Taylor v. Shoop

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KEITH DARNELL TAYLOR,
Petitioner, 	: 	Case No. 1:25-cv-00686
- vs - 	District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz
TIM SHOOP, WARDEN, Ross
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus action, brought Petitioner Keith Taylor with the assistance of counsel,
is before the Court for decision on the merits on the Amended Petition (ECF No. 6), the State
Court Record (ECF No. 8), and Respondent’s Return of Writ (ECF No. 9). Although the Court
set a date in the Order for Answer for Petitioner to file a reply, no reply has been filed, making the
case ripe for decision on the pleadings already filed.
Litigation History
On April 6, 2023, the Muskingum County Grand Jury handed down an indictment charging
Petitioner in forty-five counts with various theft-related offenses (Indictment, State Court Record
(ECF No. 8, Ex. 1). Pursuant to a negotiated plea, he pled guilty to engaging in a pattern of corrupt
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activity with a firearm specification in violation of Ohio Revised Code § 2923.32(A)(1),
2941.141(A), four counts of theft in violation of Ohio Revised Code § 2913.02(A)(1)and (3), four
counts of identity fraud in violation of Ohio Revised Code § 2913.49(B)(1), one count of felonious
assault with a firearm specification in violation of Ohio Revised Code § 2903.11(A)(1), and one
count of grand theft of a motor vehicle in violation of Ohio Revised Code § 2913.02(A)(3); the
remaining charges were dismissed. He was sentenced to 21.5 to 26 years imprisonment.
Taylor appealed raising two assignments of error under Ohio law (Appellant Brief, State
Court Record, ECF No. 8, Ex. 9). The Ohio Fifth District Court of Appeals affirmed. Id. at Ex.
10. 	The Ohio Supreme Court granted leave for a delayed appeal but then declined to exercise
jurisdiction. Id. at Exs. 13, 15.
On April 18, 2024, Taylor, pro se, filed an App. R. 26(B) application for reopening his
direct appeal to raise the following four claims of ineffective assistance of appellate counsel. (State
Court Record, ECF No. 8, Exhibit 16). Taylor claims his appellate counsel was ineffective for
failing to raise the following four issues on appeal:
1. 	The 	Appellant’s 	Guilty 	Pleas 	Were 	Unknowingly,
Unintelligently, and Involuntary Made.
2. 	The Trial Court Erred to the Prejudice of the Appellant’s
Substantial Rights by Sentencing the Appellant to Multiple
Prison Terms Based Upon Allied Offenses of Similar Import.
3. 	The Trial Court Erred to the Prejudice of the Appellant’s
Substantial Rights by Imposing an Aggregate Sentence Much
Greater than, and Not Proportional to, Sentences Imposed in
Similar Cases; and by Imposing Consecutive Sentences Without
Proper Findings.
4. 	The Trial Court Erred to the Prejudice of the Appellant’s
Substantial Rights by Allowing the Appellant’s Guilty Pleas to
Be Accepted by Judge Cottrell, and the Sentence to be Imposed
by Judge Fleagle, where Judge Cottrell was Not Disqualified or
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Otherwise Unable to Continue to Perform His Duties in the
Case.
(Application, State Court Record, ECF No. 8, Ex. 16).
The Fifth District Court of Appeals denied Taylor’s 26(B) Application. Id. at Ex. 18. As
to the first omitted assignment of error, Taylor claimed he had been promised during plea
negotiations a sentence of six to twelve years. Id. at PageID 240. The Fifth District found instead:
The record affirmatively demonstrates at the time Appellant entered
his 	plea 	of 	guilty, 	he 	understood 	the 	State 	would 	make 	no
recommendation as to sentencing, and both the State and defense
counsel would argue for the sentence they felt was appropriate.
When he claimed at sentencing he was promised a sentence of six
to twelve years, his counsel represented to the court Appellant's
representation was not accurate.
Id. at PageID 242. 	The Fifth District then ruled Taylor’s first omitted assignment of error was
without merit. In other words, it was not ineffective assistance of appellate counsel to fail to raise
the asserted invalidity of the plea on direct appeal because the plea was in fact valid. The Fifth
District further held the parties had stipulated in the plea agreement that the offenses of conviction
did not merge under Ohio Revised Code § 2941.25 so that it was not ineffective assistance of
appellate counsel to fail to raise that claim. Id. at PageID 245.
The Fifth District also rejected Taylor’s claim of disproportionality and failure to make
necessary findings for consecutive sentencing. Id. at PageID 251, As to the change-of-judge claim,
the Fifth District noted that there had been no contemporaneous objection and thus direct review
would have been for plain error, which it did not find. Id. at PageID 253. Taylor did not appeal
this decision to the Ohio Supreme Court.
