶67} Circumstantial evidence and direct evidence inherently
possess the same probative value, and intent is typically established
by circumstantial evidence and inferences as a person's intent rests
in their mind. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d
749 (2001). Even if Appellant only sent photographs of his penis
before the victim specifically disclosed his true age, a rational juror
could find Appellant was reckless in believing the victim was 18 or
older when he sent the photographs representing the two counts at
issue.
State v. Boyd, supra.
Boyd asserts his conviction on these two counts violates American Booksellers Foundation
for Free Expression v. Cordray, 124 Ohio St.3d 329 (2010). That opinion was issued by the Ohio
Supreme Court to answer two questions of Ohio law certified to it by the Sixth Circuit1 on an
appeal from this Court’s permanent injunction of the enforcement of amendments to Ohio law
1 Many States have statutes which allow federal courts to certify questions of state law to the state’s highest court
when those questions arise in federal litigation. In Ohio certification can occur under a rule paralleling those statutes
and suggested to the Ohio Supreme Court by District Judge Walter H. Rice of this Court.
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which prohibited dissemination over the internet of material harmful to juveniles. 	The Ohio
Supreme Court interpreted the amendments to be limited to electronic communications that can be
personally directed, and that a person who posts matter harmful to juveniles on generally
accessible websites and in public chat rooms does not violate the amendments.
Boyd has not argued any way in which his convictions offend those two principles
enunciated in Booksellers. 	Boyd does not deny that he personally directed the photographs in
question to C.J.; his whole argument is that he was not reckless about C.J.’s age. The jury heard
evidence about the conversations between Boyd and C.J. on the subject and were correctly
instructed that they could convict only if they found Boyd reckless in regard to that question.
Booksellers does indeed interpret the statute involved in this case, but does not provide an
interpretation contrary to that applied by the Seventh District.
Nor did Boyd argue to the Sevent District that his conviction violated Booksellers: 	his
Brief on appeal did not cite the case (State Court Record, ECF No. 20, Ex. 61, PageID 448).
Boyd’s Seventh Objection is therefore without merit.
Objection No. 8: Petitioners claim of actual innocence on count 1.
In Count One of the Indictment, Boyd was charged with forcible rape of D.J.B. (Indictment,
State Court Record, ECF No. 20, Ex. 1). The trial jury convicted him on that count. Id. at Ex. 48.
In his Second Assignment of Error on direct appeal, Boyd claimed his conviction on Count 1 was
not supported by sufficient evidence, but the Seventh District affirmed. The Report concluded the
Seventh District’s decision was entitled to deference under AEDPA.
Boyd’s Eighth Objection essentially proceeds as if this prior history had not happened. He
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says that “the contested elements need to be examined in light of the new evidence presented which
the jury never hears.” (Objections, ECF No. 39, PageID 2761). But Boyd has presented no new
evidence of actual innocence. 	He cites to PageID 605-07, but those pages display his appeal to
the Ohio Supreme Court. He also claims he “also submitted medical records which showed that
he broke both of his wrists years ago and has medical pins inserted into his left one, making it
impossible for him to even bend his wrist or support any weight on it, disputing the states position
that petitioner could actually use force.” (Objections, ECF No. 39, PageID 2761). Again, he gives
no record reference. Assuming these records were submitted at trial and/or Boyd testified he was
too weak to force D.B., the jury’s weighing of the credibility of that evidence is conclusive.
Boyd concludes this objection by stating
Merz failed to review the social media messages, Boyds medical
records, DBs medical records, the bipolar experts statement, as well
as the testimony where DB testified that he doesn't recall what took
place, and a hearing should be held so we can determine whether it's
possible Boyd was wrongly convicted.
(Objections, ECF No. 39, PageID 2762). 	This argument implies a misunderstanding of habeas
corpus process. In particular, federal courts do not re-weigh the evidence the state courts heard.
We do not have authority to vacate a conviction because we weigh the evidence differently from
what the jury did.
Objection No. 9: Petitioners claim of actual innocence on count 2 & 3.
This objection has the same structure as Objection 8: if this Court would properly weigh
the evidence, Petitioner would be found not guilty on Counts 2 and 3. For the same reasons given
as to Objection 8, this Objection should be overruled.
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Objection No. 10: Suppression for petitioners' social media accounts, can be raised on a
Federal Habeas Corpus Motion.
In Grounds for Relief Two and Three, Petitioner asserts he was convicted on the basis of
evidence obtained in violation of his rights under the Fourth Amendment. 	The Report
recommended denying these claims on the basis of Stone v. Powell, 428 U.S. 465 (1976).
