Twyford v. Bradshaw

Filing 140

OPINION AND ORDER denying 129 Motion for Discovery and motion to reconsider the Court's September 27, 2017, Opinion and Order dismissing subclaim (C) of his First Claim for Relief, and paragraphs 277, 278 and 280-283 of his Third Claim for Relief. Those claims are and remain procedurally defaulted. Signed by Chief Judge Algenon L. Marbley on March 27, 2024. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAYMOND TWYFORD,
Petitioner,
v.

Case No. 2:03-CV-906
CHIEF JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers

WARDEN, Chillicothe
Correctional Institution,
Respondent.

OPINION AND ORDER
Petitioner Raymond Twyford, a prisoner sentenced to death by the State of Ohio, has
pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is
before the Court on Petitioner’s Motion for Discovery (ECF No. 129), Respondent’s
Memorandum in Opposition (ECF No. 133), and Petitioner’s Reply (ECF No. 134). For the
following reasons, the motion is DENIED.
I. OVERVIEW
In 1993, a jury in Jefferson County, Ohio, convicted Petitioner of Aggravated Murder,
Kidnapping, and Aggravated Robbery, and he was sentenced to death. His conviction and
sentence were affirmed on direct appeal and postconviction review. State v. Twyford, 94 Ohio
St. 3d 340 (2002); State v. Twyford, No. 98-JE-56, 2001 WL 301411 (Ohio App. 7th Dist. Mar.
19, 2001).
On January 13, 2003, Petitioner initiated the instant habeas corpus proceedings. On
October 6, 2003, Petitioner filed his Petition for Writ of Habeas Corpus. (ECF No. 13.) On
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September 27, 2017, this Court issued an Opinion and Order granting in part Respondent’s
motion to dismiss procedurally defaulted claims. (ECF No. 93.) Relevant here is the Court’s
conclusion that Petitioner procedurally defaulted subclaim (C) of his First Claim for Relief
(ineffective assistance of trial counsel for failing to challenge Petitioner’s competency to stand
trial) and portions of his Third Claim for Relief (prosecutorial misconduct).
By way of the instant motion for discovery, Petitioner now seeks reconsideration of this
Court’s decision to dismiss subclaim (C) of his First Claim for Relief and the relevant portions of
his Third Claim for Relief. In seeking reconsideration, Petitioner requests discovery in order to
develop evidence to establish the existence of cause and prejudice to excuse the default of those
claims, as well discovery on the merits of the claims. Specifically, with respect to both claims
for relief, Petitioner seeks leave to depose trial counsel Adrian Hershey and David Vukelic and
all members of the trial team, as well as all appellate and postconviction counsel. Additionally,
Petitioner requests leave to “subpoena all competency evaluations, psychiatric and sanity
examinations, and any other related documentation that was available to trial counsel before and
during Mr. Twyford’s trial.” (ECF No. 129, at PAGEID # 7234-35.)
II. LEGAL STANDARDS FOR HABEAS DISCOVERY
The liberal discovery processes contained in the Federal Rules of Civil Procedure do not
automatically apply in habeas corpus actions. Harris v. Nelson, 394 U.S. 286, 295 (1969).
Instead, Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts
(“Rule 6”) provides that, “[a] judge may, for good cause, authorize a party to conduct discovery
under the Federal Rules of Civil Procedure[.]” Under this “good cause” standard, a district court
should grant leave to conduct discovery in habeas proceedings only “‘where specific allegations
2

