McGrath v. Clipper

Filing 60

Opinion and Order signed by Judge James S. Gwin on 7/18/13 adopting the Report and Recommendation of the Magistrate Judge. The Court, for the reasons set forth in is entry, denies Petitioner's 2254 petition, certifies that an appeal could not be taken in good faith and no basis exists upon which to issue a certificate if appealability. (Related Docs. 9 , 52 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
JOSEPH MCGRATH,
:
:
Petitioner,
:
:
v.
:
:
BENNIE KELLY,
:
:
Respondent.
:
:
-------------------------------------------------------

CASE NO. 1:11-CV-2023-JG

OPINION & ORDER
[Resolving Docs. No. 9, 50.]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In May 2009, a jury found pro se Petitioner Joseph McGrath guilty of: (1) three counts of
menacing by stalking, in violation of Ohio Revised Code § 2903.211(A)(1); (2) two counts of
violating a protection order, in violation of Ohio Revised Code § 2919.27(A)(2); and (3) one count
of resisting arrest, in violation of Ohio Revised Code § 2921.33(A).1/
Now, McGrath has filed his amended petition for habeas corpus relief under 28 U.S.C.
§ 2254.2/ Magistrate Judge Nancy A. Vecchiarelli recommended that the Court deny McGrath’s
petition,3/ and McGrath filed objections to her report.4/ For the following reasons, the Court DENIES
McGrath’s petition.5/
I. Background
In May 2009, a Cuyahoga County jury found Petitioner McGrath guilty of three counts of
menacing by stalking, two counts of violating a temporary protection order, and a single count of

1/

Doc. 25 at 2.

2/

Doc. 9. McGrath has also filed a motion for summary judgment. Doc. 50.
Doc. 52.

3/
4/

Doc. 53.

5/

The Court also denies McGrath’s motion for summary judgment, doc. 50, as moot.

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resisting arrest.6/ The convictions relate to McGrath’s relationship with Michelle Bassett, his exgirlfriend.7/ In 2005, McGrath and Bassett began dating.8/ The relationship soon ended, but McGrath
continued to contact Bassett.9/ In response, Bassett made several police reports about McGrath.10/
She said that he was stalking her, and that he had slashed her car tires.11/ In January 2007, Bassett
called police because McGrath had trapped her in a gas station.12/ Police responded and arrested
McGrath.13/
Soon after the arrest, the court issued a Temporary Protection Order (“TPO”), which
prohibited McGrath from contacting Bassett and coming within 500 feet of her.14/ But while
McGrath was in jail, he continued to call and write Bassett.15/ In September 2008, McGrath told
Bassett that he was being released from jail and would come to her home.16/ When McGrath arrived,
Bassett told him that she had called the police.17/ McGrath fled, but the police subdued him.18/
A. State Proceedings
The State of Ohio charged McGrath with eight counts of menacing by stalking, violating a
TPO, and resisting arrest.19/ At his trial, McGrath said that he did not know that he was subject to

6/

Doc. 25 at 2. Originally, the state brought two actions against McGrath, CR-516312 and CR-524159. Docs.
25-3; 25-4. Those cases were consolidated for trial. Doc. 25-3 at 7.
7/

Doc. 25-17 at 3.

8/

Doc. 25-17 at 3-4.

9/

Doc. 25-17 at 4.

10/

Doc. 25-17 at 4.

11/

Doc. 25-17 at 4.

12/

Doc. 25-17 at 4.

13/

Doc. 25-17 at 4.

14/

Doc. 9-3 at 2.

15/

Doc. 25-17 at 6.

16/

Doc. 25-17 at 7.
Doc. 25-17 at 7.

17/
18/

Doc. 25-17 at 7.

19/

Doc. 25 at 2.

