Robert Kelly v. Alan Lazaroff , 846 F.3d 819 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0014p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD KELLY, ┐
Petitioner-Appellant, │
│
> No. 15-3950
v. │
│
│
ALAN J. LAZAROFF, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:14-cv-01217—John R. Adams, District Judge.
Argued: December 9, 2016
Decided and Filed: January 20, 2017
Before: COLE, Chief Judge; BOGGS, and SILER, Circuit Judges.
_________________
COUNSEL
ARGUED: Russell S. Bensing, Cleveland, Ohio, for Appellant. Stephanie L. Watson, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Russell
S. Bensing, Cleveland, Ohio, for Appellant. Stephanie L. Watson, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. This is a procedurally complicated habeas case involving two
“layered” claims of ineffective assistance of counsel. In 2010, Ronald Kelly was convicted of
felony murder, felonious assault, and assault in Ohio state court for his involvement in a fight
No. 15-3950 Kelly v. Lazaroff Page 2
near Kent State University and was sentenced to a term of fifteen years to life imprisonment.
After his conviction, Kelly raised several claims on direct appeal, including a claim that his trial
counsel was ineffective. In a dramatic twist, however, Kelly’s counsel on direct appeal included
the wife and business partner of his trial counsel.1 Perhaps unsurprisingly, Kelly’s direct appeal
and state post-conviction claims before the Ohio state courts were unsuccessful. Armed with
new counsel, Kelly brought a new claim of ineffective assistance of trial counsel in a 28 U.S.C.
§ 2254 habeas petition in federal court, advancing a theory of his trial counsel’s ineffectiveness
that had not been fully presented before the Ohio state courts. Kelly also argued that his
appellate counsel was constitutionally ineffective, a claim that had been properly presented
before the Ohio state courts, and that his appellate counsel’s ineffectiveness should excuse his
procedurally defaulted ineffective-assistance-of-trial-counsel claim under the Supreme Court’s
decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911(2013). The district court rejected both of his arguments, concluding that the actions of Kelly's
appellate counsel, even if allegedly ineffective, could not excuse Kelly’s procedurally defaulted
ineffective-assistance-of-trial-counsel claim, and that his ineffective-assistance-of-appellate-
counsel claim could not overcome AEDPA deference.2 We affirm.
I
A
In the fall of 2009, Ronald Kelly was a sophomore at Akron University. On November
14, 2009, Kelly and two of his friends, Adrian Barker and Glenn Jefferson, attended a fraternity
party at nearby Kent State University. The events of that evening are best laid out by the Ohio
appellate court that later affirmed Kelly’s conviction:
On the early morning of November 15, 2009, [Kelly] left a fraternity party at Kent
State University at around 2:00 a.m. with his friends, Adrian Barker and Glenn
Jefferson. The trio got into Jefferson’s white Honda Civic. At approximately the
same time, four Kent State students—Christopher Kernich, Bradley Chelko, Dave
1
Because the record is somewhat ambiguous on this point, we will assume that Gregory and Margaret
Robey divided the responsibilities of Kelly’s representation on direct appeal and refer to them with the plural form
of counsel.
2
“AEDPA” refers to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254.
No. 15-3950 Kelly v. Lazaroff Page 3
Clements, and Christopher Pataky—were on their way home after an evening of
drinking and socializing. As Jefferson’s car was beginning to exit the lot,
Kernich, Chelko, Clements, and Pataky were passing the parking lot on foot.
Testimony indicated that Jefferson’s Honda left the lot quickly and nearly hit one
of the walkers as it exited. The near-miss prompted a member of the group to
shout some “unfriendly” words at the car as it pulled out onto the street. As a
result of the group’s exclamation, Jefferson pulled the car over and parked in a lot
further up the street.
In the meantime, Kernich, Chelko, Clements, and Pataky continued walking in the
direction of the parked vehicle. As the group passed Jefferson’s parked car,
[Kelly] and Barker exited the vehicle. [Kelly] shoved Chelko into the Honda’s
rear bumper then punched him in the face, knocking him to the ground.
The state presented multiple witnesses who testified that, after [Kelly] knocked
Chelko down, he then “squared off” with Kernich. As [Kelly] and Kernich
“danced” in the street, each in a fighting posture, there was testimony that Barker,
running at a full sprint, blindsided Kernich with a punch to the head. It appeared
Kernich collapsed to the ground unconscious, cracking his head on the pavement.
