                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 06a0755n.06
                               Filed: October 12, 2006

                                                     No. 05-4432

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT


JAMES HOWARD                                                        )
                                                                    )
         Petitioner-Appellant,                                      )
                                                                    )
                                                                    )      ON APPEAL FROM THE UNITED
V.                                                                  )      STATES DISTRICT COURT FOR
                                                                    )       THE SOUTHERN DISTRICT OF
                                                                    )                 OHIO
JEFFREY WOLFE, WARDEN,                                              )
                                                                    )
         Respondent-Appellee.                                       )


Before:           GIBBONS and McKEAGUE, Circuit Judges; FORESTER, Senior District
                  Judge.*

FORESTER, Senior District Judge.                    Petitioner-Appellant James Howard appeals the district

court’s dismissal of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging

his child endangerment conviction. For the reasons set forth below, we AFFIRM the judgment of

the district court.

I.       FACTUAL AND PROCEDURAL BACKGROUND

         Howard was convicted of child endangerment in the Butler County, Ohio, Court of Common

Pleas on January 31, 2002. The conviction arose from events which allegedly occurred on April 4,



*
         The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of Kentucky, sitting
by designation.

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2000, when a minor victim stopped breathing, went limp, and was taken to the hospital. At the time

of the incident, only Howard, the victim, and another child were present at the home. The victim

apparently suffered injuries that the prosecution argued were consistent with shaken baby syndrome.

In his defense at trial, Howard argued that he never committed the alleged conduct, and he presented

expert testimony that the victim’s injuries resulted from birth trauma. A jury found Howard guilty

of the child endangerment charges, and he was subsequently sentenced to a term of seven years

imprisonment, followed by a mandatory term of five years in post-release control.

       Howard, with the assistance of counsel, appealed his conviction to the Ohio Court of

Appeals, alleging the trial court committed the following errors: (1) the exclusion of certain

statements as “inadmissible hearsay”; and (2) the refusal to dismiss the second count of the

indictment [child endangerment] based on insufficiency of the evidence. On April 18, 2003, the

Ohio Court of Appeals overruled the assignments of error and affirmed the trial court’s judgment.

Howard appealed the Ohio Court of Appeals’ decision to the Ohio Supreme Court. On July 16,

2003, the Ohio Supreme Court denied Howard leave to appeal and dismissed the appeal “as not

involving any substantial constitutional question.”

       Then, on July 21, 2003, Howard filed a pro se application to reopen his appeal pursuant to

Ohio R. App. P. 26(B) in the Ohio Court of Appeals. In this application, Howard alleged that he was

denied effective assistance of appellate counsel. Howard argued that his appellate counsel failed to

assert as additional assignments of error that he was denied effective assistance of counsel at trial

and that his conviction was against the “weight of the evidence.” The Ohio Court of Appeals denied

Howard’s application for reopening on September 17, 2003. This decision was not appealed to the

Ohio Supreme Court.


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       Thereafter, Howard filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

on November 17, 2004. In support of his petition, Howard argues: (1) he is actually innocent; (2)

he was denied effective assistance of counsel on direct appeal; and (3) the trial court violated his

right to a jury trial in determining his sentence. Specifically, Howard relies on three pieces of

evidence that he argues prove his actual innocence: (1) a new study published in the British Medical

Journal on March 27, 2004 which he claims “calls into question the medical basis for finding shaken

baby syndrome”; and (2) reports from two medical doctors who reviewed the record and opine that

it is likely that the victim’s brain injury occurred during the birth process and was not the result of

any child abuse or damage inflicted by Howard. In response, Warden Wolfe filed a motion to

dismiss, arguing that Howard has waived these grounds for relief because he failed to present his

actual innocence and sentencing claims to any state court and because he failed to appeal the Ohio

Court of Appeals’ decision declining to reopen his application alleging ineffective assistance of

appellate counsel claim to the Ohio Supreme Court.

       This matter was referred to a magistrate judge for a report and recommendation pursuant to

Rule 72(b) of the Federal Rules of Civil Procedure. After review of the record and the arguments

of the parties, the magistrate judge recommended that the motion to dismiss be granted and the

petition be dismissed with prejudice on the grounds that Howard waived his claims for relief.

Conducting its own de novo review of the procedural history and legal analysis, the district court

adopted the report and recommendation and dismissed with prejudice the petition for writ of habeas

corpus. This timely appeal followed.




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II.     STANDARD OF REVIEW

        In a habeas proceeding, this court reviews de novo the district court’s legal conclusions,

including its ultimate decision to grant or deny the writ, while reviewing for clear error its factual

findings. Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004); Sawyer v. Hofbauer, 299 F.3d

605,608 (6th Cir. 2002). Whether a petitioner has satisfied the exhaustion of state remedies

requirement of 28 U.S.C. § 2254(b) is a question of law that this court should review de novo.

Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006).

III .   ANALYSIS

        A writ of habeas corpus may not be granted unless the petitioner has exhausted all available

state court remedies. 28 U.S.C. § 2254(b)(1). This exhaustion requirement is satisfied only if the

petitioner’s claim is “fairly presented” to the state courts before seeking relief in the federal courts.

Baldwin v. Reese, 541 U.S. 27, 29 (2004); Whiting v. Burt, 395 F.3d 602, 612 (6th Cir. 2005). A

constitutional claim for relief must be presented to the state’s highest court in order to satisfy the fair

presentation requirement. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Hafley v. Sowders, 902

F.2d 480, 483 (6th Cir. 1990).

        In other words, a petitioner may not use federal habeas review to assert a federal

constitutional right that he failed to fully present to the state courts because of a procedural default.

Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). If a petitioner can no longer present his claims to

a state court due to a procedural default, then he has waived those claims for purposes of federal

habeas corpus review unless he can demonstrate cause for the procedural default and actual prejudice

resulting from the alleged constitutional error, or that failure to consider the claims will result in a




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“fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray

v. Carrier, 477 U.S. 478, 485 (1986); Wainwright, 433 U.S. at 87.

         A.     HOWARD’S PROCEDURAL DEFAULTS IN THE OHIO COURTS
                RESULTED IN WAIVER OF THOSE CLAIMS

                1.      ACTUAL INNOCENCE

         In his petition for federal habeas relief, Howard asserts that he is actually innocent of the

child endangerment charge. However, Howard’s claim of actual innocence based on the “new

evidence” outlined in his petition has never been presented to the Ohio courts. Clearly, as the district

court found, Howard has procedurally defaulted on this claim. Moreover, Howard has failed to

present any justification for this procedural default. As a result, the district court properly found that

the procedurally defaulted claim of actual innocence is not subject to review under the “cause” and

“prejudice” standard.

                2.      INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

         Howard first presented his ineffective assistance of counsel claim to the Ohio courts on July

21, 2003 when he filed his pro se application for reopening of his appeal with the Ohio Court of

Appeals. On September 17, 2003, the Ohio Court of Appeals denied Howard’s application to reopen

for failure to present a genuine issue. Howard failed to appeal this decision to the Ohio Supreme

Court.

         Nevertheless, Howard now seeks habeas review of his ineffective assistance of counsel claim.

Howard’s failure to appeal the Ohio Court of Appeals’ decision to deny his application to reopen is

a procedural default resulting in waiver of this claim. As the district court found, Howard has not

provided any justification as “cause” for this procedural default; therefore his defaulted claim of

ineffective assistance of counsel is not subject to review under the “cause” and “prejudice” standard.

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                3.      VIOLATION OF HIS RIGHT TO A JURY TRIAL WITH REGARD
                        TO HIS SENTENCE

        In his final claim for habeas relief, Howard argues that the sentencing court violated his right

to have all elements of his offense determined by a jury using the beyond a reasonable doubt

standard. Specifically, Howard contends that he was sentenced to seven years of incarceration based

on the sentencing court’s determination that a shorter term would demean the seriousness of the

crime - a finding that he claims was not supported by the jury verdict in this case. Howard admits

that this claim has never been presented to any Ohio state court, but argues that the claim was

“unavailable to this point.”

        Howard does not explain why this claim was not presented before. Without any justification

for the “cause” of this procedural default, the district court properly denied Howard’s claim for relief.

        B.      THE EVIDENCE IN SUPPORT OF HOWARD’S ACTUAL INNOCENCE
                CLAIM DOES NOT JUSTIFY HABEAS RELIEF

        Despite his procedural default on his actual innocence claim and his failure to establish

“cause” for the procedural default, Howard argues that he remains entitled to federal habeas relief

because the overwhelming evidence supports his claim. The United States Supreme Court has held

that if a habeas petitioner “presents evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and

argue the merits of his underlying claims.” Schlup v. Delo, 513 U.S. 298, 316 (1995). The threshold

inquiry is whether “new facts raise [] sufficient doubt about [the petitioner’s] guilt to undermine

confidence in the result of trial.” Id. at 317. In order to establish actual innocence, the petitioner

“must show that it is more likely than not that no reasonable juror would have found petitioner guilty


                                                   6
beyond a reasonable doubt.” Id. at 327. Importantly, “‘actual innocence’ means factual innocence,

not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). The Supreme

Court has cautioned that the actual innocence exception should “remain rare” and “only be applied

in the ‘extraordinary case.’” Schlup, 513 U.S. at 321.

        The evidence relied upon by Howard in support of his actual innocence claim simply does

not rise to this extraordinary standard. The district court found that the 2004 article from a British

medical journal, although obviously unavailable at the time of trial, was only “marginally relevant

as it did not address the particular facts posed by the case-at-hand.” As a result, the district court

determined that it was “highly doubtful that the article would have had any impact on the jury’s

verdict in this case.”

        With respect to the new expert opinions, the district court found that Howard failed to argue

or establish that these experts were unavailable to him at the time of trial. In fact, the record reflects

that defense counsel relied on expert witness testimony at trial who essentially provided the same

opinion as the “new” experts - that the victim’s injury could have existed since birth. The

prosecution, on the other hand, relied on its own expert witness to support its position that the

victim’s injuries were recently incurred and were a result of shaking. Clearly, the jury was presented

with opposing theories and relied on the prosecution’s evidence pointing to shaken baby syndrome

in determining Howard’s guilt beyond a reasonable doubt. The district court determined that the

testimony of the two additional expert witnesses would be merely cumulative.

        A review of the “new” evidence, independently and collectively, simply does not lead to the

conclusion that it is more likely than not that no reasonable juror would have found Howard guilty

beyond a reasonable doubt. The evidence relied upon by Howard is not new evidence “so strong that


                                                    7
a court cannot have confidence in the outcome of the trial.” Schlup, 513 U.S. at 316. Without

evidence like “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence – that was not presented at trial,” id. at 324. Howard’s reliance on the “new” expert reports

fails to meet the actual innocence standard. Accordingly, the district court did not err in denying

Howard’s claim for federal habeas relief based on actual innocence.

IV.    CONCLUSION

       Based on the above, the district court’s order granting Warden Wolfe’s motion to dismiss and

dismissing with prejudice the petition for writ of habeas corpus is AFFIRMED.




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