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the TPO because he never received a copy of it.20/ McGrath admitted that he called Bassett, but he
said that their contact was consensual.21/ During the trial, the State played tapes of McGrath’s phone
calls that suggested otherwise.22/ On those tapes, McGrath used profane language and threatened
Bassett.23/
The jury found McGrath guilty on six of the eight counts. McGrath appealed his conviction,
alleging seventeen assignments of error.24/ The Ohio Court of Appeals affirmed the trial court’s
judgment.25/ In March 2011, McGrath filed an untimely appeal to the Ohio Supreme Court, which
subsequently denied him leave to file a delayed appeal.26/
McGrath also moved for a new trial with the trial court.27/ But the trial court denied his
motion.28/ In July 2011, McGrath filed a notice of delayed appeal in the Ohio Court of Appeals.29/
The court of appeals denied McGrath leave to file a delayed appeal.30/ McGrath then appealed that
decision to the Ohio Supreme Court,31/ which denied him leave to appeal.32/
In February 2011, McGrath filed a petition for postconviction relief in the trial court.33/ The

20/

Doc. 25-17 at 14.

21/

Doc. 25-17 at 15.

22/

Doc. 25-17 at 13.

23/

Doc. 25-17 at 13.
Doc. 25-1 at 5.

24/
25/

Doc. 25-17 at 1. The Ohio Court of Appeals also denied McGrath’s motion to reconsider its judgment.

26/

Doc. 25-21. After the Ohio Court of Appeals denied McGrath’s motion for reconsideration, he had forty-five
days to file a timely appeal with the Ohio Supreme Court. Ohio S.Ct. Prac. R. 6.01(A)(1). Subsequently, McGrath filed
another motion for reconsideration in the appellate court, but it denied the motion as untimely. Doc. 25-14 at 1.
McGrath appealed that decision to the Ohio Supreme Court, and the court dismissed his appeal without a ruling on the
merits. Docs. 25-23; 25-26.
27/

Doc. 25-31.

28/

Doc. 25-3 at 4.

29/

Doc. 25-34.

30/

Doc. 25-37.
Doc. 25-38.

31/
32/

Doc. 25-41.

33/

Doc. 25-48.

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trial court denied the petition because it was untimely.34/ McGrath appealed that decision.35/ The
Ohio Court of Appeals affirmed the trial court’s judgment after it found that McGrath’s petition was
untimely.36/ McGrath filed a motion for reconsideration but this too was denied.37/ McGrath then
timely filed a notice of appeal with the Ohio Supreme Court.38/ The Ohio Supreme Court dismissed
the appeal without addressing the merits of McGrath’s claims.39/
B. Habeas Petition
In September 2011, McGrath petitioned this Court for habeas corpus relief.40/ He alleges
fourteen grounds for relief:
Ground One: The trial court abused its discretion and committed plain
error and violated the petitioner’s Ohio and United States
constitutional rights by permitting the city of Parma to prosecute a
criminal offense in the Court of Common Pleas, when no criminal
offense was committed in the City of Parma’s political subdivision
and/or territorial jurisdiction.
Ground Two: The petitioner’s convictions are against the manifest
weight of the evidence, in violation of the Ohio and United States
Constitutions.
Ground Three: The sufficiency of the evidence does not support the
petitioner’s convictions, in violation of the Ohio and United States
Constitutions.
Ground Four: The trial court abused its discretion and committed plain
error in violation of the Ohio and United States Constitutions by
forcing the petitioner to go through a jury trial wearing county orange
clothing over the petitioner’s objections.
Ground Five: The trial court abused its discretion and/or committed

34/

Doc. 25-55.

35/

Doc. 25-58.

36/

Doc. 25-61.

37/

Docs. 25-63; 25-65.
Doc. 25-67.

38/
39/

Doc. 25-69.

40/

Doc. 9.

