                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0437n.06

                                              No. 07-4121                                     FILED
                                                                                          Jun 24, 2009
                            UNITED STATES COURT OF APPEALS
                                                                                    LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


MARK A. RYDER,                                           )
                                                         )
                Petitioner-Appellant,                    )
                                                         )
v.                                                       )       On Appeal from the United States
                                                         )       District Court for the Northern
                                                         )       District of Ohio
PHILLIP KERNS, Warden                                    )
                                                         )
                                                         )
                Respondent-Appellee.                     )


Before: MCKEAGUE and GRIFFIN, Circuit Judges; and WEBER, District Judge.*

PER CURIAM.

        Petitioner-Appellant, Mark Ryder (“Ryder”) appeals the district court’s denial of his habeas

corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner contends on appeal that the district

court erred in finding that his trial counsel was not ineffective and that the state trial court’s failure

to grant a hearing on the issue did not violate his due process rights.

        We conclude the district court correctly found that the state courts’ decisions reasonably

comport with clearly established Federal law. For the following reasons, we AFFIRM the decision

of the district court and DENY the Writ .

        *
         The Honorable Herman J. Weber, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.


                                                    1
                                                   I.

         On November 10, 1998, an Ohio grand jury returned a ten-count Indictment against Ryder.

Count One charged Ryder with domestic violence on September 5, 1998, a fourth degree

misdemeanor. The remaining counts charged violations of the law on October 5, 1998. The most

serious offenses charged were aggravated burglary and kidnaping, first degree felonies with a

potential sentence of ten years imprisonment each, and felonious assault, a second degree felony with

a potential sentence of eight years imprisonment. The remaining charges were misdemeanors which

run concurrently to felony sentences by operation of law. Ohio Rev. Code § 2929.41(A) (Anderson

1998).

         The charges arose from allegations made by Theresa Hyer (“Hyer”) who told police on

October 5, 1998 that in the pre-dawn hours of that day petitioner broke into her house, and dragged

her out of her house, had a knife at her throat, pulled her into her van, savagely beat her, and

threatened to kill her if she called the police.

         The case was tried to a jury. The facts of the October 5, 1998 crimes, as adduced at trial are

set forth in the Decision of the Court of Appeals for the Ninth District. According to the Court of

Appeals:

                 Ryder and Theresa Hyer were romantically involved from sometime in 1993
         until August 1998. Theirs was a stormy, on-again, off-again relationship, at least
         from the time their son was born, in 1996, to the fall 1998 events that formed the
         basis of the charges against Ryder. Hyer testified that she wanted to let Ryder see his
         son but did not want to be personally involved with Ryder. Both the State and Ryder
         submitted evidence of some consensual contact during the relevant period of time.
         Despite the existence of an intimate relationship with Ryder, Hyer testified that she
         never let him in her house when her children were there. Her daughter also testified
         that Ryder was never invited over and into the house.

         Hyer testified that on October 5, 1998, she was sleeping on the couch in her
         combination bedroom/den. Some time between midnight and dawn she was

                                                   2
       awakened by the sensation of “a hand over [her] mouth.” She immediately
       recognized that the hand belonged to Ryder. He held one hand on her mouth
       “squishing my face” and with the other hand “pulling my hair, dragging me out the
       side door.” She was prevented from screaming because of his hand over her mouth.
       She testified, during cross examination, that Ryder brandished a knife when he
       awakened her and that he threatened to slit her throat if she screamed. With respect
       to whether she walked, or was dragged out the door, Hyer testified that she didn’t
       resist as much as she might have because “the more I resisted the worse the pain
       was,” and that “once he threatened to slit my throat, that whatever he told me to do,
       I was going to do it.” Nonetheless, she testified that her [sic] she did not willingly
       comply with his demand that she accompany him outside the house.

       Hyer testified that once Ryder got her in her van, which was parked in the driveway,
       he sat on top of her, punched her repeatedly and “twisted my leg ***so hard *** that
       I never, ever in my whole life felt pain like that, ever.” Once it began to get light
       outside, Ryder left. Hyer testified that, before he left, “He told me if I called the
       police he was going to kill me.”

