Johnson v. Warden Ohio State Penitentiary

Filing 141

OPINION AND ORDER DENYING 138 Motion to Alter or Amend Judgment. Signed by Judge Sarah D. Morrison on 5/24/2022. (tb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARVIN G. JOHNSON,
Petitioner,
v.
DAVID BOBBY, Warden,

Case No. 2:08-cv-55
Judge Sarah D. Morrison
Magistrate Judge Chelsey M.
Vascura

Respondent.
OPINION AND ORDER
This capital habeas corpus case is before the Court on Petitioner’s Motion to
Alter or Amend the Judgement (ECF No. 138).
I.

INTRODUCTION
Petitioner was convicted and sentenced to death by a jury in Guernsey

County, Ohio, for the murder of Daniel Bailey. After exhausting his state court
remedies, he filed a Petition for Writ of Habeas Corpus in this Court on September
28, 2008. (ECF No. 13.) After dismissing several procedurally-defaulted claims in a
September 29, 2009 Opinion and Order (ECF No. 28), the Court granted Petitioner’s
motion to expand the record and directed that the petition be stayed and the
proceedings held in abeyance while Petitioner returned to state court to re-present
several claims newly bolstered by evidence collected during federal habeas
proceedings (ECF No. 65). The Court reinstated the instant habeas proceedings on
July 6, 2015, and Petitioner filed an Amended Petition (ECF No. 86), the Warden
responded in the Return of Writ (ECF No. 91), and Petitioner replied in the

Traverse (ECF No. 131). On December 28, 2021, the Court issued an Opinion and
Order denying relief on Petitioner’s remaining claims and dismissing the action.
(ECF No. 136 and 137.) At the same time, the Court certified for appeal Petitioner’s
tenth and thirteenth grounds for relief. (ECF No. 137.) Petitioner now moves to
alter or amend the judgment under Federal Rule of Civil Procedure 59(e) with
respect to his Sixth Ground for Relief and the preclusion of new evidence under
Pinholster in his Fourth, Sixth, Seventh, Eighth, Ninth, Thirteenth, and Nineteenth
Grounds for Relief. (ECF No. 138.) In the alternative, he asks that the Certificate of
Appealability (COA) be amended to certify these two issues for appeal. He also asks
the Court to grant an evidentiary hearing.
II.

STANDARD OF REVIEW
Rule 59(e) allows a petitioner to file a motion to alter or amend a judgment

within 28 days of the district court’s entry of the judgment. It is a “one-time effort to
bring alleged errors in a just-issued decision to a habeas court’s attention, before
taking a single appeal.” Banister v. Davis, 140 S.Ct. 1698, 1710 (2020). Thus, it
allows “a district court the chance ‘to rectify its own mistakes in the period
immediately following’ its decision.” Id. at 1703, quoting White v. New Hampshire
Dep’t of Emp. Sec., 455 U.S. 445, 450 (1982)).
To grant a motion filed under Rule 59(e), there must be “‘(1) a clear error of
law; (2) newly discovered evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.’” Clark v. United States, 764 F.3d 653, 661
(6th Cir. 2014), quoting Leisure Caviar v. U.S. Fish & Wildlife Serv., 616 F.3d 612,

2

615 (6th Cir. 2010). “‘[A] prisoner may invoke the rule only to request
“reconsideration of matters properly encompassed’ in the challenged judgment. . . .
Courts will not entertain arguments that could have been but were not raised
before the just-issued decision.” Banister, 140 S.Ct. at 1708, quoting White, 455 U.S.
at 451.
“A ‘clear error of law’ occurs where the original ruling ‘overlooked or
disregarded’ some ‘argument or controlling authority’ or where the moving party
‘successfully points out a manifest error. . . .’” Penley v. NPC Int’l, Inc., No. 13-1031,
2014 WL 12634410, at *2 (W.D. Tenn. Dec. 3, 2014), aff’d sub nom. Gunn v. NPC
Int’l, Inc., 625 F. App’x 261 (6th Cir. 2015), quoting United States v. Ladeau, No.
3:10-CR-00242-1, 2012 WL 5838125, at *2 (M.D. Tenn. Nov. 15, 2012). While not
well defined, it “clearly indicate[s] that a high standard applies.” Forman v.
Meridian Bioscience, Inc., 387 F. Supp. 3d 791, 796 (S.D. Ohio 2019, quoting
Lonardo v. Travelers Indem. Co., 706 F. Supp.2d 766, 809 (N.D. Ohio 2010), on
reconsideration in part (July 21, 2010) (internal quotation marks omitted).
Manifest injustice is likewise not clearly defined in case law, but the Sixth
Circuit has previously looked to the plain meaning of the words to guide its
application:
Black’s Law Dictionary defines the phrase “manifest injustice” to mean:
“An error in the trial court that is direct, obvious, and observable, such
as a defendant’s guilty plea that is involuntary or that is based on a plea
agreement that the prosecution rescinds.” BLACK’S LAW
DICTIONARY 982 (8th ed. 2004). Of course, as the examples suggest,
more than a clear error is required; injustice must also result.
Volunteer Energy Servs. v. Option Energy, 579 F. App’x 319, 330–31 (6th Cir. 2014).
3

