Morris v. Watson

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES ROLLIN MORRIS,
Plaintiff,
v.
WARDEN TOM WATSON,
Defendant,
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)
)
)
)
)
)
)
)
)
CASE NO. 3:24-CV-02118-JRK
DISTRICT JUDGE
JUDGE JAMES R. KNEPP, II
MAGISTRATE JUDGE
CARMEN E. HENDERSON
REPORT AND RECCOMMENDATION
I. 	Introduction
Petitioner, Charles Rollin Morris, seeks a writ of habeas corpus under 28 U.S.C. § 2254.
Morris is an Ohio prisoner who is currently serving an aggregate sentence of a minimum
mandatory term of 19 years and 41 months nonmandatory up to a maximum of 23.5 years
mandatory and 41 months nonmandatory. Morris asserts four grounds for relief. (ECF No. 1).
Respondent, State of Ohio filed a return of writ on May 6, 2025. (ECF No. 7). Morris filed a
traverse on July 25, 2025. (ECF No. 9). On July 29, 2025, Respondent filed an objection to the
Traverse. (ECF No. 10).
This matter was referred to me under Local Rule 72.2 to prepare a report and
recommendation on Morris’s petition and other case-dispositive motions. Because Morris has
presented only procedurally defaulted claims, I recommend that the Court deny his petition in its
entirety and not grant him a certificate of appealability.
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II. 	Relevant Factual Background
The Ohio Court of Appeals for the Third Appellate District set forth the following facts on
direct appeal:
{¶2} Morris was staying in a room at the B&J Motel in Kenton, Ohio. Madison
Adams (“Adams”) testified that she was acquainted with Morris and had purchased
drugs from him on several occasions. She further testified that, on at least two
occasions, she saw him sell drugs to other people in his room at the B&J Motel.
During these transactions, she saw him use a scale in his room to weigh the
methamphetamines that he was selling. Adams testified that she was seeking help
in the midst of her drug addiction and encountered a woman named Rochelle Miller
(“Miller”). Miller allowed Adams to stay with her for a couple days in August of
2022.
{¶3} Shortly after Adams had come to stay with her, Miller testified that she was
awakened in the middle of the night to the sound of someone kicking in her front
door. She explained that she lived in an apartment on the second story of a house
and that a stairway went from the front door on the ground floor directly up to her
living area. After she woke up, she went with her dog to the top of the stairway
where she saw Morris standing at the bottom of the stairs. Miller stated that Morris
pointed a handgun directly at her and said, “Where’s that b***h at?” (Tr. 307).
Since Adams had been staying with her, Miller believed that Morris was referring
to Adams with this comment. However, Adams was not at Miller’s house at that
time.
{¶4} Miller testified that her dog raced down the stairway and chased Morris away
from her residence. She then examined the entryway to her house, discovering that
the front door was cracked and that the door frame was broken. She testified that
she initially did not report this incident to law enforcement because she was afraid
of Morris. However, Miller eventually decided that reporting Morris was the right
thing to do after speaking with Adams. Miller believed that a friend of Adams’s
named Daisy had told Morris that Adams had been staying at Miller’s residence.
{¶5} On August 25, 2022, Officer Melvin Yoder (“Officer Yoder”) of the Kenton
Police Department met with Miller and Adams. Based upon what Adams told him,
Officer Yoder sought a search warrant for Morris’s room at the B&J Motel. During
the subsequent search, the police located a pill bottle with sixty-one yellow pills
and two pink pills. They also found a glass pipe and two digital scales that were
dusted with a powdery residue. Officer Yoder affirmed that he also discovered a
“substance” in a “red plastic cup” inside one of the drawers of Morris’s nightstand.
(Tr. 411-412). While the police discovered a holster and some gun oil, they did not
locate any firearms. After Morris was arrested, the police searched his person and
located three Xanax bars on him.