Petitioner objects
The presentation of a claim is frustrated by a failure in the state
procedural mechanism if there has been "no meaningful inquiry by
the state courts "into the Fourth Amendment claim, either because
the state courts did not carefully and thoroughly address the factual
basis of the petitioner claim, or because the state courts did not apply
the proper constitutional case law to the facts as developed. See
Pierson v O'Leary 959 F.2d 1385, 1391 (7th Cir) 121 L.Ed 2d 115,
113 S.Ct 168 (1992) Townsend v Sain, 372 U.S. 293 313, 9 L.Ed 2d
770, 83 S.Ct 745 (1963). See also US Ex Rel. Bostick v. Peters, 3
F.3d 1023 8/19/93.
(Objections, ECF No. 39, PageID 2764). He asserts the Magistrate Judge
failed to determine if Petitioners presentation of a claim was
frustrated because of a failure of the state mechanism. In this case,
Boyds alleges that he did not receive a full and fair opportunity to
litigate his Fourth Amendment claim for the following reasons.
A) The state prosecutors withheld roughly 24,800 pages of the
25,000 	pages 	seized 	from 	Boyds 	Instagram, 	prior 	to 	a
suppression 	motion 	being 	filed 	and 	held. 	It 	wasn't 	until
9/28/2020, at the last pretrial, when the Prosecutor provided to
the defense a USB drive which revealed the extent of the search
conducted 	on 	Petitioners 	Instagram 	account 	and 	revealed
searches also took place on Facebook, Snapchat, and Kik (See
B). An attorney cannot properly argue a Fourth Amendment
violation if they do not know the full extent of the search
conducted.
B) The 	State 	has 	never 	turned 	over 	the 	search 	warrants 	on
Petitioners Facebook, Snapchat, or KIK accounts, and again,
never 	revealed 	searches 	took 	place 	until 	9/28/2020. 	The
Instagram search warrant was turned over, (ROW 20 Page 75
through 100), but where are the search warrants on Facebook,
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Snapchat, or KIK which were executed? The Attorney General
was required to turn over petitioners file to this court, but still
has not turned over these search warrants.
C) The appellate court never addresses the probable cause for the
searches on Petitioners Facebook, Snapchat, or KIK accounts,
or the searches conducted on Petitioners cell phones reading
Petitioners text messages without a warrant.
An attorney cannot argue a Fourth Amendment violation on
searches if search warrants are never turned over to the defense and
when the state withheld 99% of the extent of the search conducted,
they frustrated a suppression motion.
Merz failed to analyze what impact these actions had on a
suppression motion.
(Objections, ECF No. 39, PageID 2764-65).
Boyd’s trial attorney filed a motion to suppress on August 28, 2019 (State Court Record,
ECF No. 20, Ex. 28). In it he sought the suppression of “all evidence obtained from the search of
his Instagram account, and from the search of his residences on or about May 12, 2017.” Id. at
PageID 276.
The Fourth Amendment prohibits the introduction at trial of evidence seized by the State
in violation of the rights protected by that Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). To
enforce that right, the Ohio Rules of Criminal Procedure require the State to disclose any evidence
it intends to introduce at trial and then provide the suppression mechanism to test Fourth
Amendment compliance. There is no indication the State attempted to introduce any evidence it
obtained from or about Boyd other than that described in the motion to suppress.
In addition, the Fourteenth Amendment requires that the State disclose to a defendant any
material evidence which is exculpatory or mitigating. 	Brady v. Maryland, 373 U.S. 83 (1963).
Although the Ohio Rules of Criminal Procedure provide for discovery, the State’s obligation under
Brady is independent of any demand for discovery. 	Boyd makes no claim under Brady in his
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Petition, nor did he do so on direct appeal. 	The fact that the State has not produced the search
warrants simply does not state a claim for relief. 	The motion to suppress mechanism is not
designed to allow litigation of any Fourth Amendment claims that might be presented by a case,
but only claims to enforce the exclusionary rule adopted in Mapp. 	Boyd has not identified any
Mapp issues which could not have been adjudicated in the motion to suppress proceedings.
Boyd has not shown any failure of the suppression process and his Tenth Objection should
therefore be overruled.
Objection No. 12 2 : A Franks hearing should have been held
“In this case, Boyds [sic] alleges that a Franks hearing should have been held because the
police purposely used the word "juvenile" to justify a much wider search than where probable
cause existed.” (Objections, ECF No. 39, PageID 2765).
Boyd’s Petition makes no claim that a hearing should have been held under Franks v.