District courts have held that “manifest injustice requires that there exist a
fundamental flaw in the court’s decision that without correction would lead to a
result that is both inequitable and not in line with applicable policy.” Williams v.
Shelby Cty. Bd. Educ., No. 217CV02050TLPJAY, 2021 WL 698861, at *3 (W.D.
Tenn. Feb. 23, 2021), quoting United States v. Allen, No. 14-20191, 2020 WL
4592901, at *1 (E.D. Mich. Aug. 11, 2020) (internal quotation marks omitted). The
“manifest injustice” provision within Rule 59 is “not meant to allow a disappointed
litigant to attempt to persuade the Court to change its mind.” Lonardo, 706 F.
Supp.2d at 809, citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834
(6th Cir. 1999). It is “a fact-specific analysis that falls squarely within the
discretionary authority of the Court.” Id. “[T]he Court should weigh the importance
of bringing litigation to a firm conclusion and the need to render fair and just
rulings.” Id., citing GenCorp, 178 F.3d at 834.
III.

ANALYSIS

A. Pinholster Preclusion
Petitioner objects to the Court’s application of Pinholster v. Cullen to exclude
new evidence developed during federal habeas proceedings from its consideration of
claims that were previously adjudicated on the merits in the state courts. (ECF No.
138, PageID 11298.) Pinholster held that a federal habeas court reviewing a claim
under §2254(d) is restricted to the record that was before the state court that
adjudicated the claim on the merits. 563 U.S. 170, 181 (2011). New evidence
presented in support of Petitioner’s fourth, sixth, seventh, eighth, ninth, thirteenth,
and nineteenth grounds for relief was excluded as a result of Pinholster. (ECF No.
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138, PageID 11298.) Petitioner contends that his case is distinguishable from
Pinholster because he did in fact return to state court to present his new evidence in
a second or successive petition for post-conviction relief and application for
reopening, thus giving the state courts the first chance to review the new evidence
developed during habeas proceedings. (Id. at PageID 11299.) Therefore, Petitioner
says, he fulfilled AEDPA’s goal of promoting comity and federalism and those
concerns should not prevent the Court from considering his new evidence. (Id. at
PageID 11299–300.)
Respondent asserts that Petitioner has merely repeated arguments in his
Rule 59 motion that were previously considered and rejected by this Court in its
Opinion and Order. (ECF No. 139, PageID 11335.) Indeed, Petitioner’s arguments
as to the preclusion of newly-developed evidence under Pinholster largely mirror
those previously raised in his Traverse (ECF No. 131) and considered at length in
the Court’s Opinion (ECF No. 136, PageID 10989–993). “ ‘A motion under Rule 59(e)
is not an opportunity to re-argue a case.’ ” Mich. Flyer LLC v. Wayne Cty. Airport
Auth., 860 F.3d 425, 431 (6th Cir. 2017), quoting Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Because Rule 59(e) is not a
vehicle to re-assert arguments already raised, the Court will not address those
arguments previously considered and rejected in its Opinion and Order.
Petitioner contends that the Court’s Pinholster analysis was a clear error of
law and the failure to consider his new evidence results in a manifest injustice.
(ECF No. 138, PageID 11298.) But beyond his bare assertions of error, Petitioner

