McKnight v. Warden, Ohio State Penitentiary

Filing 332

REPORT AND RECOMMENDATIONS - It is respectfully recommended that grounds for relief one through thirty-seven, thirty-nine, and forty be dismissed with prejudice and that grounds for relief thirty-eight, forty-one, and forty-two be dismissed without p rejudice. Under Rule 11 of the Rules Governing § 2254 Cases, the Court must in any final judgment adverse to the Petitioner make a determination on whether a certificate of appealability should issue as to any claim. No recommendation is made o n that question herein because the parties have not yet briefed the question. A schedule for such briefing will be set after any objections to this Report are resolved. Objections to R&R due by 9/28/2020. Signed by Magistrate Judge Michael R. Merz on 9/14/2020. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,

Case No. 2:09-cv-059
:

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on a Petition for a Writ of Habeas
Corpus (ECF. No. 1271) in which Petitioner Gregory McKnight pleads forty-two grounds for relief
challenging his convictions and sentences for aggravated murder, kidnapping, aggravated robbery,
and murder.2 Respondent has filed his Return of Writ (ECF No. 13) and an amendment (ECF No.
112), and McKnight has filed his Traverse (Doc No. 17) and an amendment (ECF No. 128). The

1

McKnight’s first petition was filed on October 14, 2009 (ECF. No. 9), and amended on February 23, 2011 (EFC No.
38), amended again on January 25, 2013 (Doc. No. 101), and again on August 26, 2013 (ECF No. 127). Later,
McKnight filed a supplement to his petition (ECF No. 241), and an amendment to the supplement (ECF No. 251), both
limited to raising four lethal-injection claims which were ultimately dismissed without prejudice to their inclusion in
an action under 42 U.S.C. § 1983 pursuant to In re Campbell, 874 F.3d 454 (6th Cir. 2017). Those grounds for relief
will not be considered further. Finally, in this Report and Recommendations, “the petition” will refer to the most
recent amended petition (ECF No. 127) for the sake of simplicity.
2

McKnight was initially indicted on four additional counts involving tampering with evidence and gross abuse of a
corpse, but those charges were subsequently withdrawn by the prosecutor. (ECF No. 106-10, PageID 8991.)

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matter is now ripe for decision.
FACTS
The Supreme Court of Ohio summarized the State’s and defense’s cases as follows:
State’s Case
During early 2000, [Gregory] Julious lived with his girlfriend, Dana
Bostic, at her home in Chillicothe. At the time, appellant was
dating Lisa Perkins, who was a friend of Bostic’s. Appellant
became acquainted with Julious by visiting Perkins at Bostic’s
home.
On Friday, May 12, 2000, at around 4:00p.m., Bostic returned home
from work and found appellant, Julious, and her daughter in the
kitchen. Julious was wearing only boxer shorts. Bostic then left
the house with her daughter to pick up her son.
When Bostic returned after approximately one hour, appellant and
Julious were no longer at the house. Bostic testified, “The door
was unlocked. There was [sic] candles still burning, * * * and it
was like he just ran out for a minute and he was coming right back.”
Moreover, Julious’s belongings, including his clothes, personal
hygiene products, and his identification card, were still in the house.
When Julious did not return home, Bostic called appellant on his
pager. Later that night, appellant returned Bostic’s call and put
Julious on the phone. Julious told Bostic that “he was in Columbus
at McKnight’s friend’s house and they were getting ready to go to a
[sic] OSU block party and he would be home.” Bostic described
the conversation as “very unusual” because Julious “didn’t let [her]
ask him anything else” and abruptly ended the conversation.
Bostic never saw or talked to Julious again.
In June 2000, appellant and his wife, Kathy McKnight, acquired a
trailer in a rural area near Ray, Ohio. Appellant and Kathy moved
their belongings into the trailer, but they did not move in. Instead,
they moved to the home of Kathy’s mother, in Gambier.
In late September of early October 2000, appellant was hired as a
kitchen worker at the Pirate’s Cove restaurant in Gambier.
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Appellant was friendly with his co-workers, and they would
sometimes give him rides to his Gambier home after work.
Emily Murray, a Kenyon College student, was a part-time waitress
at the Pirate’s Cove. Murray lived in a Kenyon College dormitory
approximately 100 yards from the Pirate’s Cove, and she drove her
mother’s Subaru Outback at Kenyon.
On November 2, 2000, Murray quit her job and spent her last
evening working at the Pirate’s Cove. Several college friends
visited Murray at the Pirate’s Cove to help celebrate her last night at
work, but her friends left before Murray finished work.
Appellant also worked at the Pirate’s Cove on the evening of
November 2. Time cards showed that Murray finished work at
3:07a.m. and appellant finished work at 2:59a.m. on November 3.
Nathan Justice, the bartender at the Pirate’s Cove, saw Murray
looking for her keys before 3:30a.m. No one at the Pirate’s Cove
recalls seeing Murray and appellant leave together.
Murray never returned to sleep in her dormitory room, and she
failed to appear at a party on the evening of November 3. This
absence concerned Murray’s friends because Murray had not left a
message regarding her whereabouts and they could not find
Murray’s Subaru Outback on campus or in Gambier.
After an unsuccessful search for Murray, her friends notified
Murray’s family and Kenyon College Security. A search of
Murray’s dormitory room by Murray’s friend, Abigail Williams,
produced Murray’s wallet, which contained her Ohio and New York
driver’s licenses, credit cards, and bank card.
On Sunday evening, November 5, Williams talked to appellant
about Murray’s disappearance. Appellant said that he had worked
that night but ‘left well before she did * * * [and] that he was not
there so he could see her leave.” According to Williams, appellant
was “very curt” and “[they] didn’t get any information. He just
kind of smirked” at them. A short time after Murray disappeared,
appellant told Nate Justice that “[h]e felt that [Murray] was probably
dead.”
On December 9, 2000, Vinton County Sheriff’s Chief Deputy
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Charles Boyer and Deputy Matt Kight went to appellant’s trailer to
serve an unrelated indictment on him, but appellant was not there.
Deputy Kight ran a license check on a vehicle on the property and
learned that the Subaru Outback parked behind the trailer was
associated with the disappearance of Emily Murray.
After obtaining a search warrant, law enforcement entered
appellant’s trailer and found bloodstains on the carpet near the front
door. Police followed a trail of blood down the hallway and
discovered Murray’s clothed body wrapped inside a carpet in the
spare bedroom.
During the search, Special Agent Gary Wilgus, a crime-scene
investigator with the Ohio Bureau of Criminal Identification and
Investigation, found a copper bullet jacket near the bloodstained
carpet in the living room. A bullet hole was found in the area of the
bloodstained carpet, but investigators did not find the bullet that
went through the floor. Additionally, police found five spent .357
shell casings inside a drawer in the living room, seven
nine-millimeter bullets inside a drawer in the master bedroom, and a
roll of bloodstained duct tape in the living room.
Investigators searching the property found human bones and
clothing in the cistern, the root cellar, and in a plastic bag. Police
discovered that a fire had been started in the root cellar, and they
recovered burned bones and pieces of clothing. The skeletal
remains included most of the bones from a single human, but only
six skull fragments were found. Dr. Nancy Tatarek, a forensic
anthropologist, concluded that the remains were from an
African-American male who was 20 to 25 years of age and six feet
to six feet, six inches tall.
The police identified the remains as those of Gregory Julious. Dr.
Franklin Wright, a forensic dentist, positively matched the teeth and
jaw bone found on appellant’s property with Julious’s dental
records. Bostic also identified the remains of boxer shorts found in
the cistern as those Julious was wearing the day he disappeared.
Kim Zimmerman, appellant’s brother-in-law, had given police a
bloodstained backpack that he had taken from the trailer’s
living-room closet.
Police searched the vehicle that appellant was driving when Julious
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disappeared, and they discovered bloodstains on the carpet
underneath the rear seat. Subsequent DNA analysis showed that
the “DNA from the * * * carpet [was] consistent with the DNA
profile from Gregory L. Julious.” According to Diane Larson, a
DNA serology analyst, the “chance of finding the same DNA profile
in the population is * * * approximately 1 in 50 trillion people for
the Caucasian population, one in 177 trillion in the
African-American population, and 1 in 51 trillion in the Hispanic
population.
Inside appellant’s Gambier home, police found an empty box of
Winchester .357 magnum cartridges underneath the bed in the
master bedroom, two .30 caliber bullets in the master-bedroom
closet, and four nine-millimeter bullets in the basement. Police
also learned that appellant had purchased three handguns from two
gun shops before the murders: a Jennings nine-millimeter
semiautomatic pistol purchased on February 17, 1999, and Intratec
nine-millimeter pistol purchased on April 24, 1999, and a Jennings
.380 caliber semiautomatic pistol bought on May 24, 2000.
Dr. Dorothy Dean, Deputy Coroner for Franklin County, found that
Murray had died from a single “gunshot wound to the head.”
Murray was shot with a high-powered weapon, and the gun was
“very, very close or touching her skin” when fired.
Dr. Tatarek found that the condition of the skull fragments of
Julious were “consistent with an injury by gunshot.” She also
found evidence of trauma to the vertebra “caused by some sort of
sharp object penetrating the person’s neck and cutting into the
bone.” Moreover, trauma to two hand bones was “consistent
[with] defense wounds.” Dr. Tatarek also found trauma around
joints “consistent with dismemberment of a person.” The
condition of the skeletal remains placed the date of death within a
three- to six-month time frame that included May 12, 2000.
Diane Larson concluded that the DNA profile from the bullet jacket
found in appellant’s trailer was consistent with Murray’s DNA
profile. The odds that the DNA from the bullet jacket was from
someone other than Murray were one in 646 Billion for the
Caucasian population. Larson also found that the bloodstains on
the backpack and duct tape matched Julious’s DNA profile. The
odds that the DNA from bloodstains on the backpack was from
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someone other than Julious were one in 64 quadrillion for the
African-American population.
Heather Zollman, a firearms expert, compared a bullet taken from a
tree behind the trailer and the bullet jacket from inside the house and
concluded that they were “fired [from] the same firearm.” Zollman
described each as a “Remington brand 180 gram .357 magnum
semi-jacketed hollow-point bullet.” She could not determine the
caliber of the bullet removed from Murray’s body. Nevertheless,
Zollman concluded that the lead was “consistent with having come
from the bullet.” Gunpowder on the surface of the bullet fragment
was also “the same type of style of flattened ball powder that is
loaded by Remington in these .357 magnum cartridges.
Defense’s Case
The defense called one witness. Donald Doles, a Vinton County
neighbor of appellant, testified that twice during the fall of 2000, he
had observed a woman who looked like Emily Murray drive past his
house in a Subaru Outback with New York license plates. When
she drove past on one occasion, Doles was only ten or [twelve] feet
away from the car when “she turned around and looked at [him] and
smiled and waved.” During cross-examination, Doles did not
recognize Murray’s picture, and he said that he was not 100 percent
certain that the woman driving past his house was Murray.
State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046 at ¶¶ 2-25.

PROCEDURAL HISTORY

At trial, the jury convicted McKnight of the aggravated murder of Emily Murray while
committing a kidnapping, kidnapping, aggravated robbery, and the murder of Gregory Julious.
(Trial Tr., ECF No. 105-26 at PageID 7332-40; Judgment Entry Upon Jury Verdicts, ECF No.
106-13 at PAGEID 9287-91.)

The aggravated murder count contained four death penalty

6

specifications: (1) murder to escape detection, apprehension, trial, or punishment for another
offense; (2) murder as a “course of conduct” involving the killing of two or more people; (3)
murder while committing or attempting to commit kidnapping; and (4) murder while committing
or attempting to commit aggravated robbery.

McKnight was also charged with a firearm

specification. The jury found him guilty on all of those charges, and recommended a death
sentence. Id. The trial court conducted an independent sentencing evaluation and adopted the
recommendation of the jury. Id. at PageID 9294-9312. McKnight was sentenced to death on
November 1, 2002. Id.
McKnight took an appeal to the Supreme Court of Ohio, raising thirty propositions of law
for the court’s consideration (Appellant’s Merit Brief, ECF No. 106-14 at PageID 9426 to ECF
No. 106-15 at PageID 9662). each of which was overruled; the court affirmed McKnight’s
convictions and sentences in November 2005. State v. McKnight, 107 Ohio St. 3d 101,
2005-Ohio-6046 (2005). The United States Supreme Court denied certiorari. (ECF No. 107-5 at
PageID 10426-27.) McKnight’s subsequent Motion for Reconsideration (ECF No. 107-5 at
PageID 10350-68) was summarily denied (ECF No. 107-5 at PageID 10369), as was his
application to reopen his direct appeal (ECF Nos. 107-5 at PageID 10395-409 and 10410).
McKnight simultaneously litigated his petition for post-conviction relief in the state trial
court raising ten claims for relief. (Post-Conviction Petition, ECF Nos. 107-6 to 107-8 at PageID
10470-10500.)

McKnight amended his post-conviction petition twice (ECF Nos. 108-1 at

PageID 10666-82; 108-5 at PageID 10939-57), adding five more claims for relief for a total of
fifteen. The trial court denied McKnight’s post-conviction petition, finding some claims barred

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by the doctrine of res judicata and all of them unsupported by “sufficient credible evidence to
establish substantive grounds for relief,” but making no findings of fact or conclusions of law.
(ECF No. 108-8 at PageID 11530-31.) An appeal from that denial was dismissed by the Fourth
District Court of Appeals because of the trial court’s failure to adhere to Ohio Rev. Code §
2953.21(C) which provides that “[i]f the court dismisses the petition, it shall make and file findings
of fact and conclusions of law with respect to such dismissal.” State v. McKnight, No. 06CA645,
2006-Ohio-7104 (Ohio App. 4th Dist. Dec. 27, 2006). Absent the required findings of fact and
conclusions of law from the trial court, there is no final appealable order from which to appeal.
After the trial court corrected its error (ECF No. 108-12 at PageID 11868-84), McKnight re-filed
his appellate brief alleging four assignments of error (ECF No. 108-13 at PageID 11918-75). The
court of appeals denied each, affirming the post-conviction trial court (ECF No. 108-14 at PageID
12171-216), and the Supreme Court of Ohio declined jurisdiction over McKnight’s further appeal
(ECF No. 108-15 at PageID 12219-84).
On October 14, 2009, McKnight filed his petition for a writ of habeas corpus in this Court.
(ECF No. 9.) Amended petitions were filed as noted above, with the final amendment being filed
on in August 2013 at ECF No. 127. McKnight pleads the following Grounds for Relief:

First Ground for Relief
A search warrant based on an affidavit containing false information
made knowingly and intentionally or with reckless disregard for the
truth violated Gregory McKnight’s right against an unreasonable
search and seizure in violation of the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments.