before the court show reason to believe that the petitioner may, if the facts are more fully
developed, be able to demonstrate that he is . . . entitled to relief. . . .’” Bracy v. Gramley, 520
U.S. 899, 908-08 (1997) (quoting Harris v. Nelson, 394 U.S. at 295); see also Williams v.
Bagley, 380 F.3d 932, 974-75 (6th Cir. 2004).
Before determining whether discovery is warranted, a habeas court must first identify the
essential elements of the claims on which discovery is sought. Bracy, 520 U.S. at 904. The
discovery requested must be materially related to the petitioner’s claims and must be likely to
“resolve any factual disputes that could entitle [the petitioner] to relief.” Williams, 380 F.3d at
975. In keeping with the well-settled principle that habeas petitioners are not entitled to go on
fishing expeditions in search of damaging evidence, this “good cause” standard requires the
petitioner to at least attempt to identify what he expects to uncover through his discovery
requests. Id. at 974. The burden of demonstrating the materiality of the information requested is
on the moving party, and when a petitioner “‘offers nothing more than vague musings on how
[the desired discovery] might . . . unfold[,]’ a district court may correctly determine that he or
she has ‘fail[ed] to satisfy the good cause standard required to obtain habeas corpus
discovery.’” Jones v. Shoop, No. 5:19-cv-2063, 2024 WL 248045, at *1 (N.D. Ohio Jan. 23,
2024) (Oliver, D.J.) (quoting Stojetz v. Ishee, 892 F.3d 175, 207 (6th Cir. 2018)).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs
federal habeas petitions, further restricts discovery in habeas proceedings. First, under AEDPA,
a habeas court’s review of claims that were adjudicated on the merits in state court is limited to
the evidence contained in the state court record. See Cullen v. Pinholster, 563 U.S. 170 (2011)
(“review under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the state court that
3

adjudicated the claim on the merits”). An increasing number of courts in the Sixth Circuit hold
that they must consider the impact of Pinholster when determining whether to grant a habeas
petitioner leave to conduct discovery. See, e.g., Obermiller v. Shoop, No. 1:19-cv-2193, 2024
WL 404490, at *2 (N.D. Ohio Feb. 2, 2024) (Adams, D.J.) (citing Pinholster, 563 U.S. at 181,
and noting that “[h]abeas courts, therefore, routinely deny requests for discovery of evidence that
is barred from their review.”); Johnson v. Bobby, No. 2:08-cv-55, 2018 WL 1382455, at *7 (S.D.
Ohio March 19, 2018) (Sargus, D.J.) (analyzing Pinholster’s impact on discovery in habeas
cases). These courts reason that although Pinholster did not explicitly address discovery under
Habeas Rule 6, it makes little sense to allow petitioners to discover information that courts
ultimately cannot consider. See e.g., Davis v. Bobby, No. 210-cv-107, 2017 WL 2544083, at *3
(S.D. Ohio June 13, 2017) (“Pinholster’s holding necessarily informs any determination as to
whether discovery is warranted. . . . Put simply, unusable evidence cannot lead to relief”).
AEDPA—by way of § 2254(e)(2)—also limits a habeas petitioner’s factual development
of claims that were not adjudicated on the merits in state court. Section 2254(e)(2) provides as
follows:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that –
(A) The claim relies on –
(i)

a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or

(ii)

a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and
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convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). The Supreme Court has interpreted the opening clause of § 2254(e)(2)
as requiring some degree of fault on the part of a petitioner before the provision will apply. In
Michael Williams v. Taylor, 529 U.S. 420 (2000), for example, the Supreme Court held that “a
failure to develop the factual basis of a claim is not established unless there is a lack of diligence,
or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432.
“Under § 2254(e)(2), therefore, district courts may permit factual development of a claim
‘only if [the prisoner] was not at fault in failing to develop that evidence in state court, or (if he
was at fault) if the conditions prescribed in § 2254(e)(2) were met.’” Obermiller, 2024 WL
404490, at *3 (quoting Holland v. Jackson, 542 U.S. 649, 652-53 (2004)). The Supreme Court
has characterized the standard for expanding the state court record as “stringent” and new
evidence cannot be considered in all but “extraordinary cases.” Shinn v. Ramirez, 596 U.S. 366,
371 (2022). And in this very case, the Supreme Court held that this Court’s transportation order
allowing Petitioner to obtain neurological testing was not authorized under the All Writs Act or §
2254(e)(2), where Petitioner did not show that the desired evidence would have been admissible
in supporting a claim for relief. Shoop v. Twyford, 596 U.S. 811 (2022).
III. ANALYSIS
Petitioner seeks reconsideration of this Court’s prior Opinion and Order dismissing
subclaim (C) of his First Claim for Relief and portions of his Third Claim for Relief on the basis
of procedural default, ECF No. 93, and seeks discovery to develop both cause and prejudice to
excuse that default, as well as to support the merits of the substantive claims. Specifically,
Petitioner seeks leave to depose his state trial, appellate and postconviction counsel and all
5