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fails to precisely identify any alleged error in the Court’s decision. Ignoring the
absence of any identified error, he asserts that “[a] manifest injustice is present
when evidence that at least one juror would have found persuasive enough to insist
on a life sentence is not considered.” (Id. at PageID 11301.) Yet even if the Court
subscribed to Petitioner’s expansive definition of “manifest injustice,” the exclusion
of his new evidence due to Pinholster would not qualify because the evidence could
not have changed the outcome for any of the grounds for which it was presented.
In Petitioner’s fourth ground for relief, he presented the habeas depositions of
his trial counsel to show that counsel’s failure to object to victim-impact evidence
during the guilt phase of trial was not a strategic decision. No other new evidence
was offered to support the claim. The Court denied relief, holding that the state
court had reasonably applied federal law when it concluded that counsel was not
deficient and Petitioner was not prejudiced. (ECF No. 136, PageID 11000–01.) That
is, the claim was denied because Petitioner could not satisfy either prong of the
Strickland standard for ineffective assistance. Thus, the exclusion of new evidence
supporting only the performance prong could not have changed the outcome because
the lack of prejudice alone is fatal to Petitioner’s claim.
In Petitioner’s sixth ground for relief, he claimed ineffective assistance of
counsel based on counsel’s alleged failure to investigate and present evidence of his
background and upbringing from his family members during the mitigation phase
of trial. He presented affidavits from three family members (Iveryl Robinson,
Grenea Bridges, and Estoria Johnson) and an affidavit from his postconviction

6

mitigation specialist, Pam Swanson, reporting her interview with a fourth family
member (Lulu Williams) in his initial state postconviction petition, which was
adjudicated on the merits by the Ohio Court of Appeals. He also presented new
evidence collected during federal habeas proceedings: the habeas depositions of trial
counsel and affidavits from six family members (Marian Johnson, Grenea Bridges,
Kizzy Edwards, Cornelius Johnson, Coretta Johnson, and Estory Johnson) 1 plus his
private investigator during habeas who interviewed Petitioner’s family members.
The new evidence collected during habeas would not change the outcome
here. Despite Petitioner’s repeated assertions that his family members were ready
and willing to testify at this mitigation hearing, this is not true. Iveryl Robinson
Johnson and Marian Johnson were en route to Ohio for the hearing but chose to
turn around after Attorney Warhola informed them about the outburst that
occurred on the last day of the guilt phase of trial. The Court found that counsel did
not act unreasonably based on Iveryl Robinson Johnson’s account of her
conversation with Attorney Warhola in her initial 2005 affidavit, which was
presented in Petitioner’s initial postconviction proceedings. The statements of
multiple family members in 2011 as to what Iveryl Robinson told them at the time
about her telephone conversation with Attorney Warhola are not more probative as
to the content of that discussion than the recollection of one of the two participants

1The

affidavits from Grenea Bridges and Estory Johnson presented for the
first time in Petitioner’s second postconviction petition were collected in 2011
during federal habeas proceedings and contain new information relative to the
statements from Bridges and Johnson presented in Petitioner’s initial
postconviction proceedings.
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in the call given at a date much closer in time to the actual conversation. Nor does
Attorney Warhola’s deposition shed much light on what was said given that he no
longer clearly remembered it after the passage of so many years. It remains that,
after considering all of the new evidence collected during federal habeas
proceedings, the best evidence as to what Attorney Warhola told Iveryl Robinson is
Iveryl Robinson’s 2005 affidavit.
Nor do the affidavits from additional family members collected during habeas
proceedings alter the prejudice determination. The new affidavits merely present
additional testimonies of the same evidence in the four family affidavits already
considered by the Court. That is, the new evidence is cumulative of the evidence
presented in Petitioner’s initial state postconviction petition, which itself is largely
cumulative of evidence presented in mitigation at trial. The Court’s determination
as explained in its Opinion and Order is applicable whether or not the additional
family affidavits are considered:
[T]he Supreme Court has explained “that there is no prejudice when the
new mitigating evidence ‘would barely have altered the sentencing
profile presented’ to the decisionmaker,” even in cases where little to no
mitigation evidence was presented. See [Sears v. Upton, 561 U.S. 945,
954 (2010) (per curiam)], quoting Strickland, 466 U.S. at 700. In other
words, prejudice turns not on the quantity of evidence presented or left
out but on its substance. Here, the state court’s finding of no prejudice
is reasonable, not because counsel presented “some” mitigation evidence
at trial, but because the new evidence Petitioner claims counsel should
have presented does not alter the sentencing profile presented to the
jury. That is, the new evidence is largely cumulative.
(ECF No. 136, PageID 11030.)