8

Second Ground for Relief
Gregory McKnight was denied a fair trial, an impartial jury, and due
process as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments when the trial court failed to change venue despite
pervasive pretrial publicity.
Third Ground for Relief
Gregory McKnight was deprived of due process, a fair trial, and a
fair sentencing hearing in violation of his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights due to the trial court’s failure to
change venue in light of the pervasive racial bias in the Vinton
County, Ohio community.
Fourth Ground for Relief
Failure to provide Gregory McKnight with the expert resources to
conduct a scientific jury survey denied him information crucial to
establishing the necessity for a change of venue, thereby depriving
him of the effective assistance of counsel, a fair trial, a fair and
impartial jury, and due process in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments.
Fifth Ground for Relief
The trial court’s dismissal and subsequent reinstatement of the
capital specifications of statutory aggravating circumstances in
Gregory McKnight’s trial violated McKnight’s right to due process,
a fair trial, and a fair and impartial jury in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
Sixth Ground for Relief
Gregory McKnight was denied due process, a fair trial, and a fair
and reliable sentencing determination under the Fifth, Sixth, Eighth,
and Fourteenth Amendments when the trial court tried the two
unrelated murders jointly.
Seventh Ground for Relief
Gregory McKnight was denied due process and a fair trial because
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the “course of conduct” specification was not supported by
sufficient evidence and failed to narrow the class of murders [sic]
eligible for the death penalty in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments.
Eighth Ground for Relief
McKnight was denied the right to defend against the State’s charges
and to confront the State’s witnesses, as well as his rights to due
process and equal protection when the trial court instructed the jury
in a manner calculated to defeat the effectiveness of
cross-examination in violation of his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments.
Ninth Ground for Relief
McKnight’s rights to a fair trial, due process, and a reliable
determination of guilt as guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments were violated when the trial court
permitted the introduction and admission of numerous gruesome
photographs with no probative value but which were highly
prejudicial.
Tenth Ground for Relief
Gregory McKnight’s right to a fair trial and due process were
violated when [the] State introduced and the trial court admitted
evidence to prove the victim acted in conformity with habitual
behavior in violation of the Fifth, Sixth, Eighth[,] and Fourteenth
Amendments.
Eleventh Ground for Relief
The admission of irrelevant and inflammatory evidence deprived
Gregory McKnight of a fundamentally fair trial and due process in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.
Twelfth Ground for Relief
Gregory McKnight’s right to defend and to rebut the State’s
evidence was denied when the trial court precluded the admission of
relevant evidence denying him his constitutional right to due
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process and a fair trial under the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
Thirteenth Ground for Relief
McKnight was denied his right to a fair trial and impartial jury under
the Fifth, Sixth, and Fourteenth Amendments when a member of his
jury ignored the trial court’s admonitions and engaged in
discussions about the case with members of the community.
Fourteenth Ground for Relief
Gregory McKnight’s right to due process and a fair trial by a fair
and impartial jury was denied when the trial court permitted a juror
to remain on the jury after the juror was sleeping during the
presentation of evidence in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments.
Fifteenth Ground for Relief
Gregory McKnight was denied his due process right and a fair trial,
in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments, when the trial court failed to take curative action after
his trial was disrupted during closing arguments of the trial phase.
Sixteenth Ground for Relief
Gregory McKnight was denied due process, a fair trial, and an
impartial jury when he was shackled in the courtroom in front of the
jury in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
Seventeenth Ground for Relief
Gregory McKnight was denied due process and a fair trial by the
trial court’s instructions that did not require unanimous jury verdicts
in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments
when the verdict was predicated on alternative theories of guilt.
Eighteenth Ground for Relief
Gregory McKnight’s right to due process, a fair trial, and an
11

impartial jury were denied under the Fifth, Sixth, Eighth, and
Fourteenth Amendments when the court instructed the jury on Ohio
Rev. Code § 2905.1(C) mitigating factor when McKnight did not
raise this affirmative defense.
Nineteenth Ground for Relief
Gregory McKnight was denied a fair trial, due process[,] and the
right to confront witnesses against him in violation of the Fifth,
Sixth, Eighth[,] and Fourteenth Amendments when he was excluded
from critical portions of his capital trial.
Twentieth Ground for Relief
Gregory McKnight was denied due process and a fair trial when the
State was permitted to convict upon a standard of proof below proof
beyond a reasonable doubt, in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments.
Twenty-First Ground for Relief
Gregory McKnight was denied due process, equal protection, and a
fair and reliable capital sentencing determination in violation of the
Fifth, Sixth, Eighth, and Fourteenth Amendments because the trial
court excluded victim impact evidence about the effect of a
homicide on the victim’s family, and relevant mitigating evidence.
Twenty-Second Ground for Relief
Gregory McKnight was denied due process and a fair trial by the
trial court’s instruction on an invalid aggravating circumstance that
is not authorized by Ohio’s capital sentencing statute, in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments.
Twenty-Third Ground for Relief
McKnight’s due process rights to a fair, reliable trial and sentencing
were violated when the trial court’s erroneous instructions to the
jury allowed the jury to determine what evidence was relevant for
consideration and weighing during the penalty phase, in violation of
his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the
United States Constitution.
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Twenty-Fourth Ground for Relief
Gregory McKnight was denied due process and [a] fair and reliable
sentencing determination when the trial court provided the jury with
verdict forms that served to mislead the jury as to its essential role
during penalty phase deliberations in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments.
Twenty-Fifth Ground for Relief
The trial court considered invalid aggravating circumstances in its
sentencing opinion and imposed death without an individualized
consideration of mitigating factors. Gregory McKnight was denied
a fair and reliable sentencing determination under the Fifth, Sixth,
Eighth, and Fourteenth Amendments.
Twenty-Sixth Ground for Relief
McKnight was denied the effective assistance of counsel during the
trial phase of his capital trial in violation of his Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments.
Twenty-Seventh Ground for Relief
McKnight’s due process, fair trial, and effective assistance of
counsel [rights] were denied by Counsel’s deficient performance
during the penalty phase in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments.
Twenty-Eighth Ground for Relief
McKnight was denied the effective assistance of counsel when
counsel failed to object to the trial court’s failure to instruct the jury
which trial phase evidence was relevant to the jury’s weighing
process at the penalty phase.
Twenty-Ninth Ground for Relief
Gregory McKnight was denied due process, a fair trial, a reliable
sentencing determination, and the effective assistance of counsel by
counsel’s failure to object to the trial court’s verdict forms to the
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jury that were materially inaccurate.
Thirtieth Ground for Relief
Gregory McKnight was denied due process, a fair trial, a reliable
sentencing determination, and the effective assistance of counsel by
counsel’s failure to object to the trial court’s flawed instructions
given during the trial and penalty phase[s] in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
Thirty-First Ground for Relief
Gregory McKnight was denied due process, a fair trial[,] and a
reliable sentencing determination by the misconduct of the
prosecutors during the trial and penalty phases under the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
Thirty-Second Ground for Relief
Gregory McKnight’s rights to a fair trial, due process, and a reliable
sentencing determination were denied under the Fifth, Sixth,
Eighth, and Fourteenth Amendments when members of his jury
engaged in misconduct by failing to follow the trial court’s
instructions of law.
Thirty-Third Ground for Relief
Gregory McKnight was denied the effective assistance of appellate
counsel on his sole appeal of right to the Supreme Court of Ohio
under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
Thirty-Fourth Ground for Relief
McKnight’s due process, equal protection, fair trial, and fair and
reliable sentencing determination rights were denied when he was
convicted of kidnaping and aggravated murder without legally
sufficient evidence, and contrary to the manifest weight of the
evidence under the Fifth, Sixth, Eighth, and Fourteenth
Amendments.

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Thirty-Fifth Ground for Relief
Gregory McKnight’s rights were violated when he was convicted
and sentenced to death under Ohio’s death penalty system which
fails to provide an adequate system of appellate and proportionality
review in death penalty cases in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments.
Thirty-Sixth Ground for Relief
When the aggravating circumstances do not outweigh the mitigating
factors, a sentence of death is inappropriate. Additionally, the
death sentence must be vacated where it is not proportionate to other
crimes.
Thirty-Seventh Ground for Relief
Gregory McKnight’s constitutional rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution were violated when he was convicted and sentenced to
death under Ohio’s unconstitutional death penalty scheme.
Thirty-Eighth Ground for Relief
The practice of execution by lethal injection violates Gregory
McKnight’s right to be free from cruel and unusual punishment
under the Eighth and Fourteenth Amendments to the United States
Constitution.
Thirty-Ninth Ground for Relief
Gregory McKnight was denied due process, Equal Protection, and a
fair and reliable trial and sentencing review by Ohio’s inadequate
state post-conviction process that fails to provide an adequate
remedy for McKnight to fully and fairly vindicate his federal
constitutional claims in the state courts under principles of comity
and federalism, under the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
Fortieth Ground for Relief
The cumulative effects of the errors and omissions set forth in the
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preceding claims for relief prejudiced McKnight and deprived him
of his right [to] due process, a fair trial[,] and [a] reliable sentencing
determination in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
Forty-First Ground for Relief
Gregory McKnight’s execution will violate the Eighth Amendment
because Ohio’s lethal injection protocol will result in cruel and
unusual punishment.
Forty-Second Ground for Relief
Gregory McKnight’s execution will violate the Fourteenth
Amendment because Ohio’s lethal injection protocol will deprive
him of equal protection of the law.
(ECF No. 127.)

Analysis

Since McKnight filed his petition well after the effective date of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“the AEDPA”), the amendments to 28 U.S.C. § 2254
embodied in that Act are applicable to this case. The Supreme Court has elaborated on the
standard of review of state court decisions on constitutional claims later raised in federal habeas
corpus as follows:
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, a federal court may grant habeas relief
only when a state court’s decision on the merits was “contrary to, or
involved an unreasonable application of, clearly established Federal
law, as determined by” decisions from this Court, or was “based on
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). .
..

16

[The] AEDPA’s standard is intentionally “difficult to meet.”
White v. Woodall, 572 U.S. [415], [419], 134 (2014) (quoting
Metrish v. Lancaster 569 U.S. [351], [358] (2013)). We have
explained that “clearly established Federal law” for purposes of §
2254(d)(1) includes only the holdings, as opposed to the dicta, of
this Court’s decisions. White, 572 U.S., at [419] (some internal
quotation marks omitted). “And an ‘unreasonable application of’
those holdings must be objectively unreasonable, not merely wrong;
even clear error will not suffice.” Id., at [419] (same). To satisfy
this high bar, a habeas petitioner is required to “show that the state
court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
[sic] disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011).
Adherence to these principles serves important interests of
federalism and comity. [The] AEDPA’s requirements reflect a
“presumption that state courts know and follow the law.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). When
reviewing state criminal convictions on collateral review, federal
judges are required to afford state courts due respect by overturning
their decisions only when there could be no reasonable dispute that
they were wrong. Federal habeas review thus exists as “a guard
against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.”
Harrington, supra, at 102-103 (internal quotation marks omitted).
Woods v. Donald, 575 U.S. 312, 316-17 (2015)(per curiam)(some internal quotation marks and
parallel citations omitted). “The question under [the] AEDPA is not whether a federal court
believes the state court’s determination was incorrect[,] but whether that determination was
unreasonable – a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473
(2007), citing Williams v. Taylor, 529 U.S. 362, 410 (2000). The presumption of correctness due
a state court’s factual findings can be rebutted only by clear and convincing evidence, 28 U.S.C. §
2254(e)(1), and that evidence must be found within the state court record. Schriro, supra, at

17

473-74; Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011); Bray v. Andrews, 640 F.3d 731, 737
(6th Cir. 2011); 28 U.S.C. § 2254(d)(2).
In addition, the United States Court of Appeals for the Sixth Circuit has stated, “federal
courts need not review every point of error raised by a habeas petitioner.” Hoffner v. Bradshaw,
622 F.3d 487, 495 (6th Cir. 2010). The appellate court went on to explain:
When a “state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice . . . or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501
U.S. 722, 750 (1991). In this circuit, to determine whether a
federal claim has been procedurally defaulted, we apply the
three-prong test initially laid out in Maupin v. Smith, 785 F.2d 135
(6th Cir. 1986):
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 . . . .
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 . . . .
Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin,
785 F.2d at 138). If the state procedural rule was not complied with
and that rule was an “adequate and independent” ground for default,
we may still excuse the default if the petitioner can demonstrate
“that there was ‘cause’ for him not to follow the procedural rule and
that he was actually prejudiced by the alleged constitutional error.”
Maupin, 785 F.2d at 138.
Hoffner, 622 F.3d at 495 (parallel citations omitted). It is with these principles in mind that this
Court considers McKnight’s forty-four grounds for relief.
18

First Ground for Relief
In his first ground for relief, McKnight contends that the warrant issued authorizing law
enforcement to search his trailer in Ray, Ohio, was based upon information known to the averring
officer Boyer to be false. (Petition, ECF No. 127, PageID 15668-75.) Respondent counters that
the claim is not cognizable in habeas corpus, is procedurally defaulted, and is meritless. (ROW,
ECF No. 13, PageID 335-45.)

McKnight insists that each of Respondent’s arguments is

incorrect. (Traverse, ECF No. 17, PageID 625-36.)
The record shows that McKnight initially moved for suppression of the evidence seized at
his trailer in Ray on the ground that the accompanying affidavit did not contain facts establishing
probable cause to search the trailer and grounds. (Appendix, ECF No. 106-1, PageID 7863-67.)
The trial court held a hearing on the motion in 2001 at which Boyer testified (Trial Tr., ECF No.
105-1, PageID 3154-3220), and subsequently denied McKnight’s motion (Entry, ECF No. 106-3,
PageID 8047). McKnight’s attorneys noticed a discrepancy between Boyer’s testimony at the
hearing and his affidavit supporting the request for a warrant to search McKnight’s trailer and
premises. They supplemented the motion to suppress with that information, contending that in
his affidavit, Boyer stated he had spoken to Knox County Sheriff’s Office regarding the Subaru
Outback found parked behind McKnight’s trailer, but that it was Vinton County Sheriff’s Deputy
Matthew Kight who actually spoke with the Sheriff’s dispatcher. (Appendix, ECF No. 106-3,
PageID 8041-44.) McKnight sought a hearing on his supplement to his motion to suppress,
invoking Franks v. Delaware, 438 U.S. 154 (1978). In that case, the Supreme Court held as

19

follows:
Where the defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request.
Franks, 438 U.S. at 155-56. The trial court denied McKnight’s request for a hearing, but allowed
his attorneys and the prosecutor to present their arguments with regard to the supplemented motion
to suppress; then the court orally denied the motion, finding that McKnight failed to show that
Boyer’s statement in the affidavit was either false or made with reckless disregard for the truth.
(Trial Tr., ECF No. 105-1, PageID 3250-55; see also Entry, ECF No. 106-8, PageID 8511.) The
court explicitly found that not to be the case, in fact. Id. at 3255.
McKnight appealed the trial court’s decision on Fourth Amendment grounds in his fifth
proposition of law on direct appeal to the Supreme Court of Ohio. (Appellate Brief, ECF No.
106-14, PageID 9489-96.) The court found that: (1) after Emily Murray’s car was found behind
McKnight’s trailer, there was a fair probability that evidence of a crime would be found on
McKnight’s property, thus providing probable cause to search the trailer and grounds for evidence
of Emily’s possible kidnapping and abduction; (2) Boyer did not state that he himself spoke with
the Knox County Sheriff’s Office, but instead that he “obtained confirmation” from that office that
Emily’s car was missing and had been since she had last been seen, which did not necessarily
imply he himself spoke with Knox County officials; and (3) McKnight’s claim that Boyer
untruthfully stated he had seen the Subaru behind the trailer and verified its ownership was not
borne out by the record, thereby disentitling McKnight to the process provided for by Franks.
20

State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶¶ 30-42. McKnight’s proposition of
law was consequently denied (id.), as was his request for reconsideration. State v. McKnight, 108
Ohio St. 3d 1418, 2006-Ohio-179. The United States Supreme Court declined McKnight’s
request for a writ of certiorari. McKnight v. Ohio, 548 U.S. 912 (2006).
McKnight also pursued his Fourth Amendment claim regarding Boyer’s affidavit in his
post-conviction proceedings, presenting it as his eighth claim for relief in his petition.
(Appendix, ECF No. 107-8, PageID 10494-96.) The post-conviction court found the claim barred
by the doctrine of res judicata since it was considered and rejected by the Supreme Court of Ohio
on direct appeal.

(Appendix, ECF No. 108-12, PageID 11875-76.)

The court of appeals

affirmed that decision, but also noted that even if the claim were not procedurally barred, it lacked
merit because assuming the allegedly false information were eliminated from Boyer’s affidavit,
the affidavit still established probable cause to search McKnight’s trailer and surrounding
property. State v. McKnight, No. 07CA665, 2008-Ohio-2435, ¶¶ 61-65 (Ohio App. 4th Dist. May
19, 2008). McKnight’s appeal to the Supreme Court of Ohio was not accepted for review. State
v. McKnight, 119 Ohio St. 3d 1487, 2008-Ohio-5273.
Despite McKnight’s having presented his claim in both direct appeal and post-conviction,
he maintains that in neither proceeding was his claim given “full and fair consideration” for lack of
a Franks hearing at trial which would have provided the trial and appellate courts with evidence
essential to resolution of the claim. If his claim is not cognizable in habeas corpus or is
procedurally defaulted as Respondent argues, there will be no reason for this Court to address its
merits. Thus, the Court will consider Respondent’s procedural defenses first.

