govinfo:USCOURTS-ohsd-2_25-cv-00238-2

[1] 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
  : 
Douglas Cochran, : 
 :     Case No. 2:25-cv-00238 
 Petitioner, : 
        v.  :     Judge Graham 
  : 
Shelbie Smith, Warden, 
Belmont Correctional 
Institution, 
:     Magistrate Judge Merz 
: 
: 
 :      
 Respondent. : 
 
ORDER 
 
This habeas corpus case, brought pursuant to 28 U.S.C. § 2254 by Douglas 
Cochran with the assistance of counsel, is before the Court on Petitioner’s Objections 
(ECF No. 25) to the Magistrate Judge’s Supplemental Report and Recommendations 
(ECF No. 24). Respondent has filed a reply to those Objections (ECF No. 26). The case 
is therefore ripe for decision. 
 As required by 28 U.S.C. § 636(b)(1) and Fed.  R. Civ. P. 72(b), the Court has 
reviewed the Report de novo with particular attention to those portions objected to 
by Petitioner. In the Supplemental Report, the Magistrate Judge recommended that 
all of Petitioner’s objections be overruled and that Petitioner be denied a certificate 
of appealability.   
 Petitioner’s First Ground for Relief asserts he received ineffective assistance 
of trial counsel when his attorney did not “pursue” an NGRI defense. The Magistrate 
Judge found that counsel had caused referral of the Petitioner for an evaluation and 
that evaluator had not given an opinion that would have supported an NGRI defense. 
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[2] 
 
Petitioner essentially objects that counsel did not pursue the defense far enough, 
writing: 
Yet counsel did not master the records, did not seek 
neuropsychiatric follow -up, did not request a forensic 
insanity evaluation, and did not develop the statutory 
right-wrong question. That sequence describes omission, 
not strategy: under Strickland, Wiggins, and Rompilla, 
reasonable professional judgment follows investigation; it 
cannot precede or replace it. 
 
(Objections, ECF No. 25, PageID 426).  In both Reports the Magistrate Judge 
recommended deferring to the Ohio Court of Appeals’ finding that the report of the 
psychologist to whom counsel referred Petitioner did not suggest that he was not 
capable of understanding the difference between right and wrong and that failure to 
pursue an NGRI claim that was not likely to succeed did not constitute ineffective 
assistance of trial counsel. 
Petitioner’s Objections do not persuade the Court to the contrary.  Effective 
assistance does not require pursuing  a possible defense when a professional 
examination of the defense does not suggest likely success.  The Magistrate Judge’s 
recommendation as to Ground One is adopted. 
The Magistrate Judge also recommended denying a certificate of appealability.  
Petitioner objects, relying particularly on Frierson v. Woodward , 463 F.3d 982 (9th 
Cir. 2006). Frierson was a capital case and precedent from those cases must always 
be read with caution because “[d]eath is different.” Woodson v. North Carolina , 428 
U.S. 280, 305 (1976).  "It is in capital cases especially that the balance of conflicting 
interests must be weighed most heavily in favor of the procedural safeguards of the 
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[3] 
 
Bill of Rights," Reid v. Covert, 354 U.S. 1, 45-46 (1957) (Frankfurter, J., concurring), 
and that "[i]n death cases doubts ... should be resolved in favor of the accused."  
Andres v. United States, 333 U.S. 740, 752 (1948). In Frierson the trial attorney failed 
to present any evidence at the penalty phase of the trial. The Ninth Circuit noted: 
The Supreme Court has also made clear that when counsel 
is on notice that important mitigation evidence exists, a 
failure to uncover and present such evidence at the penalty 
phase represents ineffective assistance of counsel. Wiggins 
v. Smith, 539 U.S. 510 , 525, 123 S.Ct. 2527, 156 L.Ed.2d 
471 (2003) (holding counsel's failure to prepare a social 
history report fell below professional standards where 
counsel was on notice of severe family dysfunction). 
 
463 F.3d at 989. Failing to present known evidence at a capital sentencing hearing is 
quite different from failing to pursue additional evidence of mental illness when an 
initial professional report suggests that one cannot prove an NGRI defense. Petitioner 
argues that Frierson is, like this case, a failure to investigate situation. Rather the 
Ninth Circuit writes of evidence known to exist, not evidence that hypothetically 
might have been found.  
CONCLUSION 
 The Magistrate Judge’s Report  and Recommendations  are adopted and 
Petitioner’s objections are overruled. The Clerk will enter judgment dismissing the 
Petition with prejudice.  Because reasonable jurists would not disagree with this 
conclusion, Petitioner is denied a certificate of appealability and the Court certifies 
to the Sixth Circuit that any appeal would be objectively frivolous and should not be 
permitted to proceed in forma pauperis. 
IT IS SO ORDERED. 
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[4] 
 
s/ James L. Graham    
        JAMES L. GRAHAM  
        United States District Judge 
 
DATE: June 5, 2026 
 
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