8

In Petitioner’s seventh ground for relief, the Court considered all of
Petitioner’s new evidence in its de novo review of the performance prong of
Strickland. The only new evidence Petitioner presented in support of the claim in
his seventh ground were the habeas depositions of Attorneys Blakeslee and
Warhola to establish deficient performance. (See ECF No. 85-1, PageID 8265–67.)
All of the evidence Petitioner presented to demonstrate prejudice had been
previously considered by the state courts during Petitioner’s initial postconviction
proceedings, and thus was part of the record before this Court in its § 2254(d)
review of the state court’s decision. In Petitioner’s initial state postconviction
proceedings, the Ohio Court of Appeals relied on only the prejudice prong of
Strickland to deny Petitioner’s ineffective assistance claim. See Johnson, No. 2006CA-04, 2007 WL 1098106, at *14–15 (Ohio 5 App. Dist. Apr. 10, 2007). As the Court
explained in its Opinion and Order, Pinholster limited the record to that before the
state court in Petitioner’s initial postconviction proceedings only as to review of the
state court’s prejudice determination, but the deficient performance prong would be
reviewed de novo without any such limitation on the record:
Because the decision of the Ohio Court of Appeals in Petitioner’s initial
post-conviction proceeding was the last state court adjudication on the
merits of Petitioner’s claim, the Court reviews that decision here. When
a state court relies on only one prong of Strickland to decide an
ineffective assistance claim, as the Ohio Court of Appeals did here, the
unadjudicated prong is reviewed de novo. Raynor v. Mills, 685 F.3d 631,
638 (6th Cir. 2012). Accordingly, the Court will examine the deficient
performance prong de novo and the prejudice prong will be subject to
AEDPA deference. . . . [T]his means that the Court’s review of prejudice
is limited to the record before the Ohio Court of Appeals in Petitioner’s
initial state post-conviction proceedings.
(ECF No. 136, PageID 11036 (emphasis added).)
9

The Court then proceeded, on the basis of all of the evidence presented, to
find that Petitioner had not satisfied the standard for deficient performance under
Strickland: “First, the Court finds that counsel’s performance was well within the
‘range of professionally competent assistance,’ even under a de novo standard of
review.” (Id. at PageID 11038, quoting Strickland v. Washington, 466 U.S. 668, 687
(1984) (internal citation omitted).) In other words, Pinholster did not exclude any
evidence in support of Petitioner’s seventh ground as all of the new evidence he
presented was in fact considered by the Court in its de novo review of counsel’s
performance.
In Petitioner’s eighth ground for relief, he claimed ineffective assistance from
counsel’s failure to investigate or present expert testimony in mitigation regarding
his potential neurological deficits, possible behavioral effects of diabetes, and the
effects of growing up amid the rampant racism of rural Alabama in the 1960s and
70s. (ECF No. 86, PageID 9266–77.) In addition to the record before the state
appellate court when it adjudicated his claim on the merits in postconviction,
Petitioner presented new evidence he developed during federal habeas, including
the report of neuropsychologist, Dr. Nicholas Doninger, in support of his
neurological deficit and diabetes claims and an article written by Martin Luther
King, Jr., as evidence of the culture of his rural county in Alabama during his
childhood. He also presented counsel’s habeas depositions to show that counsel did
not consider hiring experts to examine potential neurological deficits, symptoms of
diabetes, or the racism of his upbringing.