       Hyer went back into her house. Her daughter came downstairs shortly thereafter and
       discovered a badly bruised Hyer sitting in the back room crying. Hyer called a friend,
       who came over. The friend summoned the police on Hyer’s behalf. Officer Marrero
       arrived at Hyer’s home close to 11:00 a.m. on October 5. He testified that Hyer
       repeatedly said she was “ afraid that this guy was going to kill her.” During his
       interview with Hyer, “She would put her hands through her hair, and as she did this,
       wads of hair were mangled through her fingers.”

       Hyer also testified about the months leading up to the events of October 5th. She told the

jury about giving birth to Ryder’s child and how bitter he had become when she wrote him a letter

explaining that she did not want petitioner to disrupt their child’s life. She explained that he had

become mean and violent during his recent incarceration, that he frequently drank to excess, and it

was becoming increasingly difficult to deal with him regarding their son. She described situations

where the petitioner had stalked her and had been removed from her house in the middle of the night

by the police, that a temporary protection order had been issued, and he told her he would stalk her

and threaten people around her until one of them died.

The Ohio Court of Appeals also noted:


                                                 3
        Carrie Covender, a long time family friend of Ryder’s, testified on his behalf.
        According to Covender, she saw Hyer twice on Saturday, October 7, 1998. The first
        time Hyer was walking unassisted to her car carrying two pumpkins, and later that
        evening Hyer was fast dancing. She testified Hyer had no visible bruises or other
        injuries on that day, but that if Hyer was injured as severely as the evidentiary
        photograph indicated, Covender would have noticed it. When confronted with the
        fact that October 7, 1998, was a Wednesday, Covender was certain that she saw Hyer
        on a Saturday. She was also certain that she saw Hyer in October because the
        pumpkin trailer didn’t set up until the beginning of October like “when they sold
        Christmas trees there, it was the 1st of December.” She testified she was certain it
        was the Saturday after Ryder was arrested when she saw Hyer, because she recalled
        being surprised when Ryder’s sister reported the next day that he had been arrested
        for beating Hyer.

        Gregory Kimbrough also testified on behalf of Ryder. He was Ryder’s employer, and
        Ryder lived in a trailer on Kimbrough’s property. He testified that Hyer appeared at
        his house on October 5, 1998, at approximately 2:00 a.m. According to him, she left
        about a half hour later. Because Ryder had made it clear to Kimbrough that he did
        not want to see Hyer, Kimbrough falsely told Hyer that Ryder was not there.
        Kimbrough testified that he called Ryder at approximately 4:00 a.m. and spoke with
        him, and that at about 7:00 a.m. he awakened Ryder for work. On cross-examination,
        Kimbrough’s trial testimony was challenged by reference to his testimony at the
        preliminary hearing. At that proceeding he testified that he called Ryder at “about
        4:30 a.m. ***, but the phone just kept ringing.” At that hearing he also testified that
        he went to the trailer and heard movement shortly after being unable to reach Ryder
        by phone, but did not actually make contact with Ryder until seven or seven-thirty
        in the morning. The jury was specifically cautioned that Kimbrough was not an alibi
        witness.

        During both cross-examination and closing argument, defense counsel focused on the

victim’s credibility, the motives behind her characterization of petitioner’s actions and the events

of October 5, 1998. He suggested she had been drinking. He suggested that she intended to send

petitioner to jail for as long a time as possible so that he could not interact with their child.

        The jury convicted Ryder of violating a temporary protection order, aggravated burglary,

intimidation, one count of domestic violence, aggravated menacing, and felonious assault. Petitioner

was not convicted of one count of domestic violence, menacing, and kidnaping. Ryder was

sentenced to aggregated sentences of fourteen years of imprisonment.

                                                   4
       An Ohio court of appeals affirmed Ryder’s convictions and sentence, and Ryder did not

appeal to the Ohio Supreme Court. State v. Ryder, No. 99CA007337, 2000WL 1226623 (Ohio Ct.

App. Aug. 30, 2000)(unpublished).

       While his appeal was pending, Ryder filed his petition for post-conviction relief with the state

trial court on November 1, 1999. The trial court denied the petition on November 18, 1999. The

state appellate court dismissed the appeal for lack of a final appealable order. After three years, the

trial court denied the petition in its Order of August 13, 2004 containing its findings of fact and

conclusions of law. In it, the trial court found that the “evidence further revealed that the defendant

entered the home of the victim without permission and dragged her into his van where he assaulted

her by punching and kicking her.” The trial court also found that “the defendant received a fair and

impartial trial and defense counsel effectively represented the defendant throughout the

proceedings”.

