Monroe v. Warden Ohio State Penitentiary

Filing 162

REPORT AND RECOMMENDATIONS ON PETITIONER'S SECOND MOTION FOR RECONSIDERATION - It is respectfully recommended that Petitioners Motion for Reconsideration of Order Granting Respondent's Motion to Dismiss Procedurally Defaulted Claims (ECF No. 151) be DENIED. Objections to R&R due by 6/24/2016. Signed by Magistrate Judge Michael R. Merz on 6/7/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JONATHON D. MONROE,
:
Petitioner,

Case No. 2:07-cv-258
:

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

-vsWARDEN, Ohio State Penitentiary,
:
Respondent.

REPORT AND RECOMMENDATIONS ON PETITIONER’S SECOND
MOTION FOR RECONSIDERATION

This capital habeas corpus case is before the Court on Petitioner’s Motion for
Reconsideration of Order Granting Respondent’s Motion to Dismiss Procedurally Defaulted
Claims (ECF No. 151). The Warden opposes the Motion (Response, ECF No. 152), and Monroe
has filed a Reply (ECF No. 153). This is Monroe second motion for reconsideration of the same
prior decision, brought six years after that decision was made.
Motions for reconsideration of interlocutory decisions are not expressly authorized in
either Title 28 or the Federal Rules of Civil Procedure, nor classified by those authorities as
dispositive or non-dispositive. Because it is a District Judge’s decision which is sought to be
changed, it is appropriate for an assigned Magistrate Judge to make a recommendation rather
than a decision on such motions.

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Procedural History Relevant to the Motion

Pursuant to the First Scheduling Order (ECF No. 12) entered in this case by Magistrate
Judge Kemp, the Warden filed a motion on July 9, 2007, to dismiss Grounds for Relief One,
Four, Six, Seven, and Eight (A) as procedurally defaulted (ECF No. 19). District Judge Watson,
to whom the case was then assigned, granted that Motion in a ninety-three page Opinion and
Order (ECF No. 34, reported at Monroe v. Houk, 2009 U.S. Dist. LEXIS 85259 (S.D. Ohio Sept.
8, 2009)). Under Judge Kemp’s subsequent revised scheduling order (ECF No. 36), Petitioner
first moved for reconsideration of that decision on November 6, 2009 (ECF No. 37). Before the
renewed motion was ripe, the magistrate judge reference was transferred to the undersigned who
recommended that “the Court should reverse its prior holding that the portion of Ground for
Relief Four related to admission of photographs at the guilt phase [is procedurally defaulted].
Otherwise the Opinion and Order should stand as filed.” (“Report,” ECF No. 46, PageID 491.)
Judge Watson adopted the Report over Petitioner’s Objections (ECF No. 56), which had been
filed by replacement counsel. In September 2012 the case was reassigned to District Judge
Sargus upon Judge Watson’s recusal (ECF No. 80). The same month the undersigned allowed
some of the discovery requested by the parties (ECF No. 82) and set a deadline for its
completion.
Following completion of discovery, Petitioner, on February 10, 2014, filed new motions
for evidentiary hearing (ECF No. 103), to expand the record (ECF No. 104), and to stay and abey
the proceedings (ECF No. 105). In August 2014 the Magistrate Judge denied all three motions
(ECF Nos. 119, 120, 121). Chief Judge Sargus overruled objections to those orders in March
2015 (ECF No. 142). Monroe had previously filed a second motion to expand the record (ECF

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No. 136) which the Magistrate Judge denied in July 2015 (ECF No. 145); Chief Judge Sargus
affirmed that decision over Monroe’s Objections (ECF No. 157).

He also expanded the

Magistrate Judge’s permission for an amended petition (ECF No. 158), noting
The Court agrees with and ADOPTS the Magistrate Judge's
observation that nothing in this Opinion and Order affects the
Court's previous procedural default rulings. Petitioner has filed a
Motion for Reconsideration of the Court's procedural default
rulings (ECF No. 151), which motion will be addressed in a
separate decision.
Id. at PageID 8019.
The instant second Motion for Reconsideration had been filed in the meantime on
September 1, 2015.