Witnesses testified that [Kelly] and Barker then commenced kicking and
stomping the defenseless Kernich in the head. Kernich passed away as a result of
injuries he sustained from the attack.
Conversely, [Kelly] testified that he and Chelko were brawling in the street, with
Chelko making continued efforts to tackle him. Once the fight with Chelko
ended, [Kelly] testified he turned around only to find Kernich on the ground, the
apparent victim of Barker’s fury. [Kelly] asked Barker why he stomped Kernich,
to which Barker did not respond. [Kelly] testified he never stomped or kicked
Kernich.
After the dire consequences of the attacks became clear, Jefferson went to retrieve
his vehicle and ripped off its temporary tags to avoid identification. Jefferson
picked up [Kelly] and the duo drove to where Barker was situated, surrounded by
concerned civilians attempting to detain him. [Kelly] exited the vehicle in an
effort to reason with the angry crowd and collect his friend. Very quickly
thereafter, the police arrived and bystanders pointed out [Kelly] and Barker, who
were detained and eventually arrested. Kernich was quickly transported to the
trauma center at Akron City Hospital where, several days later, he was
pronounced dead.
State v. Kelly, 2012 WL 439668, at *1 (Ohio Ct. App. Feb. 13, 2012). As a result of these
events, Kelly and Barker were both indicted on charges of felonious assault and murder.
Specifically, Kelly was charged with one count of felonious assault, two counts of murder (one
alleging that Kelly had murdered Kernich purposefully, and one alleging that Kelly had killed
No. 15-3950 Kelly v. Lazaroff Page 4
Kernich during the commission of a felony), and three counts of misdemeanor assault for his
attack on Kernich’s friends who were involved in the fight.
At trial, Kelly was represented by Gregory Robey, who pursued what Kelly now calls an
“all-or-nothing” trial strategy. Under this approach, Kelly took the stand and testified that,
despite eyewitness testimony to the contrary,3 he had never touched Kernich during the group
altercation. Instead, he insisted that although he had “square[d] up” in a fighting stance against
Kernich, Kelly had become distracted by one of Kernich’s friends and that Barker had been the
one to deliver the fatal blow and kick Kernich’s unconscious body. Robey also had an expert
witness testify that there was no trace of Kernich’s DNA on Kelly’s shoes, and ten character
witnesses who testified to Kelly’s peaceful disposition. At the conclusion of trial, Robey
requested jury instructions only on felonious assault, felony murder, purposeful murder, and
assault, effectively forcing jurors to choose between convicting Kelly of one of several serious
offenses or acquitting him entirely. The jury elected the former, finding Kelly guilty of felonious
assault, felony murder, and assault. The judge imposed a sentence of fifteen years to life
imprisonment for the felonious assault and felony murder convictions, with a concurrent six-
month sentence for the assault.
Barker was tried separately and convicted of felonious assault, felony murder, purposeful
murder, and one count of tampering with evidence. He received a life sentence with parole
eligibility after fifteen years for the murder of Kernich, with a concurrent five-year sentence for
tampering with the evidence. Unlike in Kelly’s trial, however, Barker’s attorney requested (but
was denied) a jury instruction on lesser included offenses. Both Barker and Kelly would go on
to appeal their criminal convictions.
B
On direct appeal, Kelly argued, inter alia, that he had received ineffective assistance of
trial counsel when Robey failed to: (1) clarify that a mixed DNA sample found on Kelly’s pants
3
No fewer than ten eyewitnesses contradicted Kelly’s account. One testified that he saw Kelly kick
Kernich “multiple times.” Another testified that Kelly kicked Kernich “at least . . . three times.” The consensus of
the eyewitness testimony was that Kelly had kicked Kernich between two and three times while he lay on the
ground. Conversely, Kelly could offer no testimony other than his own to suggest that he had not touched Kernich.