21

Cognizability Argument
Regarding Fourth Amendment claims pleaded in habeas corpus, the Sixth Circuit has held:
Stone v. Powell in the main prohibits federal habeas corpus review
of a state prisoner’s Fourth Amendment claim. 428 U.S. 465, 486
(1976). Two explanations supported the decision. One, the key
purpose of federal habeas corpus is to free innocent prisoners. But
whether an investigation violated the Fourth Amendment has no
bearing on whether the defendant is guilty. Id. at 490. Two,
exclusion is a prudential deterrent prescribed by the courts, not a
personal right guaranteed by the Constitution. Any deterrence
produced by an additional layer of habeas review is small, but the
cost of undoing the final convictions is great. Id. at 493.
Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013)(parallel citations omitted). See United States
v. Calandra, 414 U.S. 338, 348 (1974); Mapp v. Ohio, 367 U.S. 643, 654-55 (1961). Powell
provides an exception for petitioners who were denied the “opportunity for full and fair
consideration” of their claims in state court, however. 428 U.S. at 486. McKnight argues he was
denied that opportunity.
Respondent contends that under Powell, McKnight’s Fourth Amendment claim is not
cognizable in habeas corpus. (ROW, ECF No. 13, PageID 335-37.) McKnight argues that the
Sixth Circuit Court of Appeals has indicated that federal habeas relief is warranted where the state
court commits “‘an egregious error in the application of the [F]ourth [A]mendment claim,’” and
asserts that the trial court’s failure to provide him with a Franks hearing was just such an error.
(Traverse, ECF No. 17, PageID 626, quoting Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982).) In
Riley, however, the Sixth Circuit observed that at least some level of review of the merits of a
Fourth Amendment claim would be required to determine if there was egregious error in the state
22

court’s decision, and acknowledged that approach as one used in the Tenth Circuit in Gamble v.
Oklahoma, 583 F.2d 1161 (10th Cir. 1978). Riley, 674 F.2d at 525. In rejecting that court’s
approach, the Sixth Circuit stated:
We believe that a limited inquiry into the correctness of state court
decisions, occurring as a matter of course in the district courts,
would be inconsistent with Stone [v. Powell]. Id. at 493 n.35. The
language of Gamble, however, entails an examination of each state
decision which precipitates a habeas petition. This case by case
review is inconsistent with Stone’s assumption that state courts are
as capable of deciding [F]ourth [A]mendment issues as federal
courts. When a petitioner alleges egregious error in the application
of [F]ourth [A]mendment principles, of a magnitude and nature
similar to the state court error present in Gamble, however, a federal
habeas court might be justified in concluding that an opportunity for
a full and fair hearing had not been afforded the petitioner.
Riley, 674 F.2d at 526. Thus, McKnight attributes a position to the Sixth Circuit it did not
unequivocally take. Subsequently, the appellate court has clarified that “[t]his court in Riley
declined to adopt that portion of Gamble permitting federal review of egregious substantive errors
committed by state courts on Fourth Amendment claims.” Gilbert v. Parke, 763 F.2d 821, 824
(6th Cir. 1985), citing Riley, 674 F.2d at 525-26.
McKnight acknowledges that the Sixth Circuit has directed district courts in habeas cases
raising Fourth Amendment claims to (1) “determine whether the state procedural mechanism, in
the abstract, presents the opportunity to raise a [F]ourth [A]mendment claim,” and (2) “whether
presentation of the claim was in fact frustrated because of a failure of that mechanism.” Riley,
674 F.2d at 526. That court has found the mechanism provided by the State of Ohio to be “clearly
adequate,” allowing pretrial motions to suppress illegally seized evidence, and direct appeal of
right should the motion to suppress be unsuccessful, Riley, 674 F.2d at 526. McKnight does not
23

take issue with the process itself. Instead, he contends the presentation of his claim in the state
trial court was frustrated because he was denied the opportunity to present evidence of the alleged
falsehoods in Boyer’s affidavit. (Traverse, ECF No. 17, PageID 635.)
McKnight’s argument, however, appears to rest upon a misapprehension of the Supreme
Court’s Franks decision. He argues that he should have been permitted to present witness
testimony in order to demonstrate that Boyer intentionally made false statements in his affidavit, or
that his statements were made with a reckless disregard for the truth. But Franks holds that only
where (1) “the defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit” and (2) that the “allegedly false statement is necessary to the finding of
probable cause,” does the Fourth Amendment require a hearing on the matter at the defendant’s
request. Franks, 438 U.S. at 155-56 (emphasis added). In McKnight’s case, both the trial court
and the state court of appeals found that McKnight had not made the showing necessary to entitle
him to a Franks hearing. The court of appeals went further, in fact, and found that McKnight’s
basic premise, that Boyer’s affidavit contained false statements, was incorrect. (Trial Tr., ECF
No. 105-1, PageID 3250-55; see also Entry, ECF No. 106-8, PageID 8511.) See United States v.
Doyle, 650 F.3d 460, 469 (4th Cir. 2011) (finding that “the information provided [in the search
warrant affidavit], though perhaps misleading by virtue of sentence construction, was not
technically false”). In post-conviction, the court of appeals indicated probable cause to search
McKnight’s trailer and premises was present even without Boyer’s allegedly false statements in
his affidavit.

McKnight, 2008-Ohio-2435, ¶ 63.

24

Thus, the state courts determined that

McKnight failed to meet either of Franks’ two requirements and that he was consequently not
entitled to a second suppression hearing. See Rugendorf v. United States, 376 U.S. 528, 532
(1964) (stating, “The factual inaccuracies depended upon by petitioner to destroy probable
cause . . . were of only peripheral relevancy to the showing of probable cause.”).
Given the “clearly adequate” process afforded defendants who wish to challenge the
propriety of a search warrant or the veracity of an accompanying affidavit, and McKnight’s failure
to make a “substantial preliminary showing” that Boyer intentionally or with reckless disregard for
the truth included false information in his affidavit, McKnight’s first ground for relief is not
cognizable in habeas corpus under Stone v. Powell, 428 U.S. 465, 486 (1976).

Procedural Default Argument

Even if McKnight’s claim were cognizable in these proceedings, however, he has
procedurally defaulted part of his claim. Respondent asserts that in his state court proceedings,
McKnight presented his claim as a Fourth Amendment violation, and that the portion of his claim
in habeas that expands to include violations of the Fifth, Sixth, Eighth, and Fourteenth
Amendments is procedurally defaulted. (ROW, ECF No. 13, PageID 337-38.) McKnight
counters that his claims in the state courts and his claim here are substantially equivalent and that
the state court had notice and an opportunity to rule on the expanded federal constitutional claim,
citing Arrowood v. Clusen, 732 F.2d 1364, 1367-68 (7th Cir. 1984). Arrowood, however, is
distinguishable from McKnight’s situation. There, the state court was presented with two claims

25

it eventually determined it could not reach due to an insufficient record. Id. The federal court
reviewed the record and found that the record provided a sufficient basis upon which the court
could review both claims. Id. at 1368. Here, McKnight did not present his claim in the state
court as one implicating the Fifth, Sixth, Eighth, or Fourteenth Amendment. Even though some
of the facts he recited in his Fourth Amendment claim in the state court could conceivably be the
same ones that would be included in arguments relating to the Fifth, Sixth, Eighth, and Fourteenth
Amendments, that alone does not suffice to put the state court on notice that his claim involved
more amendments than the one explicitly stated in McKnight’s argument.
There are occasions when a state court defendant will have made claims in the state courts
which, while not explicitly invoking the United States Constitution, in fact fairly place before the
state courts the factual and legal substance of a claim or claims later made in habeas corpus. In
Franklin v. Rose, 811 F.2d 322 (6th Cir. 1987), the Sixth Circuit cited with approval the Second
Circuit’s analysis in Daye v. Attorney General, 696 F.2d 186 (2nd Cir. 1982), after remand, 712
F.2d 1566 (2nd Cir. 1983):
[T]he ways in which a state defendant may fairly present to the state
courts the constitutional nature of his claim, even without citing
chapter and verse of the Constitution, include (a) reliance on
pertinent federal cases employing constitutional analysis, (b)
reliance on state cases employing constitutional analysis in like
factual situations, (c) assertion of the claim in terms so particular as
to call to mind a specific right protected by the Constitution, and (d)
allegation of a pattern of facts well within the mainstream of
constitutional litigation.
Franklin, 811 F.2d at 326, quoting Daye v. Attorney General of State of New York, 696 F.2d at
192-94; accord, Whiting v. Birt, 395 F.3d 602 (6th Cir. 2005); McMeans v. Brigano, 228 F.3d 674,
26

681 (6th Cir. 2000). In reviewing McKnight’s argument on direct appeal in the Supreme Court of
Ohio, this Court reaches a conclusion opposite to the one McKnight urges: nothing in his
argument to the state court indicated McKnight intended his proposition of law to include
violations of the Fifth, Sixth, Eighth, or Fourteenth Amendment in his challenge to the search
warrant and the veracity of Boyer’s affidavit. The federal cases mentioned in his argument
concerned Fourth Amendment challenges to search warrants as did the state cases McKnight sited
in his brief. (Appellate Brief, ECF No. 106-14, PageID 9489-96.) Nothing in his argument
called to mind any specific right protected by the Fifth, Sixth, or Eighth Amendment, and the facts
alleged did not fall well within the mainstream of litigation relating to those amendments.
Accordingly, to the extent McKnight contends in his first ground for relief that his Fifth, Sixth, and
Eighth Amendment rights were violated, his claim is procedurally defaulted. McKnight does not
allege that his default is excused by his trial and appellate counsel’s ineffectiveness.
Implicit in his argument to the state court, however, was an assumption that a Fourth
Amendment claim concerning state action implicates the Fourteenth Amendment.

Perhaps

McKnight believed this fact was so obvious that it need not be explicitly stated in his argument.
In any case, the Fourth Amendment is applicable to the states via the Fourteenth Amendment’s
doctrine of incorporation. Mapp v. Ohio, 367 U.S. 643 (1961). McKnight’s argument that the
state authorities and trial court were required to respect his Fourth Amendment rights is well
within the mainstream of constitutional litigation of Fourth and Fourteenth Amendment matters.
Thus, this Court agrees with McKnight that to the extent his claim in the state court inferentially
relied upon the Fourteenth Amendment’s incorporation of the Fourth Amendment’s protections,

27

the Fourteenth Amendment claim was presented to the state court. It is therefore preserved for
habeas corpus review.

That does not overcome the problem of cognizability of Fourth

Amendment claims in habeas corpus discussed above, however.
In his Traverse, McKnight also argues that the search warrant authorized a search of 36070
Clark Road rather than his property located at 36037 Clark Road. (Traverse, ECF No. 17, PageID
634.) McKnight did not bring the issue to the trial court’s attention at the suppression hearing or
during the subsequent oral arguments in which McKnight sought a Franks hearing, (Trial Tr., ECF
No. 105-1, PageID 3154-220; 3249-55), nor was it argued before the state supreme court where he
took his challenge to the search warrant on direct appeal (Appellate Brief, ECF No. 106-14,
PageID 9489-96). The discrepancy was not argued in his habeas petition in these proceedings
either. (ECF No. 127, PageID 15668-75). A district court may decline to review a claim a
petitioner raises for the first time in his Traverse or reply. Jalowiec v. Bradshaw, 657 F.3d 293
(6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). In addition, McKnight
procedurally defaulted this portion of his claim by failing to present it to the state trial and
appellate courts.

Merits

Even if McKnight’s claim were cognizable in habeas corpus and fully preserved, however,
it would fail. The state supreme court found that Boyer checked the vehicle identification number
and license plate number of the Subaru found behind McKnight’s trailer and verified that it was

28

registered to Emily Murray’s mother, which does not contradict Boyer’s statement in his affidavit
that he saw the Subaru and verified its ownership. McKnight, 2005-Ohio-6046, ¶ 36. The court
also found that in his affidavit, Boyer did not state that he had personally contacted Knox County
officials, as McKnight claims, and that in any event, police officers are permitted to rely on
information relayed to them from other officers.

Id. at ¶ 37.

The court further rejected

McKnight’s contention that probable cause to search McKnight’s trailer and property was absent
when the police officers found the car Emily was known to have been using hidden behind
McKnight’s trailer more than a month after she had last been seen alive. The court explained that
“[p]robable cause to search does not require proof that a crime was actually committed, merely the
fair probability that evidence of a crime will be found at the location described.” Id. at ¶ 41, citing
State v. George, 45 Ohio St. 3d 325 (1989) (paragraph one of the syllabus), citing Illinois v. Gates,
462 U.S. 213, 238-239 (1983). Based on the facts that Emily had been missing for some time,
that her car had not been seen since she went missing, and that the car was found in a remote area
of Vinton County far from where Emily lived and worked, the state court concluded that there was
a fair probability that evidence of a kidnapping or abduction would be found in or around
McKnight’s trailer. McKnight, 2005-Ohio-6046, ¶ 41.
In his petition, McKnight argues that Boyer did not personally perform the acts he claimed
to have performed in his affidavit, that Boyer admitted he was the one who determined which
crimes to include in the “provisions of law” section of the warrant request, and that Boyer
knowingly and intentionally and with reckless disregard for the truth misled the issuing judge to
obtain a search warrant for McKnight’s property. (Petition, ECF No. 127, PageID 15674.) But

29

he does not explain how the state court’s rejection of those same arguments is contrary to or an
unreasonable application of clearly established federal law as determined by the United States
Supreme Court, nor does he explain how the factual determinations of the state court were
unreasonable in light of the evidence before the court at the time. Instead, he simply states that
the court’s decision does both. That simply does not meet the burden imposed on him by the
AEDPA.

Conclusion

McKnight’s first ground for relief claiming a violation of his Fourth Amendment rights is
not cognizable in habeas corpus. Furthermore, his claim that he was convicted with evidence that
was illegally seized in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights was
procedurally defaulted by his failure to present that claim to the state court. Were this Court able
to reach the merits of his first ground for relief, it would find it to be unavailing. Accordingly,
McKnight’s first ground for relief should be denied.

Second Ground for Relief
In his second ground for relief, McKnight alleges he was deprived of a fair trial in violation
of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because his request for a change of
venue due to extensive pretrial media coverage of the discovery of two bodies on his property was
denied. (Petition, ECF No. 127, PageID 15675-84.) He also argues that he was deprived of an

30

opportunity to demonstrate the pervasive prejudice in the community that was in part a result of the
pretrial media coverage of the murders. Id. Respondent contends McKnight’s claim is partially
procedurally defaulted and wholly meritless. (ROW, ECF No. 13, PageID 346-57.) McKnight
counters that he presented a “substantially equivalent” claim to the state court, and that the state
court relied on the same United States Supreme Court cases as he did in his presentation of the
claim to that court 3 (Traverse, ECF No. 17, PageID 637-51), presumably to establish fair
presentation of his entire claim to the state court and that court’s decision on the merits.

Pretrial Publicity

McKnight did indeed present a claim on direct appeal challenging the trial court’s failure to
grant him a change of venue and funds for expert assistance in conducting a scientific jury survey
(ECF No. 106-14, PageID 9506-11; ECF No. 106-15, PageID 9512-15), but he alleged violations
only of his Sixth and Fourteenth Amendment rights (ECF No. 106-14, PageID 9506; ECF No.
106-15, Page ID 9515). Thus, McKnight did not claim a Fifth Amendment violation when he
presented his claim to the state supreme court. His omission makes no difference, however,
because an analysis of a due process claim under that Amendment would have the same result as
one under the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 26 (1964) (stating
“‘[d]ue process of law is secured against invasion by the federal Government by the Fifth

3
With the exception of Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554-555 (1976), the Supreme Court of Ohio
cited no federal law in its discussion of McKnight’s eighth proposition of law on direct appeal. McKnight,
2005-Ohio- 6046 ¶¶ 58-67.

31

Amendment and is safeguarded against state action in identical words by the Fourteenth,’” quoting
Betts v. Brady, 316 U.S. 455, 462 (1942), overruled on other grounds by Gideon v. Wainwright,
372 U.S. 335 (1963); Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring)
(observing that “[t]o suppose that ‘due process of law’ meant one thing in the Fifth Amendment
and another in the Fourteenth is too frivolous to require elaborate rejection.”); United States v.
Johnson, 703 F.3d 464, 469 n.4 (8th Cir. 2013) (quoting Malinski, 324 U.S. at 415); United States
v. Neto, 659 F.3d 194, 201 n.7 (1st Cir. 2011) (same).
During the pretrial proceedings of McKnight’s case, trial counsel filed a motion for a
change of venue on July 2, 2002. 4 (ECF No. 106-1, PageID 7662.) On direct appeal, the
Supreme Court of Ohio found the claim, in which McKnight did not mention the racial bias of the
community, or the racial makeup of his jury, meritless:
{¶ 59} 1. Change of venue. Extensive pretrial publicity
surrounded appellant’s case on television and in the newspapers.
National media focused on the case after the judge dismissed the
capital specifications because of financial considerations and later
reinstated them.
{¶ 60} A motion for change of venue is governed by Crim.R.
18(B), which provides that “the court may transfer an action * * *
when it appears that a fair and impartial trial cannot be held in the
court in which the action is pending.” Crim.R. 18(B) does not
require a change of venue merely because of extensive pretrial
publicity. The decision whether to change venue rests in the sound

4

Despite the Court’s having no duty to search the record for support for or against party’s arguments, significant time
has been spent doing just that, especially with respect to the motion for a change of venue. The law clerk assisting on
this case, having found no documents in the appendix that were filed at any time in July 2002, skimmed through all the
pretrial motions, to no avail. In fact, the appendix contains no documents filed in McKnight’s case from May 31,
2002, to August 15,2002. See ECF No. 106-5, PageID 8462; ECF 106-6, PageID 8463.) The Court also notes that
McKnight has not provided a citation to the ECF number and PageID number at which the motion for a change of
venue might be found, as is required by S. D. Ohio Civ. R. 7.2(B)(5).