ANALYSIS

The same standard applies to the instant Motion for Reconsideration as the Court applied
to Monroe’s first such motion:
While the Court has authority to reconsider interlocutory orders,
“[a]s a general principle, motions for reconsideration are looked
upon with disfavor unless the moving party demonstrates: (1) a
manifest error of law; (2) newly discovered evidence which was
not available previously to the parties; or (3) intervening
authority.” Meekison v. Ohio Dept. Rehab. & Corr., 181 F.R.D.
571 (S.D. Ohio 1998)(Marbley, J.), quoting Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
(Report, ECF No. 46, PageID 483.) See Gencorp, Inc., v. Am. Int’l Underwriters, 178 F.3d 804,
834 (6th Cir. 1999), cited by both parties, but which actually states a parallel test for motions to

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amend a judgment under Fed. R. Civ. P. 59(e), rather than for an interlocutory motion to
reconsider.

The Law to Be Applied to Show Cause and Prejudice

Petitioner’s motion requests “reconsideration of the ‘cause and prejudice’ component of
Maupin [v. Smith, 785 F.2d 135 (6th Cir.1986)], as the same has been interpreted by the Sixth
Circuit in Cunningham v. Hudson, 756 F.3d 477 (6th Cir. 2014), and Joseph v. Coyle, 469 F.3d
441, 459 (6th Cir. 2006).” (ECF No. 151, PageID 7918.) Petitioner asserts the Court in its 2009
decision deferred to the state courts’ determinations on this point “under a standard of deference
ordinarily afforded to a merits determination in a habeas case pursuant to 28 U.S.C. §
2254(d)(1)” and the analysis under Cunningham and Joseph is “distinct.” Id.
There is no dispute between the parties that the appropriate analysis of a procedural
default defense in habeas corpus is set out in Maupin:

First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
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state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
There is likewise no dispute that ineffective assistance of counsel can constitute excusing
cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1985); Howard v.
Bouchard, 405 F.3d 459, 478 (6th Cir. 2005); Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999);
Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996). However, Murray v. Carrier also holds that
the exhaustion doctrine "generally requires that a claim of ineffective assistance of counsel be
presented to the state courts as an independent claim before it may be used to establish cause for
a procedural default in federal habeas proceedings." 477 U.S. at 489; see also Ewing v.
McMackin, 799 F.2d 1143, 1149-50 (6th Cir. 1986).
When ineffective assistance of trial counsel is presented as an independent claim and
decided on the merits by the state courts, their decision is entitled to deference under AEDPA.
That is, it cannot be set aside by a habeas court unless it is contrary to or an objectively
unreasonable application of law clearly established by holdings of the Supreme Court. 28 U.S.C.
§ 2254(d)(1); Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 785 (2011); Brown v.
Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry)
v. Taylor, 529 U.S. 362, 379 (2000).
On the other hand, when ineffective assistance of counsel is asserted to show cause and
prejudice excusing a procedural default, the petitioner need not satisfy the heightened 2254(d)(1)
deference standard. Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2009). “An argument that
ineffective assistance of counsel should excuse a procedural default is treated differently than a

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free-standing claim of ineffective assistance of counsel.” Id. at 236, citing Ege v. Yukins, 485
F.3d 364, 378 (6th Cir. 2007), and Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006).