No. 15-3950 Kelly v. Lazaroff Page 5
did not necessarily contain the blood of Kernich; (2) advance and obtain further evidence in
support of a theory that Barker’s running punch, and not any subsequent kicks to Kernich’s
body, was the cause of Kernich’s death; and (3) object to allegedly pervasive prosecutorial
misconduct. Kelly’s counsel on direct appeal was Margaret Robey, wife of trial counsel Gregory
Robey and co-partner in their shared firm Robey & Robey. As if that alone did not present
significant issues of legal conflict (not to mention marital strife), the record reflects that Gregory,
and not his wife Margaret, actually appeared before the Ohio Court of Appeals intent on arguing
his own incompetence. Kelly, 2012 WL 439668 at *12 (“Attorney Greg Robey was appellant’s
counsel both at trial and during oral arguments.”). The Ohio Court of Appeals, finding
“counsel’s inherent conflict of interest . . . obvious” with respect to Kelly’s ineffective-
assistance-of-trial-counsel claim, refused to adjudicate the issue on direct appeal, instead
concluding that it should have been raised “in a postconviction relief proceeding pursuant to
[Ohio Rev. Code §] 2953.23.” Ibid. Notably, on the same day that the Ohio Court of Appeals
denied Kelly’s appeal, it overturned Barker’s conviction on the ground that the trial court erred
when it rejected Barker’s request for a lesser-included-offenses jury instruction. State v. Barker,
2012 WL 439658 (Ohio Ct. App. Feb. 13, 2012).
Kelly, still represented by Gregory and Margaret Robey, sought en banc review of the
Ohio Court of Appeals decision. In that proceeding, Kelly reiterated his ineffective-assistance-
of-trial-counsel claim on the same grounds as before. Perhaps inspired by the success of Barker,
however, Kelly also argued for the first time that the trial court erred when it failed to give Kelly
a similar lesser-included-offenses jury instruction. Kelly’s argument differed from Barker’s,
though, in that unlike Barker, Kelly’s counsel had failed to request a lesser-included-offenses
jury instruction at trial. Thus, his claim was that the failure of the trial court to give the
instruction constituted plain error. The Ohio Court of Appeals denied Kelly’s application for en
banc review, concluding that a plain-error analysis was not warranted where the appellant “does
not assign or argue the error on appeal,” and that it was still precluded from considering Kelly’s
ineffective-assistance-of-trial-counsel claim because of his appellate counsel’s inherent conflict.
Finally taking the hint, Kelly dismissed his conflicted counsel and sought representation from the
Ohio Public Defender’s office. Armed with newly appointed counsel, Kelly took his direct
No. 15-3950 Kelly v. Lazaroff Page 6
appeal to the Ohio Supreme Court. The court declined to hear his case. State v. Kelly, 974 N.E.
2d 113 (Ohio 2012).
While Kelly’s direct appeal was still pending before the Ohio Court of Appeals, and
while he was still represented by Gregory and Margaret Robey, Kelly sought post-conviction
relief pursuant to Ohio Rev. Code § 2953.21. In his state post-conviction motion, Kelly
advanced only two arguments: (1) that he was denied a fair trial due to unfair media coverage
and an all-white jury venire, and (2) that the jurors had been subjected to “coercive pressure” to
render a verdict when the trial judge forced them to deliberate over the weekend. The Ohio trial
court rejected Kelly’s post-conviction motion without a hearing on September 6, 2012, just one
day after the Ohio Supreme Court declined to hear his case on direct appeal. Kelly, by this time
represented by an Ohio public defender, chose not to appeal the decision.
Kelly’s appointed counsel did, however, file a motion in the Ohio Court of Appeals
pursuant to Ohio App. R. 26(B) to reopen that court’s decision regarding Kelly’s direct appeal.
Rule 26(B) permits a court to reopen a criminal judgment “based on a claim of ineffective
assistance of appellate counsel.” Ohio App. R. 26(B)(1). Kelly argued that the conflict of
interest between his trial and appellate counsel prevented him from raising various claims on
appeal, including the claim that his trial counsel was ineffective for failing to request a lesser-
included-offenses jury instruction. This was the first time that Kelly raised his jury-instruction
argument in the context of an ineffective-assistance-of-trial-counsel claim, having previously
raised the argument as an independent claim of plain error in his petition for en banc review
before the Ohio Court of Appeals. The Court of Appeals denied Kelly’s motion, applying the
Supreme Court’s test for ineffective counsel in Strickland v. Washington, 466 U.S. 668 (1984),
and concluding that Kelly’s appellate counsel was not ineffective. The court reasoned that
because Kelly’s trial counsel was reasonable, in that the decision to pursue an all-or-nothing
defense was “within the purview of trial strategy” and that such a defense did not mandate an
instruction of “lesser-included offenses given the nature of the evidence,” Kelly would not have
succeeded on direct appeal even if his appellate counsel had properly raised the ineffective-
assistance-of-trial-counsel claim. As Kelly was not prejudiced by his appellate counsel’s failure
to raise a meritless claim, the court went on to conclude, he could not successfully make out a
No. 15-3950 Kelly v. Lazaroff Page 7
claim for ineffective assistance of appellate counsel and thus his direct appeal did not merit
reopening. Kelly appealed this decision to the Ohio Supreme Court, but, just as on direct appeal,
the Ohio Supreme Court declined review. State v. Kelly, 988 N.E. 2d 579 (Ohio 2013).