Delaware, 438 U.S. 154 (1978).
Objection No. 13: Suppression for petitioners' homes can be raised on a Federal Habeas
Corpus Motion.
Objection No. 14: Suppression argument for petitioners' text messages can be raised on a
Federal Habeas Corpus Motion.
These two Objections should be overruled on the basis of the Stone v. Powell analysis
already given.
2 There is no Objection 11.
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Objection No. 15: Petitioner was denied a fair trial due to failure to sever.
On January 11, 2019, Petitioner moved to sever the indictment into three separate trials on
Count One, Count Two, and Counts Three through Fourteen (Motion, State Court Record ECF
No. 20, Ex. 21). The trial court summarily denied the motion. Id. at Ex. 23. Boyd did not plead
failure to sever as an assignment of error on appeal. Id. at Ex. 61, PageID 447. Eventually, in his
26(B) Application, he accused his appellate attorney of providing ineffective assistance by not
including this as an assignment of error. The Seventh District held it was not ineffective assistance
of appellate counsel to fail to raise this issue because the evidence on the separate counts was
simple and direct. 	Because Boyd had not proven ineffective assistance of appellate counsel as
excusing cause and prejudice, the Report recommends dismissing Ground Four of the Petition as
procedurally defaulted (Report, ECF No. 29, PageID 2694).
Petitioner’s Objection goes directly to the merits of the joinder issue (Objections, ECF No.
39, PageID 2768-70). But two layers of analysis are required. Petitioner must first show error in
the failure to sever and then that that error was so egregious – a “dead-bang winner” – that failure
to raise it was ineffective assistance of appellate counsel. Boyd does not discuss this second issue,
but it is well recognized that appellate attorneys must choose among many possible issues to raise.
This issue was not a dead-bang winner: indeed, the Seventh District held it was a loser. Because
it was not ineffective assistance of appellate counsel to fail to raise this claim, it is procedurally
defaulted and should therefore be dismissed on that basis.
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Objection No. 16: Petitioner was denied a statutory speedy trial on misdemeanor counts 4, 5
& 6 which can be raised on a Federal Habeas Corpus Motion.
In his Fifth Ground for Relief, Petitioner asserted he was denied his constitutional right to
a speedy trial. The Report noted that the Ohio speedy trial statute sets a limit of 115 days for trial
of misdemeanor charges. Ohio Revised Code § 2945.71.
The Report notes that this issue was never raised on direct appeal, but Petitioner later
claimed it was ineffective assistance of trial counsel not to raise it in the trial court and ineffective
assistance of appellate counsel not to include it as an assignment of error.
The Report summarily deferred to the Seventh District’s decision rejecting the claim (ECF
No. 29, PageID 2695). Boyd objects:
Magistrate Merz relied upon the Appellate courts calculations, but
the ruling was contrary to law because they failed to address the
calculation errors made by the Prosecutor, such as restarting the
calculations upon a demand for trial, a pro-se motion to dismiss for
a 	speedy 	trial 	violation, 	when 	the 	state 	files 	a 	superseding
indictment, or when the petitioner revokes his speedy trial time
waiver, 	as 	mandated 	by 	St 	v. 	Michailides, 	2018-Ohio-
239906/21/2018.
Boyd produced documents filed by the State prosecutor which
showed by clear and convincing evidence that his misdemeanor
counts 	4-6, 	should 	have 	been 	dismissed 	because 	their 	own
calculations show a statutory violation occurred.
(Objections, ECF No. 39, PageID 2771).
The Report is too summary on this issue. Boyd’s speedy trial claim is based on the Ohio
speedy trial statute, Ohio Revised Code § 2945.71. 	While that statute imposes the penalty of
dismissal for violation, it is not the same as the constitutional (Sixth Amendment) speedy trial
requirement. If the Ohio courts erred in calculating the speedy trial deadline under § 2945.71, that
would not entitle Boyd to relief because federal habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v.
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Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463
U.S. 939 (1983). 	A State does not violate the Due Process Clause by failing to provide all the
process commanded by state statutes. 	“A state cannot be said to have a federal due process
obligation to follow all of its procedures; such a system would result in the constitutionalizing of
every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6 th Cir.
1993), cert. denied, 509 U.S. 907 (1993). Put another way, this Court cannot consider whether the
State complied with Ohio Revised Code § 2945.71 because that is a stated law question on which
we are bound by the state court determination. Bradshaw v. Richey, 546 U.S. 74 (2005).
Boyd never fairly presented his federal constitutional speedy trial claim to the Ohio courts
and he thereby procedurally defaulted on that claim.