members of the trial team, as well as leave to “subpoena all competency evaluations, psychiatric
and sanity examinations, and any other related documentation that was available to trial counsel
before and during Mr. Twyford’s trial.” (ECF No. 93, at PAGEID # 7236.)
Respondent opposes Petitioner’s motion for discovery, arguing that the motion amounts
to an untimely motion for reconsideration of this Court’s prior decision on procedural default.
(ECF No. 133, at PAGEID # 7262.) In addition, Respondent argues that Petitioner has not
shown good cause for the discovery he seeks, and the requested discovery is precluded by the
AEDPA and the United States Supreme Court’s decision in Shinn v. Ramirez, 596 U.S. 366
(2022). (Id. at PAGEID # 7262-63.)
A.

Timeliness

As an initial matter, Respondent argues the instant motion for discovery amounts to an
untimely motion for reconsideration of this Court’s prior decision on procedural default. (ECF
No. 133, at PAGEID # 7262.) Respondent argues that the case Petitioner relies on for
reconsideration of the Court’s prior default Order – White v. Warden, 940 F.3d 270, 278 (6th Cir.
2019) – was decided on October 8, 2019, and Petitioner “offers no excuse for waiting nearly
three years to ask for reconsideration.” (ECF No. 133, at PAGEID # 7262.) This argument
ignores relevant procedural history in this case.
In the time after White was decided, this Court granted Petitioner’s motion to transport
for medical testing/brain scans, and Respondent sought an interlocutory appeal of that Order.
(ECF Nos. 109, 110.) This case then proceeded before the Sixth Circuit Court of Appeals, and
ultimately, the United States Supreme Court. Upon conclusion of those proceedings, this Court
issued a Scheduling Order establishing a time frame for filing the instant motion for discovery.
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(ECF No. 126.) The motion, filed in accordance with the Court’s Scheduling Order, seeks
discovery to establish cause and prejudice, and by extension, seeks reconsideration of the Court’s
prior decision on procedural default.
Federal Rule of Civil Procedure 54(b) provides in relevant part that “any order or other
decision . . . that adjudicates fewer than all the claims . . . may be revised at any time before the
entry of a judgment adjudicating all the claims. . . .” Generally, motions for reconsideration are
disfavored. See, e.g., Davie v. Mitchell, 291 F. Supp. 2d 573, 634 (N.D. Ohio 2003).
Nevertheless, “[d]istrict courts have authority both under common law and Rule 54(b) to
reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.”
Rodriguez v. Tennessee Laborers Health & Welfare, 89 F. App’x 949, 959 (6th Cir. 2004) (citing
Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). Given the procedural history of this
case and the time and resources devoted to the interlocutory appeal, the Court does not find
Petitioner’s motion untimely.
B.