{¶6} Based on the imprinted markings on the pills that were discovered in Morris’s
room, the police determined that the sixty-one yellow pills were cyclobenzaprine
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hydrochloride and the two pink pills were Alprazolam. The powdery residue from
the scales was sent to the Ohio Bureau of Criminal Investigation (“BCI”) for
testing. 	BCI 	determined 	that 	this 	powdery 	residue 	was 	composed 	of
methamphetamines. The substance in the red cup was also tested and found to be
2.55 grams of methamphetamines.
State v. Morris, 2023-Ohio-4021, ¶¶ 2-6, motion for delayed appeal granted, 2024-Ohio-984, ¶¶
2-6, 173 Ohio St. 3d 1431, 229 N.E.3d 1205, and cause dismissed, 2024-Ohio-1545, ¶¶ 2-6, 173
Ohio St. 3d 1465, 232 N.E.3d 803, and appeal not allowed, 2024-Ohio-2576, ¶¶ 2-6, 174 Ohio St.
3d 1537, 237 N.E.3d 230.
Morris disagrees with some of the facts included in the appellate court decision: 1) he
claims that Ms. Adams never stated that she purchased drugs off of him; 2) that Ms. Adams did
not testify that she saw him sell drugs to other people, but rather, she saw him sell drugs to the
same person on two different occasions; and 3-4) that Ms. Adams had not been staying with Ms.
Miller at the time of the burglary. (ECF No. 9 at 1-4). The facts found by the appellate court “shall
be presumed to be correct,” and the petitioner has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999).
III. 	Relevant State Procedural History
A. 	Indictment
Morris was indicted on September 14, 2022, on nine charges, including:
one count of aggravated possession of drugs in violation of R.C. 2925.11(A), a
fifth-degree felony; one count of having weapons while under disability in violation
of R.C. 2925.02(A)(3), a third-degree felony; one count of possession of drugs in
violation 	of 	R.C. 	2925.11(A), 	a 	fifth-degree 	felony; 	one 	count 	of 	selling,
purchasing, distributing, or delivering dangerous drugs in violation of R.C.
4729.51(E)(1)(c), a fifth-degree felony; one count of possessing drug abuse
instruments in violation of R.C. 2925.12(A), a first-degree misdemeanor; one count
of aggravated possession of drugs in violation of R.C. 2925.11(A), a second-degree
felony; 	one count 	of 	aggravated 	trafficking 	in 	drugs 	in 	violation 	of 	R.C.
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2925.03(A)(2), a second-degree felony; one count of aggravated burglary in
violation of R.C. 2911.11(A)(2), a first-degree felony; and one count of aggravated
menacing in violation of R.C. 2903.21(A), a first-degree misdemeanor.
Id., 2023-Ohio-4021, ¶ 7.
B. 	Trial and Guilty Verdict
A jury trial was held on December 14 and 15, 2022. The jury returned verdicts of
guilty on all nine charges against Morris. The trial court determined that several of
these offenses merged at sentencing, leaving Morris with seven convictions. The
trial court issued its judgment entry of sentencing on December 29, 2022.
Id. 2023-Ohio-4021, ¶ 8. Morris was sentenced to serve an aggregate sentence of a minimum
mandatory term of 19 years and 41 months nonmandatory up to a maximum of 23.5 years
mandatory and 41 months nonmandatory. (ECF No. 7-1, Ex. 6).
C. Direct Appeal
On appeal, Morris raised five assignments of error:
1. 	Appellant’s sentence/conviction was not supported by sufficient
evidence.
2. 	The trial court erred in taxing court-appointed attorney fees as
costs.
3. 	Appellant’s conviction was against the manifest weight of the
evidence.
4. 	The trial court erred in sentencing Appellant to allied offenses
of similar import.
5. 	The trial court erred in ordering Appellant to pay the mandatory
fine.
(ECF No. 7-1, Ex. 8 at PageID #: 246). The State of Ohio filed an Appellee’s brief (Id., Ex. 9),
and on November 6, 2023, the state appellate court affirmed the trial court’s judgment on the first,
third, fourth, and fifth assignments of error and reversed the judgment of the trial court on the
second assignment of error (Id., Ex. 10); Morris, 2023-Ohio-4021, ¶ 71. The appellate court
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remanded the matter to the trial court to vacate that part of the sentence that imposed court-
appointed counsel fees.