C
With no further avenue of relief available in Ohio state court, Kelly filed a petition in
federal district court for habeas relief under 28 U.S.C. § 2254. Although he originally advanced
four claims, he subsequently filed a traverse that narrowed his four claims to two: (1) that his
trial counsel was constitutionally ineffective for pursuing an unreasonable “all-or-nothing” trial
strategy, including trial counsel’s failure to request a lesser-included-offenses jury instruction;
and (2) that his appellate counsel were also constitutionally ineffective because their conflict of
interest prevented them from properly raising his ineffective-assistance-of-trial-counsel claim on
direct appeal. Kelly v. Lazaroff, 2015 WL 4546996, at *6 (N.D. Ohio July 28, 2015). The
district court denied both claims.
With respect to Kelly’s ineffective-assistance-of-trial-counsel claim, the district court
concluded that Kelly had failed to exhaust his available state remedies, as required by 28 U.S.C.
§ 2254(b) and (c), because he had not properly raised the claim on direct appeal.4 The claim was
thus procedurally defaulted. The district court then went on to reject Kelly’s argument, based on
the Supreme Court’s holdings in Martinez and Trevino, that his procedural default could be
excused because of his appellate counsel’s ineffectiveness, reasoning that his ineffective-
assistance-of-trial-counsel claim was meritless and that his appellate counsel could not be
ineffective for failing to raise a meritless claim. Kelly, 2015 WL 4546996, at *8. In this regard,
the district court’s analysis closely mirrored the analysis of the Ohio Court of Appeals, which
rejected Kelly’s Rule 26(B) application for the same reason.
With respect to Kelly’s ineffective-assistance-of-appellate-counsel claim, the district
court noted that the claim had been resolved on the merits by the Ohio Court of Appeals when it
4
Kelly had argued that his trial counsel was constitutionally ineffective on direct appeal, but for reasons
unrelated to his failure to request a lesser-included-offenses jury instruction. Although he did raise the argument as
a reason why his appellate counsel was ineffective in his Rule 26(B) application before the Ohio Court of Appeals,
the district court concluded that raising the claim in that context was “not sufficient to ‘fairly present’ the claim itself
to the state courts.” Kelly, 2015 WL 4546996, at *7 (citing Wagner v. Smith, 581 F.3d 410, 417-18 (6th Cir. 2009)).
No. 15-3950 Kelly v. Lazaroff Page 8
denied Kelly’s Rule 26(B) application. Id. at *11. Thus, as the district court explained, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) required it to give deference
to the decision of the Ohio court, granting habeas relief only where the “state court’s decision is
contrary to clearly established federal law or was based on an unreasonable determination of the
facts.” Id. at *9. Because the legal claim at issue was an ineffective-assistance-of-appellate-
counsel claim, which requires courts to grant deference to the reasoned choices of appellate
counsel, AEDPA in this context required a “doubly deferential” standard of review. Id. at *10
(quoting Burt v. Titlow, 134 S. Ct. 10, 13 (2013)). As Kelly’s claim could not overcome this
highly deferential standard, the district court rejected it as well.
Kelly re-raises both claims in this timely appeal.
II
Kelly’s first habeas claim is that his trial counsel provided constitutionally ineffective
assistance. We review a federal district court’s habeas corpus decisions under a mixed standard
of review, “examin[ing] the district court’s legal conclusions de novo and its factual findings
under a ‘clearly erroneous’ standard.” Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003)
(quoting Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999)). As the facts are uncontested, this
is strictly an evaluation of the district court’s legal conclusions, and is thus entirely subject to de
novo review.
A
As a state habeas petitioner, Kelly must satisfy the requirements of 28 U.S.C. § 2254,
which commands that “[a]n application for a writ of habeas corpus . . . shall not be granted
unless it appears that the applicant has exhausted the remedies available in the courts of the
State.” This exhaustion requirement “serves important federalism interests by permitting state
courts the first opportunity to correct alleged violations of their prisoner’s rights,” King v.