Objection No. 17: Petitioner was denied a statutory speedy trial on felony counts 1-3 and 7-
15 which can be raised on a Federal Habeas Corpus Motion.
Objection 17 should be overruled on the same basis as Objection 16.
Objection No. 18: Petitioner was denied a constitutional speedy trial which can be raised
on a Federal Habeas Corpus Motion.
The Sixth Amendment does provide a constitutional right to a speedy trial and whether or
not the State has violated that right is analyzed under Barker v. Wingo, 407 U.S. 514, 530-32
(1972). 	However, Boyd did not present this claim on direct appeal and therefore procedurally
defaulted it; the Report recommends dismissal on that basis (ECF No. 29, PageID 2695).
Boyd is correct that this is a claim, unlike denial of statutory speedy trial rights, which can
be raised in habeas, but it must first be fairly presented to the state courts as a federal constitutional
claim. O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999). Boyd claims he did ask the appellate
court to make a decision under Barker (Objections, ECF No. 39, PageID 2772), but he did not do
so on his direct appeal, making the issue res judicata under Ohio law. State v. Perry, 10 Ohio St.
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2d 175 (1967).
Objection no. 19: Prosecutorial misconduct took place which can be raised on a Federal
Habeas Corpus Motion.
Allegations of prosecutorial misconduct are indeed cognizable in habeas corpus, but they
must first have been fairly presented to the state courts. 	O’Sullivan, supra. 	Because the
prosecutorial conduct of which Boyd complains was evident on the face of the appellate record,
he was obliged to raise the claim on direct appeal. He did not. And when he attempted later to
raise it in post-conviction, the Seventh District found it barred by res judicata. Boyd argues the
merits of this claim in his Objections, but he does not deal with the procedural default. 	This
Objection should be overruled on that basis.
Objection no 20: Petitioner was denied effective assistance of counsel which can be raised on
a Federal Habeas Corpus Motion.
In his twentieth objection, Petitioner lists myriad acts or omissions by his defense counsel
which he claims constitute ineffective assistance (Objections, ECF No. 39, PageID 2773-76). Boyd
pleaded ineffective assistance of trial counsel as his seventh ground for relief, but raised only two
sub-claims: (1) failing to call an expert on bi-polar disorder, (2) failing to call as witnesses Josh
Hensley or Royce Craft.
The Report notes this claim is barred by res judicata because the Seventh District held it
could have been raised on direct appeal. Boyd’s Objection argues the merits of his many claims
of ineffective assistance of trial counsel, but does not address this procedural default ruling. The
Objection should be overruled because it does not address the Report’s handling of the ineffective
assistance of trial counsel claim and because it raises many other ineffective assistance of trial
counsel claims that were not pleaded.
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Objection No 21: Grand Jury Testimony
In his twenty-first objection, Petitioner complains that he was tried on different evidence
from that which was presented to the indicting grand jury. He asserts, without citation, that “the
Fifth Amendment requires a defendant to be put on trial using the same essential facts presented
to a grand jury.” (Objections, ECF No. 39, PageID 2776).
The Report noted that whether to release grand jury testimony is an issue committed to the
sound discretion of the trial judge. The Seventh District had held it was not an abuse of discretion
to refuse to release the grand jury testimony in this case and the Report noted that abuse of
discretion is not a constitutional claim we can consider in habeas (Report, ECF No. 29, PageID
2697). Boyd’s Objections do not address that conclusion at all. The Magistrate Judge therefore
again recommends this Ground for Relief be denied as non-cognizable.
Objection No. 22: Judge lacked authorization to sign search warrants.
The Report notes that Respondent raised a valid procedural default defense to this claim
because it had not been raised on direct appeal, the Seventh District held it barred by res judicata
and Petitioner had made no response to that defense (Report, ECF No. 29, PageID 2698). On the
merits, the Report concluded both the Federal Stored Communications Act and California law
authorized the Common Pleas judge in this case to issue the warrant. Id.
In his Objections Boyd still does not address the procedural default holding. On the merits
he recites his own understanding of the Stored Communications Act and Ohio law without any
citation of authority. As to Ohio law, we are not authorized to review state court rulings on state
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law questions. As to the Stored Communications Act, Boyd cites no authority in support of his
interpretation.
Conclusion
Having reviewed the case in light of the Objections, the Magistrate Judge again respectfully
recommends the Petition be dismissed with prejudice. 	Because reasonable jurists would not
disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of
appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively
frivolous and should not be permitted to proceed in forma pauperis.
January 27, 2026.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.
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