“The

latter [free-standing claim] must meet the higher AEDPA standard of review, while the former
need not.” Joseph, 469 F.3d at 459. The Hall court went on, however, to hold “[t]he prejudice
analysis for the procedural default and the prejudice analysis for the ineffective assistance of
counsel argument are sufficiently similar to treat as the same in this context. ‘[E]stablishing
Strickland prejudice likewise establishes prejudice for purposes of cause and prejudice.’” 563
F.3d at 237, quoting Joseph, 469 F.3d at 462-63 (citing Mincey v. Head, 206 F.3d 1106, 1147
n.86 (11th Cir. 2000), and Prou v. United States, 199 F.3d 37, 49 (1st Cir. 1999)).
To establish what the “distinct” test for cause and prejudice is, Monroe cites first to
Fischetti v. Johnson, 384 F.3d 140 (3rd Cir. 2004), where the court held that complete denial of
counsel, itself a constitutional violation, was sufficient to excuse default of another claim. That,
of course, is not what happened in this case; Monroe was never denied counsel altogether.
In Joseph, the Sixth Circuit does not enunciate a different standard. 469 F.3d 441 (6th Cir.
2006). Instead, it quotes Edwards v. Carpenter, 29 U.S. 446 (2000), as holding that “[n]ot just
any deficiency in counsel's performance will do . . .; the assistance must have been so ineffective
as to violate the Federal Constitution. In other words, ineffective assistance adequate to establish
cause for the procedural default of some other constitutional claim is itself an independent
constitutional claim.” Id. at 459. The Joseph court then noted that the state courts in Joseph’s
case had not reached the prejudice prong of one of Joseph’s ineffective assistance of trial counsel
claims, and concluded “[t[]hus the AEDPA standard applies to these analyses [where the state
courts reached the merits] but not to the Strickland prejudice issue with respect to the failure to
object to the indictment.” Id. at 460, n. 14, citing Wiggins v. Smith, 539 U.S. 510, 534 (2003),

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for the proposition that federal habeas review is not “circumscribed by a state court conclusion
with respect to prejudice” where the state courts did not reach the prejudice prong.

This

decision suggests that a state court decision on the merits of an ineffective assistance of counsel
claim is binding in habeas on the supposedly distinct cause and prejudice issue. The Magistrate
Judge also notes that Joseph was decided November 9, 2006, but not cited to Judge Watson in
Monroe’s September 17, 2007, Response in Opposition (ECF No. 27).
More straightforward is Magistrate Judge Terrence Kemp’s analysis in Gorman v.
Warden, 2012 U.S. Dist. LEXIS 66878 (S.D. Ohio 2012). He wrote:
For purposes of determining if petitioner's counsel was ineffective
and that such ineffectiveness excuses the procedural default of the
claims made in ground eight of the petition, the Court reviews this
state court determination de novo - that is, without affording the
state court determination the type of deference ordinarily required
by 28 U.S.C. §2254(d)(1).
Id. at *28, citing Joseph and Hall.
The Magistrate Judge concludes Monroe is correct that the analysis of ineffective
assistance of counsel as a free-standing claim and for purposes of cause and prejudice is indeed
“distinct.” For both purposes the controlling standard is the constitutional one enunciated in
Strickland v. Washington, 466 U.S. 668 (1984). But Strickland is to be applied de novo to cause
and prejudice excuses of procedural default but with AEDPA deference when the state court has
decided an ineffective assistance claim on the merits.

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The Law As Applied in the Contested Decision

Monroe seeks reconsideration of Judge Watson’s Opinion and Order on Grounds for
Relief One, Four, Six, Seven, and Eight (A). Those Grounds will be discussed here in the order
in which Monroe now argues them, rather than the order in which Judge Watson decided them.

First Ground for Relief: Prosecutorial Misconduct

In his First Ground for Relief, Monroe asserts he was deprived of a fair trial by the
prosecutor’s misconduct (Amended Petition, ECF No. 160, PageID 8045).1 He claims the
prosecutor appealed to the passions and prejudices of the jury (Id. at PageID 8049, ¶¶ 96-99)
and improperly handled the testimony of David Devillers (Id. at PageID 8045-49, ¶¶ 77-95).