Berghuis, 744 F.3d 961, 964 (6th Cir. 2014) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)),
and is satisfied “when the highest court in the state in which the petitioner was convicted has
been given a full and fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander,
912 F.2d 878, 881 (6th Cir. 1990). As “[t]his requirement . . . refers only to remedies still
No. 15-3950 Kelly v. Lazaroff Page 9
available at the time of the federal petition,” Gray v. Netherland, 518 U.S. 152, 161 (1996)
(quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)), it can be satisfied where, as is alleged
here, the habeas petitioner’s claims are procedurally defaulted. “However, the procedural bar
that gives rise to exhaustion provides an independent and adequate state-law ground for the
conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim,
unless the petitioner can demonstrate cause and prejudice for the default.” Id. at 162.
Determining whether a habeas petitioner’s claim has been procedurally defaulted is a
four-step inquiry:
First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that petitioner failed to comply with the
rule . . . . Second, the court must decide whether the state courts actually enforced
the state procedural sanction . . . . Third, the court must decide whether the state
procedural ground 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 . . . that there was cause for him not to follow the procedural rule and
that he was actually prejudiced by the alleged constitutional error.
Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011) (quoting Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986)).
A brief review of Kelly’s case history in Ohio state court reveals that, with respect to his
ineffective-assistance-of-trial-counsel claim, he did not fully exhaust his claim on the merits and
is now procedurally barred from doing so. As previously discussed, Kelly raised several
arguments as to why his trial counsel was ineffective in his direct appeal, but none of them
involved the specific claim that he raises here: that his trial counsel was ineffective for failing to
request a lesser-included-offenses jury instruction. See supra Part I.B. Kelly did make such an
argument in his Rule 26(B) application, in the context of arguing that his appellate counsel was
sufficiently ineffective to merit reopening his direct appeal. However, as our precedent makes
clear, “the doctrine of exhaustion requires that the same claim under the same theory be
presented to the state courts before raising it in a federal habeas petition.” Wagner v. Smith,
581 F.3d 410, 417 (6th Cir. 2009) (emphasis added). Simply presenting the claim clothed in an
No. 15-3950 Kelly v. Lazaroff Page 10
analogous theory of relief will not do. Even if we were to accept Kelly’s argument on appeal
that the presentation of the claim in this context could satisfy the habeas exhaustion
requirements, his ineffective-assistance-of-trial-counsel claim is nonetheless meritless. See infra
Part II.B.
Nor is there an opportunity for Kelly to return to Ohio state court and raise his claim in a
state post-conviction proceeding, as the Ohio Court of Appeals on direct appeal suggested that he
do. Kelly filed a claim for state post-conviction relief under Ohio Rev. Code § 2953.21, but
failed to argue that his trial counsel was constitutionally ineffective. That decision was never
appealed. See supra Part I.B. Although Ohio does permit the filing of second or successive state
post-conviction petitions, Kelly cannot meet either of Ohio’s strict statutory requirements for
doing so.5
As Kelly did not raise his ineffective-assistance-of-trial-counsel claim on the merits at
any point during his appeals and cannot do so now, his claim must be considered procedurally
defaulted. Thus, the only way this court can review his claim in a habeas corpus petition is if
Kelly demonstrates cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
Kelly argues that the ineffectiveness of his appellate counsel can meet this standard and excuse
his procedural default. See Appellant’s Br. at 27–29. The Supreme Court has made clear that
attorney error can excuse a petitioner’s procedural default, but only where attorney error amounts
to ineffective effective assistance of counsel. See Murray v. Carrier, 477 U.S. 478, 488 (1986)
(“So long as a defendant is represented by counsel whose performance is not constitutionally
ineffective . . . we discern no inequity in requiring him to bear the risk of attorney error that
results in a procedural default.”). Thus, the question of whether the actions of Kelly’s appellate
counsel can excuse the procedural default of his ineffective-assistance-of-trial counsel claim
depends on whether Kelly’s appellate counsel fell below the standard for constitutionally
effective counsel announced in Strickland v. Washington, 466 U.S. 668 (1984).