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plain error by denying the petitioner any discovery in violation of the
Ohio and United States Constitutions.
Ground Six: The trial court abused its discretion and/or committed
plain error, in violation of the Ohio and United States Constitutions by
providing incorrect jury instructions by leaving out one critical word
“only” in the jury instructions.
Ground Seven: The trial court abused its discretion and/or committed
plain error in violation of the Ohio and United States Constitutions by
permitting the State to ambush the petitioner on the stand with State’s
Ex. 16, Compact Disk . . . that the petitioner only heard for the first
time while testifying.
Ground Eight: The petitioner was tried, convicted and sentenced
before a biased judge, in violation of the Ohio and United States
Constitutions, rendering the trial, conviction and sentence void.
Ground Nine: The trial court abused its discretion and/or committed
plain error by sentencing the petitioner to allied offenses of similar
import . . . in violation of the Ohio and United States constitutions.
Ground Ten: The petitioner’s trial, conviction, sentence for violating
a temporary protection order issued pursuant to R.C. § 2903.213, R.C.
§ 2903.214, is void, as both statutes are unconstitutional and in
conflict with Ohio Civ. R. 1, Ohio Civ. R. 65.
Ground Eleven: The petitioner’s Ohio and United States constitutional
rights were violated when he was prosecuted for violating a temporary
protection order that has [sic] expired.
Ground Twelve: The petitioner was denied the effective assistance of
trial counsel, in violation of the Ohio and United States Constitutions.
Ground Thirteen: The trial court acted outside of its jurisdiction by
failing to credit the petitioner with the exact number of days of jail
time credit he was entitled to in the sentencing journal entry, in
violation of the Ohio and United States constitutions.
Ground Fourteen: The trial court was without jurisdiction to prosecute
the petitioner and his conviction is void because the trial court allowed
the State of Ohio to prosecute the petitioner before he was judicially
declared competent to stand trial . . . in violation of the Ohio and

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United States constitutions.41/
McGrath also asks this court to grant summary judgment in his favor.42/
Under Local Rule 72.2(b)(2), McGrath’s petition was referred to Magistrate Judge Nancy A.
Vecchiarelli. Magistrate Judge Vecchiarelli recommended the Court deny McGrath’s petition.43/
II. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)44/ governs a federal
court’s review of a state prisoner’s habeas corpus petition. AEDPA limits federal review to only
those claims in which a petitioner contends that he is in custody in violation of the Constitution, laws,
or treaties of the United States.45/ And a federal court cannot grant a habeas petition for any claim
that the state court adjudicated on the merits unless the adjudication:
(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 upon an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.46/
To justify any grant of habeas relief, “a federal court must find a violation of law ‘clearly
established’ by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant
state court decision.”47/ Furthermore,
under the “contrary to” clause, a federal habeas court may grant the

41/

Doc. 52 at 22-23.

42/

Doc. 50 at 3.
Doc. 52 at 1. McGrath objects to these recommendations. Doc. 53. Magistrate Judge Vecchiarelli also noted
that “[b]ecause no state remedies remain available to him, McGrath has exhausted state remedies.” Doc. 52 at 31.
McGrath does object, and the Court agrees that he has exhausted his state remedies.
43/

44/

Pub. L. No. 104–132, 110 Stat. 1214 (1996); codified at 28 U.S.C. § 2254.

45/

28 U.S.C. § 2254(a).

46/

28 U.S.C. § 2254(d). See also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001).

47/

Id. (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

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writ if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court
decides a case differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable application” clause,
a federal habeas court may grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner's
case.48/
The Sixth Circuit holds that, even if a federal court could determine that a state court
incorrectly applied federal law, the court still should not grant relief unless it also finds that the state
court ruling was unreasonable.49/
“A petitioner must fairly present to the state courts either the substance of or the substantial
equivalent of the federal claim that he is presenting to a federal habeas court.”50/ “To fairly present
a claim to a state court a petitioner must assert both the legal and factual basis for his or her claim.”51/
To determine whether a federal legal claim has been fairly presented to the state court, a federal
habeas court considers whether:
1) the petitioner phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a denial
of the specific constitutional right in question;
2) the petitioner relied upon federal cases employing the constitutional
analysis in question;
3) the petitioner relied upon state cases employing the federal
constitutional analysis in question; or
4) the petitioner alleged “facts well within the mainstream of [the
pertinent] constitutional law.”52/
Where a petitioner fails to fairly present a federal claim in state court, the petitioner forfeits

48/

Williams, 529 U.S. at 412–13.