Subclaim (C) of Petitioner’s First Claim for Relief

In subclaim (C) of his First Claim for Relief, Petitioner argues his trial counsel were
ineffective for failing to challenge his competency to stand trial. Previously, and in response to
Respondent’s motion to dismiss procedurally defaulted claims, Petitioner conceded subclaim (C)
was procedurally defaulted and was never raised in the state courts. (ECF No. 79, at PAGEID
563; ECF No. 85, at PAGEID # 636.) Because his response to the Warden’s motion to dismiss
predated the United States Supreme Court’s decisions in Martinez v. Ryan, 566 U.S. 1 (2012),
and Trevino v. Thaler, 569 U.S. 413 (2013), Petitioner filed a Notice of Supplemental Authority,
ECF No. 85, supplementing his prior response and urging the Court to apply those cases to
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excuse the default of subclaim (C). Specifically, Petitioner asserted the ineffective assistance of
his Rule 26(B) counsel during the reopening of his direct appeal as cause to excuse the default:
Martinez and Trevino provide authority for the proposition that, in instances
where an appellant’s direct appeal is reopened pursuant to Rule 26(B), trial
counsel IAC claims defaulted by ineffective Rule 26(B) post-conviction counsel’s
failure to present them may be rescued by the Martinez/Trevino cause and
prejudice analysis.
(ECF No. 85, at PAGEID # 635.) This Court rejected Petitioner’s argument and granted
Respondent’s motion to dismiss subclaim (C). (ECF No. 93, at PAGEID # 750.)
In the instant motion for discovery/reconsideration, Petitioner argues that two years after
this Court issued its Opinion and Order on procedural default, the Sixth Circuit, in White v.
Warden, 940 F.3d 270, 278 (6th Cir. 2019), determined that Martinez and Trevino apply to cases
in Ohio, and applied both to excuse a petitioner’s procedural default of a substantive ineffective
assistance of trial counsel claim on the basis of ineffective assistance of postconviction counsel.
In short, Petitioner wants this Court to reconsider its prior procedural default decision and seeks
leave to conduct discovery further to develop evidence of Martinez/Trevino cause and prejudice
to excuse the default of subclaim (C). This time around, Petitioner cites the ineffective
assistance of his state postconviction counsel – as opposed to his Rule 26(B) counsel – for failing
to raise what would have been an off-the-record claim of ineffective assistance of trial counsel
for failing to challenge Petitioner’s competency. Specifically, Petitioner argues as follows:
[T]he trial counsel IAC claim that was not raised by appellate counsel [] could
arguably be presented in two state court vehicles: his Rule 26(B) post-conviction
proceedings or state postconviction. Neither occurred. If there was sufficient
evidentiary foundation in the record that Mr. Twyford was incompetent then the
matter should have been raised on direct appeal. If additional mental health
evidence was necessary to substantiate trial counsels’ ineffectiveness, i.e., a
contemporaneous competency evaluation, then the issue was appropriate for
postconviction review.
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(ECF No. 129, at PAGEID # 7233.) Petitioner notes that after the decision in White, courts in
this district have “applied Martinez-Trevino to Ohio law, and reconsidered previously issued
orders in light of White, granting fact discovery and evidentiary hearings.” (Id. at PAGEID #
7234) (citing, e.g., Hasan v. Shoop, 2021 WL 3510305, at *1 (S.D. Ohio Aug. 10, 2021)).
Petitioner argues that in order to show cause and prejudice under Martinez, “Mr. Twyford
reasonably requires discovery of post-conviction counsels’ conduct, investigation into the
substantive claims, and discovery of trial counsels’ conduct.” (Id. at PAGEID # 7235.) With
respect to the “merits” of subclaim (C), Petitioner seeks the following discovery:
Mr. Twyford requests leave to depose trial counsel and all members of the trial
team. Specifically, he seeks to depose trial counsel Adrian Hershey and David
Vukelic. Additionally, depositions of all appellate counsel and post-conviction
counsel are necessary as to the issues of their failures to raise this issue on direct
appeal or postconviction. As inquiry into the above discussed failure of counsel
will aid this Court in determining whether counsel’s performance was ineffective
and prejudicial, warranting relief. Depositions of counsel and team members
could further support that they developed no reasonable trial strategy under
Strickland v. Washington, 466 U.S. 668 (1984). Until counsel explains why the
aforementioned failures were apart of some litigation strategy, any affirmance of
their effectiveness would be purely speculative. Because the responses counsel
provide “may” lead to obtaining habeas corpus relief on his First Claim, this
Court should grant Mr. Twyford’s request to depose all state counsel to support
these claims. Mr. Twyford also request[s] leave to subpoena all competency
evaluations, psychiatric and sanity examination[s], and any other related
documentation that was available to trial counsel before and during Mr.
Twyford’s trial.
(Id. at PAGEID # 7235-36.)
Petitioner does not address the possible impact of the recent Supreme Court decisions in
Shinn v. Ramirez and Shoop v. Twyford on the factual development he seeks, other than to say
that “28 U.S.C. § 2254(e)(2) does not prevent discovery here,” because he “requested discovery
in state court proceedings” and has therefore not “failed to develop the factual basis of his claims
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in state court.” (Id. at PAGEID # 7244.) Petitioner contends that neither Shinn nor Shoop
overruled Bracy concerning the standard for discovery in federal habeas proceedings. (Id.)
1.

