Andrews v. Scioto County Court of Common Pleas

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MICHAEL WAYNE ANDREWS,
Petitioner, 	: 	Case No. 1:26-cv-220
- vs - 	District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz
SCIOTO COUNTY COURT OF
COMMON PLEAS,
:
Respondent.
ORDER SUBSTITUTING RESPONDENT; REPORT AND
RECOMMENDATIONS
This is a habeas corpus case, brought pro se by Petitioner Michael Wayne Andrews
pursuant to 28 U.S,C. § 2254 to obtain relief from his conviction on drug-related offenses in the
Scioto County Court of Common Pleas. 	Under that statute, habeas corpus cases are randomly
assigned to one of the District Judges resident at the seat of court where the Petition is filed and
then randomly referred under Amended General Order 22-05 to one of the District’s Magistrate
Judges. This case has been assigned to District Judge Matthew W. McFarland and referred to the
undersigned.
Under Rule 4 of the Rules Governing § 2254 Cases, the Clerk must promptly forward the
petition to a judge under the court’s assignment procedure, and the judge must promptly examine
it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled
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to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.
Substitution of Respondent
Petitioner reports that he is “currently released on appeal bond in Columbus, Ohio, but is
in custody for purposes of federal habeas corpus jurisdiction pursuant to a judgment of conviction
from the Scioto County Court of Common Pleas.” Petitioner does not attach a copy of the bond
papers or any information about a pending appeal, although he claims to have exhausted state court
remedies and lists dates and courts for direct appeal. Assuming the accuracy of Petitioner’s report,
the Magistrate Judge concludes he is in sufficient custody to invoke this Court’s habeas corpus
jurisdiction. 	However, he has named as Respondent the Sheriff of Scioto County. 	While the
Sheriff may eventually be mandated to deliver him for imprisonment, he is more properly regarded
as in the custody of the court which released him on bond. 	See Braden v. 30 th Judicial Circuit
Court of Kentucky, 410 U.S. 484 (1973). Accordingly, the Scioto County Court of Common Pleas
is substituted as Respondent and the caption is amended as set forth above.
The Clerk shall serve this Order on Petitioner, the Sheriff of Scioto County, the Presiding
Judge of the Scioto County Court of Common Pleas, the Prosecuting Attorney of Scioto County,
and the Ohio Attorney General.
Petitioner’s Claims
Petitioner pleads four grounds for relief, three under the Fourth Amendment and one under
the Sixth Amendment for ineffective assistance of trial counsel. (Petition, ECF No. 1, PageID 5-
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6).
Fourth Amendment Claims
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that
question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court
to determine whether state procedure in the abstract provides full and fair opportunity to litigate,
and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim
was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an
unanticipated and unforeseeable application of a procedural rule prevents state court consideration
of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept
of a “full and fair opportunity,” held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate. Ohio
R. Crim. P. 12 provides an adequate opportunity to raise Fourth
Amendment claims in the context of a pretrial motion to suppress,
as is evident in the petitioner’s use of that procedure. Further, a
criminal defendant, who has unsuccessfully sought to suppress
evidence, may take a direct appeal of that order, as of right, by filing
a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.
5(A). These rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment claims because the state affords a
litigant an opportunity to raise his claims in a fact-finding hearing
and on direct appeal of an unfavorable decision.
Id. at 526. Stone applies to bar consideration of Fourth Amendment claims in § 2255 proceedings.
Ray v. United States, 721 F.3d 758 (6th Cir. 2013).
In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary
hearing was not required by due process and followed its prior conclusion that “opportunity means
opportunity . . . the state court need do no more than take cognizance of the constitutional claim
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and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d 1298, 1302
(6th Cir. 1977).
Consistent with Moore and with two of the three votes in Bradley,
we make clear that the Powell "opportunity for full and fair
consideration" means an available avenue for the prisoner to present
his claim to the state courts, not an inquiry into the adequacy of the
procedure actually used to resolve that particular claim.
Id. at 639-40.
As the Petition recites, Andrews was able to fully litigate his Fourth Amendment claims in
the Ohio courts through a motion to suppress in the trial court, on which that court held a full
evidentiary hearing, then on appeal to the Fourth District Court of Appeals and finally to the Ohio
Supreme Court. Although the Supreme Court declined to exercise jurisdiction, Andrews had the
same opportunity to present his Fourth Amendment claims to that court as does any other Ohio
felony defendant. Petitioner’s first three claims are all substantive Fourth Amendment claims; he
does not assert he was deprived of the full and fair opportunity to litigate those claims which Ohio
law provides to all felony defendants.
Petitioner’s Fourth Amendment claims should therefore be dismissed with prejudice for
failure to state a claim upon which habeas corpus relief can be granted.
Sixth Amendment Claim
In his Fourth Ground for Relief, Petitioner claims he received ineffective assistance of trial
counsel in the way in which his trial attorney handled the Fourth Amendment claims in the trial
court. This ground for relief is procedurally defaulted by Petitioner’s failure to fairly present it to
the Ohio courts.
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Anticipating a procedural default defense to this claim, Petitioner writes:
The ineffective assistance of counsel claim was not raised as a
separate assignment of error on direct appeal, but is based entirely
on the suppression hearing record, body camera video, and motions
that were before the state courts. Ohio courts were aware of all
factual predicates for this claim. Any procedural default should be
excused because: (a) the claim is based on the existing record
reviewed by state courts; (b) appellate counsel's failure to raise trial
counsel's ineffectiveness itself constitutes cause for the default; and
(c) Petitioner will suffer actual prejudice if the claim is not
considered, as the Fourth Amendment violations would not have
resulted in conviction but for trial counsel's deficient performance
at the suppression hearing.
(Petition. ECF No. 1, PageID 6).
Petitioner essentially admits that this claim could have been adjudicated on direct appeal
because all material needed was in the appellate record. But when that is the case and the claim is
not raised on direct appeal., any later attempt to litigate it in the Ohio courts is barred by res
judicata. Issues that could have been raised on direct appeal and were not are res judicata and not
subject to review in subsequent proceedings. State v. Davis, 119 Ohio St.3d 422, ¶ 6 (2008). citing
State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, 797 N.E.2d 948, ¶ 37; State v. D'Ambrosio
(1995), 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995).
Petitioner asserts failure to present this claim on direct appeal is excused by ineffective
assistance of appellate counsel. However, ineffective assistance of appellate counsel will excuse
a procedural default only when the ineffective assistance of appellate counsel claim has itself been
adjudicated in a petitioner’s favor in the usual state process. Edwards v. Carpenter, 529 U.S. 446
(2000); Chase v. MaCauley, 971 F.3d 582, 592 (6th Cir. 2020); Scuba v. Brigano, 527 F.3d 479,
488 (6th Cir. 2007). 	Ohio has a remedy for ineffective assistance of appellate counsel claims:
application for reopening of the appeal under Ohio R. App. P. 26(B). Petitioner does not report
filing a 26(B) application, much less any favorable result. 	The deadline for filing a 26(B)
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application is ninety days from judgment in the appellate court. 	Ineffective assistance of counsel
on appeal cannot constitute cause for failure to file a timely application for reopening of the direct
appeal under Ohio R. App. P. 26(B) since a person is not entitled to counsel for the reopening.
Riggins v. Turner, 110 F.3d 64 (6th Cir. 1997).
Petitioner’s Sixth Amendment claim should be dismissed with prejudice as procedurally
defaulted.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice on initial review under Rule 4. 	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.
March 3, 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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