49/

Simpson v. Jones, 238 F.3d 399, 405 (6th Cir. 2000).

50/

Hicks v. Straub, 377 F.3d 538, 552 (6th Cir. 2004).

51/

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

52/

Hicks, 377 F.3d at 553 (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)).

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that claim in later proceedings unless the petition can show both cause for, and prejudice resulting
from, the default.53/
Where the state court did not adjudicate a federal constitutional claim on the merits even
though it was fairly presented, AEDPA deference does not apply.54/ In such cases, a federal court
applies the pre-AEDPA standard of review and reviews questions of law de novo and questions of
fact for clear error.55/ Nonetheless, “when a state court issues an order that summarily rejects without
discussion all the claims raised by a defendant, including a federal claim . . . the federal habeas court
must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.”56/ The same
rule applies “when the state court addresses some of the claims raised by a defendant but not a claim
that is later raised in a federal habeas proceeding.”57/
III. Analysis
A. State Claim
The Court lacks jurisdiction to consider Ground Thirteen of McGrath’s petition because it is
a claim based exclusively on state law. “[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”58/ “In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.”59/
Here, in Ground Thirteen, McGrath says that the trial court failed to properly credit him for

53/

See Wainright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

54/

Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009); Brown v. Smith, 551 F.3d 424, 429 (6th Cir. 2008).

55/

Evans, 575 F.3d at 564; Brown, 551 F.3d at 430; Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).

56/

Johnson v. Williams, — U.S. —, 133 S.Ct. 1088, 1091 (2013) (discussing Harrington v. Richter, — U.S. ––,
131S.Ct. 770 (2011)).
57/

Id.

58/

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citations omitted).

59/

Id.

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certain jail time credit he deserved.60/ He says that this is a violation of his constitutional rights.
But McGrath’s argument is based entirely on state-law grounds.61/ The Sixth Circuit has said
that “[a] state court’s alleged misinterpretation of state sentencing guidelines and crediting statutes
is a matter of state concern only.”62/ Jail time credit is a matter of Ohio law for Ohio courts to decide.
Because this Court will not “reexamine state-court determinations on state-law questions,” the Court
lacks jurisdiction to consider Ground Thirteen.63/
B. Procedural Default
The Court finds that McGrath has procedurally defaulted the remaining grounds in his
petition. The Sixth Circuit uses a three-step analysis to determine whether a claim is procedurally
defaulted.64/ Under this test, the Court decides (1) whether the petitioner failed to comply with an
applicable state procedural rule; (2) whether the state courts actually enforced the state procedural
sanction; and (3) whether the state procedural bar is an “independent and adequate” state ground on
which the state can foreclose federal review.65/ If these elements are met, the claim is procedurally
defaulted.
But there are two exceptions to the procedural default rule. A federal court can hear the
merits of a procedurally defaulted claim if the petitioner can show “cause” for the procedural default
and “actual prejudice” from the alleged error.66/ A petitioner can also excuse his procedural default
by showing that a “miscarriage of justice” would result if the court does not hear the claim.67/ The

60/

Doc. 9 at 35.

61/

The Court has jurisdiction over McGrath’s Ground 2 to the extent that it challenges the constitutionality of
his imprisonment.
62/

Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003).

63/

Estelle, 502 U.S. at 67-68.

64/

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).

65/

Id.

66/

Id.

67/

Sawyer v. Whitley, 505 U.S. 333, 339 (1992).