       The state court of appeals affirmed the trial court’s decision. State v. Ryder, No. 04CA

008561, 2005 WL 663000 (Ohio Ct. App. March 23, 2005) (Carr, J., dissenting) (unpublished). The

Ohio Supreme Court denied Ryder leave to appeal this decision, State v. Ryder, 833 N.E.2d 1248

(Ohio 2005) (Lanzinger, J., dissenting) (Table)(unpublished), as not involving any substantial

constitutional question.

       In its decision affirming the denial of the petition for post-conviction relief, the Ohio Ninth

District Court of Appeals considered and rejected the petitioner’s argument that his trial counsel’s

representation amounted to constitutionally ineffective assistance, holding in pertinent part:


       {¶9} Defendant claims that the trial court erred in denying his motion for post-
       conviction relief because he received ineffective assistance of trial counsel.
       Defendant maintains that he was prejudiced by his attorney’s actions since his

                                                  5
attorney failed to interview a friend of the victim who was thought to have evidence
undermining the credibility of the victim, the prosecution’s main witness.

{¶10} This Court employs a two-step process in determining whether a defendant’s
right to effective assistance of counsel has been violated. Strickland v. Washington
(1984), 466 U.S. 668, 687, 80 L.Ed.2d 674. First, the court must determine whether
there was a “substantial violation of any of defense counsel’s essential duties to his
client.” State v. Calhoun (1999), 86 Ohio St.3d 279, 289. “This requires a showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.

{¶11} Second, the defendant must show that the deficient performance of counsel
prejudiced the defense. State v. Bradley (1989) 42 Ohio St.3d 136, paragraph two
of the syllabus. Prejudice exists where there is a reasonable probability that the
outcome of the trial would have been different but for the alleged deficiencies of
counsel. Id. at paragraph three of the syllabus. “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.” Strickland, 466 U.S. at 687. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.” Id. at 691.

{¶12} This court need not address both elements in any particular order - if we find
that there was no prejudice to Defendant by defense counsel’s acts, we need not
address whether defense counsel’s acts were actually deficient. See Bradley, 42 Ohio
St. 3d at 143. In this case, we find that Defendant has failed to show that prejudice
resulted from trial counsel’s acts. “A strong presumption exists that licensed
attorneys are competent and that the challenged action is the product of sound
strategy.” State v. Watson (Jul. 30, 1997), 9th Dist. No. 18215, at 4. Debatable trial
strategies do not constitute ineffective assistance of counsel. State v. Gales (Nov. 22,
2000), 9th Dist. No. 00CA007541, at 17.

{¶13} Defendant claims that his attorney’s “failure to present evidence favorable to
the defense denied Defendant a fair trial, and therefore, denied him effective
assistance of counsel.” The favorable evidence Defendant refers to is that of Ms.
Fesco. In Defendant’s petition for post conviction relief, he attached an affidavit of
Ms. Fesco in which she stated that she saw the victim the day after Defendant had
assaulted her, and the victim told Ms. Fesco that “[Defendant] had beaten her in a
bar.” The victim had testified that Defendant broke into her house and beat her in her
house and then took her into her vehicle where he proceeded to assault her.

{¶14} Based on the victim’s testimony and the testimony of multiple other witnesses,
Defendant was found guilty of violating a temporary protection order, aggravated
burglary, intimidation, domestic violence, aggravated menacing and felonious
assault. The testimony Defendant claims his trial counsel was ineffective for not

                                           6
       introducing, that of Ms. Fesco, could have bolstered the evidence introduced against
       Defendant for each of the above counts other than his conviction for aggravated
       burglary. While it is possible that the jury may have viewed Ms. Fesco’s testimony
       in a light favorable to Defendant, and may have discounted the victim’s account of
       her assault, it is equally possible that the jury would have viewed the same testimony
       in a negative light to Defendant, supporting the victim’s claims that he assaulted her
       and was violent towards her.

       {¶15] Licensed attorneys are presumed competent in Ohio. State v. Lytle (1976), 48
       Ohio St.2d 391, 397. “[D]efendant must overcome the presumption that, under the
       circumstances, the challenged action ‘might be considered sound trial strategy.’”
       Strickland (1984), 466 U.S. at, 689, quoting Michel v. Louisiana (1955), 350 U.S. 91,
       101, 100 L.Ed. 83. We do not find that Defendant has overcome the presumption
       that his attorney was employing a sound trial strategy.