On November 8, 2023, the trial court vacated the order to pay court-appointed counsel fees
from the sentencing order. (Id., Ex. 11).
1. 	Appeal to the Ohio Supreme Court
On January 16, 2024, Morris, pro se, filed a notice of appeal of the November 6, 2023,
decision by the Ohio Court of Appeals and a motion for leave to file a delayed appeal to the Ohio
Supreme Court in Case No. 24-0083. (Id., Ex. 12, 13). On March 19, 2024, the Ohio Supreme
Court granted the delayed appeal and granted Morris 30 days to file a memorandum in support of
jurisdiction. (Id., Ex. 14). On April 24, 2024, the Ohio Supreme Court dismissed the case for failure
to prosecute because Morris did not file a memorandum in support of jurisdiction. (Id., Ex. 15).
2. 	Ohio App. R. 26(B) Application to Reopen
On February 7, 2024, Morris, pro se, filed an application to reopen his appeal pursuant to
App. R. 26(B). (Exhibit 16, Application to Reopen). Morris claimed he received ineffective
assistance of appellate counsel when counsel failed to raise the following four assignments of
error:
1. 	Appellant’s conviction for Aggravated Possession are (sic) not support by
sufficient evidence to establish the elements of those charges are required by
the Sixth and Fourteenth Amendments to the United Sates Constitution, and
Article one, Section 10 of the Ohio Constitution.
2. 	Appellant’s conviction for Selling, Purchasing, Distributing, or Delivering
Dangerous Drugs are (sic) not supported by sufficient evidence to establish the
elements of those charges as required by the sixth and fourteenth Amendments
to the United States Constitution, and Article one, Section 10 of the Ohio
Constitution.
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3. 	Appellant’s conviction for Aggravated Burglary are (sic) not supported by
sufficient evidence to establish the elements of those charges are required by
the sixth and Fourteenth Amendments to the United Sates Constitution, and
Article one, Section 10 of the Ohio Constitution.
4. 	Appellant’s conviction for Having a Weapon While Under Disability are (sic)
not supported by sufficient evidence to establish the elements of those charges
as required by the Sixth and Fourteenth Amendments to the United Sates
Constitution, and Article one, Section 10 of the Ohio Constitution.
Id. On March 20, 2024, the Ohio Court of Appeals denied Morris’ application to reopen the appeal.
(Exhibit 17, Journal Entry 3-20-2024). The Ohio Court of Appeals found that appellate counsel
challenged the sufficiency and weight of the evidence on appeal, the assignments of error were
addressed by the Court [on direct appeal] and were found to be meritless. Id. page 2. On April 22,
2024, Morris, pro se, filed an appeal of the Third District Court of Appeals’ Judgment to the Ohio
Supreme Court. (Exhibit 18, Notice of Appeal 24-0552).
In Morris’ memorandum in support of jurisdiction, filed on April 22, 2024, Morris asserted
the following propositions of law:
1. APPEALANT’S (sic) SENTENCE/CONVICTION WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE FOR THE REASON THE TRIAL COURT
ABUSED ITS DISCRETION
2. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
3. The trial court erred in sentencing Appellant to consecutive sentencing:
4. The trial court erred in ordering Appellant to pay the mandatory fine.
5. Ineffective Appellate Counsel—Failure to address new evidence that was
presented in court records.
(Exhibit 19, Memorandum in Support of Jurisdiction). After a review of the memorandum, the
Supreme Court of Ohio held that the memorandum exceeded fifteen numbered pages, and sua
sponte ordered that pages 17-33 of the memorandum were to be stricken. (Exhibit 20, Entry 4-24-
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24). On July 9, 2024, the Ohio Supreme Court declined to accept jurisdiction. (Exhibit 21, Decision
79-24).
IV. 	Federal Habeas Corpus Petition
On December 6, 2024, Morris petitioned pro se that this Court issue a writ of habeas corpus.