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“miscarriage of justice” standard requires the petitioner to show “evidence of innocence so strong that
a court cannot have confidence in the outcome of the trial.”68/ But this exception “should remain rare
and only be applied in the extraordinary case.”69/ For the reasons below, the Court finds that McGrath
has procedurally defaulted his remaining grounds for relief.
1. Grounds One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Twelve, & Fourteen
The Court finds that McGrath has procedurally defaulted Grounds One, Two, Three, Four,
Five, Six, Seven, Eight, Nine, Twelve, and Fourteen because he made those claims in an untimely
direct appeal to the Ohio Supreme Court. Because it was procedurally barred, the Ohio Supreme
Court dismissed the claims as untimely. When a procedural error prevents a petitioner from
presenting the merits of the claim to a state court, that claim is procedurally barred and cannot be
brought in a federal habeas court.70/ Procedural default can result from a default at trial, on appeal,
or on collateral review.71/ The Sixth Circuit’s three-step analysis determines when a petitioner has
procedurally defaulted a claim.72/
Here, McGrath procedurally defaulted these grounds because the Ohio Supreme Court applied
an adequate and independent procedural bar to his direct appeal. McGrath’s direct appeal had
seventeen assignments of error.73/ Among those purported errors are the same arguments that
McGrath makes before this Court as Grounds One, Two, Three, Four, Five, Six, Seven, Eight, Nine,
Twelve, and Fourteen.74/ McGrath timely filed his appeal with the Ohio Court of Appeals.75/ The
68/

Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).

69/

Souter, 395 F.3d at 590 (internal quotations omitted).

70/

Murray v. Carrier, 477 U.S. 478, 485 (1986).

71/

Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

72/

Maupin, 785 F.2d at 138.
Doc. 25-1 at 5.

73/
74/

See Docs. 25-15 at 7-10; 9 at 16-36. Those grounds correspond to McGrath’s Assignments of Error One,
Two, Three, Four, Five, Seven, Eight, Twelve, Fourteen, Sixteen, and Seventeen are now before this Court. The Court
has jurisdiction over McGrath’s Ground Two only to the extent that it raises questions of federal law or the
constitutionality of his imprisonment. The Court also has jurisdiction over Ground Nine to the extent that McGrath raises

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Court of Appeals affirmed his conviction.76/ McGrath then had forty-five days to file a timely notice
of appeal to the Ohio Supreme Court.77/ But McGrath instead waited nearly five months to file.78/
Because his appeal was untimely, the Ohio Supreme Court applied a procedural bar by declining to
grant him leave to file a delayed appeal.79/
When the Ohio Supreme Court declines jurisdiction for an appeal, “it is not rendering a
decision on the merits.”80/ And the Sixth Circuit has held that the denial of a motion for a delayed
appeal is an “independent and adequate” state ground on which the state can foreclose federal
review.81/ Thus, the Court finds that McGrath has procedurally defaulted Grounds One, Two, Three,
Four, Five, Six, Seven, Eight, Nine, Twelve, and Fourteen.
The Court also finds that McGrath has not shown that the failure to hear those claims would
result in a miscarriage of justice.82/ To qualify for this exception to the procedural default rule, a
petitioner must make “a proper showing of actual innocence.”83/ The petitioner must show that, more
likely than not, no reasonable juror would have convicted him in light of the new evidence.84/ A
federal court deciding a habeas corpus claim must consider “all the evidence, old and new,

questions about his Double Jeopardy rights.
75/

Doc. 25-11.

76/

See Doc. 25-14 at 2.

77/

Ohio S.Ct. Prac. R. 6.01(A)(1).

78/

Doc. 25-14 at 1-2. McGrath moved the Ohio Court of Appeals for rehearing and reconsideration while his
untimely appeal to the Ohio Supreme Court was pending. Doc. 25-14 at 1. The court of appeals dismissed his motions.
Doc. 25-14 at 1.
79/

Doc. 25-21. Following the Ohio Supreme Court’s decision, McGrath again filed for rehearing and
reconsideration with the Ohio Court of Appeals. That court dismissed his motions as untimely, and the Ohio Supreme
Court declined to grant McGrath an appeal of those decisions.
80/

Doc. 53 at 12 (discussing State v. Davis, 894 N.E.2d 1221 (Ohio 2008)).