10

As to Petitioner’s allegation that counsel failed to investigate or present
evidence of potential neurological deficits, the Court explicitly considered the effect
of Dr. Doninger’s report and concluded that it did not show that Petitioner was
prejudiced. (ECF No. 136, PageID 11062.) The Court found that “the mental
deficiencies Dr. Doninger cataloged are not altogether new or different than those
identified by Dr. Jackson at trial. . . . The neuropsychological evidence does not
provide new information relative to the psychological evidence presented at trial
that it could have had any probable effect on the outcome.” (ECF No. 136, PageID
11062.) Even if the habeas depositions were capable of altering the Court’s analysis
of counsel’s performance, the lack of prejudice is decisive.
Dr. Doninger’s report also does not alter the Court’s conclusion that
Petitioner was not prejudiced by counsel’s failure to present evidence of the
potential effects of diabetes. Any such effect on Petitioner’s behavior the morning of
the murder is entirely speculative and impossible to disentangle from the effects of
Petitioner’s drug and alcohol use, whether or not Dr. Doninger’s report is
considered. Dr. Doninger did not actually make any findings as to the effects of
diabetes on Petitioner’s cognitive functioning—either at the time of his examination
in 2011 or at the time of the murder in 2003. (See ECF No. 85-1, PageID 8539.) He
merely cited diabetes as one of the factors in Petitioner’s background that could
contribute to the impaired executive function he observed in 2011:
Several events in his background reveal poor judgment and impulse
control suggestive of executive dysfunction. The etiology of his current
executive impairments is multi-factorial in nature reflecting the
residual effects of traumatic brain injuries (TBIs) and poly-substance
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abuse. In addition, Mr. Johnson has a history of hypertension and poorly
controlled diabetes placing him at risk for ischemic stroke possibly
involving brain structures responsible for executive functioning.
(Id.) With or without Dr. Doninger’s report, Petitioner has not established as
anything more than hypothesis that the effects of diabetes led to diminished mental
capacity at the time of the murder. Speculation based on nothing more than the fact
that Petitioner had both mental impairment—of which the jury heard evidence—
and untreated diabetes had no reasonable probability of affecting the verdict.
Nor does Attorney Warhola’s deposition alter the determination that counsel
performed effectively in light of the fact that counsel had already retained a
psychologist and substance abuse expert to testify as to Petitioner’s mental
problems and drug use. Even if the Court were to accept that counsel’s failure to
consider hiring an endocrinologist meant that their investigation was less than
complete, a reasonable standard of professional competence does not require counsel
to seek out multiple experts of every tangentially-relevant specialty to speculate as
to possible contributing causes of Petitioner’s mental deficiencies. See Strickland,
466 U.S. at 690–91 (“[S]trategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.”) Counsel investigated and presented
evidence of Petitioner’s mental impairment to the jury, and the failure to fully
investigate every speculative theory as to potential causes does not render counsel’s
investigation constitutionally deficient.
And on the third subclaim concerning counsel’s failure to present a cultural
expert in mitigation, the only new evidence presented was the depositions of trial
12

counsel and the King article, neither of which provides any new information capable
of affecting the outcome in habeas. The King article portrays generally the racial
atmosphere of the county where Petitioner grew up, but Dr. Kwame’-Osagyefo
Kalimara’s report about the particular effects of racism on Petitioner and his family
members’ descriptions of the racism they and Petitioner witnessed and experienced
growing up—presented in Petitioner’s initial postconviction proceedings and
therefore part of the state record this Court reviewed—remain far stronger evidence
as to Petitioner’s experiences and its effects on him.
In Petitioner’s ninth ground for relief, he claims ineffective assistance based
on counsel’s failure to investigate his history of drug abuse and present a competent
substance abuse expert. 2 The first ground of his claim—that counsel conducted a
substandard investigation—was presented to the state courts in his initial
postconviction petition and decided on the merits by the Ohio Court of Appeals. The
only new evidence presented in his habeas petition that was not previously
considered by the Ohio Court of Appeals when it adjudicated the claim is the habeas
depositions of his trial counsel, presented here to show deficient performance. The
Court held that the state court’s determination that Petitioner had not suffered
prejudice was reasonable, but did not reach the performance prong of Strickland.
(ECF No. 136, PageID 11082.) Like in Petitioner’s fourth ground, the prejudice