Appeal to Passion and Prejudice

As to this sub-claim of Ground One for Relief, Monroe asserts Judge Watson misapplied
Maupin because he “found that Petitioner failed to show cause and prejudice, subject to the
deferential AEDPA standard.” (ECF No. 151, PageID 7922, citing ECF No. 34, PageID 39496.)
Judge Watson noted that the Ohio Supreme Court had rejected Monroe’s ineffective
assistance of appellate counsel claim summarily by denying his motion to reopen the appeal

1

References herein to Monroe’s Grounds for Relief will be to the present form of their pleading in the Amended
Petition, rather than to the original Petition as it was at the time of Judge Watson’s decision. The paragraph
numbering in the Amended Petition parallels that in the original, with new matter allowed by Chief Judge Sargus
added as subparagraphs. E.g., ¶¶ 100

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This required the habeas Court to “conduct an independent review of the record and applicable
law to determine whether the state court decision is contrary to federal law, unreasonably applies
federal law, or involves an unreasonable determination of the facts.” (Order, ECF No. 34,
PageID 394.) While this language suggests the deferential standard of § 2254(d)(1), Judge
Watson actually proceeded to apply Strickland and Mapes v. Coyle, 171 F.3d 408 (6th Cir.1999),
directly to the record to determine tha there was no viable ineffective assistance of appellate
counsel claim to excuse the procedural default of ¶¶ 96-99 of the First Ground for Relief. He
made an extensive analysis of the Mapes factors and concluded:
For reasons touched upon by the trial court in rejecting these
prosecutorial misconduct allegations in postconviction, this Court
concludes under Strickland and Mapes that petitioner's appellate
attorneys did not perform deficiently or to his prejudice by failing
to raise these allegations on direct appeal.
Nowhere in his postconviction action, his application to reopen, or
his habeas corpus action did petitioner point to a single comment
constituting an improper appeal by the prosecuting attorney to the
jurors' passions or prejudices. Thus, it is difficult to characterize
the issue as significant and obvious or stronger than the issues that
were raised. Moreover, controlling case law did not favor this
claim or militate in favor of appellate counsel raising it. Closing
arguments are to be viewed in their entirety, see, e.g., State v.
Ballew, 76 Ohio St. 3d 244, 255 (1996); State v. Lorraine, 66 Ohio
St. 3d 414, 420 (1993); State v. Moritz, 63 Ohio St. 2d 150, 157
(1980), and generally, prosecuting attorneys are entitled to
considerable latitude in closing arguments, see, e.g., Ballew, 76
Ohio St. 3d at 255; State v. Maurer, 15 Ohio St. 3d 239, 269
(1984).
Further, the standard for relief is onerous, insofar as appellate
courts will not reverse a conviction on the basis of prosecutorial
misconduct during closing arguments where it is clear beyond a
reasonable doubt that the jury would have found the accused guilty
even absent the alleged misconduct. See, e.g., State v. Jones, 90
Ohio St. 3d 403, 420 (2000); State v. Loza, 71 Ohio St. 3d 61, 78
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(1994); State v. Smith, 14 Ohio St. 3d 13, 15 ( 1984). Finally,
defense counsel did not object to any portions of the prosecution's
closing arguments (Tr. Vol. 5, at 1216-33) or rebuttal arguments
(Tr. Vol. 5, at 1243-58) as improperly appealing to the passions or
prejudices of the jurors. This Court has reviewed the prosecution's
trial phase closing and rebuttal arguments and found no remarks so
egregious in their appeal to the jurors' passions and prejudices as to
alert any competent attorney to raise a claim of prosecutorial
misconduct.
(Opinion, ECF No. 34, PageID 394-95.) Monroe has not demonstrated any manifest error of law
in Judge Watson’s decision on this sub-claim.