       {¶16} If defendant has not shown substantive grounds for relief on his ineffective
       assistance of counsel claim, the trial court is not required to conduct a hearing.
       Jackson, 64 Ohio St.2d at 110.


Judge Carr dissented, stating:

       {¶21} I respectfully dissent. Defendant supplied the trial court with an affidavit
       from a disinterested witness (a friend of the victim’s) who provided information that
       completely contradicted the victim’s testimony. The location of the attack is
       particularly relevant. If the incident in fact occurred at a bar instead of the victim’s
       house, then the defendant could not be convicted of aggravated burglary. I would
       reverse for a hearing.


       On May 9, 2005, petitioner appealed to the Ohio Supreme Court. On September 7, 2005, he

was denied leave to appeal and the appeal was dismissed for not involving any substantial

constitutional question. Petitioner did not appeal this decision to the United States Supreme Court.

       On August 31, 2006, Ryder filed the instant habeas corpus petition in which he raises the

same two claims for relief: 1) He was denied effective assistance of counsel when his trial counsel

failed to interview a key witness to Ryder’s defense; and 2) He was denied due process of law by the

trial court’s refusal to conduct an evidentiary hearing. In support of these grounds, petitioner has


                                                  7
again submitted the affidavits from the witness, Kelly Fesco, and petitioner, Mark Ryder. Fesco’s

contains the following statements upon which petitioner relies:

       2. On or about October 5, 1998, I went to Theresa Hyer’s house at 2429 East 34th
       Street, Lorain, Ohio.
       3. When I arrived at Theresa’s house, Theresa told me that she and Mark Ryder had
       gotten into a fight at a local bar. Theresa said he had beaten her at the bar.
       4. After Theresa told me that Mark had beaten her up at the bar, I called the Lorain
       police. While we were waiting for the police, Theresa said she was not sure what she
       would tell the police about what had happened between her and Mark.
       7. Mark Ryder’s lawyer or an investigator working for Mark’s lawyer never
       interviewed me. Had anyone, from the prosecutor’s office or the defense, asked me
       about what Theresa said about her fight with Mark, I would have told them that
       Theresa said Mark beat her up at the bar.

Ryder’s affidavit contained the following statements:

       6. By the time of trial, I knew that Kelly Fesco could support my defense that I did
       not break into Theresa Hyer’s house, kidnap her and beat her in her van. I asked my
       lawyer to call Kelly Fesco as a witness. During trial, I saw Kelly Fesco in the court
       house one day while the Sheriff ‘s deputies were escorting me to court. I told my
       lawyer that Ms. Fesco was downstairs and should be called to testify.
       7. My lawyer did not interview Kelly Fesco despite my repeated requests, indicating
       to me that there was “no need” to talk to Ms. Fesco or call her as a witness.

       Ryder’s petition was referred to a Magistrate Judge who recommended the petition be denied

on June 15, 2007. Ryder timely filed Objections on June 29, 2007. Respondent filed a response on

July 12, 2007. The district court adopted the Report and Recommendation in its entirety and

dismissed the petition on July 30, 2007.

       Although denied by the district court, this Court granted a Certificate of Appealability on

both grounds presented.

                                                II.

       In reviewing the denial of a habeas petition, we review the district court's legal conclusions

de novo, applying the same standard of review to the state court decision that the district court


                                                 8
applied. Bigelow v. Williams, 367 F.3d 562 (6th Cir. 2004); See Smith v. Hofbauer, 312 F.3d 809,

813 (6th Cir. 2002). The provisions of the Antiterrorism and Effective Death Penalty Act,

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 26, 1996) are controlling herein as the

instant petition was filed after the Act’s effective date. Lindh v. Murphy, 521 U.S. 320 (1997).

        When a state court has already adjudicated a federal constitutional claim, AEDPA establishes

the role of the federal district court:

               An application for a writ of habeas corpus on behalf of a person in custody
        pursuant to the judgment of a State court shall not be granted with respect to any
        claim that was adjudicated on the merits in State court proceedings unless the
        adjudication of the claim-
               (1) resulted in a decision that was contrary to, or involved an
               unreasonable application of, clearly established Federal law, as
               determined by the Supreme Court of the United States; or
               (2) resulted in a decision that was based on an unreasonable
               determination of the facts in light of the evidence presented in the
               State court proceeding.