2The

second ground of Petitioner’s claim—that counsel failed to present a
competent substance abuse expert—was procedurally defaulted because it was only
raised for the first time in Petitioner’s second state postconviction petition. (ECF
No. 136, PageID 11085.)
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finding alone is fatal to his claim, as the Court explicitly recognized in its opinion:
“Even if trial counsel did fail to conduct an effective investigation—an issue which
the Court does not reach—it does not constitute ineffective assistance when the
evidence that counsel failed to discover does not change the sentencing profile and
could not have affected the outcome.” (Id. at PageID 11082.)
It is also worth mentioning that Petitioner did not re-present his failure-toinvestigate allegation with the addition of trial counsel’s habeas depositions to the
state courts in his second postconviction petition. Therefore, the new evidence would
be barred from consideration by Pinholster even under Petitioner’s preferred
interpretation.
In Petitioner’s thirteenth ground for relief, he claimed ineffective assistance
of appellate counsel based on appellate counsel’s failure to raise on appeal the
errors of the trial court and trial counsel for, respectively, allowing improper
hearsay evidence in violation of the Confrontation Clause and failing to
continuously object to the improper hearsay evidence. The only new evidence
presented in federal habeas that was not before the Ohio Supreme Court when it
dismissed the claim on the merits were the depositions of Petitioner’s appellate
counsel, Kathleen McGarry and Dennis Sipe. Despite finding that Pinholster barred
consideration of the depositions, the Court also concluded that the new evidence
would not affect the outcome:
Regardless, the outcome would be the same with the inclusion of the
[depositions]. The new evidence is only relevant to the question of
counsel’s performance, meaning that even if the [depositions] revealed
that that performance was deficient, the ineffective assistance claim
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would still fail for lack of prejudice. But the [depositions] also do not
establish that counsel’s performance was substandard.
(ECF No. 136, PageID 11174–75.) Thus, all of the new evidence was in fact already
considered by the Court in its Opinion.
Finally, Petitioner raised several claims of ineffective assistance of trial
counsel in his nineteenth ground, two of which relied on counsel’s habeas
depositions to demonstrate deficient performance. In the first instance, Petitioner
complained that counsel mishandled the issue of his competency at trial. The Court
held that the Ohio Supreme Court’s conclusion on direct appeal that Petitioner had
shown neither deficient performance nor prejudice was reasonable. (Id. at PageID
11209–11.) As in Petitioner’s fourth and eighth grounds for relief, the lack of
prejudice alone is decisive and the new evidence is irrelevant to that finding. Thus,
even if the Court considered the depositions and decided that counsel had
performed ineffectively, the outcome would be the same.
In the second instance, Petitioner claimed counsel’s failure to object when the
trial court read the full list of statutory mitigating factors to prospective jurors
during voir dire was ineffective assistance and cited counsel’s habeas depositions, in
which Attorneys Blakeslee and Warhola disagreed on the propriety of reciting the
full list of factors to the jury, as evidence of error. The exclusion of the depositions
due to Pinholster was irrelevant to the outcome though because the Court denied
the claim solely based on a lack of prejudice. (Id. at PageID 11213–14.)
In each of the seven grounds Petitioner cites as an example of manifest
injustice due to Pinholster’s bar on consideration of new evidence, the new evidence
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presented would not have changed the outcome. Thus, even under Petitioner’s own
expansive definition of manifest injustice—and setting aside the absence of any
legal error in the Court’s opinion—the exclusion of the new evidence here is not
manifest injustice.
Petitioner also contests the Court’s reasoning that Hughbanks v. Hudson
should be understood as limited to procedurally-defaulted Brady claims, arguing
that the Sixth Circuit never said as much. (ECF No. 138, PageID 11302–03.) In
Hughbanks, the Sixth Circuit considered new evidence collected during federal
habeas proceedings in support of a procedurally-defaulted Brady claim. 2 F.4th 527
(6th Cir. 2021). The Brady claim had been previously adjudicated on the merits in
state court on a record that did not include the evidence later gathered during
habeas, and then dismissed on jurisdictional grounds when presented later with the
new evidence in a second or successive state postconviction petition. In such
circumstances, a federal habeas court will look through to the previous merits
decision in state court, upon which the later state-court dismissal on procedural
grounds has no affect. See Williams v. Houk, 676 F. App’x 524, 538 (6th Cir. 2017)
(holding that review is limited to the record on direct appeal when the state court
decided the claim on the merits, excluding evidence presented in state
postconviction when the claim was dismissed as res judicata); cf. Cone v. Bell, 556
U.S. 449, 466–67 (2009) (“[W]hen a state court declines to revisit a claim it has
already adjudicated, the effect of the later decision upon the availability of federal
habeas is ‘nil’ because ‘a later state decision based upon ineligibility for further

16

state review neither rests upon procedural default nor lifts a pre-existing procedural
default.’”) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 804 n.3 (1991)).
But here, as the Sixth Circuit explained in its opinion, “Hughbanks limit[ed]
his Brady claim [on appeal] to the grounds presented in his second state postconviction application, relying exclusively on the evidence he obtained during
federal discovery,” 3 and thus the Brady claim before the Sixth Circuit on appeal did
not include the grounds that had been previously adjudicated on the merits in state
court. Id. at 535, citing Appellant Br. at 35 & n.4. Whereas the state court’s
dismissal of Hughbanks’s second postconviction petition on jurisdictional grounds
would typically play no role in federal habeas review of the prior state merits
adjudication, without a prior state merits adjudication pertaining to the only
grounds raised in the Sixth Circuit, the dismissal instead served to procedurally
default the claim. Procedural default bars federal habeas review unless the
petitioner can show cause for the default and prejudice from the underlying
constitutional violation. But as the court explained, the merits of a Brady claim can
also serve as the cause and prejudice to excuse its procedural default:
Because the Ohio Court of Appeals applied a state-law procedural bar to
reject Hughbanks’s Brady claim, we consider his claim to be
procedurally defaulted. Bies, 775, F.3d at 396. Generally, “[u]nexcused
procedural default precludes federal habeas review. However, federal
courts can excuse procedural default upon a showing of either cause and
prejudice or a fundamental miscarriage of justice.” Id. (internal citations
3Contrary