(ECF No. 1). Morris asserted the following grounds for relief:
Ground 	One: 	A 	violation 	of 	the 	Due 	Process 	Clause 	of 	the 	Fourteenth
Amendment, violation of 18 U.S.C. § 1621(1) or (2) or BOTH
Supporting Facts: The charge of Aggravated Burglary involves (3) three testifying
witnesses. When one is Officer Yoder who the alleged crime was reported to by a
Ms. Rochelle Miller and Ms. Madison Adams when Ms. Miller is the individual
that lived at the address and Ms. Miller reported and testified to Ms. Adams being
the individual the petitioner was looking for to making him commit this act. When
the petitioner will present perjury from the reporting stage of this allegation and all
the way through to the end of this allegation.
*
Ground Two: The State violated petitioner’s Fourteenth Amendment Due Process
Rights by entering a conviction on insufficient evidence according O.R.C. Ann.
2925.51(A)&(B).
Supporting Facts: This charge involves (2) pictures that was extracted off of the
petitioner’s phone that the court said they were pictures of methamphetamine and
without no chemical analysis from any private lab or from B.C.I. convicted the
petitioner of a second degree felony and sentenced the petitioner to (7) seven years
with a mandatory ($7,500.00) seventy-five hundred fine.
*
Ground Three: State violate petitioner Fourteenth Amendment Dure Process
Rights by suborning perjury. (sic)
Supporting Facts: The charge is from (61) sixty-one cyclobenzaprine hydrochloride
5 mg tablets that were found in the petitioner’s motel room in an unmarked pill
bottle. Ms. Ashley Knippen testified to the petitioner not having a prescription for
this medication from August 26th, 2017 through August 26th, 2022. When the
petitioner will produce from a pharmacy that this testimony of Ms. Knippen was
false testimony.
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*
Ground Four: The State violated petitioner’s Fourteenth Amendment Due Process
Rights by entering a conviction on insufficient evidence according O.R.C. Ann.
2923.11(A)&(B).
Supporting Facts: This charge of Having a weapon while under disability has no
testimony towards the capabilities of the alleged firearm operational abilities. Upon
the conflicting testimonies and the testimony not even confirming the handgun the
petitioner does not only believe the State did not prove their case towards saying
the firearm operational capabilities but the State did not even prove their case on
the fact there was a firearm at all seeing the Aggravated Burglary charge were based
on perjured testimony from beginning to the end and in between.
(ECF No. 1 at PageID #: 7, 9, 11, 13).
V. 	Legal Standards
A. 	Timeliness of Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year
period of limitations for state prisoners to file their federal habeas corpus petitions. Wall v. Kholi, 562
U.S. 545, 550 (2011) (citing 28 U.S.C. § 2244(d)(1)); Sexton v. Wainwright, 968 F.3d 607, 609-10 (6th
Cir. 2020), cert. denied, 141 S. Ct. 1064 (2021). There is no argument that Morris’s federal habeas
corpus petition was untimely. (See ECF No. 7).
B. 	Jurisdiction
Title 28 U.S.C. § 2254(a) authorizes district courts to entertain an application for a writ of
habeas corpus “on behalf of a person in custody pursuant to the judgment of a State court.” A state
prisoner may file a § 2254 petition in the “district court for the district wherein such person is in
custody or in the district court for the district within which the State court was held which
convicted and sentenced him.” 28 U.S.C. § 2241(d). The Court of Common Pleas of Hardin
County sentenced Morris, and Hardin County is within this court’s geographic jurisdiction.
Accordingly, this Court has jurisdiction over Morris’s § 2254 petition.
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C. Exhaustion
“A federal habeas corpus court should not grant a habeas corpus application by a state
prisoner unless he has exhausted all of his available state court remedies on his grounds for relief.
28 U.S.C. § 2254(b) and (c).” Gordon v. Bradshaw, No. 104 CV 2299, 2007 WL 496367, at *12
(N.D. Ohio Feb. 12, 2007). “A petitioner satisfies the exhaustion requirement once the state
supreme court provides him with an opportunity to review his claims on the merits and the state
supreme court has had a full and fair opportunity to rule on the claims.” Id. (citing Dickerson v.