5
Ohio law requires that a successive petitioner show that he was “unavoidably prevented from discovery of
the facts upon which the petitioner must rely to present the claim for relief” and that the error would have changed
the outcome at trial, or that DNA testing can establish actual innocence of the alleged offense. Ohio Rev. Code
2953.23. Kelly does not argue that his ineffective-assistance-of-trial counsel claim meets either requirement.
No. 15-3950 Kelly v. Lazaroff Page 11
Strickland says that in order to succeed in an ineffective-assistance-of-counsel claim, a
petitioner must show that counsel acted “outside the wide range of professionally competent
assistance” such that the petitioner was prejudiced. 466 U.S. at 690. The district court assumed,
and neither party seems to contest, that appellate counsel’s continued representation of Kelly
through the appeals process, despite continued warnings that their conflict of interest with trial
counsel prohibited them from raising non-frivolous ineffective-assistance-of-trial-counsel claims
on appeal, fell below the standard of professionally competent assistance. Nonetheless, the
district court concluded that Kelly still failed to pass the Strickland test because he could not
demonstrate prejudice, reasoning that his ineffective-assistance-of-trial-counsel claim was
ultimately meritless, and that Kelly was not prejudiced by his appellate counsel’s failure to raise
a meritless claim. Oddly, then, whether Kelly can present his ineffective-assistance-of-trial-
counsel claim to this court on the merits depends entirely on whether or not that very ineffective-
assistance-of-trial-counsel claim has any merit.
B
The merits of Kelly’s ineffective-assistance-of-trial-counsel claim are also governed by
Strickland, meaning that Kelly needs to show both that his trial counsel acted “outside the wide
range of professionally competent assistance” and that he was prejudiced. Ibid. This is an
extremely deferential standard, as “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Ibid. In particular, “strategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” Ibid. Moreover, this inquiry
requires eliminating “the distorting effects of hindsight . . . [in order] to evaluate the conduct
from counsel’s perspective at the time.” Id. at 689. Stated more succinctly, the goal is not to
ensure that a criminal defendant be afforded perfect counsel, but rather “to ensure that the
adversarial testing process works to produce a just result under the standards governing
decision.” Id. at 687.
No. 15-3950 Kelly v. Lazaroff Page 12
Kelly argues that his trial counsel’s decision to pursue an “all-or-nothing” defense falls
below the level of professionally competent assistance.6 Specifically, he argues that the wealth
of eyewitness testimony that contradicted Kelly and undermined his account of events should
have led trial counsel to pursue a strategy of mitigation. Under this approach, trial counsel
should have emphasized that it was Barker, and not Kelly, who struck the most vicious blow, and
that while Kelly was involved in the altercation, one of several lesser included offenses was a
more appropriate punishment for his limited involvement. Several of these offenses, Kelly
emphasizes on appeal, carry sentences over ten years shorter than the fifteen-year minimum term
of imprisonment that Kelly is currently serving. See Appellant’s Br. at 18.
Although this approach might well have turned out to be more beneficial to Kelly, we are
not persuaded that trial counsel’s chosen strategy was objectively unreasonable. Kelly himself
testified extensively at trial as to his version of events, repeatedly insisting that he had no contact
with the victim. In support of this theory, Kelly also testified to Barker’s violent nature,
recalling a specific episode from the very night of Kernich’s death where Barker brawled with
another student at a fraternity party. Trial counsel also introduced DNA evidence at trial
demonstrating that the blood on Kelly’s sneakers belonged not to Kernich but to Bradley Chelko,
corroborating Kelly’s account that he was too preoccupied scuffling with other students to
participate in the assault on Kernich. Although other eyewitness testimony controverted Kelly’s
description of events, it was at least conceivable that the hectic nature of the assault combined
with poor nighttime visibility could convince jurors to favor Kelly’s account over those of his
accusers. Moreover, had trial counsel’s strategy been successful, Kelly would have been
completely acquitted of the criminal charges he faced for the attack on Kernich.
Trial counsel certainly pursued a “high risk, high reward” approach to Kelly’s
representation. That approach had significant risks, including the possibility that Kelly would
6
It should be noted that the appellee disputes the scope of Kelly’s argument on appeal, asserting that Kelly
improperly “mutated” the claim he advanced in state court, where he objected to counsel’s simple failure to request
a jury instruction, to the claim he advances today, where he objects to counsel’s entire trial strategy. See Appellee’s
Br. at 13–19. Kelly disputes this characterization, instead arguing that the two go hand-in-hand. Reply Br. at 1–3.
Although the merits of appellee’s distinction are unclear, we need not reach the issue here. Kelly adequately raised
the argument in his habeas petition before the district court, and the more forceful reading of Kelly’s argument does
not alter the outcome.