to Petitioner’s assertion that this Court erroneously “claimed”
Hughbanks’s Brady claim was limited to the grounds raised in his second state
postconviction, (ECF No. 138, PageID 11302), the Court was in fact citing the Sixth
Circuit’s own description of the claims before it and the applicable standard of
review.
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omitted). When considering procedurally defaulted Brady claims, the
Supreme Court has held that two of the three elements of an alleged
Brady violation, whether the evidence was suppressed by the State and
whether such suppressed evidence was material, constitute the required
cause and prejudice to excuse procedural default. Strickler v. Greene,
527 U.S. 263, 282 (1999). Thus, if Hughbanks can demonstrate a
meritorious Brady violation, he will have also made the requisite
showing of cause and prejudice, allowing us to grant habeas relief.
Hughbanks, 2 F.4th at 535. In other words, the claim would not have been reviewed
on the merits but for the fact that the merits of the defaulted Brady claim can also
serve as the cause and prejudice necessary to excuse the default. Had the defaulted
claim been anything other than a Brady claim, the cause for the default reviewed by
the court would not have included the merits of the defaulted claim.
To assume, as Petitioner does, that the consideration of new evidence in
Hughbanks was not particular to the procedural posture of a defaulted Brady claim
but instead the announcement of a brand-new standard for considering new
evidence in habeas more broadly, one would need to entirely disregard the Sixth
Circuit’s own explanation for the standard of review in the case, see Hughbanks, 2
F.4th at 535. One would also have to assume that the court chose, without any
explanation of its intent, to repudiate all prior circuit precedent applying Pinholster.
And that the court selected as the vehicle to announce its new standard for §
2254(d) review of state court decisions a claim to which § 2254(d) does not apply
based on existing doctrine. See Ege v. Yukins, 485 F.3d 364, 379 n.7 (6th Cir. 2007)
(holding that a claim is reviewed de novo as cause to overcome procedural default
even if it is subject to AEDPA deference when reviewed as a free-standing claim).

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These are not assumptions the Court will make without some indication from the
Sixth Circuit that this was its intent.
Because Petitioner has not shown clear error or manifest injustice in the
Court’s application of Pinholster to limit review under § 2254(d) to the record before
the state court when it adjudicated the claim on the merits, he is not entitled to an
amendment or alteration of the judgment. Therefore, his motion with regard to the
application of Pinholster to his fourth, sixth, seventh, eighth, ninth, thirteenth, and
nineteenth grounds for relief is DENIED.
B. Sixth Ground for Relief
In his sixth ground for relief, Petitioner claimed ineffective assistance of
counsel based on counsel’s failure to investigate or present testimony from family
members in mitigation. The Court denied the claim, finding that Petitioner had
failed to show that the state court’s decision was contrary to or an unreasonable
application of federal law, or based on an unreasonable determination of the facts.
(ECF No. 136, PageID 11021, 11032.) Petitioner now asks the Court to either
amend or alter its decision based on clear error of law. (ECF No. 138, PageID
111314.) He primarily reiterates the arguments previously offered in his Amended
Petition (ECF No. 86) and Traverse (ECF No. 131), but avers that the Court’s
application of Strickland, Wiggins, and Williams to the facts of his case was a clear
error of law—albeit without identifying the precise error he believes the Court made
other than his general disagreement with the Court’s assessment of the significance
of the evidence. (Id. at PageID 11307–14.)

