McGuire v. State of Ohio
Order Adopting 12 Report and Recommendation. Judge Jack Zouhary on 2/28/2017. (D,L)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Charles Edward McGuire, Jr.,
Case No. 3:16 CV 910
REPORT AND RECOMMENDATION
-vsJUDGE JACK ZOUHARY
State of Ohio,
Petitioner pro se Charles McGuire, a state prisoner, filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 asserting five grounds for relief (Doc. 1). The case was referred to Magistrate
Judge Kathleen Burke for a Report and Recommendation (“R&R”). The State of Ohio, through
Warden John Coleman, filed a Return of Writ (Doc. 9), and McGuire filed a Traverse (Doc. 11).
Judge Burke recommended this Court dismiss in part and deny in part the Petition (Doc. 12), and
McGuire objected (Doc. 13). Accordingly, this Court has reviewed de novo those portions of the
R&R challenged in the Objection. See 28 U.S.C. § 636(b)(1); Hill v. Duriron Co., 656 F.2d 1208,
1213 (6th Cir. 1981).
As McGuire does not meaningfully object to the procedural history and facts set forth in the
R&R (Doc. 12 at 2–6), this Court incorporates them by reference and briefly summarizes the timeline
of McGuire’s state court appeals.
In July 2013, an Ohio jury found McGuire guilty of aggravated robbery, aggravated burglary,
and murder. He appealed, arguing prosecutorial misconduct based on false, misleading, or otherwise
improper statements at trial; insufficient evidence to sustain the conviction; the weight of the evidence
did not support the verdict; and error in imposing a mandatory sentence for aggravated robbery. In
May 2015, the Ohio appellate court overruled the first three assignments of error, but sustained the
fourth and remanded for resentencing. The Ohio Supreme Court declined jurisdiction in September
2015 (id. at 4). Earlier the same month, the state appellate court denied McGuire’s Rule 26(B)
Application to Reopen Appeal based on ineffective assistance of appellate counsel (id. at 5). The
Ohio Supreme Court declined jurisdiction of that appeal in January 2016 (id.). McGuire filed this
habeas Petition four months later.
The Petition raises five grounds for relief: (1) hearsay, (2) improper statements by the
prosecutor, (3) abandonment of a motion in limine, (4) juror bias, and (5) weight and sufficiency of
the evidence. The R&R recommends this Court dismiss the first four claims as procedurally
defaulted, dismiss a portion of the fifth claim as not cognizable, and deny the remainder of the fifth
claim on the merits.
Claim One: Hearsay
As the R&R correctly notes, McGuire failed to raise this claim on direct appeal (Doc. 12 at
30–31). Although McGuire’s Rule 26(B) Application claimed ineffective assistance of counsel for
failure to challenge the admission of alleged hearsay testimony, the Ohio appellate court determined
counsel was not ineffective (see id. at 31 n.7). McGuire did not challenge that ruling in the Petition
or Traverse, but he now raises an ineffective assistance of counsel argument in his Objection (Doc.
13 at 3–4). “Absent compelling reasons,” parties may not “raise at the district court stage new
arguments or issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895,
902 n.1 (6th Cir. 2000). McGuire identifies no compelling reason to grant an exception here;
therefore, he has waived this argument, and his objection is overruled.
Claim Two: Improper Statements by Prosecutor
Only one of the allegedly improper statements was presented to the Ohio state courts as a
stand-alone claim for prosecutorial misconduct. As the R&R correctly observed, the others merely
formed a basis for McGuire’s ineffective assistance of trial counsel claim, and therefore they were not
preserved for purposes of federal habeas review (see Doc. 12 at 27–28). See Davie v. Mitchell, 547
F.3d 297, 312 (6th Cir. 2008) (“[A] Rule 26(B) application based on ineffective assistance cannot
function to preserve the underlying substantive claim.”) (internal quotation marks omitted). Further,
any prosecutorial misconduct claim based on the single preserved statement is procedurally defaulted
because the Ohio appellate court applied its contemporaneous-objection rule in overruling McGuire’s
assignment of error on this ground (see Doc. 12 at 28–30). McGuire now reiterates his arguments that
the prosecutor’s allegedly improper statements, both individually and as a whole, influenced the
outcome of his trial (Doc. 13 at 3). He also objects that the Ohio appellate court erred in rejecting his
claim (id.). This Court finds the R&R accurately states the facts and law governing both the
preservation and procedural default issues. McGuire’s objection is overruled.
Ground Three: Motion in Limine
Construed liberally, McGuire’s third claim for relief alleges that trial counsel was ineffective
for failing to demand a ruling on a motion in limine and allowing the testimony at issue to proceed.
This claim is procedurally defaulted because McGuire failed to raise it on direct appeal. As the R&R
notes, McGuire’s Rule 26(B) Application did claim ineffective assistance of appellate counsel for
failing to raise an ineffective assistance of trial counsel claim on this basis (see Doc. 12 at 32). The
Ohio appellate court found appellate counsel was not ineffective, and McGuire was not prejudiced
by the failure of trial counsel to raise this claim (id.). McGuire did not explicitly challenge that ruling
-- regarding the effectiveness of appellate counsel -- in his Petition or Traverse. Instead, he claims
he was prejudiced by the introduction of testimony regarding an earlier altercation between him and
the victims, and he would not have been convicted had this testimony been excluded. McGuire’s
objection to the R&R merely repeats both arguments (Doc. 13 at 4). This Court has reviewed the
R&R’s analysis of this claim and finds it correctly states the facts and law. This objection is
Ground Four: Juror Bias
McGuire never raised a stand-alone claim of juror bias in any state court proceeding.
Construing the claim as one for ineffective assistance of trial counsel, as McGuire does in his
Traverse, he failed to raise this claim on direct appeal. Under either characterization, the claim is
procedurally defaulted. McGuire’s objection merely reiterates his argument that the juror at issue
should have been struck for cause (Doc. 13 at 5). This Court finds the R&R accurately states the facts
and law governing McGuire’s juror bias claim; thus, McGuire’s objection is overruled.
Ground Five: Weight and Sufficiency of the Evidence
McGuire does not object to the R&R’s conclusions regarding his fifth claim and thus waives
review of that issue. See 18 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
which objection is made.”) (emphasis added). This Court has reviewed the R&R’s analysis of
McGuire’s claim regarding the weight and sufficiency of the evidence and finds it accurately states
the facts and law. This claim is dismissed in part (as to weight) and denied in part (as to sufficiency).
This Court overrules McGuire’s Objection (Doc. 13) and adopts the R&R (Doc. 12). The
Petition is dismissed in part and denied in part. Further, this Court certifies an appeal from this
decision could not be taken in good faith, and there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
s/ Jack Zouhary
U. S. DISTRICT JUDGE
February 28, 2017
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