Mitchell, 336 F.Supp.2d 770, 786 (N.D. Ohio 2004) (citing O’Sullivan, 526 U.S. 838; Rust v. Zent,
17 F.3d 155, 160 (6th Cir.1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990))). “If a
remedy remains under state law that a federal habeas corpus petitioner has not yet pursued,
exhaustion has not occurred and the federal habeas court cannot review the merits of the claim.”
Id. (citing Rust, 17 F.3d at 160). “When a petitioner has failed to exhaust his state remedies, and
when he can no longer do so under state law, his habeas claim is procedurally defaulted.” Adams
v. Burton, No. 16–1476, 2016 WL 6610219, at *2 (6th Cir. Nov. 8, 2016) (citing O’Sullivan, 526
U.S. at 848).
D. Procedural Default
Procedural default occurs when a habeas petitioner fails to obtain consideration of a federal
constitutional claim by state courts because he failed to: (1) comply with a state procedural rule
that prevented the state courts from reaching the merits of the petitioner’s claim; or (2) fairly raise
that claim before the state courts while state remedies were still available. See generally
Wainwright v. Sykes, 433 U.S. 72, 80, 84–87 (1977); Engle, 456 U.S. at 125 n. 28; Williams, 460
F.3d at 806. In determining whether there has been a procedural default, the federal court again
looks 	to 	the 	last 	explained 	state-court 	judgment. Ylst v. Nunnemaker, 	501 	U.S. 	797, 	805
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(1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). When a state court declines to address
a prisoner’s federal claims because the prisoner failed to meet a state procedural requirement,
federal habeas review is barred as long as the state judgment rested on “independent and adequate”
state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). To be independent, a
state procedural rule and the state courts’ application of it must not rely in any part on federal
law. Id. at 732–33. To be adequate, a state procedural rule must be “‘firmly established’ and
‘regularly followed’” by the state courts at the time it was applied. Beard v. Kindler, 558 U.S. 53,
60–61 (2009).
A petitioner procedurally defaults a claim by failing to “fairly present” the claim
in state court when he does not pursue that claim through the state’s “‘ordinary appellate
review procedures,’” and, at the time of the federal habeas petition, state law no longer allows
the petitioner to raise the claim. Williams, 460 F.3d at 806 (quoting O’Sullivan, 526 U.S. at
848); see also Baston v. Bagley, 282 F. Supp. 2d 655, 661 (N.D. Ohio 2003) (“Issues not presented
at each 	and 	every 	level 	[of 	the state courts] 	cannot 	be considered 	in 	a federal 	habeas
corpus petition.”). Under these circumstances, while the exhaustion requirement is technically
satisfied because there are no longer any state-court remedies available to the petitioner, the
petitioner’s failure to have the federal claims fully considered in the state courts constitutes a
procedural default of those claims, barring federal habeas review. Williams, 460 F.3d at 806
(“Where state court remedies are no longer available to a petitioner because he or she failed to use
them within the required time period, procedural default and not exhaustion bars federal court
review.”); see also Gray v. Netherland, 518 U.S. 152, 161–62 (1996) (“Because the exhaustion
requirement ‘refers only to remedies still available at the time of the federal petition,’ . . ., it is
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satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state]
law’ . . . .” (internal citations omitted)).
Furthermore, to “fairly present” a claim to a state court, a petitioner must assert both
its legal and factual basis. Williams, 460 F.3d at 806 (citing McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000)). Most importantly, a “‘petitioner must present his claim to the state
courts as a federal constitutional issue – not merely as an issue arising under state law.’” Id.