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“A ‘mere disagreement’ with a court’s initial decision will not support a Rule
59(e) motion.” Penley v. NPC Int’l, Inc., No. 13-1031, 2014 WL 12634410, at *2
(W.D. Tenn. Dec. 3, 2014), aff’d sub nom. Gunn v. NPC Int’l, Inc., 625 F. App’x 261
(6th Cir. 2015), citing Slate v. Am. Broad. Cos., Inc., 12 F. Supp. 2d 30, (D.D.C.
2013). As Respondent correctly points out, Petitioner’s motion simply regurgitates
his previous arguments that counsel’s performance was deficient and he suffered
prejudice in light of the testimony that his family members could have provided had
they testified at his mitigation hearing. (ECF No. 139, PageID 11336–37.) These
arguments were fully considered and decided in the Court’s Opinion and Order
(ECF No. 136), and the Court declines to re-address them here on Petitioner’s
attempt to have a second bite at the same apple. Therefore, Petitioner’s request to
alter or amend the judgment with regard to his sixth ground for relief is DENIED.
C. Request to Amend COA
If the Court will not amend its judgment, Petitioner requests that the issues
raised in this motion instead be certified for appeal. The Court is not persuaded.
“[A] claim does not merit a certificate unless every independent reason to deny the
claim is reasonably debatable.” Moody v. United States, 958 F.3d 485, 488 (6th Cir.
2020) (emphasis in original). Petitioner contends that reasonable jurists would find
debatable whether Attorney Warhola’s conversation with Iveryl Robinson about the
outburst on the last day of trial was effective assistance. (ECF No. 138, PageID
11308.) But the question to be asked when considering a certificate is not whether
the ineffectiveness of counsel is debatable, but whether any reasonable jurist would
debate that the state court’s decision was not objectively unreasonable under the
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standards of §2254(d). See Moody, 958 F.3d at 488 (“If no fair-minded jurist (even
one sympathetic to the claim) could doubt that the state-court decision was
defensible, the claim should not be certified.”). In other words, if it is merely the
ineffectiveness of counsel that is debatable, AEDPA deference requires the Court to
deny relief because the state court’s decision was not objectively unreasonable.
Petitioner also argues that the “open question” left unresolved by
Pinholster—how diligent petitioners with new evidence supporting an existing
claim would be able to present that evidence to a federal court—must be considered
by the Sixth Circuit. (ECF No. 138, PageID 11300.) Perhaps so, but Petitioner’s case
is not the appropriate vehicle for consideration because—as explained above—the
exclusion of Petitioner’s new evidence was not outcome determinative. “[A] court
should not certify an ineffective-assistance-of-counsel claim where deficiency may
exist but the lack of prejudice is indisputable (or vice versa). Again, a certificate is
improper if any outcome-determinative issue is not reasonably debatable.” Moody,
958 F.3d at 488, citing Strickland, 466 U.S. at 687 (emphasis in original) (internal
citations omitted).
Because the Court concludes that there is no substantial reason to believe the
denial of relief is incorrect, Petitioner’s request to amend the COA to include the
issues raised in his Rule 59(e) motion is DENIED.
D. Request for Evidentiary Hearing
Petitioner asserts that it is clear error and a manifest injustice for the Court
not to conduct an evidentiary hearing under § 2254(e)(2). (ECF No. 138, PageID
11304.) To hold an evidentiary hearing, § 2254(e)(2) requires a petitioner to show
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that his claim relies on a new rule of constitutional law made retroactive or a
factual predicate that could not have been discovered earlier and that the
underlying facts establish by clear and convincing evidence that no reasonable
factfinder would have found him guilty of the offense but for the constitutional
error. Setting aside whether any of Petitioner’s claims could even meet the standard
of § 2254(e)(2)(B), § 2254(e)(2) applies to limit district courts’ discretion to hold an
evidentiary hearing “where § 2254(d)(1) does not bar federal habeas relief.”
Pinholster, 563 U.S. at 185, 186 n.10. But the Court is “precluded from conducting
evidentiary hearings to supplement existing state court records when a state court
has issued a decision on the merits with respect to the claim at issue.” Ballinger v.
Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013), citing Pinholster, 563 U.S. at 184–85,
and Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011); Sheldon v. Black, No. 20-4156,
2021 WL 1654419, at *3 (6th Cir. Apr. 20, 2021) (“[J]urists of reason would agree
that the district court properly denied Sheldon’s motion for an evidentiary hearing
because the court was obligated to decide the § 2254 petition based solely on the
state court record.”) (citing Pinholster, 563 U.S. at 181–82, and Mitchell v. Genovese,
974 F.3d 638, 650 (6th Cir. 2020)). As the Sixth Circuit explained, “[w]hile allowing
a petitioner to supplement an otherwise sparse trial court record may be appealing,
especially where he diligently sought to do so in state court, the plain language of
Pinholster and Harrington precludes it.” Ballinger, 709 F.3d at 562; see also
Pinholster, 563 U.S. at 185 (“[E]vidence introduced in federal court has no bearing
on § 2254(d)(1) review.”). Petitioner was not entitled to an evidentiary hearing on

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his claims, and he has failed to show either court error or manifest injustice in the
Court’s decision to deny his claims without granting one.
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s motion to alter or

amend the judgment.

IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

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