Testimony of David Devillers

Monroe’s First Ground for Relief also asserts prosecutorial misconduct in the way that
the testimony of David Devillers was presented to the jury (Amended Petition, ECF No. 160,
PageID 8045-49, ¶¶ 76-99).
Judge Watson found this sub-claim procedurally defaulted for lack of fair presentation to
the Ohio courts (Opinion, ECF No. 34, PageID 396-409). He noted that the “[p]etitioner offers
no cause and prejudice arguments” and continued
Logically, the only argument petitioner could offer is ineffective
assistance of appellate counsel, and this Court is precluded from
considering that argument because it does not appear that
petitioner ever presented that appellate counsel ineffectiveness
claim to the state courts. See Edwards v. Carpenter, 529 U.S. at
452-53 (holding that an ineffective assistance of counsel claim
offered as cause for the default of a substantive federal claim must
first be properly presented to the state courts).

Id. at PageID 409.
10

As to this subclaim, Monroe does not assert any manifest error of law, but rather that he
has newly-discovered evidence which shows cause and prejudice (if the Court accepts on this
issue the deposition testimony of appellate counsel) or will show cause and prejudice if the Court
conducts an evidentiary hearing (Motion, ECF No. 151, PageID 7925.)

But th4e evidence he

relies on, obtained in discovery in these habeas proceedings, is not “newly-discovered” as that
term is used in the cases on motions for reconsideration.
To constitute "newly discovered evidence," the evidence must
have been previously unavailable. See ACandS, 5 F.3d at 1263;
Javetz v. Board of Control, Grand Valley State Univ. 903 F. Supp.
1181, 1191 (W.D. Mich. 1995)(and cases cited therein); Charles A.
Wright, 11 Federal Practice and Procedure § 2810.1 at 127-28
(1995).
Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Monroe did not
depose his appellate counsel, W. Joseph Edwards, until July 15, 2013 (ECF No. 98). The instant
Motion for Reconsideration was not filed until September 1, 2015, almost two years later. But
the fact that Edwards was the appellate attorney and that he had not raised this prosecutorial
misconduct claim as a stand-alone claim on direct appeal has been known to habeas counsel
(other than Monroe’s present counsel) since 2007. Whatever Mr. Edwards had to say about why
he omitted a stand-alone prosecutorial misconduct claim was at least presumptively available to
Monroe’s habeas counsel more than six years before Edwards was deposed. Monroe has not
demonstrated evidence from Edwards is “newly-discovered” within the meaning of established
case law on motions for reconsideration.
No change to Judge Watson’s decision on the Devillers sub-claim of Ground One is
warranted.

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Fourth Ground for Relief: Gruesome Photographs

In his Fourth Ground for Relief, Monroe asserts he was denied a fair trial by the
introduction of gruesome photographs of the victims and crime scene. Judge Watson found that
the Ohio Supreme Court enforced Ohio’s contemporaneous objection rule against Monroe and he
had not excused the default by showing ineffective assistance of trial counsel (ECF No. 34,
PageID 367-68).
As evidence that the Court misapplied Maupin, Petitioner cites to Judge Watson’s
Opinion and Order (ECF No. 34, at PageID 366-67), where he held as to Ground for Relief Four
that the Ohio Supreme Court, in rejecting the ineffective assistance of trial counsel claim as to
gruesome photographs neither “contravened [nor] unreasonably applied” Strickland v
Washington. Id. at PageID 367. That is again appropriate language to use in applying AEDPA
deference to a state court decision on the merits of a constitutional question, as required by 28
U.S.C. § 2254(d)(1). However, in the very next paragraph, Judge Watson continued, “this Court
cannot disagree with, much less find unreasonable, the Ohio Supreme Court's decision. . .” on
the ineffective assistance of trial counsel claim. Id. at PageID 368. That amounts to a finding
the Ohio Supreme Court was correct, even when reviewed de novo as opposed to under §
2254(d)(1). Judge Watson’s decision is not based on a manifest error of law.
As newly discovered evidence, Monroe relies on the depositions of his trial lawyers Janes
and Rigg, taken during these habeas proceedings in which they discuss how they might have
done things differently. This evidence is not “newly-discovered” for the same reasons given
above on Ground One as to attorney Edwards’ deposition. Moreover, after reviewing the issue,
Judge Watson held “[i]n view of the fact that the trial court reviewed the photographs and