The Equitable Rule of Martinez and the Shinn v. Ramirez Decision

The “equitable rule in Martinez” stems from the decisions of Martinez v. Ryan, 566 U.S.
1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013), and holds that, in certain narrow
circumstances, the ineffective assistance of postconviction counsel can qualify as cause to excuse
the procedural default of an underlying claim of ineffective assistance of counsel at trial. But
the habeas petitioner must make three important showings:
First, that the state either prohibits or makes it “virtually impossible” to raise
ineffective-assistance-of-trial-counsel claims on direct appeal. Trevino v. Thaler,
569 U.S. 413, 417, 133 (2013) (citation omitted). Second, that the petitioner
received ineffective assistance of counsel in the initial state post-conviction
proceedings. Martinez, 566 U.S. at 17. Third, that the petitioner has a substantial
claim that counsel rendered ineffective assistance at trial. Id. at 13–14.
Rogers v. Mays, 69 F.4th 381, 395 (6th Cir. 2023). “To be substantial, an ineffective-assistanceof-trial-counsel claim must, among other things, be supported by evidence.” Id. (citing Martinez,
566 U.S. at 15-16.)
Initially, there was uncertainty as to whether Martinez and Trevino applied to Ohio’s
system of postconviction review. In Ohio, claims of trial counsel ineffectiveness that appear on
the face of the trial record must be raised on direct appeal, but claims that rely on evidence
outside the record must be brought in state postconviction proceedings. In White v. Warden,
Ross Corr. Inst., 940 F.3d 270 (6th Cir. 2019), the Sixth Circuit recognized that the
Martinez/Trevino exception can apply in Ohio where the ineffective assistance of trial counsel
claim at issue could not be meaningfully raised on direct appeal for lack of a sufficient record.
Recently, the Supreme Court limited the already narrow application of Martinez. In
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Shinn v. Ramirez, 596 U.S. 366 (2022), the Supreme Court recognized that habeas petitioners
asserting procedurally defaulted “Martinez” claims often seek to expand the state court record by
developing and introducing new evidence in federal court. At issue in Shinn were lower court
decisions to allow factual development on not only whether the ineffective assistance of
postconviction counsel constituted cause to excuse the procedural default of an underlying
ineffective assistance of trial counsel claim, but also on the merits of that substantive claim of
trial counsel ineffectiveness. Id. at 373-74.
The Supreme Court set forth the requirements that must be met for expansion of the state
court record per 28 U.S.C. § 2254(e)(2):
Section 2254(e)(2) provides that, if a prisoner “has failed to develop the factual
basis of a claim in State court proceedings,” a federal court may hold “an
evidentiary hearing on the claim” in only two limited scenarios. Either the claim
must rely on (1) a “new” and “previously unavailable” “rule of constitutional law”
made retroactively applicable by this Court, or (2) “a factual predicate that could
not have been previously discovered through the exercise of due diligence.” §§
2254(e)(2)(A)(i), (ii). If a prisoner can satisfy either of these exceptions, he also
must show that further factfinding would demonstrate, “by clear and convincing
evidence,” that “no reasonable factfinder” would have convicted him of the crime
charged. § 2254(e)(2)(B).
Id. at 381. The Court went on to explain that the opening clause of § 2254(e)(2) is triggered by
“fault” of the petitioner, which also includes any negligence or ineffective assistance by the
petitioner’s postconviction counsel. Id. at 382-83. That is, “under AEDPA and our precedents,
state postconviction counsel’s ineffective assistance in developing the state-court record is
attributed to the prisoner.” Id. at 382-83.
In reaching this conclusion, the Supreme Court relied upon its decision in Coleman v.
Thompson, 501 U.S. 722 (1991), which reasoned that “the attorney is the petitioner’s agent when
acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of
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attorney error.” Id. at 380. Based on this principle, the Supreme Court held that “under §
2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider
evidence beyond the state-court record based on ineffective assistance of state postconviction
counsel.” Id. at 382 (emphasis added). The Sixth Circuit has summarized Shinn as follows:
Generally, petitioners using Martinez may not rely on new evidence introduced in
federal court. Shinn, 142 S. Ct. at 1728. That is because petitioners should bring
and develop their claims in state court first. Id. at 1731–32. If they do not, they
bear the consequences, including strict limits on their ability to introduce new
evidence in federal court. Id. at 1734.
***
In sum, a petitioner who has procedurally defaulted his claims of ineffective
assistance by trial counsel may in some limited circumstances rely on Martinez to
excuse his procedural default. But he must provide evidence to show his claims
are substantial. And that evidence must come from the state-court record unless
the petitioner can satisfy the stringent requirements of 28 U.S.C. § 2254(e)(2).
Rogers, 69 F.4th at 396-97.
2.