28 U.S.C. § 2254(d)(1) and (2).

        A state court decision involves an unreasonable application of clearly established federal law

if the state court identifies the correct governing legal principle from the decisions of the United

States Supreme Court, but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 407 (2000). “[T]o be found an ‘unreasonable application of ...

clearly established Federal law,’ the state-court decision must be ‘objectively unreasonable’ and not

simply erroneous or incorrect.” Johnson v. Luoma, 425 F.3d 318, 324 (6th Cir. 2005) (quoting

Taylor, 529 U.S. at 409-11 (2000)). A legal doctrine is not clearly established Federal law, as

determined by the Supreme Court, unless it is based on “holdings, as opposed to the dicta, of the

Court's decisions as of the time of the relevant state-court decision.” Jones v. Jamrog, 414 F.3d 585,

591 (6th Cir. 2005) (quoting Taylor, 529 U.S. at 412).

                                                  9
       Under the AEDPA, we presume that the state court's factual findings are correct, and the

petitioner bears the burden of rebutting the presumption of correctness by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1); see Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003).

This Court has recognized that by amending § 2254(d)(1) through the AEDPA, Congress intended

to place reasonable state court judgments beyond the scope of federal review. Herbert v. Billy, 160

F.3d 1131, 1135 (6th Cir. 1998).

       Respondent has conceded that there are no issues raised as to untimeliness, failure of

exhaustion, or procedural default, therefore, the Court turns to a review of the merits.

                                                III.

       The governing standard for determining effective assistance of counsel is found in Strickland

v. Washington, 466 U.S. 668 (1984). To prove an ineffective assistance of counsel claim, a

petitioner must show (1) that his lawyer's performance was deficient and (2) that the deficiency

prejudiced the defense. Id. at 687. In establishing the first requirement, the petitioner must

demonstrate that his lawyer's performance fell below an objective standard of reasonableness as

measured by prevailing professional norms. Id. at 687-88.         Judicial review of the lawyer's

performance must be highly deferential. Id. at 689. A court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged action

“might be considered sound trial strategy.” Id. Reasonable lawyers may disagree on the appropriate

strategy for defending a client. Bigelow, 367 F.3d at 570 (6th Cir. 2004)(quoting Strickland, 466

U.S. at 689).




                                                 10
       It is well-established that “[c]ounsel has a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations unnecessary.” Towns v. Smith, 395 F.3d

251, 258 (6th Cir. 2005)(quoting Strickland, 466 U.S. at 691). The duty to investigate derives from

counsel's basic function, which is “ ‘to make the adversarial testing process work in the particular

case.’ ” Towns , 395 F.3d at 258 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)

(quoting Strickland, 466 U.S. at 690)). As further explained by this Court in Towns:

       This duty includes the obligation to investigate all witnesses who may have
       information concerning his or her client's guilt or innocence. See Bryant v. Scott, 28
       F.3d 1411, 1419 (5th Cir. 1994) (citing Henderson v. Sargent, 926 F.2d 706, 711 (8th
       Cir. 1991)). “In any ineffectiveness case, a particular decision not to investigate must
       be directly assessed for reasonableness in all the circumstances, applying a heavy
       measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691, 104 S.Ct.
       2052. “The relevant question is not whether counsel's choices were strategic, but
       whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct.
       1029, 145 L.Ed.2d 985 (2000); accord Clinkscale [v. Carter], 375 F.3d [430,] [] 443
       [(6th Cir. 2004)].

395 F.3d at 258. The Strickland Court explained:

       [S]trategic choices made after thorough investigation of law and facts relevant to
       plausible options are virtually unchallengeable; and strategic choices made after less
       than complete investigation are reasonable precisely to the extent that reasonable
       professional judgments support the limitations on investigation. In other words,
       counsel has a duty to make reasonable investigations or to make a reasonable
       decision that makes particular investigations unnecessary.

Id. at 690-91.