12

removed those that it found too gruesome or repetitive, it does not appear that any additional or
more ardent objections from defense counsel would have persuaded the trial court to rule
differently.” Id. at PageID 368. This amounts to a holding that, even assuming the failure to
object was constitutionally deficient performance, it did not prejudice Monroe’s case. Nothing is
offered in the instant Motion for Reconsideration to overcome that finding.
No change to Judge Watson’s decision on Ground Four is warranted.

Ground Six: Failure to Merge Counts and Aggravating Circumstances

In his Sixth Ground for Relief, Monroe asserts he was deprived of a fair trial when the
trial court did not merge the eight counts of aggravated murder and the duplicative aggravating
circumstances. Two women were victims of this crime and the State had four theories of
aggravated murder for each killing.
Monroe argues Judge Watson misapplied Maupin when he found ineffective assistance of
trial counsel did not excuse trial counsels’ failure to object, “reciting the deferential AEDPA
standard.” (Motion ECF No. 151, PageID 7926, citing Opinion, ECF No. 34, PageID 375-75
and 378.) Judge Watson again used the language that he did not disagree with, much less find
unreasonable, the state courts’ conclusions. As noted above, this connotes de novo as well as
deferential review. Jude Watson proceeded to make his own finding of lack of prejudice:
Furthermore, even assuming that counsel performed deficiently by
failing to request merger of the aggravating circumstances--a
conclusion that finds no support in the case law or this record--this
Court cannot help but conclude that no prejudice resulted from that
alleged error. Given the paucity of mitigation evidence that
petitioner presented during his penalty hearing, it tests the limits of
credulity to suggest, as petitioner has, that the “needless stacking
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of aggravating circumstances overwhelmed any possibility that
[petitioner] may have had of demonstrating that the mitigating
factors he could have presented were not outweighed by the
collective weight of thirty-two statutory aggravating circumstances
attached to eight separate counts of aggravated murder." (Petition,
Doc.# 10, at ¶ 156.) Cf. State v. Chinn, 85 Ohio St. 3d 548, 557
(1999) ("given the dearth of mitigating evidence in this case, it is
clear to us that the outcome of appellant's trial would not have
been any different had the three specifications of aggravating
circumstances been merged into one prior to the penalty phase");
State v. Palmer, 80 Ohio St. 3d 543, 575 (1997) (same).

(Opinion, ECF No. 34, PageID 377-78.) Monroe offers nothing in his Motion to overcome this
finding of lack of prejudice.
No change to Judge Watson’s decision on Ground Six is warranted.

Ground Seven: Erroneous Jury Instructions

In his Seventh Ground for Relief, Monroe asserts the jury instructions in this case
required the jury to unanimously reject a death sentence before considering a sentence of life
imprisonment (Amended Petition, ECF No. 160, PageID 8066). Judge Watson concluded this
Ground for Relief was procedurally defaulted by Monroe’s failure to fairly present it to the state
courts (Opinion, ECF No. 34, PageID 416). Judge Watson found Monroe had not offered to
show cause and prejudice and, using language familiar from his decision on Ground One,
concluded that the only possible argument was ineffective assistance of appellate counsel which
was precluded by Monroe’s failure to present that claim to the Ohio courts. Id.
Petitioner offers no evidence on this claim, indicating it was not inquired into on
deposition because Ground Seven had already been dismissed. That assertion rings hollow in
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light of counsel’s inquiry into evidence for other dismissed grounds when appellate counsel was
deposed. On account of Cunningham, however, counsel suggests starting discovery over and
allowing the repeated depositions of trial and appellate counsel and adding a deposition of postconviction counsel (ECF No. 151, PageID 7928).
Although Cunningham would permit evidence outside the state court record on this
claim, the Cunningham court did not suggest that its ruling created good cause to reopen
decisions already made.2
Respecting the failure to raise the ineffective assistance of appellate counsel claim in the
state courts, Monroe argues he can show cause and prejudice to excuse that omission by showing
“federal equity cause and prejudice allowed under Martinez v. Ryan, 132 S. Ct. 1309 (2012) and
Trevino v. Thaler, 133 S. Ct. 1911 (2013)”(Motion, ECF No. 151, PageID 7928). Martinez and
Trevino only apply, however, to omitted claims of ineffective assistance of trial counsel.3
No change to Judge Watson’s decision on Ground Seven is warranted.