32

discretion of the trial court. State v. Landrum (1990), 53 Ohio
St.3d 107, 116.
{¶ 61} We have stated that “’a careful and searching voir dire
provides the best test of whether prejudicial pretrial publicity has
prevented obtaining a fair and impartial jury from the locality.’”
Id. at 117, quoting State v. Bayless (1976), 48 Ohio St.2d 73, 98. A
defendant claiming that pretrial publicity has denied him a fair trial
must show that one or more jurors were actually biased. State v.
Treesh (2001), 90 Ohio St.3d 460, 464. “Only in rare cases may
prejudice be presumed.” Id.; see, also, State v. Lundgren (1995),
73 Ohio St.3d 474, 479; Press Assn. v. Stuart (1976), 427 U.S. 539,
554-555.
{¶ 62} Our review of the voir dire examination does not support
appellant’s claim of prejudicial pretrial publicity. During voir dire,
each seated juror was individually questioned about pretrial
publicity. Although all of the jurors had some knowledge about the
case, seven of the jurors had formed no opinion about it. Four
other jurors were not asked whether they had formed an opinion
about the case, but they agreed to disregard anything that they had
heard outside the court. The remaining juror stated that he had
“[n]ot really formed an opinion, but it leans toward that.” Further
questioning showed that this juror knew few details about the case.
Finally, all 12 of the jurors agreed to set aside anything they had
heard and decide the case solely upon the evidence presented in
court.
...
{¶ 64} Appellant has not shown that any juror was biased. Under
these circumstances, we find that the trial court did not abuse its
discretion by refusing to change venue.
{¶ 65} 2. Scientific jury survey. The state must provide an
indigent criminal defendant with funds to obtain expert assistance
“only where the trial court finds, in the exercise of a sound
discretion, that the defendant has made a particularized showing (1)
of a reasonable probability that the requested expert would aid in his
defense, and (2) that denial of the requested expert assistance would
result in an unfair trial.” State v. Mason (1998), 82 Ohio St.3d 144,
syllabus.
33

{¶ 66} In his motion for an expert to conduct a scientific jury
survey, appellant asserted that a “scientific survey [was] necessary
to prove the obvious that because of the publicity a fair trial cannot
be had within Vinton County.” Such a generalized assertion does
not qualify as the “particularized showing required by Mason, 82
Ohio St.3d 144, syllabus. Furthermore, comprehensive voir dire
examination of the seated jurors about pretrial publicity negated any
need for a scientific jury survey of public opinion within Vinton
County. Thus, we find that appellant has failed to demonstrate that
denial of the requested expert denied him a fair trial. See Mason,
82 Ohio St.3d at 152 (services of a mass-media expert unnecessary);
Landrum, 53 Ohio St.3d at 117 (psychologist for jury selection
unnecessary; State v. Jenkins (1984), 15 Ohio St.3d 164, 193
(sociologist to assist voir dire unnecessary).
{¶ 67} Based on the foregoing, we find that proposition VIII has
no merit.
McKnight, 2005-Ohio-6046.
McKnight fails to demonstrate that the state supreme court’s rejection of his eighth
proposition of law on direct appeal was in any way contrary to or an unreasonable application of
federal law as determined by the Supreme Court or based on an unreasonable determination of the
facts that were before the trial court. See 28 U.S.C. § 2254(d). Instead, he repeats or restates the
arguments he presented to the state supreme court as if his case in this Court were merely a redo of
his direct appeal. Such is not the case.
In his presentation of his claim to the post-conviction court, McKnight alleged his claim in
two pages and in very general terms, relying on general statements of law as to accepted reasons
for a change of venue and the protections such a change is intended to provide for a fair trial. He
appended a substantial number of newspaper articles about the murders, his life, the lives of his
victims, the trial judge’s initial dismissal of the aggravating circumstances making McKnight
34

eligible for the death penalty, and his subsequent reinstatement of the same. (ECF No. 107-8,
PageID 10502-03; ECF No. 107-9, PageID 10504-14; ECF No. 107-10, PageID 10515-26; ECF
No. 107-11, PageID 10527-36; ECF No. 107-12, PageID 10537-46; ECF No. 107-13, PageID
10547-56; ECF No. 107-14, PageID 10557-67; ECF No. 107-15, PageID 10568-10579; ECF No.
107-16, PageID 10580-85.) The newspaper articles, however, cannot stand in for actual and
specific argument in any court. The fact that the murders were covered by local, state, and in the
case of the trial court’s dismissal and reinstatement of the capital specifications, national news
media does not mean that McKnight’s trial was ipso facto unfair.
The Supreme Court has stated:
It is not required, however, that the jurors be totally ignorant of the
facts and issues involved. In these days of swift, widespread and
diverse methods of communication, an important case can be
expected to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will not have
formed some impression or opinion as to the merits of the case.
This is particularly true in criminal cases. To hold that the mere
existence of any preconceived notion as to the guilt or innocence of
an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence presented in
court. Spies v. People of State of Illinois, 123 U.S. 131; Holt v.
United States, 218 U.S. 245.
Irvin v. Dowd, 366 U.S. 717, 722–23 (1961). The Supreme Court has also stated that widespread
and inflammatory publicity that has highly biased the community can make a change of venue
constitutionally required. Irvin, 366 U.S. at 720. As the state court pointed out, McKnight’s
jurors were questioned about any pretrial publicity they had been exposed to during voir dire, and
all twelve of the jurors had “agreed to set aside anything that they had heard and decide the case
35

solely upon the evidence presented in court.” McKnight, 2005-Ohio-6046 at ¶ 62. McKnight
has not demonstrated that any of his jurors failed to do just that. Furthermore, the media coverage
in McKnight’s case bears little resemblance to the “carnival atmosphere” present in Sheppard v.
Maxwell, 384 U.S. 333, 358 (1966), which is described at length in the Court’s opinion, id. at
338-349. The Supreme Court has recognized that “most cases of consequence garner at least
some pretrial publicity,” and that “[a] presumption of prejudice . . . attends only the extreme case.”
Skilling v. United States, 561 U.S. 358, 379, 381 (2010). There have been such extreme cases
occasionally.

See Sheppard, supra; Estes v. Texas, 381 U.S. 532, 538 (1965)(reversing

conviction where “extensive publicity before trial swelled into excessive exposure during
preliminary court proceedings as reporters and television crews overran the courtroom and
‘bombard[ed] . . . the community with the sights and sounds of’ the pretrial hearing. The media's
overzealous reporting efforts . . . ‘led to considerable disruption’ and denied the ‘judicial serenity
and calm to which [Estes] was entitled.’ Id., at 536; Rideau v. Louisiana, 373 U.S. 723
(1963)(reversing conviction based on repeated pretrial television broadcast of defendant’s
confession). The pretrial publicity in McKnight’s case bears little resemblance to the extreme
publicity of those cases.

Racial Composition of Vinton County Population

In his post-conviction proceedings, McKnight raised a claim of ineffective assistance of
trial counsel based on their failure to include in the motion for a change of venue arguments

36

alleging racial bias in the county, the jury venire, and the jury. (ECF No. 108-5, PageID
10952-54.) He supported the claim with documents from the 2000 United States Census and
depositions from his trial counsel evidencing their knowledge that Vinton County was almost
exclusively Caucasian. Id. In denying that proposition of law, the Ohio Court of Appeals for the
Fourth District reasoned as follows:
{¶ 89} In his fourteenth claim for relief, McKnight contends that
the trial counsel rendered ineffective assistance by failing to argue
for a change of venue based upon race. He asserts that he could not
receive a fair trial in an overwhelmingly white community.
{¶ 90} We again find that res judicata bars McKnight’s fourteenth
claim for relief. McKnight does not offer any evidence that was
unavailable for him to use on direct appeal. He cites statistical
evidence and testimony from the voir dire transcript to support this
claim. Both items were available for him to use on direct appeal.
{¶ 91} Additionally, McKnight’s claim lacks substantive merit.
In State v. Elmore, Licking App. No. 2005-CA-32,
2005-Ohio-5940, the court considered and rejected a similar
argument. In that case, the defendant, like McKnight, argued that
trial counsel rendered ineffective assistance of counsel by failing to
request a change of venue due to the lack of African-Americans in
the available jury pool. In rejecting this argument, the court
explained:
“As previously noted[,] appellant failed to present evidence
outside of the record to * * * indicate deliberate exclusion of
‘distinctive groups’ of the jury venire or jury panel involved.
The statistical data and juror questionnaires do nothing to
demonstrate intentional, systematic exclusion of minorities
in the jury-selection process.
Moreover, each impaneled juror confirmed that he or she
had not formed an opinion about the guilt or innocence of
the accused, or could put aside any opinion, and that he or
she could render a fair and impartial verdict based on the law

37

and evidence. State v. Treeesh (2001), 90 Ohio St.3d 460,
464.”
Id. at ¶¶ 69-70; see, also, State v. Braswell, Miami App. No. 2001
CA22, 2002-Ohio044368, at ¶ 8 (rejecting argument that trial court
should have changed venue based upon racial composition when
defendant failed to present evidence that the venire did not represent
a fair cross section of the community or that any of the jurors who
did serve was unable to render an impartial verdict); State v. Jones
(2001), 91 Ohio St.3d 335, 341, (concluding that trial court did not
err by denying defendant’s motion to change venue based upon
racial composition of county when defendant failed to show that
jury venire failed to represent fair cross-section of the community).
{¶ 92} Similarly, here, McKnight failed to show that the jury
venire failed to contain a representative cross-section of the
community or that any of the seated jurors were unable to render an
impartial verdict.
{¶ 93} Accordingly, we find that the trial court did not abuse its
discretion by dismissing [McKnight’s] fourteenth claim for relief.
McKnight, 2008-Ohio-24335.
Taking the state court’s res judicata basis for denying McKnight’s claim first, it is apparent
that the doctrine was misapplied.

The state court suggested that all of the demographic

information was available to McKnight on direct appeal, but since trial counsel had submitted
none of it during trial, the appellate court could not consider it on direct appeal. Ohio Appellate
Rule 16(A)(3) states, “A statement of the assignments of error presented for review, with reference
to the place in the record where each error is reflected.” (Emphasis added.) Appellate counsel
could hardly have referenced the place in the record where the demographic evidence was
reflected since trial counsel never broached the subject of a change of venue based on the racial
makeup of Vinton County. Whether that omission constitutes ineffective assistance of trial

38

counsel is discussed infra, but for now it is clear that the state appellate court misapplied its
doctrine of res judicata in response to McKnight’s fourteenth proposition of law in his
post-conviction proceedings.
The state court also found the claim meritless, however. McKnight has also alleged in his
twenty-sixth ground for relief, infra, that his trial counsel were ineffective for failing to move for a
change of venue on the basis of the racial composition of Vinton County. There, this Court
concludes that the claim underlying that ground for relief is without merit and that his trial counsel
were not ineffective for failing to request a change of venue based on the racial makeup of the
county. For the same reasons stated therein, the trial court violated no federal constitutional right
McKnight had to a fair trial or due process.
Accordingly, McKnight’s second ground for relief should be denied.

Third Ground for Relief

McKnight’s third ground for relief is essentially a continuation of that part of his second
ground in which he asserts that the trial court should have sua sponte ordered a change of venue
based on the racial makeup of Vinton County and the racial animus expressed by some prospective
jurors and on the internet about his case. (ECF No. 127, PageID 15684-88.) But voir dire was
conducted individually, so none of McKnight’s actual jurors heard the potentially prejudicial
statements by any prospective jurors. In addition, although McKnight was tried before an
all-white jury, the racial makeup of the venire and the jury accurately reflected that of the

39

community in Vinton County where McKnight committed the murders. Finally, there is no
evidence whatsoever that any juror saw the despicable racist posts McKnight refers to in his
argument. For the reasons stated in this Court’s discussion of McKnight’s second ground for
relief, and here, his third ground for relief should be denied.

Fourth Ground for Relief

McKnight repeats much of his second and third grounds for relief arguments in his fourth,
claiming the trial court deprived him of a fair trial and due process when it failed to provide him
with an expert to conduct a scientific jury survey that would have provided him with the evidence
needed for his motion for a change of venue to succeed. (ECF No. 127, PageID 15688-98.) He
again states that the pretrial publicity was significant, id. at PageID 15688-91, and that the racial
makeup of Vinton County was almost exclusively white, id. at PageID 15691.
McKnight’s trial counsel filed his motion for a scientific jury survey on August 26, 2002.
(ECF No. 106-8, PageID 8521-23.) It comprised three pages; one page for the motion itself, one
for the memorandum in support, and one for the certification of service. His counsel attached no
supporting evidence such as newspaper reports, etc. His attorneys’ entire argument, if it can be
called that, was as follows:
A “Fire Storm,” [sic] of publicity has centered on this case since
August 8, 2002, at the time of filing of the court’s decision to
dismiss the capital components of this case.
National attention has been focused on this case in the news media.
The New York Times, Los Angles [sic] Times, Cleveland Plain
40

Dealer, Time Magazine, Channel 10 News from Columbus,
Channel 4 news from Columbus, the NBC Today show, CNN, along
with the Columbus Dispatch, Athens Messenger, and the Vinton
County Courier. [Sic.]This intense media interest has so tainted
the potential jury pool that Mr. McKnight cannot be afforded a fair
trial within Vinton County.
A scientific survey is necessary to prove the obvious that because of
the publicity a fair trial cannot be had within Vinton County. In
order to effectively defend Gregory McKnight it is necessary that
$4,250.00 be provided in order to conduct a scientific survey of
public opinion within Vinton County.
(ECF No. 106-8, PageID 8522.) The instant ground for relief does not contend that McKnight’s
trial counsel were ineffective in presenting their naked motion for a change of venue, only that the
trial court unconstitutionally denied McKnight a fair trial and deprived him of due process by
denying the motion. Given the skeletal motion, which was filed with no supporting evidence,
barely any reasoning, and no specifics as to why voir dire would not serve just as well to root out
any undue influence news reports might have had on prospective jurors, it is unlikely in the
extreme that any judge would have granted McKnight’s motion for a scientific jury survey.
Accordingly, and in conjunction with this Court’s reasons for recommending denial of
McKnight’s second and third grounds for relief, his fourth ground for relief should also be denied.

Fifth Ground for Relief

In his fifth ground for relief, McKnight contends that the “media blitz” following the trial
judge’s dismissal and reinstatement of the capital specifications in his case violated his rights to a
fair trial, an impartial jury, and due process. (ECF No. 127, PageID 15699-703.) This issue was
41

included in McKnight’s second ground for relief, supra, and has already been addressed in the
Court’s discussion there. In addition, McKnight concedes in his Traverse that the “trial court may
have acted within its discretion in dismissing and then reinstating the capital specifications,” (ECF
No. 17 PageID 671). Finally, McKnight has not demonstrated that any of the jurors in his case
were biased against him due to their exposure to media coverage of the two murders, the dismissal
and reinstatement of the capital specifications, or his race. Lacking that, he is not entitled to
habeas corpus relief. Accordingly, his fifth ground for relief should be denied.

Sixth Ground for Relief

In his sixth ground for relief, McKnight contends the murder charge pertaining to Gregory
Julious should have been severed from the aggravated murder and other charges concerning Emily
Murray.

(Petition, ECF No. 127, PageID 15703-6.)

Respondent argues the claim was

procedurally defaulted in the state court by McKnight’s failure to raise his federal claim there,
focusing instead on state-law issues relating to joinder in his direct appeal. (ROW, ECF No. 13,
PageID 376.) McKnight states that the claim raised here is “substantially equivalent” to the claim
put forth in his appellate brief to the Supreme Court of Ohio on direct appeal, and that he has
thereby satisfied the “fair presentment” requirement for habeas corpus review. (Traverse, ECF
No. PageID 676-77.)
To preserve a federal constitutional claim for habeas corpus, the claim must be “fairly
presented“ to the state court in a way that provides the state court with an opportunity to remedy

42

the asserted constitutional violation, including presenting both the legal and factual basis of the
claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 1506,
1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson
v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The
claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581
F.3d 410, 418 (6th Cir. 2009).
Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does
not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th
Cir. 2006); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe,
735 F.2d 684, 688-89 (2nd Cir. 1984); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987). “A
lawyer need not develop a constitutional argument at length, but he must make one; the words ‘due
process’ are not an argument.”

Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).

Furthermore, a state prisoner ordinarily does not “fairly present” a federal claim to a state court if
that court must read beyond a petition, a brief, or similar papers to find material that will alert it to
the presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004).
There are occasions, however, when a state court defendant will have made claims in the
state courts which, while not explicitly invoking the United States Constitution, in fact fairly place
before the state courts the substance, both facts and legal theory, of a claim or claims later made in
habeas corpus. In Franklin v. Rose, 811 F.2d 322 (6th Cir. 1987), the Sixth Circuit cited with
approval the Second Circuit’s analysis in Daye v. Attorney General, 696 F.2d 186 (2nd Cir. 1982),

43

after remand, 712 F.2d 1566 (2nd Cir. 1983). The four ways in which a state defendant may fairly
present to the state courts the constitutional nature of his or her claim are:
(a) reliance on pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing [federal]
constitutional analysis in like factual situations, (c) assertion of the
claim in terms so particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of a pattern of facts
well within the mainstream of constitutional litigation.
811 F.2d at 326, quoting 696 F.2d at 193-94; accord, Whiting v. Birt, 395 F.3d 602 (6th Cir. 2005);
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
McKnight’s claim here is “substantially equivalent” to that presented to the state court as
his sixth proposition of law on direct appeal. (See ECF No. 106-14, PageID 9497-9500.) It is so
“substantially equivalent,” in fact, that it appears to have been simply cut and pasted from
McKnight’s direct appeal brief. If the question here were the same question that was put before
the Supreme Court of Ohio -- in other words, if “federal habeas corpus” were synonymous with
“appeal” -- such a tactic might have some chance of success. As this Court explained in Ahmed v.
Houk, No. 2:07-cv-658, 2014 WL 2709765 at *24 (S.D. Ohio, June 16, 2014), however:
Ahmed’s task under the AEDPA is to demonstrate that the Supreme
Court of Ohio’s decision . . . was contrary to or an unreasonable
application of federal law as determined by the United States
Supreme Court, or based on an unreasonable determination of the
facts in light of the evidence before the court. 28 U.S.C. §
2254(d)(1) and (2). Instead of attempting that in any serious
manner, however, Ahmed has simply repeated nearly verbatim the
arguments he presented in the state court. That practice,
disturbingly common in capital habeas corpus cases that come
before this Court, reveals a fundamental misunderstanding of the
statutory limitations on federal habeas corpus. The issue before the
habeas court is not the same as the issue presented to the state court.
The question before the state court [in Ahmed’s case] was whether
44

there was a conflict of interest or a total breakdown of
communication between Ahmed and his trial counsel requiring
reversal of his convictions. Here, the question is whether the state
court’s decision that there was not a conflict is either contrary to or
an unreasonable application of federal law as determined by the
United States Supreme Court, or whether the state court’s decision
was based upon an unreasonable determination of the facts, given
the evidence before that court at the time of Ahmed’s trial, starkly
different inquiries than the one before the state court in the first
instance. Basically cutting and pasting the claim as it was
presented to the state court into a habeas petition is consequently ill
advised as it does not address the question this Court must consider
in habeas review. Harrington v. Richter, [562] U.S. [86, 101], 131
S.Ct. 770, 785 (2011). That is true even in cases where the
argument in the state court fairly presents the federal constitutional
claim. See Lamar v. Ishee, No. 1:04-cv-542, 2010 WL 5574467 at
*23 (S.D. Ohio, July 30, 2010) (Report and Recommendations,
adopted in its entirety in Lamar v. Ishee, No. 1:04-cv-541, 2011 WL
110561 (S.D. Ohio, Jan. 13, 2011)).
In the state court, McKnight did not rely on “pertinent federal cases employing
constitutional analysis,” nor did he rely on “state cases employing [federal] constitutional analysis
in like factual situations.” Franklin v. Rose, 811 F.2d at 326 (emphasis in original). In his sixth
proposition of law presented to the Supreme Court of Ohio on direct appeal, McKnight identified
the law applicable to his claim as Ohio R. Crim. P. 8(A), Ohio R. Evid. 404(B), and the state
court’s discussion of joinder in State v. Franklin, 62 Ohio St. 3d 118, 122 (1991). (ECF No.
106-14, PageID 9498.) In that case, the state court noted that joinder was challenged as improper
under those same state rules as well as Ohio R. Evid. 403. State v. Franklin, supra.
Here, McKnight cites the same authority as he did in his proposition of law in the state
supreme court. (Petition, ECF No. 127, PageID 15703-6.) The only discernible differences are
found in his heading, which reads “Gregory McKnight was denied due process, a fair trial, and a

45

fair and reliable sentencing determination under the Fifth, Sixth, Eighth, and Fourteenth
Amendments when the trial court tried the two unrelated murders jointly,” and his closing
paragraph, “The Ohio court’s decision . . . 5 was contrary to, or an unreasonable application of,
clearly established federal law as stated by the Supreme Court of the United States and resulted in
a decision that was based on an unreasonable determination of facts in light of the evidence
presented in state courts.” Id. at 15706. McKnight cited only the Fourteenth Amendment in the
heading of his proposition of law in the state court, just as Respondent contends. (ECF No. 13,
PageID 376.)
In his Traverse, McKnight states without citation that the state supreme court relied on
federal constitutional principles in denying his joinder claim on direct appeal. The court’s
discussion of McKnight’s claim, however, is limited to whether the trial court’s refusal to sever the
Julious count from the Murray counts violated the state’s evidentiary and criminal rules, and only
state court cases were cited beyond that. McKnight, 2005-Ohio-6046, ¶¶ 167-72. See also, State
v. Lott, 51 Ohio St. 3d 160, 163 (1990) (quoting Ohio R. Crim. P. 8(A) and Bradley v. United
States, 433 F.2d 1113, 1116-17 (1969), which relies upon the corresponding federal criminal
rule).6 Thus, McKnight’s statement that the state supreme court relied on federal constitutional
principles is incorrect.
McKnight expanded his claim in habeas corpus beyond what he alleged when he raised it

5

McKnight makes reference to his “claims relative to this erroneous trial court instruction” in his closing paragraph,
which the Court presumes is a mistake, as the current claim concerns joinder, not an improper jury instruction.
6
It is not the job of this Court to link from case to case to case through history in a search for some shred of support for
McKnight’s statement that the state court applied federal constitutional law to his joinder claim, and the Court will not
do so in this instance. Out of curiosity, however, the Court did so with regard to the first case cited by the Supreme
Court of Ohio in its discussion of McKnight’s joinder claim and found no basis for McKnight’s statement that the state
court had relied upon federal constitutional principles.

46

in the state supreme court. Specifically, he alleges here that the trial court’s failure to sever the
Julious count from the Murphy counts violated his rights under several federal constitutional
amendments, but in the state court he only alluded to the Fourteenth Amendment, and then only in
the heading of his proposition of law, which itself fails to fulfill the requirement that he “fairly
present” his constitutional claim to the state court. Consequently, McKnight’s sixth ground for
relief is procedurally defaulted.
Even if that were not so, McKnight’s claim would fail. As the Ninth Circuit Court of
Appeals has observed,
The Supreme Court has not held that a state or federal trial court’s
denial of a motion to sever can, in itself, violate the Constitution.
See Zafiro v. United States, 506 U.S. 534, 539 (1993) (discussing
joinder and severance in the context of Rules 8 and 14 of the Federal
Rules of Criminal Procedure); United States v. Lane, 474 U.S. 438,
446 & n.8 (1986) (discussing misjoinder under Rule 8 of the Federal
Rules of Criminal Procedure); see also Collins v. Runnels, 603 F.3d
1127, 1132 (9th Cir. 2010) (holding that neither Zafiro nor Lane
established a constitutional standard binding on the states);
Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 2012)
(reiterating the holding in Collins and holding that “[n]either
decision is ‘clearly established Federal law’ sufficient to support a
habeas challenge under § 2254”).
Grajeda v. Scribner, 541 F. App’x 776, 778 (9th Cir. 2013). Furthermore, in Mayfield v. Morrow,
528 Fed. App’x 538, 541-42 (6th Cir. 2013), the Sixth Circuit rejected a petitioner’s joinder claim
in habeas corpus, explaining that
Mayfield does not allege that the Tennessee Criminal Court of
Appeals’ decision [on his joinder claim] was contrary to or an
unreasonable application of, any Supreme Court case. The one
Supreme Court case he does cite – United States v. Lane, 474 U.S.
438 (1986) – addresses the failure to sever criminal charges in dicta
only. Id. at 446 n.8. And “clearly established Federal law” for
47

purposes of § 2254(d)(1) refers to “the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions.” Williams v. Taylor, 529
U.S. 362, 412 (2000). Thus, as to Mayfield’s severance claim,
Lane does not clearly establish anything. See Carey v. Musladin,
549 U.S. 70, 74 (2006). We therefore reject this claim . . . . See
Miskel v. Karnes, 397 F.3d 446, 455 (6th Cir. 2005).
Thus, there is no clearly established federal law as determined by the United States Supreme Court
that the state court’s decision denying McKnight’s claim of improper joinder could be in conflict
with or contradict. As such, his claim is without merit and would be denied on that basis even if it
were properly preserved.
Because McKnight’s sixth ground for relief is procedurally defaulted, it should be denied.

Seventh Ground for Relief

In his seventh ground for relief, McKnight alleges that the “course of conduct”
specification was unsupported by sufficient evidence and against the manifest weight of the
evidence, is unconstitutionally vague, and fails to narrow the class of persons eligible for the death
penalty. (Petition, ECF No. 127, PageID 15707-10.) Respondent argues that manifest-weightof-the-evidence claims are not cognizable in habeas corpus, that McKnight’s claim is procedurally
defaulted, and that the claim is meritless. (ROW, ECF No. 13, PageID 381-88.) McKnight
counters that the claim raised here is substantially equivalent to a claim presented to the state court
and is therefore preserved for habeas review, and, taking much of his argument directly from his
appellate brief submitted to the Supreme Court of Ohio, that the claim does indeed have merit.
(Traverse, ECF No. 17, PageID 681-87.)
48

On direct appeal to the Supreme Court of Ohio, McKnight raised the following issues
regarding the “course of conduct” specification in his second proposition of law:
1. Insufficient evidence;
2. Against the manifest weight of the evidence;
3. Void for vagueness;
4. It does not sufficiently narrow the category of persons eligible
for the death penalty;
5. Weighed as a “selection factor” in the penalty phase,
impermissibly tipping the scales toward the death sentence, and;
6. The circumstances of the two murders do not fall into any of the
three narrowing constructions of the specification set forth by
the Supreme Court of Ohio.
(ECF No. 106-14, PageID 9470-76.) In the heading of his second proposition of law on appeal,
McKnight claimed violations of the Eighth and Fourteenth Amendments, citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979), for the general proposition that a conviction resting on
insufficient evidence violates the defendant’s right to due process. (ECF No. 106-14, PageID
9470.) He further cited Lewis v. Jeffers, 497 U.S. 764, 774 (1990), Maynard v. Cartwright, 486
U.S. 356, 362 (1988); Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980), Gregg v. Georgia, 428
U.S. 153 (1976), and McCleskey v. Kemp, 481 U.S. 279, 305 (1987), to support his argument that
the “course of conduct” specification fails to protect against the arbitrary and capricious
imposition of the death penalty. (ECF No. 106-14, PageID 9470-72). McKnight argued that
inclusion of the “course of conduct” specification in the penalty phase’s weighing process “placed
an impermissible thumb on ‘death’s side of the scale,’” citing Stringer v. Black, 503 U.S. 222, 232

49

(1992), and a state court case that relied on Barclay v. Florida, 463 U.S. 939 (1983). (ECF No.
106-14, PageID 9471.) He described the Supreme Court of Ohio’s findings regarding the three
narrowing constructions of the “course of conduct” specification, citing several state supreme
court cases, and contended that the circumstances of Gregory Julious’ and Emily Murray’s
murders fit into none of them. Id. at PageID 9472-74.
It is true, as Respondent alleges, that McKnight did not raise his claim in the state court
under either the Fifth or Sixth Amendments to the United States Constitution. Thus, any part of
his claim relating to those amendments presented here is procedurally defaulted, and he has not
offered any cause for the default nor has he demonstrated prejudice therefrom, so the default is
unexcused.7 In addition, “claim[s] pertaining to the weight of the evidence [are] not a federal
constitutional claim.” Johnson v. Havener, 534 F.2d 1232, 1234 (1976); see also Hill v. Sheldon,
No. 1:11-cv-2603, 2014 WL 700024 at *15 (N.D. Ohio, Feb. 21, 2014) (stating the proposition
that weight-of-the-evidence claims are not cognizable in federal habeas corpus is “well-settled,”
citing Johnson, supra); Turner v. Warden, No. 3:10-cv-117, 2011 WL 1004553 at *1 (S.D. Ohio,
Mar. 17, 2011) (concluding manifest weight of the evidence claims present a matter of state law);
and Morris v. Hudson, No. 5:06-cv-2446, 2007 WL 4276665 at *3 (N.D. Ohio, Nov. 30, 2007)
(adopting the conclusion of the magistrate judge that manifest weight challenges are not
cognizable in a habeas petition). McKnight’s manifest weight argument is not one amenable to
review in these proceedings.

7

McKnight does not link the individual amendments to any of his specific arguments, but his arguments have not
changed in any noticeable way from what he presented to the state court, so this Court will proceed under the
assumption that all his arguments relate to his contention that his Eighth and Fourteenth Amendment rights were
violated.

50

As for the remainder of McKnight’s claim, the state court observed that it had repeatedly
found the “course of conduct” specification constitutional under both the federal and state
constitutions, and explained at some length the facts in McKnight’s case that satisfied the
narrowing requirement imposed by the federal constitution and state law.

McKnight,

2005-Ohio-6046 at ¶ 159-65. Specifically, the Supreme Court of Ohio articulated the relevant
test respecting the course-of-conduct specification, and determined that
In order to find that two offenses constitute a single course of
conduct under R.C. 2929.04(A)(5), the trier of fact ‘must * * *
discern some connection, common scheme, or some pattern or
psychological thread that ties [the offenses] together.” State v.
Cummings (1992), 322 N.C. 487, 510, 422 S.E.2d 692 . . . . See,
also, State v. Price (1990), 326 N.C. 56, 81, 388 S.E.2d 84. Thus,
for instance, the factual link might be one of time, location, murder
weapon, or cause of death. It might involve the killing of victims
who are close in age or who are related. It might involve a similar
motivation on the killer’s part for his crimes, a common getaway
car, or perhaps a similar pattern of secondary crimes (such as rape)
involving each victim. Whatever the link or links between the
multiple murders might be, the statutory words “course of conduct”
compel the government to present evidence of those connections.
...
[W]hen two or more offenses are alleged to constitute a course of
conduct under R.C. 2929.04(A)(5), the amount of time between the
offenses is a relevant factor. . . .
Nevertheless, we have said that murders taking place at different
times “may satisfy the R.C. 2929.04(A)(5) specification so long as
the offender’s actions were part of a continuing course of criminal
conduct.” State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128,
767 NE.2d 166, ¶ 71. Thus, the length of time between offenses
does not necessarily determine whether the offenses form a course
of conduct.

51

State v. Sapp, 105 Ohio St. 3d 104, 112, 2004-Ohio-7008 at ¶¶ 52-55 (Ohio 2004).8
The Supreme Court of Ohio cited Sapp and then applied it to the facts of McKnight’s case
as follows:
Significant similarities exist between the two murders. Murray and
Julious were both acquaintances of appellant. Appellant was
driving alone with both victims before their disappearances.
Appellant also shot both victims in the head and disposed of their
bodies on his property.
Moreover, the passage of five and one-half months between the two
murders does not invalidate appellant’s course-of-conduct
specification conviction.
Indeed, “murders taking place at
different times ‘may satisfy the R.C. 2929.04(A)(5) specification so
long as the offender’s actions were part of a continuing course of
criminal conduct.’” State v. Sapp, [supra at] ¶55, quoting State v.
Lamar, 95 Ohio St. 3d 181, 2002-Ohio-2128, ¶71.
In Sapp, [supra], ¶ 57, ¶ 61, this court found that murders committed
more than a year apart were part of the same course of conduct
because of common motive and similarity in the offenses. See,

8

McKnight cites Sapp for the proposition that
There are three instances when it is appropriate to narrow construction of the
“course of conduct” specification to distinguish capital murders from other
murders: (1) When the multiple murder is part of one criminal transaction or
directly associated with one criminal transaction; (2) When the multiple murder
involves victims of a particular group, or victims who share a common
association with each other and the defendant; and (3) When the multiple murders
are all done in furtherance of a common criminal purpose, motive[,] or objective.