(quoting Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)). A petitioner can overcome a
procedural default by demonstrating cause for the default and actual prejudice that resulted from
the alleged violation of federal law, or that there will be a “fundamental miscarriage of justice” if
the claim is not considered. Coleman, 501 U.S. at 750. “‘[C]ause’ under the cause and prejudice
test must be something external to the petitioner, something that cannot be fairly attributed to
him.” Id. “[T]he existence of cause for a procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Id. “A fundamental miscarriage of justice results from
the conviction of one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th
Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)); Williams v. Bagley, 380 F.3d 932,
973 (6th Cir. 2004) (“The ‘fundamental miscarriage of justice’ gateway is open to a petitioner who
submits new evidence showing that ‘a constitutional violation has probably resulted in the
conviction of one who is actually innocent.’ ” (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995))).
VI. 	Discussion
A. 	Procedural Default
In his Petition, Morris specifically states that each of his habeas grounds for relief was
raised in his direct appeal to the State appellate court. (ECF No. 1 at PageID #: 8, 10, 11, 13).
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Respondent argues that Morris’s entire petition is procedurally defaulted because Morris failed to
pursue his direct appeal with the Ohio Supreme Court. Morris was granted leave to file a delayed
appeal to the Ohio Supreme Court. However, Morris failed to pursue his appeal and upon finding
that Morris had “failed to prosecute this cause with the requisite diligence” the Ohio Supreme
Court dismissed his appeal “in compliance with the Rules of Practice of the Supreme Court of
Ohio.” State v. Morris, 2024-Ohio-1545, 173 Ohio St. 3d 1465, 232 N.E.3d 803.
Because Morris failed to pursue his appeal to the Ohio Supreme Court, Morris has
procedurally defaulted his claims. Robinson v. Collins, No. 20–3071, 2020 WL 3987990, at *1
(6th Cir. May 26, 2020) (finding that claimant had procedurally defaulted his habeas claims for
failing to file a timely appeal to the Ohio Supreme Court). Habeas corpus review of procedurally
defaulted claims “is barred unless the prisoner can demonstrate cause for the default and actual
prejudice ... or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish cause, a
habeas corpus petitioner ordinarily must “show that some objective factor external to the defense”
prevented the petitioner’s compliance with a state procedural rule. Murray v. Carrier, 477 U.S.
478, 488 (1986). A petitioner may also invoke a miscarriage of justice as when a petitioner
provides new evidence showing that a constitutional violation has probably resulted in a conviction
of one who is actually innocent. Hodges v. Colson, 727 F.3d at 530. Morris argues that his
procedural default should be excused because 1) his grounds assert structural error; and 2) it would
be a miscarriage of justice to allow the conviction to stand. Morris stresses that these two
exceptions “apply to every ground raised in this Petition and should excuse any procedural default”
that the Respondent claims.
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B. 	Cause & Prejudice
“To establish cause a petitioner must present a substantial reason to excuse his procedural
default.” Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). This substantial reason requires the
petitioner to show that “some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (citing as
examples a showing that the factual or legal basis for a claim was not reasonably available to
counsel or that some interference by officials made compliance impracticable). Morris does not
identify any cause for his procedural default; instead, Morris asserts that any default should be
excused because the errors are “structural” and that it would be a “miscarriage of justice” to allow
the conviction to stand. However, even if Morris raises “structural errors”, he must still
demonstrate cause and prejudice for defaulting on such errors. But Morris does not raise ineffective
assistance of counsel, lack of counsel, or state impediments as cause. Morris merely states that the
proceedings were fundamentally deficient, particularly that a conviction without physical
evidence, laboratory confirmation, or appropriate procedural safeguards amounts to a structural
error that creates a substantial risk of wrongful conviction. Accordingly, Morris has not sufficiently
demonstrated “cause” for his failure to pursue his direct appeal with the Supreme Court of Ohio.
As Morris is unable to establish cause to excuse his procedural default, the Court declines
to address the issue of prejudice. See Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (“When
a petitioner fails to establish cause to excuse a procedural default, a court does not need to address
the issue of prejudice.”); Group v. Robinson, 158 F. Supp. 3d 632, 651 (N.D. Ohio Jan. 20, 2016).