Shoop v. Twyford

Shortly after issuing the decision in Shinn, the Supreme Court reviewed this Court’s
Order directing the state to transport Petitioner to a hospital for neurological testing. Shoop v.
Twyford, 596 U.S. 811 (2022). In requesting the order to transport, Petitioner argued his trial
counsel was ineffective for failing to present evidence of a head injury he sustained as a
teenager, and Petitioner hoped the neurological testing would develop evidence related to his
claims for relief. Id. at 816. One challenge on appeal was that this Court did not address
whether it would be able to consider the evidence that Petitioner hoped to develop. Id. The
Supreme Court noted that Petitioner only “asserted in passing that the desired evidence could
‘plausibly’ bear on the question whether to excuse procedural default[,]” but “did not identify the
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particular defaulted claims he hope[d] to resurrect, nor did he explain how the testing would
matter to his ability to do so.” Id. at 823. The Supreme Court held that this Court erred in
granting Petitioner’s motion to transport without first considering whether the newly developed
evidence “would aid its adjudication of his habeas petition.” Id. at 822. Implicit in the Supreme
Court’s decision is that Petitioner failed to show that any resulting evidence was admissible:
And in any event, this Court has already held that, if § 2254(e)(2) applies and the
prisoner cannot meet the statute’s standards for admitting new merits evidence, it
serves no purpose to develop such evidence just to assess cause and prejudice.
Id. at 823. The Supreme Court cautioned that a federal court “must, before facilitating the
development of new evidence, determine that it could be legally considered in the prisoner’s
case.” Id. at 820.
As set forth in the motion for discovery, the factual development Petitioner seeks relates
to both Martinez cause to excuse the procedural default of subclaim (C), as well as the merits of
the underlying claim of trial counsel ineffectiveness regarding his competency that he hopes to
resurrect. For the reasons that follow, this Court need not consider the extent to which Shinn and
Shoop influence a petitioner’s motion for discovery in order to develop Martinez cause and
prejudice, because in this case, Petitioner has not satisfied the basic “good cause” requirement to
conduct discovery pursuant to Habeas Rule 6. Petitioner has not demonstrated that the equitable
rule of Martinez applies to subclaim (C) of his First Claim for Relief. Accordingly, the Court
finds no reason to reconsider the prior Opinion and Order dismissing subclaim (C) on the basis
of procedural default.
3.

Petitioner has not shown that Martinez applies to subclaim (C)