(Petition, ECF No. 127, PageID 15708.) The Court is unable to find any such language in Sapp, however, and an
online search in all Ohio and federal cases revealed that that language, in an expanded form, appears in only one place:
McKnight’s appellate brief to the Supreme Court of Ohio, which predates Sapp by more than one year. Appellant’s
Merit Brief, 2003 WL 25665050 at * 22-24 (Nov. 3, 2003).
Don’t assume that the court won’t bother to read the cases. It will. If a court
believes you led it astray, whether intentionally or not, all your assertions will be
suspect. Once the court thinks that you failed to read even just one case
carefully, it will doubt the accuracy of your recitation of all the cited cases.
Hon. James G. Carr, A Judge’s Guide to Protecting your Reputation, 36 LITIGATION 26, 28 (Spring 2010).

52

also, State v. Fautenberry (1995), 72 Ohio St. 3d 435, 444, 650
N.E.2d 878 (five murders over a five-month period represented a
course f conduct); [State v.] Benner [(1988)], 40 Ohio St. 3d at 320,
533 N.E.2d 701 (two murders and an attempted murder over a
five-month period evidenced a course of conduct). In this case, the
similarities in the Murray and Julious murders establish a course of
conduct despite the lapse of five and one-half months.
In conclusion, we reject appellant’s claim that the evidence was
insufficient to support his conviction for a course-of-conduct
specification in the murders of Julious and Murray. The two
murders involved similarities in the commission of the offences, the
causes of death, and the disposal of the bodies. Based on the
totality of the circumstances, we find that evidence was sufficient to
support appellant’s conviction of a course-of-conduct specification
in the murders of Julious and Murray.
McKnight, 2005-Ohio-6046 at ¶¶162-65 (some citations omitted). In pointing out dissimilarities
between the Murray and Julious murders, McKnight does not challenge the similarities between
them as found by the Supreme Court of Ohio. (ECF No. 127, PageID 15707-09.) That is, he has
not shown that the Supreme Court of Ohio’s “adjudication of the claim . . . resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. §2254(d)(2).
McKnight also contends that permitting the jury to weigh the course-of-conduct
specification against the mitigating factors in the penalty phase of his trial was “particularly
egregious” since the murders were separated by time and had “no apparent connection to one
another,” despite the state supreme court’s findings to the contrary. (ECF No. 127, PageID
15709.)

Again, however, McKnight does not dispute the factual findings supporting the

course-of-conduct specification as found by the Supreme Court of Ohio; he merely lists
differences between the two murders, as he perceives them.
53

McKnight has not demonstrated that the Supreme Court of Ohio’s decision is contrary to or
an unreasonable application of federal law as determined by the Supreme Court, or that it is based
on an unreasonable determination of the facts that were before the trial court. As such, his
seventh ground for relief should be denied.

Eighth Ground for Relief

In his eighth ground for relief, McKnight contends that a preliminary jury instruction given
prior to opening arguments advising jurors that “discrepancies in a witness’ testimony, or between
his testimony and that of others, if there are any, does not necessarily mean that you should
disbelieve the witness, as people commonly forget facts or recollect them erroneously after the
passage of time” (ECF No. 105-13, PageID 5347), deprived him of due process and equal
protection of the law. (ECF No. 127, PageID 15710-13.) He argues that the instruction denied
him his right to confront witnesses whose testimony contained inconsistencies.
Respondent accurately states that to the extent McKnight alleges an Eighth Amendment
violation, the eighth ground for relief is procedurally defaulted. When McKnight presented the
instant claim to the state court on direct appeal, he never mentioned the Eighth Amendment (ECF
No. 106-15, PageID 9516-23.) Further, Respondent contends the entire eighth ground for relief is
procedurally defaulted because the state court relied on an independent and adequate state
procedural rule in dismissing the claim. Even if preserved, however, Respondent argues the
claim is meritless.

54

McKnight raised the instant claim as his ninth proposition of law on direct appeal in the
Supreme Court of Ohio. Id. The court opined as follows:
[A]ppellant argues that the trial court’s preliminary instructions on
credibility were improper. Trial counsel, however, failed to object
and waived all but plain error. State v Underwood (1983), 3 Ohio
St.3d 12, syllabus.
During preliminary guilt-phase instructions, the court advised the
jury: “the testimony of one witness believed by you is sufficient to
prove any fact. Also, discrepancies in a witness’ testimony, or
between his testimony and that of others, if there are any, does not
necessarily mean that you should disbelieve the witness, as people
commonly forget facts or recollect them erroneously after the
passage of time. You are certainly all aware of the fact that two
persons who are witnesses to an incident may often see or hear it
differently. In considering a discrepancy in witness testimony, you
should consider whether such discrepancy concerns an important
fact or a trivial one.” (Emphasis added.) These preliminary
instructions on credibility were not repeated during the closing
instructions.
Crim.R. 30(B) permits the trial court to give cautionary jury
instructions relating to credibility and weight of the evidence. The
preliminary instructions clarified the jury’s function in judging
credibility and determining the weight to assign the testimony.
Moreover, this instruction is virtually identical to instructions
approved in State v. Cunningham, 105 Ohio St.3d 197 . . . ¶ 51-56.
Thus, we find no plain error in these instructions.
State v. McKnight, 2005-Ohio-6046, ¶¶ 221-23 (2005) (parallel citations omitted).
Ohio’s contemporaneous objection rule provides that parties must preserve errors for
appeal by calling them to the attention of the trial court at a time when the error could have been
avoided or corrected. State v. Glaros, 170 Ohio St. 471 (1960)(paragraph one of the syllabus).
The Supreme Court has found, and the Sixth Circuit has repeatedly found Ohio’s
contemporaneous objection rule to be an independent and adequate state ground of decision in the
55

habeas corpus context. Coleman v. Thompson, 501 U.S. 722, 747 (1991) (stating “Ohio’s
contemporaneous objection rule barred respondents’ claim on appeal . . . . We held that this
independent and adequate state ground barred federal habeas as well, absent a showing of cause
and prejudice.”), citing Engle v. Isaac, 456 U.S. 107, 124 et seq. (1982); Hand v. Houk, 871 F.3d
390, 417 (6th Cir. 2017); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011; Awkal v. Mitchell,
613 F.3d 629, 648-49 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir. 2007);
Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003). The rule was applied to McKnight’s claim
by the Supreme Court of Ohio as noted above, which results in its procedurally default.
McKnight makes two arguments in an attempt to avoid the default. First, he assumes that
the state supreme court’s plain-error review constituted a decision on the merits of the claim.
(ECF No. 127, PageID 15713.) Not so. It is well established that an Ohio state appellate court’s
review for plain error is enforcement, not waiver, of a procedural default, and the Supreme Court
of Ohio’s discussion of the claim clearly indicates it was conducting plain-error review.
Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th
Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006). Even so, the opinion of a
state court on plain error review is still entitled to AEDPA deference if the federal court reaches
the merits despite the procedural default. Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009).
Second, McKnight offers the ineffectiveness of his trial counsel as cause for his default.
(ECF No. 17, PageID 689.) The parties agree that Strickland v. Washington, 466 U.S. 668 (1984),
is the law governing ineffective assistance of counsel claims, whether the allegation of
ineffectiveness is asserted as a free-standing claim itself, or as cause to excuse a procedural

56

default. (ECF No. 13, PageID 512-13; ECF No. 127, PageID 15801-3.) In the latter case, a
petitioner must demonstrate both cause for the default and resulting prejudice
For counsel’s ineffectiveness to excuse his default, McKnight must have preserved the
ineffectiveness claim itself by presenting it to the state court. Edwards v. Carpenter, 529 U.S.
446, 453 (2000)(holding that an ineffective assistance of counsel claim asserted as cause for the
procedural default of another claim must itself have been preserved in the state court to excuse the
default in habeas). McKnight raised his ineffective assistance of counsel claim on direct appeal,
satisfying Edwards (ECF No. 106-15, PageID 9607, 9615-16), and the state court discussed the
merits of the claim in its review for plain error. The court concluded that McKnight had “suffered
no prejudice from his counsel’s failure to object to various guilt-phase . . . instructions,” and
denied the claim, finding no plain error. McKnight, 107 Ohio St. 3d at 145, ¶ 305. That finding
is entitled to the deference required under the AEDPA, as noted above.
McKnight alleges prejudice to him flowed from the preliminary jury instruction at issue in
this ground for relief because of alleged inconsistencies between various witnesses’ testimonies
that followed the instruction. It is, however, “the province of the factfinder . . . to weigh the
probative value of the evidence and resolve any conflicts in testimony.” Neal v. Morris, 972 F.2d
675, 679 (6th Cir 1992), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Recall that the jury instruction to which McKnight contends his counsel should have
objected reads as follows: “Also, discrepancies in a witness’ testimony, or between his testimony
and that of others, if there are any, does not necessarily mean that you should disbelieve the
witness, as people commonly forget facts or recollect them erroneously after the passage of time.”

57

(ECF No. 105-13, PageID 5346-47.) At the time of McKnight’s trial, that sentence was a
standard part of Ohio jury instructions. Cunningham v. Hudson, Case No. 3:06-cv-167, 2010 WL
5092705 at *65-66 (N.D. Ohio, Dec. 7, 2010), vacated and remanded on other grounds at 756
F.3d 477 (6th Cir. 2014); see also 4 Ohio Jury Instructions (2001), Section 405.20.9
“It is well established that [a jury] instruction ‘may not be judged in artificial isolation,’ but
must be considered in the context of the instructions as a whole and the trial record.” Estelle v.
McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973).
Therefore, the Court recites the instruction at issue here in the context in which it was presented to
McKnight’s jury at trial:
As jurors, you have the sole and exclusive duty to decide the
credibility of the witnesses who will testify in this case, which
simply means that it is you who must decide whether to believe or
disbelieve a particular witness and how much weight, if any, to give
to the testimony of each witness.
In determining these questions, you will apply the tests of
truthfulness which you apply in your daily lives. These tests
include the appearance of each witness on the stand, his or her
manner of testifying, the reasonableness of the testimony, the
opportunity he or she had to see, hear and know the things
concerning which he or she testified, his or her accuracy of memory,
frankness or lack of it, intelligence, interest or bias, if any, together
with all the facts and circumstances surrounding the testimony.
Applying these tests, you will assign to the testimony of each
witness such weight as you deem proper. You are not required to
believe the testimony of any witness simply because it was given
under oath. You may believe or disbelieve all or any part of the
testimony of any witness. You should not decide any issue of fact

9

The instruction was not repeated in the court’s later instructions on determining credibility (Trial Tr., ECF No.
105-25-26, PageID 7256-61), and is no longer a part of Ohio’s standard instruction on the credibility of witnesses.
See Ohio Jury Instructions, Section 409.05 (formerly 405.20).

58

merely on the basis of the number of witnesses who testify on each
side of such issue; rather, the final test in judging evidence should be
the force and weight of the evidence, regardless of the number of
witnesses on each side of an issue.
The testimony of one witness believed by you is sufficient to prove
any fact. Also, discrepancies in a witness’ testimony, or between
his testimony and that of others, if there are any, does not
necessarily mean that you should disbelieve the witness, as people
commonly forget facts or recollect them erroneously after the
passage of time.
You are certainly all aware of the fact that two persons who are
witnesses to an incident may often see or hear it differently. In
considering a discrepancy in a witness[’s] testimony, you should
consider whether such discrepancy concerns an important fact or a
trivial one.
If you conclude that a witness has willfully lied in his or her
testimony as to a material fact, you may distrust all of his or her
testimony, and you would then have the right to reject all of his or
her testimony, unless, from all of the evidence, you believe that the
probability of truth favors the testimony in other particulars.
(Trial Tr., ECF No. 105-13, PageID 5345-47.) Viewing the instruction McKnight believes his
counsel should have objected to even in the limited context just quoted, it is one sentence in a
six-paragraph explanation of the jury’s role in determining the credibility of the witnesses.
Considered in the context of McKnight’s entire trial, the evidence presented against him, and the
jury instructions as a whole, it is impossible for the Court to conclude that the preliminary
instruction on any discrepancies in a witness’ testimony or between witnesses’ testimonies could
have had any discernable impact on the outcome of McKnight’s trial. That being the case,
McKnight’s counsel could not have been ineffective for failing to object to a jury instruction that
had little or no likelihood of affecting the outcome of his trial and the procedural default of his jury

59

instruction claim remains unexcused.
McKnight procedurally defaulted his claim that the trial court’s preliminary instruction to
the jury on credibility and has not demonstrated cause for the default or prejudice therefrom.
Accordingly, it is recommended that his eighth ground for relief be denied.

Ninth Ground for Relief

In his ninth ground for relief, McKnight argues numerous unnecessary and gruesome
photographs of Emily Murray in death were introduced into evidence to his detriment and over
defense objections. (ECF No. 127, PageID 15714-17.) Respondent counters that the claim is
not cognizable in habeas corpus, procedurally defaulted, and meritless. (ECF No. 13, PageID
395-400.) McKnight denies the claim is procedurally defaulted, stating he raised the claim both
on direct appeal and in post-conviction in the state courts.

(ECF No. 17, PageID 698.)

Nevertheless, he appears to offer counsel’s ineffectiveness as cause for the default and that he
suffered prejudice as a result. Id. at 699. Finally, he disputes Respondent’s argument that the
claim is without merit. Id. at PageID 702-3.
McKnight raised a gruesome photographs claim on direct appeal in the Supreme Court of
Ohio alleging violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution, and to certain provisions of the Ohio Constitution. (ECF No. 106-15, PageID
9539-42.) There he acknowledged that his counsel did not object to the admission of the

60

photographs,10 although they had filed a motion in limine to exclude all photographs of Emily
Murray on March 25, 2002, a full six months before McKnight’s trial began.
The Supreme Court of Ohio held that defense counsel’s failure to object to the photographs
at trial and that consequently, all but plain error was waived. McKnight, 2005-Ohio-6046at ¶ 139.
In doing so, the state court enforced a state procedural rule requiring litigants to bring errors to the
attention of the trial judge at a time when they can be corrected, thereby preserving any error for
appeal. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); State v. Glaros, 170 Ohio St. 471
(1960) (paragraph one of the syllabus). Ohio’s rule requiring a contemporaneous objection is an
adequate and independent state procedural rule, which when enforced against a defendant, renders
his claim procedurally defaulted for habeas corpus purposes, as noted above in the Court’s
discussion of McKnight’s eighth ground for relief.
McKnight argues his pre-trial motion in limine, which was denied, was sufficient to put the
State and trial court on notice that he “strenuously objected” to the admission of the photographs.
(ECF No. 127 at PageID 15715.) But it has long been the law in Ohio that “the denial of a motion
in limine does not preserve a claimed error for review in the absence of a contemporaneous
objection at trial." State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160 at ¶ 59(emphasis
added), quoting State v. Hill, 75 Ohio St.3d 195, 203 (1996). See also State v. Brown, 38 Ohio St.
3d 305 (1988) (paragraph three of the syllabus); State v. Maurer, 15 Ohio St. 3d 239, 259 (1984)

10

In his appellate brief, McKnight cited to “Vol. VII, Tp. 1582” as the place in the state court record where the
attorneys’ failure to object appears. In the electronic state court record, filed in this Court in 2013, page 1582 of the
trial transcript does not appear in the cited volume, nor does it contain any reference to photographs being admitted
into evidence. Rather, it reflects part of the voir dire of a prospective juror. (ECF No. 105-11, PageID 5098.) The
Court takes McKnight at his word respecting his attorneys’ failure to object to the admission of the photographs.