C. 	Miscarriage of Justice
Morris also asserts that this Court should review his claims under the “fundamental
miscarriage of justice” exception to procedural default. A “fundamental miscarriage of justice”
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can occur only when the procedurally defaulted claim would establish that the petitioner was
“actually innocent.” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006); Dufresne v. Palmer,
876 F.3d 248, 255–56 (6th Cir. 2017). But “[A]ctual[ ] innocen[ce]” means “factual innocence,
not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). To overcome
procedural default, an actual innocence claim must be supported by “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.
1. 	Ground One
Morris asserts that his conviction for aggravated burglary violates the due process clause
of the Fourth Amendment because he alleges that the State presented perjured testimony. (ECF
No. 1, PageID #: 7). Morris contends that prosecution witness, Rochelle Miller, gave false
conflicting versions of her testimony. (ECF No. 9, PageID #: 1241–45). Moreover, Morris argues
that inconsistencies between Officer Yoder’s Incident Report, Ms. Miller’s written statement, and
Ms. Miller’s trial testimony, concerning the date of the burglary, August 21, 2022, August 23,
2022, and August 16, 2022, respectively, establish that the prosecution relied upon false testimony
in obtaining their conviction. Id. Additionally, Morris presents evidence that Ms. Miller
misrepresented her criminal history in her trial testimony. Id. at PageID #: 1249.
However, Petitioner has failed to offer this Court new reliable evidence of innocence that
was not presented at trial which would excuse his default. See Schlup, 513 U.S. at 324 (emphasis
added). Although Petitioner has presented evidence that he claims could impeach the witness’
credibility, a habeas petitioner’s renewed attacks on a witness’ credibility are insufficient to
establish actual innocence for the purposes of excusing a procedural bar. See In Re Byrd, 269 F.3d
561, 577 (6th Cir. 2001) (holding that petitioner’s “renewed attacks on [a] trial witness [‘s]
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... credibility ... do not provide proof of ‘actual innocence’”) (citing Clark v. Lewis, 1 F.3d 814,
824 (9th Cir.1993) (allegation that prosecution witness could have been impeached by allegedly
withheld evidence did not constitute a credible claim of “actual innocence” sufficient to show that
the petitioner was actually innocent)); see also Calderon v. Thompson, 523 U.S. 538, 563, 118 S.
Ct. 1489, 140 L.Ed.2d 728 (1998) (newly discovered impeachment evidence, which is “a step
removed 	from 	evidence 	pertaining 	to 	the 	crime 	itself,” 	“provides 	no 	basis 	for
finding” actual innocence); Sawyer v. Whitley, 505 U.S. 333, 349, 112 S. Ct. 2514, 120 L.Ed.2d
269 	(1992) 	(newly 	discovered 	impeachment 	evidence 	“will 	seldom, 	if 	ever,”
establish actual innocence). Evidence that merely impeaches a witness is thus insufficient to
support a claim of actual innocence. See Sherratt v. Friel, 275 F. App’x 763, 768 (10th Cir.
2008) (noting that “new evidence must affirmatively demonstrate [ ] [the petitioner's] innocence,
not simply undermine the finding of guilt against him”; McMurry v. Wolfenbarger, No. 06–12415,
2007 	WL 	2318748, 	at 	*5 	(E.D. 	Mich. 	Aug. 	9, 	2007) 	(holding 	that 	“attacks 	on
a witness’s credibility rarely provide proof of actual innocence”). Thus, Petitioner’s Ground One
claim attacking witness credibility do not equate to actual innocence and is procedurally defaulted
since it was not raised on appeal.
2. 	Grounds Two, Three, and Four
Moreover, in Grounds Two, Three, and Four, Morris raises claims regarding the
sufficiency of evidence already presented to the jury. (ECF No. 1, PageID #: 9, 11, 13). However,
to 	establish 	actual 	innocence, 	Morris 	must 	show 	that 	he 	is 	factually 	innocent; 	mere
legal insufficiency of the evidence is not enough. Mainegra-Reyes v. United States, 2013 U.S.
Dist. LEXIS 31430, *16. Here, not only does Morris fail to address his procedural default,
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his claim of actual innocence is not a claim of factual innocence, but rather, an attack on the
sufficiency of the evidence.