As noted above, Petitioner’s discovery request targets his “cause and prejudice” claim of
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ineffective assistance of postconviction counsel that he offers as cause to permit review of
otherwise defaulted claims. In Petitioner’s prior Notice of Supplemental Authority, Petitioner
argued that cause existed to excuse the default of subclaim (C), because his Rule 26(B) counsel
should have raised this claim of trial counsel ineffectiveness for failing to challenge Petitioner’s
competency to stand trial in connection with his reopened direct appeal. By way of background,
during Petitioner’s initial direct appeal, appellate counsel raised only three claims for relief that
spanned a mere fourteen pages of briefing. The Ohio Seventh District Court of Appeals affirmed
his conviction and sentence. State v. Twyford, No. 93-J-13, 1995 WL 591905 (Ohio App. 7th
Dist. Oct. 6, 1995). Petitioner filed a timely notice of appeal to the Ohio Supreme Court.
Appellate counsel moved to withdraw and the Ohio Supreme Court appointed the Ohio Public
Defender to represent Petitioner. New counsel filed an application to reopen the direct appeal
pursuant to Ohio R. App. P. 26(B). The application identified thirty-eight potentially meritorious
claims that were apparent from the face of the trial record but were not raised by initial appellate
counsel. On January 2, 1997, the Seventh District Court of Appeals granted Petitioner’s
application to reopen, and the Ohio Supreme Court stayed further proceedings. Upon review of
the additional claims raised in the reopened direct appeal, the Seventh District once again
affirmed Petitioner’s conviction and sentence. State v. Twyford, No. 93-J-13, 1998 WL 671382
(Ohio App. 7th Dist. Sept. 25, 1998). The Ohio Supreme Court consolidated the appeals of both
decisions and affirmed. State v. Twyford, 94 Ohio St. 3d 340 (2002).
In the prior Notice of Supplemental Authority, Petitioner argued the equitable rule of
Martinez should apply to his reopened direct appeal, because Ohio treats these proceedings as a
postconviction remedy. That is, although the language of Rule 26(B) contemplates the
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appointment of counsel, there is no constitutional right to the effective assistance of counsel
either to pursue the application to reopen or to prosecute the reopened appeal. (ECF No. 85, at
PAGEID # 632-33.) Petitioner argued:
[T]his claim of ineffective assistance of trial counsel is a substantial claim. The
record evidence unequivocally establishes that Mr. Twyford was not competent to
be tried until at least the second day of trial. Trial counsel was constitutionally
ineffective insofar as trial counsel made no request for a second competency
evaluation or continuance to ensure Mr. Twyford was indeed restored to
competency and did not object or address the evidence of record that Mr. Twyford
was incompetent to assist his attorneys preceding trial. Second, Mr. Twyford’s
Rule 26(B) post-conviction counsel was ineffective during the Rule 26(B)
collateral review proceeding insofar as counsel failed to raise this substantial trial
counsel IAC claim notwithstanding that it was apparent on the face of the record
and is stronger than other claims counsel did raise. . . . For these reasons, Mr.
Twyford satisfies the four-prong Martinez/Trevino test with respect to this claim
and, as such, has established cause to excuse any procedural default.
(Id. at 636-37) (emphasis added). This argument is a concession that subclaim (C) is a recordbased claim that should – or could – have been raised and supported by record evidence on direct
appeal. If that is the case, Martinez does not apply here.
Martinez and Trevino carved out a very narrow exception allowing the ineffective
assistance of postconviction counsel to serve as cause to excuse the default of a substantial claim
of trial counsel ineffectiveness, but only where a state postconviction proceeding was the
petitioner’s first opportunity for meaningful review of the underlying claim involving trial
counsel ineffectiveness. Although Petitioner now argues that subclaim (C) could have also been
raised in state postconviction proceedings separate from the Rule 26(B) reopened direct appeal,
this position is inconsistent with his prior argument that the claim set forth in subclaim (C) was
“apparent from the face of the record and [was] stronger than other claims [direct appeal]
counsel did raise.” (ECF No. 85, at PAGEID # 636.) The proper characterization of this
15

subclaim as one that is record based or one that depends on evidence dehors the record is
important, as the Sixth Circuit has not hesitated to find Martinez/Trevino inapplicable where the
claim of trial counsel ineffectiveness at issue could have been raised in a meaningful way on
direct appeal. See, e.g., Mack v. Bradshaw, 88 F.4th 1147, 111 (6th Cir. 2023) (“Mack’s
argument relies on evidence in the record, allowing us to excuse his procedural default only if he
lacked a “meaningful opportunity” to raise it on direct appeal.”); see also Mammone v. Jenkins,
49 F.4th 1026, 1048 (6th Cir. 2022) (discussing cases and noting that “White illustrates that
Martinez and Trevino can apply in an Ohio case, but it does not show that they apply to Ohio
cases generally”).
Here, Petitioner has not argued that subclaim (C) was required to be brought in state
postconviction proceedings in order to be litigated in a meaningful way. To the contrary, in the
prior Notice of Supplemental Authority, Petitioner argued that “any attempt to present such a
claim in state post-conviction proceedings would be barred by the doctrine of res judicata.”
(ECF No. 85, at PAGEID # 635.) Petitioner cited the rule of State v. Perry for the proposition
that “claims appearing on the face of the record must be raised on direct appeal, or they will be
waived under the doctrine of res judicata.” (Id.) Although Petitioner now contends this claim of
trial counsel ineffectiveness for failing to challenge competency “could arguably be presented in
two state court vehicles: his Rule 26(B) post-conviction proceedings or state postconviction,”
this does not meet his burden of establishing that “the state either prohibits or makes it ‘virtually
impossible’ to raise ineffective-assistance-of-trial-counsel claims on direct appeal.” Rogers v.
Mays, 69 F.4th 381, 395 (6th Cir. 2023) (quoting Trevino, 569 U.S. at 417). This failure is fatal
to Petitioner’s request for discovery to develop Martinez cause, irrespective of the potential
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limitations on factual development imposed by § 2254(e)(2) and Shinn. Therefore, the Court
DENIES Petitioner’s motion to reconsider the procedural default decision as to subclaim (C) of
his First Claim for Relief, ECF No. 93, and DENIES Petitioner’s request for discovery.
C.