       Ryder argues that counsel’s actions, in failing to investigate a potentially helpful defense

witness, fell below an objective standard of reasonableness because he could not make a reasonable

decision without interviewing the witness. Ryder argues that had the jurors heard from Hyer’s friend

that Hyer lied about what transpired, the testimony of Ryder’s other witnesses would have been

strengthened. He contends that jurors would have been more inclined to conclude that Hyer had


                                                 11
exaggerated events and her injuries as related by other defense witnesses if Hyer’s close personal

friend provided evidence supporting that conclusion. Rather than find Ryder guilty of felonious

assault and aggravated burglary, he contends, there is a reasonable probability that Ryder would have

been convicted of only simple misdemeanor assault. Ryder has never claimed that Fesco would have

helped exonerate him of all charges, but contends that if Fesco’s testimony resulted only in Ryder’s

acquittal on the aggravated burglary charge, Ryder would be serving eight years, not his current

fourteen-year sentence. Additionally, if Fesco’s testimony supported other defense testimony

indicating that Hyer had fabricated the severity of her leg injury, the felonious assault verdict would

probably have been different as well, further reducing Ryder’s sentence. For these reasons, Ryder

argues the failure to investigate Fesco as a witness prejudiced Ryder’s defense and his sentence.

        These arguments fail on several levels. First of all, the statements contained in Fesco’s

affidavit are classic hearsay which, if admissible at all, would not have been admissible at trial for

their truth. Clearly, the statements in the Fesco affidavit do not fall outside the definition of hearsay

by way of being a prior statement by a witness because the statements are not made by the victim

under oath, subject to cross-examination, and subject to the penalties of perjury, Ohio Evid. R.

801(D)(1), nor are the statements made by a party-opponent, Ohio Evid. R. 801(D)(2). The

statements are not excepted as statements against penal interest because the victim was available to

testify. Ohio Evid. R. 804(B)(3). There is nothing in Fesco’s affidavit to suggest that the statements

could come in as present-sense impressions, excited utterances, or any of the other exceptions to the

hearsay rule where the availability of the declarant is immaterial. Ohio Evid. R. 803.

        Secondly, the testimony of the other defense witnesses would not have been bolstered. Fesco

was moved to insist that Hyer call the police based upon her appraisal of Hyer’s extensive injuries.


                                                   12
Her reaction and the exhibits introduced during trial directly contradict Covender’s testimony that

Hyer’s injuries were not extensive. Any testimony about Hyer’s statement that she was beaten in

a bar contradicts Kimbrough’s testimony that he had seen Hyer after the bars were closed, yet did

not note any injuries. The statements are not clear and convincing evidence that petitioner beat her

at a bar rather than at the victim’s home after he broke in, particularly in view of Kimbrough’s

testimony. It would be an unreasonable decision to call into question the credibility of Kimbrough,

a witness whose testimony places the victim, and possibly the petitioner, somewhere other than at

Hyer’s home at the approximate time Hyer testified she had been beaten at her home.

        The district court appropriately found that the state appellate court’s conclusion that trial

counsel’s decision not to interview or call Ms. Fesco as a witness at trial was reasonable and did not

rise to the level of ineffective assistance of counsel, was not an objectively unreasonable application

of Strickland to the facts of this case, nor was it an unreasonable determination of the facts in light

of the evidence presented considering the strong evidence against petitioner and the fact that Ms.

Fesco’s affidavit statements could have worked against the defense, which undermines petitioner’s

claims of prejudice.

       Based upon a review of the record and all of the evidence presented in the trial, it is evident

that the defense attorney made a reasonable decision not to interview Fesco. It was reasonable not

to consider calling her as a witness and it was a reasonable trial strategy for the defense to discredit

the victim’s credibility by the testimony of Kimbrough and Covender. Defense counsel knew he

could effectively attack the victim’s credibility by his cross-examination of the victim which he did

at trial. Defense counsel knew, without interviewing her, that Ms. Fesco was the person who called

the police after seeing the victim and he knew that she was the only person who could verify parts


                                                  13
of the victim’s story, that she was, for example, badly beaten. It was a reasonable decision to reject

the use of such a witness, who would verify the victim’s injuries, as well as undermine the credibility

of the other defense witnesses, Kimbrough and Covender. It was a reasoned professional assessment

that he didn’t “need her” because of the information he had concerning the victim’s lack of

credibility and the other testimony he had available to him. Based upon the theory of the defense

he had adopted, he could not have risked the possible benefits of her testimony, now argued by

petitioner. There could be no alternative theory. His goal was to convince the jury that the victim

was fabricating the entire October 5, 1998 incident to stop the petitioner from contacting her.

       In light of the evidence of Ryder’s guilt, we find it was objectively reasonable for petitioner’s

attorney to have decided that Ms. Fesco was not needed as a witness and that her testimony would

have destroyed his chance of presenting his “total innocence” theory for the acts occurring on

October 5, 1998 to the jury. Ms. Fesco was not an alibi witness, nor could she testify to his

innocence.