However, on September 30, 2024, Taylor filed a Motion to Set Aside the Judgment and
Permit him to Withdraw his Guilty Plea (State Court Record, ECF No. 8, Ex. 19). The Motion
was summarily denied. Id. at Ex. 23. Taylor’s appeal was dismissed for want of prosecution. Id.
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at Ex. 	25. 	Represented by the same attorney who represents him in this Court, Taylor filed a
Petition for Writ of Habeas Corpus in the Fifth District. Id. at Ex. 26. That Court then dismissed
for lack of jurisdiction. Id. at Ex. 27. 	On September 18, 2025, Taylor filed his habeas corpus
petition in this Court (ECF No. 1). The undersigned ordered the Petition amended to comply with
Habeas Rule 2 and counsel did so on September 30, 2025 (ECF No. 3). The Petition was again
amended to comply with S. D. Ohio Civ. R. 5.1 (ECF No. 6) and pleads the following grounds for
relief:
Ground One: The decisions of the Ohio courts denying relief upon
claims of ineffective assistance of trial counsel were in error, as
counsel failed to insure valid guilty pleas were entered.
Supporting 	Facts: 	At 	sentencing, 	the 	Petitioner 	expressed
confusion as to why he was not receiving sentence of between six
and twelve years incarceration, as had originally been offered by the
State during plea negotiations. Counsel informed the court that this
representation was not correct. Further, the Petitioner, unaware that
his offenses of conviction would not be considered offenses of allied
import. entered a plea unaware of the consequences of such an
action, and in contravention of what he would have otherwise done.
Ground Two: The decisions of the Ohio courts denying relief upon
claims of ineffective assistance appellate conusel [sic] were in error,
as appellate counsel failed to raise claims regarding trial counsel's
ineffectiveness.
Supporting Facts: Appellate counsel failed to raise claims #1, as
put forth above, despite the fact that the facts upon which the claim
based are largely on the record. Instead of raising the above claims,
appellate counsel raised sentencing claims that rested centered
entirely upon the discretion of the lower court.
(Amended Petition, ECF No. 6).
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Analysis
Respondent asserts both Grounds for Relief are procedurally defaulted (Return of Writ,
ECF No. 9, PageID 456).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6 th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). 	“Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] 	federal 	court 	may 	not 	review 	federal 	claims 	that 	were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). 	This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
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presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. 	The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. 	See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that
were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6 th Cir. 2020), citing
Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.
Davis, 582 U.S. 521, 527(2017)). Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6 th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
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Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). 	A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Ground One: Invalid Guilty Plea
Taylor’s First Ground for Relief – that his guilty plea was invalid both with respect to
length of sentence and as to failure to merge allied offenses – is based on facts which were available
in the direct appeal record.
Ohio has a relevant procedural rule: trial court error claims which can be adjudicated on
direct appeal must be presented there or they are barred from later consideration by res judicata
doctrine.
Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction or on an appeal from that
judgment.
Syllabus in State v. Perry, 10 Ohio St. 2d 175 (1967)(emphasis sic.). 	See also State v. Cole, 2
Ohio St. 3d 112 (1982); State v. Duling, 21 Ohio St. 2d 13 (1970).
Taylor first raised his claim that his plea was invalid when he asserted in his App. R. 26(B)
Application that it was ineffective assistance of appellate counsel to fail to raise this claim on direct
appeal. 	However, the Fifth District did not enforce the res judicata doctrine. Instead, it held there
would have been no merit to the underlying claim and therefore it was not ineffective assistance
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of appellate counsel to fail to raise it.
Claims of ineffective assistance of counsel at both the trial and appellate levels are to be
evaluated by the standard adopted by the Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. 	First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. 	Second, the defendant must show that the
deficient 	performance 	prejudiced 	the 	defense. 	This 	requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. 	Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. 	Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)
counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial 	scrutiny 	of 	counsel's 	performance 	must 	be 	highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. 	Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; 	that is, the defendant must overcome the presumption
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that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. 	See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6 th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100
(2011); Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703 F.3d 848 (6th Cir. 2012).
In this case the Fifth District decided on the merits that Taylor did not received ineffective
assistance of appellate counsel when his appellate attorney failed to raise the claim that his guilty
plea was invalid because the plea was not invalid. That decision is entitled to deference because
it cannot be ineffective assistance to fail to raise a meritless assignment of error. Petitioner’s First
Ground for Relief should be dismissed on the merits.
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Ground Two: Ineffective Assistance Of Appellate Counsel
Ground Two should be dismissed with prejudice on the same basis as Ground One: 	it
cannot be ineffective assistance of appellate counsel to fail to plead assignments of error which are
without merit as the Fifth District has held the proposed omitted assignments in this case would
have been.
Conclusion
Based on the foregoing analysis, the Magistrate Judge 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.
February 2, 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. 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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