81/

See Smith v. Ohio Dep’t of Rehab & Corr., 463 F.3d 426, 431-32 (6th Cir. 2006) (“We have previously held
that [Supreme Court denial for an untimely notice of appeal] is an adequate procedural ground to foreclose federal habeas
review.”); Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (“[T]he applicable Ohio court rules indicate that the
denial of a motion for a delayed appeal is a procedural ruling, not a ruling on the merits.”).
82/
McGrath does not attempt to show cause for his default or any resulting prejudice.
83/

Herrera v. Collins, 506 U.S. 390, 404 (1993).

84/

Id.

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incriminating and exculpatory.”85/ But a petitioner fails to show actual innocence when “[t]he
substantial remainder” of the prosecution’s case remains unchallenged “and provides ample evidence
of guilt.”86/
Here, McGrath has failed to offer sufficient evidence to support his argument that he is
actually innocent. First, many of the affidavits that McGrath provides are consistent with the
arguments that he already made at trial.87/ For example, several of the affidavits say that McGrath
and Bassett had a relationship while he was in jail.88/ But McGrath and others gave similar testimony
at trial.89/ And the detective handling the case acknowledged that Bassett had some contact with
McGrath during that time.90/ With his petition, McGrath also provided commissary deposit slips
showing that Bassett gave him money.91/ But, Bassett testified about the deposits at his trial.92/ A jury
at McGrath’s trial already considered these arguments and found him guilty. Moreover, several of
McGrath’s affiants have credibility issues that would likely have been raised at trial.93/ While the new
evidence might weigh in McGrath’s favor, the Court finds that it fails to “‘undermine confidence in
the result of the trial.’”94/
The Court’s conclusion is supported by McGrath’s failure to address the State’s strongest
evidence. First, McGrath fails to address the audio recording of his phone calls to Bassett. Those
85/

House v. Bell, 547 U.S. 518, 538 (2006) (internal quotations omitted).

86/

Albrecht v. Horn, 485 F.3d 103, 125 (3rd Cir. 2007).

87/

See Docs. 9-6; 9-7; 9-8; 9-10; 9-11; 46-4.

88/

See Docs. 9-6; 9-7.

89/

See Doc. 25-17 at 8-13. The defense called three witnesses, all of whom testified about McGrath’s
relationship with Bassett.
90/

Doc. 25-17 at 8.

91/

See Docs. 46-6; 46-7.
Doc. 25-17 at 6-7. Bassett testified that she had deposited at least $100 into McGrath’s account, but the
deposit slips that McGrath provided show only $20 in deposits.
92/

93/

The affidavits are largely from friends and family of McGrath, who likely have the desire to see him released.
See McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir. 2007) (noting that witnesses who “have a personal stake in
exonerating” a defendant are less credible than impartial observers).
94/

Souter, 395 F.3d 577 (quoting Schlup, 513 U.S. at 317, 324).

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calls “contain several threats of violence and are laced with profanity. On one occasion, [McGrath]
informs Bassett that he was walking down her street with an eight-pound sledgehammer to smash her
car.”95/ McGrath also does not support his claim that he never received a copy of the TPO. He
provided an unsigned copy of the TPO with his petition, but this is not evidence that he never
received it.96/ McGrath offers no new evidence to counter the testimony that he was served in jail,
which the court docket reflected.97/ With the State’s case largely unchallenged, the Court finds that
there was sufficient evidence of McGrath’s guilt. Thus, McGrath’s grounds for relief remain
procedurally defaulted.
2. Grounds Ten and Eleven
The Court also finds that McGrath has procedurally defaulted Grounds Ten and Eleven
because the state trial court and the Ohio Court of Appeals applied procedural bars to his motion for
a new trial and his state postconviction petition.
In 2010, McGrath filed a motion for a new trial, which contained grounds that are now before
this Court as Grounds Ten and Eleven.98/ The trial court denied McGrath’s motion for a new trial.99/
And McGrath filed an untimely appeal to the Ohio Court of Appeals.100/ The court of appeals denied
McGrath leave to file a delayed appeal and did not consider his claims on the merits.101/ McGrath
then appealed that decision to the Ohio Supreme Court.102/ The Ohio Supreme Court denied McGrath

95/

Doc. 25-17 at 9.