       In establishing prejudice, Ryder must demonstrate a reasonable probability that the result of

his trial would have been different but for his counsel’s unprofessional errors. Strickland, 466 U.S.

at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id.

       Ryder’s defense attorney did not violate his essential duty to his client or cease to function

as the counsel guaranteed by the Sixth Amendment. He was not prepared to accept a verdict of

guilty on any of the October 5th charges. His goal was to discredit the victim’s testimony. He had

a reasonable chance of achieving an acquittal on all charges. He developed a theory of the defense

the record discloses was effective, if not completely successful, since Ryder was acquitted on some


                                                  14
counts. If admitted, the statements of Ms. Fesco would have repudiated the testimony of the other

defense witnesses upon which defense counsel had built his defense. A review of the record shows

that the defense attorney's performance was not deficient, the result of the trial was fundamentally

fair and reliable, and the information submitted regarding counsel’s decision is not sufficient to show

prejudice under Strickland.

                                                    IV.

          In support of the second issue raised in his petition, Ryder argues that his petition included

evidence demonstrating that he had substantial grounds for relief, therefore, the state trial court’s

failure to grant a hearing violated his due process rights. Respondent contends that because Ryder

attacks a state post-conviction proceeding, rather than his actual detention this ground is not

cognizable in a federal habeas proceeding.

          Ohio law provides that a defendant is entitled to a hearing in post-conviction actions when

his petition for relief has substantial grounds for relief. Ohio Rev. Code § 2953.21(E); State v.

Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980). The Fifth and Fourteenth amendments protect

any liberty interest conferred upon a citizen by the state from arbitrary deprivation by the state.

Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). A writ of habeas corpus may issue to correct an error

which results “in the denial of fundamental fairness, thereby violating due process.” Clemmons v.

Sowders, 34 F.3d 352, 356 (6th Cir. 1994)(quoting Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.

1988)).

          The district court noted that the state appellate court had addressed this purely as a matter of

state law as follows:

          {¶7} A hearing is not automatically required for every petition for post-conviction
          relief. See State v. Yauger (Oct. 6, 1999), 9th Dist. No. 19392, at 3. R.C. 2953.21( C)

                                                    15
       provides that: “[b]efore granting a petition [for post conviction relief] the court shall
       determine whether there are substantive grounds for relief.” Thus, if after reviewing
       the evidence and the record, the court does not find substantive grounds for relief, it
       may dismiss the petition without a hearing. State v. Jackson(1980), 64 Ohio St.2d
       107, 110. “If the court dismisses the petition, it shall make and file findings of fact
       and conclusions of law with respect to such dismissal.” R.C. 2953.21( C). In this
       case, the trial court did file its findings of fact and conclusions of law. The trial court
       concluded that Defendant did not have any substantive grounds for relief and
       dismissed Defendant’s petition.

       {¶8} An appellate court reviews a trial court’s denial of a petition for post-conviction
       relief without a hearing under an abuse of discretion standard. State v. Watson
       (1998), 126 Ohio App.3d 316, 324, citing State v. Allen (Sept. 23, 1994), 11th Dist.
       No. 93-L-123. An abuse of discretion is more than an error of judgment, but instead
       demonstrates “perversity of will, passion, prejudice, partiality, or moral
       delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. When
       applying the abuse of discretion standard, an appellate court may not substitute its
       judgment for that of the trial court. Id.


       The state appellate court found that the trial court did not err in denying petitioner a hearing

as the petitioner did not fulfill his initial burden to submit evidentiary documents containing

sufficient operative facts to demonstrate the lack of competent counsel and that the defense was

prejudiced by counsel’s ineffectiveness.

       The district court properly determined that this claim was not cognizable in this federal

proceeding and, even if the claim was to be considered, the decision of the state appellate court

would not be found to be either objectively unreasonable or involving an unreasonable application

of the law. Petitioner submitted only broad assertions, inadequate as a matter of law to warrant an

evidentiary hearing. As discussed above, the testimony which could have been elicited from Fesco

does not demonstrate substantial grounds for relief, therefore, the state court's failure to grant a

hearing did not violate his due process rights. The proceeding was fundamentally fair.

                                                   V.


                                                   16
For the foregoing reasons, we AFFIRM the district court’s judgment and DENY the Writ.




                                     17