Third Claim for Relief – Prosecutorial Misconduct

In the Court’s prior Opinion and Order addressing procedural default, the Court
determined Petitioner procedurally defaulted the allegations of prosecutorial misconduct set forth
in paragraphs 277, 278, and 280-283 of his Third Claim for Relief, because Petitioner failed to
object to the alleged misconduct at trial and the state courts enforced that procedural default by
conducting plain error review. (ECF No. 93, at PAGEID # 725.) This Court further determined
that the ineffective assistance of trial counsel could not serve as cause and prejudice to excuse
the default, because Petitioner never raised a corresponding claim of trial counsel ineffectiveness
(based on counsel’s failure to object to the prosecutorial misconduct) before the state courts. (Id.
at PAGEID # 728-29). See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (an ineffective
assistance of counsel claim cannot be asserted as cause to excuse the procedural default of
another federal claim if it is itself procedurally defaulted).
In the motion for discovery/reconsideration, Petitioner argues that subclaim (K) of his
First Claim for Relief sets forth a freestanding claim of trial counsel ineffectiveness based on
trial counsel’s failure to object to the prosecutorial misconduct at issue, and that subclaim (K)
“survived dismissal, as the Warden did not raise procedural default as a defense to the claims nor
did this Court address any issues of default, sua sponte, in its dismissal order.” (ECF No. 129, at
PAGEID # 7237-38.) According to Petitioner, “subclaim K’s procedural posture allows for a
meritorious review of trial counsel’s ineffectiveness for the purpose of determining if the
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procedural default of Mr. Twyford’s Third Claim for Relief can and should be excused.” (Id. at
PAGEID # 7238.) To that end, Petitioner seeks reconsideration of the Court’s procedural default
ruling, and requests discovery, in the form of “leave to depose trial counsel and all members of
the trial team,” in order to develop additional evidence “for the purpose of excusing the default
of Claim Three” and to “determine the merits of Claim Three.” (Id. at PAGEID # 7240.)
The Court DENIES Petitioner’s request to reconsider the procedural default decision
regarding his Third Claim for Relief. On direct appeal, Petitioner attempted to raise the claims
of prosecutorial misconduct set forth in paragraphs 277, 278, and 280-283, but the Ohio Supreme
Court enforced the contemporaneous objection rule. Petitioner does not claim that he properly
presented the state courts with a claim of trial counsel ineffectiveness for counsel’s failure to
object that could properly be considered as cause and prejudice to excuse that default pursuant to
Edwards v. Carpenter. Instead, Petitioner seemingly argues the Court should consider the
ineffectiveness of trial counsel as cause, because Respondent has not yet asserted default as to
subclaim (K) of his First Claim for Relief. But Respondent does allege default as to his Third
Claim for Relief, and this Court may not ignore relevant Supreme Court precedent governing
what may be considered as cause to excuse that default. It is well settled that a claim of
ineffective assistance of counsel “must ‘be presented to the state courts as an independent claim
before it may be used to establish cause for a procedural default.” Edwards, 529 U.S. at 452
(quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). That is because, before counsel’s
ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the
Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.
Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005).
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IV. CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s motion for discovery, ECF
No. 129, and motion to reconsider the Court’s September 27, 2017, Opinion and Order
dismissing subclaim (C) of his First Claim for Relief, and paragraphs 277, 278 and 280-283 of
his Third Claim for Relief. Those claims are and remain procedurally defaulted.
IT IS SO ORDERED.

DATED:

March 27, 2024

________________________________________
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE

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