96/

Doc. 9-3.

97/

Doc. 25-8 at 62.
Doc. 25-31 at 4-6. McGrath’s third argument includes his claims that the TPO was expired and that it was
issued based on unconstitutional laws. These arguments are now before the Court as Grounds Ten and Eleven.
98/

99/

Doc. 25-3 at 4.

100/

Doc. 25-34.

101/

Doc. 25-37.

102/

Docs. 25-39; 25-40. McGrath’s fourth and fifth propositions of law in that appeal are the same questions
as Grounds Ten and Eleven in this case.

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leave to appeal.103/
Similarly, in 2011, McGrath filed a petition for post-conviction relief with the trial court.104/
His petition contained the same arguments that are now before the Court as Grounds Ten and
Eleven.105/ The trial court denied the petition because it was untimely.106/ McGrath appealed the trial
court’s judgment to the Ohio Court of Appeals.107/ But the Ohio Court of Appeals affirmed.108/
McGrath then appealed to the Ohio Supreme Court,109/ which denied him leave to appeal.110/
Here, the Court finds that McGrath has defaulted Grounds Ten and Eleven. McGrath failed
to file timely appeals with both the trial and appellate courts. In both appeals, the Ohio Supreme
Court enforced the procedural bar by refusing to hear the claims on the merits.111/ A court refusing
to hear an untimely petition is imposing an “independent and adequate” state procedural bar to
prevent a federal court from hearing the habeas claims.112/ This is true even where Ohio courts have
discretion to grant leave.113/ Thus, the Court finds that McGrath has procedurally defaulted Grounds
Ten and Eleven.

103/

Doc. 25-41.
Doc. 25-48.

104/
105/

Doc. 25-48. ¶¶ 16-22 contain McGrath’s arguments that the TPO was based on unconstitutional law and
expired before his alleged violations. These arguments are before the Court now as Grounds Ten and Eleven. Magistrate
Judge Vecchiarelli considered Ground 11 on the merits. But McGrath presented this argument to the state courts in his
motion for a new trial and postconviction proceedings. Therefore, the Court will first consider whether he has
procedurally defaulted this claim.
106/

Doc. 25-55.

107/

Doc. 25-58.

108/

Doc. 25-61. The court did not address the merits of Assignments of Error Two, Three, and Four, which are
now Grounds Ten and Eleven.
109/

Doc. 25-67. In that petition, Propositions Four, Five, and Six are the relevant arguments.

110/

Doc. 25-69.
Docs. 25-41; 25-69.

111/
112/

See Walker v. Martin, 131 S.Ct. 1120, 1128 (2011) (“[A] discretionary state procedural rule . . . can serve
as an adequate ground to bar federal habeas review.”); Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011) (“[A]
petitioner's failure to follow Ohio Rule of Appellate Procedure 5(A) can serve as the basis for a procedural default of
a petitioner's habeas claims.”).
113/

Id.

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For the same reasons discussed above, McGrath fails to show why the Court should hear his
procedurally defaulted grounds on the merits. McGrath says only that he is actually innocent.114/ But,
as stated above, the Court finds that a reasonable juror considering all the evidence, both new and old,
could still find him guilty on all six counts. Thus, the Court finds that McGrath has failed to excuse
his default, and Grounds Ten and Eleven remain procedurally barred.
IV. Conclusion
For the reasons above, the Court DENIES McGrath’s petition.115/
Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this
decision could not be taken in good faith, and that no basis exists upon which to issue a certificate
of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b).
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: July 18, 2013

114/

Doc. 46 at 18 (“To uphold a procedural default would allow the State of Ohio to maintain the unlawful
conviction of Joseph McGrath who is actually innocent of the crimes he stands convicted of, all in violation of the Ohio
and United States Constitutions.”).
115/

The Court also denies McGrath’s motion for summary judgment as moot.

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