Ground Eight 8(A): Ineffective Assistance of Counsel in Voir Dire

In his Eighth Ground for Relief, Monroe claims he received ineffective assistance of trial
counsel in the way his counsel handled voir dire (Amended Petition, ECF No. 160, PageID

2

The Court notes that the language in Cunningham relevant to Pinholster is found in a footnote in a case where
there was no procedural default analysis by the District Court.
3

The Sixth Circuit has not yet decided whether Martinez and Trevino apply at all to the Ohio
system of postconviction relief. McGuire v. Warden, 738 F.3d 741, 751-52 (6th Cir., 2013);
Landrum v. Anderson, 813 F.3d 330, 336 (6th Cir. 2016).

15

8067). This claim was first raised in postconviction proceedings and the Warden argued it was
procedurally defaulted under Ohio’s criminal res judicata doctrine because it depended entirely
on the record and therefore should have been raised on direct appeal. Monroe responded that it
was omitted because of ineffective assistance of appellate counsel.
Monroe now claims Judge Watson decided this question under the deferential AEDPA
standard. At one point in his decision on Ground Eight(A), Judge Watson did use language
appropriate to AEDPA deference: “An examination of the Mapes factors does not lead this
Court to conclude that the Ohio Supreme Court's decision denying petitioner's claims of
ineffective assistance of counsel contravened or unreasonably applied controlling federal law.”
(ECF No. 34, PageID 385.) However, he then analyzes the record directly, noting that it shows
“plenty of instances during which defense counsel actually did what petitioner complains that
they did not.” He found that some of the issues presented were clearly stronger than the omitted
voir dire issues. Id. at PageID 386. He noted several Mapes factors that did not favor Monroe.
Id. He concluded:
The final Mapes factor directs the Court to consider whether the
decision to omit the issue was an unreasonable decision that only
an incompetent attorney would make. After careful review, the
Court answers that inquiry in the negative, and further finds, under
the two-pronged Strickland standard, that petitioner cannot
demonstrate ineffective assistance of appellate counsel sufficient to
establish cause for the default of sub-part (A) of his eighth ground
for relief. A review of the voir dire transcript, as well as the
relevant law governing petitioner's specific challenges, leads this
Court to conclude that the trial court and defense counsel errors
alleged by petitioner were not strong, obvious, meritorious, or
likely at all to prevail on appeal.

16

Id.

at PageID 387-88.

This language bespeaks a de novo consideration

of the claimed

ineffective assistance of appellate counsel. Monroe has not demonstrated any manifest error of
law in Judge Watson’s decision on Ground Eight (A).
Monroe recites admissions made by appellate counsel Edwards and Barstow which he
says show cause and prejudice (Motion, ECF No. 151, PageID 7929-31). None of this evidence
shows that Monroe was prejudiced by his appellate attorneys’ omissions, given that Judge
Watson found the claims of ineffective assistance of trial counsel in voir dire were not likely to
prevail. None of Monroe’s new evidence speaks to this point.
No change to Judge Watson’s decision on Ground Eight (A) is warranted.

Conclusion

Petitioner’s instant Motion for reconsideration should be DENIED.

June 7, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
17

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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