61

(holding objecting party must challenge evidence during trial when issue is presented in full
context notwithstanding previous motion in limine).
A ruling on a motion in limine reflects the court’s anticipated
treatment of an evidentiary issue at trial and, as such, is a tentative,
interlocutory, precautionary ruling. Thus, “the trial court is at
liberty to change its ruling on the disputed evidence in its actual
context at trial. Finality does not attach when the motion is
granted.” Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, citing State
v. Grubb (1986), 28 Ohio St.3d 199, 201-202.
State v. French, 782 Ohio St.3d 446, 450 (1995)(parallel citations omitted). Also, a motion in
limine made six months prior to trial can hardly be called “contemporaneous” to the introduction
of evidence at trial. No federal law negates Ohio’s requirement for a contemporaneous objection
at trial to preserve an error for appellate or habeas review. Therefore, McKnight’s argument that
his pre-trial motion in limine preserved his gruesome photographs claim fails.
Nor does McKnight’s presentation in state post-conviction of his gruesome photographs
claim preserve it for habeas review. The post-conviction process in Ohio requires that claims
raised there rely on evidence outside the trial record. When the claim involves evidence alleged
to have been erroneously admitted at trial, the claim is plainly apparent in the state court record and
must be brought on direct appeal rather than in post-conviction. Henness v. Bagley, Case No.
2:01-cv-43, 2007 WL 3284930 at *49 (S.D. Ohio Oct. 31, 2007), aff’d 766 F.3d 550 (6th Cir.
2014).
Finally, the state supreme court found no plain error in the admission of the photographs
into evidence. Instead, it found each to be sufficiently probative to outweigh any prejudice that
might flow therefrom. McKnight, 2005-Ohio-6046 at ¶¶ 138-47. An Ohio state appellate

62

court’s review for plain error is enforcement, not waiver, of a procedural default. Wogenstahl v.
Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)
(plain error review does not constitute a waiver of procedural default.
McKnight’s ninth ground for relief is procedurally defaulted without excuse and should be
denied.

Tenth Ground for Relief

In his tenth ground for relief, McKnight contends the trial court’s admission of Emily
Murray’s habit of notifying family and friends of her whereabouts was an unconstitutional
infringement of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. (ECF No. 127,
PageID 15717-24.) Respondent argues the claim is procedurally defaulted since, pertinent to
habeas corpus review, McKnight alleged in the state court only a Fourteenth Amendment
violation, and argued that the admission of the habit evidence violated a state evidentiary rule, with
only cursory mention of the federal constitution. (ECF No. 13, PageID 401.) He asserts that the
Supreme Court of Ohio addressed the merits of the “substantially equivalent” claim he presented
there, contending that his claim is thereby saved from procedural default. (ECF No. 17, PageID
704.)
The Supreme Court of Ohio overruled McKnight’s tenth proposition of law on direct
appeal, where he claimed the testimony elicited by the prosecutor about Emily Murray’s penchant
for notifying friends and/or family of her whereabouts was improper.

63

Over defense objection, the state presented evidence of Murray’s
habit of informing family and friends about her whereabouts before
departing on a trip. Thomas Murray testified that her family and
friends maintained close contact with Murray as to her whereabouts
following Murray’s suicide attempt in May 2000. Murray
exchanged phone calls and e-mails with her parents on an almost
daily basis. During the fall of 2000, Murray remained in contact
with her parents when she traveled to Japan and made a trip to St.
Louis.
...
Murray’s daily phone calls and e-mails with her father as to her
whereabouts, and her practice of leaving notes as to her
whereabouts with her friends were “’numerous enough to base an
inference of systematic conduct,’” permitting the admissibility of
the testimony. Wilson v. Volkswagen of Am., Inc. (C.A.4, 1977),
561 F.2d 494, 511, quoting Strauss v. Douglas Aircraft Co. (C.A.2,
1968), 404 F.2d 1152, 1158.
We reject appellant’s argument that Murray’s behavior was a
volitional act and therefore not admissible as habit evidence.
Activities that are “semi-automatic or nearly nonvolitional, can be
easily classified as habit.” I Giannelli & Snider, Evidence (2d
Ed.2001) 265, Section 406.4. For example, locking the door of a
house or traveling home from work by the same route are examples
of habitual acts that may become semiautomatic and thus tend to
prove that one acted in a particular situation in the same manner.
Id. . . .
Similarly, Murray’s repeated practice of notifying friends and
family of her whereabouts before departing on a trip became a
semiautomatic form of behavior that was admissible to prove habit.
See State v. Allen (1995) 73 Ohio St. 3d 626, 633 (testimony that
victim was an immaculate housekeeper was admissible under
Evid.R. 06 to show she would likely have wiped the defendant’s
fingerprints off her glasses) . . . .
We also reject appellant’s argument that habit evidence should not
have been admitted because the testimony did not identify a specific
manner that Murray used to notify her friends and family of her
whereabouts. Testimony established that e-mails, phone calls, and
64

notes were Murray’s specific methods for notifying family and
friends as to her whereabouts.
Finally, sufficient examples of Murray’s conduct demonstrated
Murray’s habit. Murray exchanged e-mails and phone calls with
her parents on almost a daily basis, remained in daily contact with
her father as to her whereabouts in Japan, and notified her parents
about her trip to St. Louis. Moreover, college friends testified that
Murray left notes and information as to her whereabouts on a [dry]
erase board before departing on trips. . . .
The trial court did not abuse its discretion in admitting testimony
about Murray’s habit under Evid.R. 406. Thus, [P]roposition X is
overruled.
McKnight, 2005-Ohio-6046 at ¶¶ 106, 132-37 (parallel citations omitted). In addition, the state
court cited Ohio R. Evid. 406, the Advisory Committee’s Notes on the state rule, and the Rules of
Evidence for United States Courts and Magistrates in defining “habit.” Id. at ¶¶ 130-31. It noted
that the Ohio rule is identical to the corresponding federal rule and cited several cases interpreting
the federal rule in its discussion of habit evidence. Id. at ¶ 131. The court never mentioned the
United States Constitution and did not discuss the Due Process Clause or McKnight’s right to a fair
trial in its discussion of his habit evidence claim.
Most likely, that is a consequence of McKnight’s nearly exclusive focus on the state
evidentiary rule in his brief on direct appeal. (ECF No. 106-15, PageID 9524-32.) In fact, in his
explication of the law applicable to his claim, he cited only the Ohio and federal evidentiary rules
and federal cases from outside the Sixth Circuit interpreting the federal rule, never discussing any
federal constitutional amendment, due process, or the right to a fair trial. He mentioned the
federal constitution in only two places in arguing his claim to the state court: (1) in the heading of
his claim, and (2) in the conclusion, and neither time included any argument. Id. at PageID 9524,
65

9532.
Merely using talismanic constitutional phrases like “fair trial” or “due process of law” does
not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th
Cir. 2006); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), citing Petrucelli v. Coombe,
735 F.2d 684, 688-89 (2nd Cir. 1984); Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987). “A
lawyer need not develop a constitutional argument at length, but he [or she] must make one; the
words ‘due process’ are not an argument.” Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995).
If a petitioner’s claim in federal habeas rest on different theories than those presented to the state
courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
Habeas corpus relief for a state prisoner is only available on the ground that he or she is in
custody in violation of the federal constitution, or laws, or treaties of the United States, and does
not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). “[T]he due process
clause guarantees the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385
U.S. 554, 563-64 (1967), citing Tumey v. Ohio, 273 U.S. 510 (1927). Federal habeas corpus relief
is only warranted where a violation of a state’s evidentiary rule results in the denial of fundamental
fairness and, therefore, a violation of due process. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (stating “it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions); Frank v. Mangum, 237 U.S 309, 331 (1915) (observing
that the Fourteenth Amendment’s due process guarantee applies to “the substance of right, and not
to matters of form or procedure”; Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (observing that
a claim contending a state court violated a state evidentiary rule is not cognizable on habeas corpus

66

review). Thus, whether the challenged evidence was admitted contrary to a state evidentiary rule
is not itself a question for this Court, even if the state rule is identical to the corresponding federal
rule.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be “fairly presented” to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). As noted above, there are
occasions when a state court defendant will have made claims in the state courts which, while not
explicitly invoking the United States Constitution, in fact fairly place before the state courts the
substance, both facts and legal theory, of a claim or claims later made in habeas corpus. Franklin
v Rose, supra. As noted above, McKnight has done none of these things. Since he did not “fairly
present” his claim to the state court, it is procedurally defaulted.
Even if it were properly preserved, the Court could not grant habeas relief on the instant
claim because McKnight has not overcome the substantial deference with which this Court must
treat the state court’s decision. That decision is neither an unreasonable application of federal law
as determined by the Supreme Court, nor an unreasonable determination of the facts given the
evidence before the state court, and McKnight’s bare assertion that it is does not make it so.
McKnight’s tenth ground for relief is procedurally defaulted and should consequently be
denied.

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Eleventh Ground for Relief

In his eleventh ground for relief, McKnight contends the introduction of inflammatory
evidence relating to his infidelities in his marriage, his hasty departure from a club at which the
police had arrived, and personal characteristics of Emily Murray, and the prosecutor’s opening
statement and closing argument deprived him of a fundamentally fair trial and his due process
rights in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendments. (ECF No. 127,
PageID 15725-33.)
The Warden correctly argues that McKnight’s claim is partially procedurally defaulted
since, as relevant here, he raised it only as a violation of his Fourteenth Amendment rights on
direct appeal in the state court. (ECF No. 13, PageID 410-22.) To the extent McKnight’s claim
was addressed on the merits by the Supreme Court of Ohio, the Warden reminds this Court of its
obligation to accord deference to that decision, and further asserts that the claim is meritless. Id.
In his Traverse, McKnight counters that his claim in the state court is “substantially
similar” to the instant ground for relief and, without citation to authority, argues that presentation
of a claim in habeas substantially similar one submitted to the state court satisfies the exhaustion
requirement of the AEDPA. (ECF No. 17, PageID 714-26.) In both Picard v. Connor, 404 U.S.
270, 276 (1971), and Anderson v. Harless, 459 U.S. 4, 6 (1982), and later in Duncan v. Henry, 513
U.S. 364, 366 (1995)(per curiam), however, the Supreme Court emphasized that “mere similarity
of claims is insufficient to exhaust.” To paraphrase Picard, the Supreme Court of Ohio dealt with
the arguments McKnight offered and cannot be faulted for failing to address sua sponte potential

68

claims under other constitutional amendments not mentioned by McKnight. See Picard, 404 U.S.
at 277. McKnight contends the ineffectiveness of his trial counsel excuses any default and that he
was prejudiced by the inflammatory and irrelevant evidence. Id. at PageID 716.
It has long been recognized that the “Constitution entitles a criminal defendant to a fair
trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). The United States
Constitution has never been thought to establish a federal court as a “rule-making organ for the
promulgation of state rules of criminal [or evidentiary] procedure.” Spencer v. Texas, 385 U.S.
554, 564 (1967). Thus, an inquiry into whether certain evidence was admitted at trial in violation
of a state’s evidentiary rules “is no part of a federal court’s habeas review of a state conviction.”
Estelle v. McGuire, 502 U.S. 62, 67 (1991); Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007);
Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983). To the extent McKnight asserts evidence of
his marital infidelity, avoiding the police at a reggae club, and the victim-impact evidence
presented in the culpability phase of his trial was inadmissible under Ohio’s Rules of Evidence, his
claim is not cognizable in habeas corpus.
This Court must determine, therefore, whether McKnight “fairly presented” his federal
claim to the state court.

He raised admission of the complained-of evidence as his third

proposition of law on direct appeal in the Supreme Court of Ohio, alleging the evidence was
irrelevant and prejudicial.

(ECF No. 106-14, PageID 9477-85.)

He cited the Fourteenth

Amendment in the heading of his proposition of law but identified only Ohio R.Evid. 401 and 402
and Brown v. Cleveland, 66 Ohio St.2d 93, 97 (1981), under the “Law” section of his brief.
Elsewhere, however, he cited the Fourteenth Amendment and Justice Thomas’ dissent in Dawson

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v. Delaware, 503 U.S. 59, 179 (1992), where the Justice quoted Payne v. Tennessee, 501 U.S 808,
825 (1991) and cited Darden v. Wainwright, 477 U.S. 168, 179-83 (1986), for the general
proposition that unduly prejudicial evidence that renders a trial fundamentally unfair violates the
Due Process Clause of the Fourteenth Amendment. (ECF No. 106-14, PageID 9477.)
The state court discussed the merits of McKnight’s claim at length:
1. {¶78} “Other acts” evidence. Amber Hammers and
appellant worked together at Flappers Bar, a Mount Vernon bar
and grill then owned by an owner of the Pirate’s Cove.
Hammers testified that appellant called and asked her to go
dancing with him. Hammers told appellant that she had not
talked to her boyfriend about going dancing with another man,
an no plans were made.
{¶79} Gloria Ressler and appellant worked together at the
Pirate’s Cove. Ressler testified that following Murray’s
disappearance, appellant called her on three occasions during
November 2000 and asked “if he could come over and hang out,
have a party, come out and just have [her] and him * * * out
there.” Appellant also approached her at work and said, “[W]e
could have a quickie and [your fiancé] wouldn’t have to know.”
{¶80} Lisa Perkins testified that at one point, appellant gave
her a ride in his car and along the way, appellant “stopped up on
the top of the hill, and * * * he just started talking and touching
[her] and [they] had sex up on the hill in the car.” Dana Bostic
testified that appellant had spent the night with Perkins at
Bostic’s home. Following Julious’s disappearance, appellant
told Bostic that “his plans were * * * to leave his wife [and] * * *
come and stay with [Bostic] and Lisa at [Bostic’s] house.”
{¶81} Paul Amstutz, a former Pirate’s Cove delivery driver,
testified about a conversation with Kathy McKnight about
appellant’s whereabouts. During a food delivery to the
McKnight home, Kathy indicated to Amstutz that she thought
that appellant was working that evening at the Pirate’s Cove.
Amstutz knew, however, that appellant was not working that
evening and was instead drinking at the Pirate’s Cove bar.
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{¶82} Under Evid.R. 404(B), “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove” a defendant’s
character as to criminal propensity. “It may, however, be
admissible * * * [to show] motive, opportunity, intent,
preparation, plan, knowledge, identify, or absence of mistake or
accident.” However, “[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.”
State v Sage (1987), 31 Ohio St.3d 173, paragraph two of the
syllabus.
{¶83} The trial court did not abuse its discretion in admitting
Hammers’s and Ressler’s testimony. That evidence related to
appellant’s modus operandi or plan. Evidence showing a
modus operandi is admissible because “’it provides a behavioral
fingerprint which, when compared to the behavioral fingerprints
associated with the crime in question, can be used to identify the
defendant as the perpetrator.’” State v. Myers, 97 Ohio St.3d
335, 2002-Ohio-6658, ¶104, quoting State v Lowe (1994), 69
Ohio St.3d 527, 531.
{¶84} Hammers and Ressler helped to establish appellant’s
opportunity, preparation, and plan to acquaint himself and be
alone with Murray. Appellant’s phone calls to Hammers and
Ressler showed that appellant developed an interest in his
co-workers and asked them out. This pattern of behavior
showed the likelihood that appellant also developed an interest
in Murray. Thus, the jury could reasonably infer from the
testimony of Hammers and Ressler that appellant had asked
Murray for a ride after work.
{¶85} We also reject appellant’s argument that his phone calls
to Ressler were not admissible because they were made after
Murray’s disappearance. “[P]ursuant to Evid.R. 404(B), * * *
evidence of subsequent crimes or acts of misconduct is
admissible if it is relevant to an issue at trial and its probative
value is not outweighed by its prejudicial effect.” Cleveland v
Dillingham (May 11, 1995), Cuyahoga App. No. 67693, 1995
WL 277105, *4. Appellant’s phone calls, though made two or
three weeks after Murray’s disappearance, were relevant in
establishing appellant’s modus operandi.