No. 15-3950 Kelly v. Lazaroff Page 13
ultimately be convicted and face a lengthy prison sentence. But it also carried potential reward,
including the possibility that Kelly could avoid imprisonment entirely. It cannot be the case that
every risky trial strategy, upon failing, amounts to constitutionally ineffective counsel. Because
there was sufficient evidence in the record to support trial counsel’s decision to pursue an “all-
or-nothing” defense, trial counsel’s performance did not fall below the bar of professionally
competent assistance. Thus, Kelly’s ineffective-assistance-of-trial-counsel claim is meritless.
As his appellate counsel cannot be considered ineffective for failing to raise a meritless claim,
Kelly cannot excuse his procedural default and we hold that his claim is procedurally barred.
III
Kelly also raises an ineffective-assistance-of-counsel claim for his appellate counsel’s
performance in this habeas petition. Just as with his ineffective-assistance-of-trial-counsel claim,
we review the district court’s legal conclusions de novo and its factual findings under a “clearly
erroneous” standard. Caver, 349 F.3d at 345.
A
Unlike his ineffective-assistance-of-trial-counsel claim, however, Kelly’s ineffective-
assistance-of-appellate-counsel claim was properly presented before the Ohio state courts in his
Rule 26(B) application to reopen his direct appeal. See supra Part I.B. As such, Kelly’s habeas
claim is subject to the heightened standard of review required by AEDPA, 28 U.S.C. § 2254.
This statute provides that a habeas corpus petition filed by a state prisoner shall be denied with
respect to any claim that was “adjudicated on the merits in State court” unless the petitioner can
demonstrate that the state court decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law” or involved an “unreasonable determination of
the facts.” Id. As neither party disputes the state court’s adjudication of the facts, AEDPA’s
relevance to this case is limited to its command of deference to the state court’s legal reasoning.
Nonetheless, AEDPA sets the burden of proof extremely high for the prospective habeas
petitioner. A state-court decision is contrary to clearly established federal law only where the
state court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases”
or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme
No. 15-3950 Kelly v. Lazaroff Page 14
Court] and nevertheless arrives at a result different from [Supreme Court precedent].” Williams
v. Taylor, 529 U.S. 362, 405–06 (2000). Similarly, a state-court decision unreasonably applies
federal law when it “identifies the correct governing legal rule . . . but unreasonably applies it to
the facts of the particular state prisoner’s case,” or if it “unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Id. at 407. Simply
misapplying the law is not enough. “[T]he state court’s decision must have been more than
incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). Rather, “[t]he state court’s application must have been ‘objectively
unreasonable.’” Id. at 520–21 (quoting Williams, 529 U.S. at 409).
AEDPA deference is made more deferential still where the underlying substantive law
requires this court to defer to another reasoned decision-maker on review. As previously
discussed, see supra Part II, an ineffective-assistance-of-counsel claim is governed by the test
articulated in Strickland, where “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” 466 U.S. at 690. By itself, this is a deferential standard that is challenging for a
claimant to meet. Where the claimant is a state habeas petitioner whose claims are subject to
AEDPA, that standard is raised even higher, as the petitioner must show that the state court’s
application of Strickland was itself unreasonable. This amounts to a “doubly deferential standard
of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt
v. Titlow, 134 S. Ct. 10, 13 (2013) (internal quotation omitted) (emphasis added). Stated
differently, AEDPA requires us to “take a highly deferential look at counsel’s performance
through the deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011)
(internal quotations omitted).
Kelly’s ineffective-assistance-of-appellate-counsel claim argues that his appellate counsel
was deficient for failing to raise his ineffective-assistance-of-trial-counsel claim on appeal in
Ohio state court. This claim involves essentially the same analysis that we performed with
respect to Kelly’s argument that the procedural default of his ineffective-assistance-of-trial-
counsel claim could be excused. See supra Part II. As Kelly fails to demonstrate on de novo
No. 15-3950 Kelly v. Lazaroff Page 15
review that his counsel violated the deferential Strickland standard, we hold that he also fails
under the “doubly deferential” standard prescribed by AEDPA in combination with Strickland.
IV
Kelly’s case is a complex one, rendered all the more complicated by the poor
performance of his counsel on direct appeal before the Ohio state court. Kelly’s claims
nonetheless fail because he cannot overcome the deference we afford to strategic decisions made
by counsel when we evaluate them on appellate review. For this reason, we AFFIRM the
decision of the district court and DENY Kelly’s petition for habeas corpus.