Morris asserts that the state violated his Fourteenth Amendment due process rights by
“entering a conviction for count five, possessing drug abuse instruments, on insufficient evidence
and by failing to grant defendant’s Rule 29 motion dismissing the charge” and “entering a
conviction for counts six and seven, possession of drugs and trafficking drugs, on insufficient
evidence …” (ECF No. 9 at PageID #: 1252, 1269). Additionally, Morris contends that the
evidence presented regarding his possession of a controlled substance was also insufficient. (ECF
No. 9 at PageID #: 1255).
However, Morris does not present an actual innocence argument and has failed to offer
this Court new reliable evidence of innocence that was not presented at trial which would excuse
his default. See Schlup, 513 U.S. at 324 (emphasis added). Morris’ failure to offer any new
evidence to attempt to establish his actual innocence is fatal to his claim. Therefore, because
Morris has not supported his presumed allegation of actual innocence with new reliable evidence,
and he has not demonstrated “that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence,” Schlup, 513 U.S. at 327, he has not met the standard
for establishing an innocence claim to excuse his procedural default. Thus, Petitioner’s ground
two, three, and four claims attacking witness credibility and sufficiency of the evidence do not
equate to actual innocence and are procedurally defaulted since they were not raised on direct
appeal.
D. New Grounds Raised in Traverse
Respondent contends that Morris filed new and expanded grounds in his traverse and these
new grounds are not properly presented to the Court. (ECF No. 10, PageID #: 1295). As noted by
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Respondent, “[a] traverse or reply to an answer to a petition for writ of habeas corpus is not the
proper pleading for a habeas petitioner to raise additional grounds for relief. A court cannot
consider new issues raised in a traverse or reply to the State’s answer.” Burns v. Lafler, 328 F.
Supp. 2d 711, 724 (E.D. Mich. 2004) (Gadola, J.) (citations omitted) (citing Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); Lewis v. Witek, 927 F. Supp. 1288, 1291 n.2 (C.D.
Cal. 1996)). Moreover, alleged violations of federal constitutional rights which are first presented
in a traverse, rather than in a petitioner’s federal habeas corpus petition, are not properly before
the Court, and the Court need not consider them. Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir.
2005); Jenkins v. Welch, No. 4:09CV637, 2010 U.S. Dist. LEXIS 47239, 2010 WL 1948297, at
*15 (N. D. Ohio Apr.26, 2010); Sowell v. Collins, 557 F.Supp.2d 843, 889 (S. D. Ohio 2008).
However, this Court need not determine if Petitioner raised new grounds in his traverse. As noted
above, Petitioner’s four claims raised in his original petition fail due to procedural default and any
new grounds raised in his traverse are not properly before this Court.
VII. 	Certificate of Appealability
A. 	Legal Standard
A habeas petitioner may not appeal the denial of his application for a writ of habeas corpus
unless a judge issues a certificate of appealability and specifies the issues that can be raised on
appeal. 28 U.S.C. § 2253(c) (“A certificate of appealability may issue … only if the applicant has
made a substantial showing of the denial of a constitutional right.”). The “‘petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.’” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). The granting of a certificate of appealability does not require
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a showing that the appeal would succeed on any claim. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
B. 	Analysis
Morris’s entire petition is procedurally defaulted. If the Court accepts the foregoing
recommendation, then Morris has not made a substantial showing of a denial of a constitutional
right. He would then not be entitled to a certificate of appealability. Thus, I recommend that the
Court not issue a certificate of appealability.
VIII. 	Recommendation
Morris has presented only procedurally defaulted claims, and he should not be allowed to
amend his petition to add new claims as doing so would be futile. Thus, I recommend that the
Court deny his petition in its entirety and not grant him a certificate of appealability.
DATED: January 8, 2026
_______________________________________
Carmen E. Henderson
United States Magistrate Judge
_______________________________________________________
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts
within 14 days after being served with a copy of this document. Failure to file objections within
the specified time may forfeit the right to appeal the District Court’s order. Berkshire v. Beauvais,
928 F.3d 520, 530–31 (6th Cir. 2019).
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