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{¶86} Moreover, the trial court provided the jury with
cautionary instructions on “other acts” evidence. The jury was
advised: “Evidence was introduced that the defendant may
have committed other acts other than the offenses with which he
was charged in this case. If you find that the evidence of other
acts is true * * *, you may consider that evidence only for the
purpose of deciding whether it proves Gregory McKnight’s
motive, opportunity, intent or purpose or plan to commit
kidnapping of Emily Murray. The evidence may not be
considered for any other purpose. It was not received, and you
may not consider it to prove the character of Gregory McKnight
in order to show that he acted in conformity with that character.”
In view of these instructions and the probative value of the
testimony of the two women, the trial court did not abuse its
discretion in admitting this “other acts” evidence. See State v.
Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶
48.
{¶87} We also find that the testimony about appellant’s visits
to Perkins in Bostic’s home was relevant to show how appellant
and Julious knew each other. Thus, the trial court did not abuse
its discretion in admitting such evidence.
{¶88} Testimony that appellant and Perkins had sex in
appellant’s car and spent the night together at Bostic’s home was
not relevant and not admissible under Evid.R. 404(B).
Nevertheless, we find that the impact of such testimony was
minimal and not prejudicial given other compelling evidence of
appellant’s guilt.
See Noling, 98 Ohio St.3d 44,
2002-Ohio-7044, 781 N.E.2d 88, ¶49.
{¶89} 2. Reaction to the police. Two to three weeks before
Julious was murdered, appellant, Kathy, Bostic, and Julious
drove from Chillicothe to Columbus to go to a reggae club.
Over defense objection, Bostic testified that when they “pulled
into a parking lot [of the reggae club] * * * there was police
sitting in the parking lot.” Bostic testified that appellant said,
“’There’s the police.’ And then we turned * * * out of the
parking lot and we drove all the way back home.”
{¶90} We find that the trial court abused its discretion in
admitting this testimony. Appellant’s reaction to the police
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occurred before he murdered either Julious or Murray. This
evidence did not prove consciousness of guilt, because there was
no connection between appellant’s reaction to the police and the
charged offenses. Appellant’s reaction to the police, however,
was not tied to any other misconduct, and he was not prejudiced
by such testimony. Thus, the introduction of this evidence
constituted harmless error.
{¶91} 3. Victim-impact comment and testimony. During
his opening statement, the prosecutor stated, “Two years ago,
Emily S. Murray was attending Kenyon College in Gambier,
Ohio. She was in her junior year, and she was 20 years young.”
Further, the prosecutor stated, “At work, Emily was well-liked
[sic]. She was outgoing, she was helpful, she was a good
waitress.”
{¶92} Thomas Murray, the victim’s father, testified that he had
a “very close” relationship with his daughter. He added,
“Emily was in touch with her mother or me or both of us almost
every day.”
According to Thomas, Emily “was very
responsible; she was just a very honest kid.” Moreover,
Murray returned from a religious retreat about ten days before
her disappearance and was “really excited about becoming a
priest.” Thomas also testified that when he learned of his
daughter’s disappearance, “it was like somebody hit [him] in the
stomach with a sledgehammer.”
{¶93} Cynthia Murray, the victim’s mother, described a “very
close relationship” with Murray, said Murray was “easy to
love,” and testified that Murray “wanted to become an Episcopal
priest.”
{¶94} Megan DiCarlo, a college friend, described Murray as
“very outgoing, very social, independent, very open with
people, trusting of people. Like she always looked for the best
in people.” Kate Murray, another college friend, described
Murray as “[v]ery outgoing, had a lot of friends, very friendly.”
Kate also testified that Murray was very religious, and the tattoo
of a dove on Murray’s back symbolized this interest.
{¶95} Michael Corrigan, the general manager of the Pirate’s
Cove, stated that Murray was “courteous and cared for people,
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and she was a very upbeat person, fun to work with.” On the
night she disappeared, Murray was “very upbeat and happy.”
Nathan Justice also testified that Murray was a “very nice,
happy person.”
{¶96} During the guilt-phase closing argument, the prosecutor
described Murray’s disappearance as “every parents’ [sic] worst
nightmare,” repeated Thomas Murray’s statement that “they felt
as if they had been hit in the stomach with a sledgehammer,” and
mentioned that “that pain in their stomach stays with them
today.” The prosecutor also argued that Murray was “nice” and
“kind-hearted” and might have given appellant a ride on the
night she disappeared.
{¶97} The defense filed a motion in limine to exclude
victim-impact evidence. Nevertheless, except where noted, the
defense did not renew its objection to the foregoing testimony at
trial and thus waived all but plain error. See Gable v. Gates
Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶
34 (“a ruling on a motion in limine may not be appealed and * *
* objections * * * must be made during the trial to preserve
evidentiary rulings for appellate review”).
{¶98} Evidence relating to the facts attendant to the offense is
“clearly admissible” during the guilt phase, even though it might
be characterized as victim-impact evidence.
State v.
Fautenberry (1995), 72 Ohio St.3d 435, 440, 650 N.E.2d 878.
Thus, testimony that Murray was friendly, outgoing, and
trusting was admissible in showing the likelihood that Murray
provided appellant a ride in her car on the night she disappeared.
Moreover, testimony that Murray was a responsible person was
admissible in showing that she would not have left campus in
her car without taking her wallet and driver’s license.
{¶99} The defense objected to Thomas’s and Cynthia’s
testimony because of the lack of foundation to prove habit but
did not object to the testimony as inappropriate victim-impact
evidence. Thomas’s and Cynthia’s close personal relationship
and frequent contact with their daughter laid the foundation
about Murray’s habit of notifying family members as to her
whereabouts before making a trip, and this testimony was also
admissible.
Thomas’s testimony that his daughter’s
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disappearance was “like somebody hit [him] in the stomach with
a sledgehammer” was of questionable relevance; however, such
testimony did not constitute outcome-determinative plain error.
See State v. Reynolds (1998), 80 Ohio St.3d 670, 679, 687
N.E.2d 1358; cf. State v. Hartman (2001), 93 Ohio St.3d 274,
293, 754 N.E.2d 1150.
{¶100} Testimony about Murray’s upbeat mood before her
disappearance, her strong religious beliefs, and her aspirations
to become an Episcopal priest was admissible in rebutting
arguments that Murray might have committed suicide.
{¶101} Kate Murray’s testimony about the tattoo of a dove on
Murray’s back was relevant in identifying Murray’s body. See
State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d
186, ¶ 108 (photos of victim’s tattoo admissible to help identify
the victim).
{¶102} As to the prosecutor’s opening statement and closing
argument, the trial counsel failed to object and thus waived all
but plain error. See State v. Childs (1968), 14 Ohio St.2d 56, 43
O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.
There was no plain error. The prosecutor’s brief description of
Murray in his opening statement simply pointed out her age and
that she had attended Kenyon College, which explained why she
lived in Gambier.
Cf. Noling, 98 Ohio St.3d 44,
2002-Ohio-7044, 781 N.E.2d 88, ¶ 56 (description of victims’
lives established that the victims had been living persons, an
element of the charge of aggravated murder).
{¶103} The prosecutors’ remarks during closing argument
also did not result in plain error. The prosecutor described
Murray as a nice, kind-hearted, and helpful person to point out
the likelihood that Murray provided a ride to appellant on the
night she disappeared. The prosecutor’s comments about
Thomas’s and Cynthia’s pain and anguish simply pointed out
the obvious feelings that Murray’s parents experienced
following their daughter’s death. Moreover, the prosecutor’s
remarks in question were very brief and not overly emotional.
{¶104} Based on the foregoing, we reject proposition [of law]
III.
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McKnight, 2005-Ohio-6046. The state court cited only state cases and evidentiary rules in its
discussion of McKnight’s claim, and did not expressly decide the claim that the admission of the
complained-of evidence violated McKnight’s Fourteenth Amendment right to due process.
As noted above, however, McKnight barely mentioned any federal law in his presentation
of his claim to the state court, citing it only for a very general statement of law. It is possible that
the state court simply overlooked McKnight’s federal claim, to the extent that he actually raised it,
that is. After all, he cited no federal case in which the Supreme Court has held the admission of
evidence such as that admitted in his trial violated the Fourteenth Amendment’s Due Process
Clause. As such, it is questionable whether such skimpy reference to federal law fairly presented
his claim to the state court and properly preserved it for habeas review. The Warden, however,
does not advance the procedural default defense respecting McKnight’s Fourteenth Amendment
argument.
When a state court is presented with a claim on appeal that alleges violations of both state
and federal law but does not expressly acknowledge that it is deciding the federal constitutional
issue, however, an assumption that the unaddressed federal claim was simply overlooked is
unwarranted. Johnson v. Williams, 568 U.S 289, 298 (2013). Rather, “[w]hen a state court
rejects a federal claim without expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits – but that presumption can in some
limited circumstances be rebutted.” Id. at 301. The Supreme Court further stated that “[w]hen
the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked
in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case
76

before a federal judge.” Id. at 303.
Johnson involved the state trial court’s dismissal of a juror during deliberations. The state
court of appeals, while not deciding the Sixth Amendment claim expressly, cited a California
Supreme Court case in which that court acknowledged the federal constitutional right to a jury trial
and the need to protect the sanctity of jury deliberations, discussing at length three federal
appellate court cases that had considered those issues in depth. Id. at 304. No such reliance on
federal law is present in the state supreme court’s decision on McKnight’s admissibility of
evidence claim. Thus, the posture of McKnight’s claim can be distinguished from Johnson’s on
the basis that the state court expounded upon federal law in deciding Johnson’s claim, while the
Supreme Court of Ohio did not do so in McKnight’s case.
Assuming McKnight’s claim was fairly presented to the Supreme Court of Ohio, and that
the Supreme Court of Ohio did not address the merits of that claim, this Court will address his
Fourteenth Amendment claim de novo. See Thompson v. Warden, Bellmont Corr. Inst., 598 F.3d
281, 285 (6th Cir. 2010), quoting Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005) ( “Where
the state court has not addressed or resolved claims based on federal law, most courts, including
this one, have held that the decision is not an ‘adjudication on the merits.’ Thus, a federal habeas
court reviews such unaddressed claims de novo.”); Reed v. Jenkins, Case No 3:15-cv-620, 2016
WL 6311235 at *5 (N.D. Ohio June 22, 2016) (same). “To the extent that the state court did not
assess the merits of a claim properly raised in the habeas petition . . . AEDPA deference does not
apply and we review questions of law and mixed questions of law and fact de novo.” McElrath v.
Simpson, 595 F.3d 624, 630 (6th Cir. 2010), citing Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.

77

2004), and Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003). Furthermore, “An application for
a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State” 28 U.S.C. § 2254(b)(2), which strongly
suggest the same is true for any individual ground for relief.
That is not to say that the Supreme Court of Ohio’s factual findings are to be disregarded.
On the contrary, the AEDPA requires this Court to presume the state court’s factual findings to be
correct unless a petitioner rebuts the presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). The state court found the evidence McKnight challenges probative of the
sequence of events leading up to the murders; the identities of the victims; McKnight’s modus
operandi; and as to Emily Murray, the unlikelihood that her death was a suicide to counter the
defense’s suggestion that it was. Here, McKnight has offered no evidence at all, much less clear
and convincing evidence, calling those findings into question.
The state court also found that the trial court’s admission of evidence that McKnight left a
reggae club due to the presence of police cars in the parking lot was an abuse of discretion,
predominantly because that incident occurred prior to the murders of Julious and Murray. The
court found the error harmless, however, and this Court agrees. A reasonable person could easily
conclude that anyone would be quite reluctant to enter a club at which the police were already
involved rather than view such behavior as evidence of guilt even before a crime had been
committed.
As noted above, the state supreme court determined that McKnight had not objected to the
prosecutor’s opening statement and closing argument, and thus had waived all but plain error, of

78

which the state court found none. Ohio’s contemporaneous objection rule is an independent and
adequate state procedural rule actually applied in McKnight’s case rendering his claim
procedurally defaulted for habeas corpus purposes.

McKnight offers his counsel’s

ineffectiveness as cause for the default, but the state court found the prosecutor’s statements brief,
and merely restatements of some witnesses’ testimony. Giving due deference to the state court’s
factual findings, this Court finds that no error, let alone plain error, resulted from the admission of
the prosecutor’s statements that could have rendered McKnight’s trial unfair.
In Burton v. Renico, 391 F.3d 764, 774 (6th Cir. 2004), the Sixth Circuit Court of Appeals
explained as follows:
For the admission of evidence to violate constitutional due process,
it must be shown that admitting the evidence violates “fundamental
fairness.” i.e., that it “violates those fundamental conceptions of
justice which lie at the base of our civil and political institutions and
which define the community’s sense of fair play and decency.”
Dowling v. United States, 493 U.S. 342, 352-53 (1990) (internal
quotation marks and citations omitted).
Id. (parallel citations omitted). The circuit court has more recently observed that “[t]o the extent
any Supreme Court precedent supports [Petitioner’s] due process claim, it does so largely in dicta
and at a daunting level of generality.” Dowling, the court said, “hold[s] out the possibility that
‘the introduction’ of ‘evidence’ in general could be ‘so extremely unfair that its admission violates
fundamental conceptions of justice.’” Desai, 732 F.3d at 630-31, quoting Dowling, 493 U.S. at
352.
Thus, the erroneous admission of evidence does not necessarily implicate the Due Process
Clause. In Darden v. Wainwright, 477 U.S. 168, 181 (1986), for instance, the Supreme Court

79

held that numerous comments by a prosecutor in a capital case, though improper, did not violate
the Constitution because they had not “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Id. quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). The Sixth Circuit has explained that “beyond the specific guarantees enumerated in the
Bill of Rights, the Due Process Clause has limited operation.” Blackmon v. Booker, 696 F.3d 536,
552 (6th Cir. 2012)(internal quotation marks omitted), quoting Dowling, 493 U.S. at 352; see also
Payne v. Tennessee, 501 U.S. 808, 823 (1991)(observing that “[i]n many cases the evidence
relating to the victim is already before the jury at least in part because of its relevance at the guilt
phase of the trial”); Stojetz v. Ishee, 892 F.3d 175, 203 (6th Cir. 2018)(noting “there is no per se
prohibition on the introduction of victim-impact evidence during the guilt phase of a trial, citing
Hicks v. Collins, 384 F.3d 204, 222 (6th Cir. 2004) and Payne, supra); Clark v. O’Dea, 257 F.3d
498, 502-03 (6th Cir. 2001) (finding evidence that petitioner was involved in satanism did not
deprive petitioner of due process despite absence of physical evidence death was a ritualistic
murder).
To conclude, McKnight has procedurally defaulted his claim insofar as he alleges his Fifth,
Sixth, and Eighth Amendment rights were violated by the introduction of the complained-of
evidence. Giving McKnight the benefit of the doubt and assuming he “fairly presented” his
Fourteenth Amendment claim to the state court, that court did not address the federal claim,
leaving it for this Court to address de novo. In doing so, this Court is obligated to presume the
correctness of the state court’s factual findings, which it does, and concludes that McKnight’s
Fourteenth Amendment claim is meritless. In addition, his inclusion of comments made by the

80

prosecutor in the opening statement and closing argument were procedurally defaulted by
counsel’s failure to object at trial. The alleged ineffectiveness of his trial counsel does not excuse
the default because this Court presumes the state court’s factual finding that the comments were
brief and caused no undue prejudice to McKnight negates the argument that trial counsel were
ineffective. For all of these reasons, it is recommended that McKnight’s eleventh ground for
relief be denied.

Twelfth Ground for Relief

In his twelfth ground for relief, McKnight contends his attempt to introduce into evidence
Emily Murray’s journals or notebooks was denied at trial, thereby violating his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights. (ECF No. 127, PageID 15733.) He argues in
language parroting his arguments in his appellate brief to the state court (ECF No. 106-15, PageID
9556-59), that Murray’s journals would have revealed Murray to have been depressed and fixated
on death rather than the happy, enthusiastic young woman the State portrayed her to have been at
the time of her murder. Id. at 15734-36.
The Warden argues McKnight’s claim is at least partially procedurally defaulted because
McKnight failed to assert a violation of his Sixth or Eighth Amendment rights when he presented it
to the state court. (ECF No. 13, PageID 423.) The Warden acknowledges that the remainder of
McKnight’s claim was decided on its merits by the state court and argues that AEDPA deference
applies to the resulting decision, and that the claim is meritless. Id. at PageID 423-27.

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In his Traverse, McKnight provides several examples of Supreme Court cases in which
lower court decisions excluding evidence offered by the defense were reversed, and argues that in
light of those cases, the exclusion of portions of Emily Murray’s journals was contrary to or an
unreasonable application of federal law or based on an unreasonable determination of the facts.
(ECF No. 17, PageID 727-32.)
On direct appeal to the Supreme Court of Ohio, McKnight presented his claim in his
fifteenth proposition of law, claiming violations of only his Fifth and Fourteenth Amendment
rights. (ECF No. 106-15, PageID 9556.) Thus, insofar as he alleges violations of his Sixth and
Eighth Amendment rights, his claim is procedurally defaulted.
The Supreme Court of Ohio concluded that (1) the excluded portions of Murray’s writings
predated her murder by more than a year, while the portions admitted were within a couple of
months of the murder and did not indicate any intention to commit suicide; (2) the fact that Murray
was found rolled up in a carpet and the coroner’s testimony ruled out suicide as a possible cause of
death; (3) McKnight suffered no prejudice from the exclusion because most of the writings that
mentioned suicide were admitted; and (4) from a state-law perspective, the excluded notebooks
were inadmissible under the state evidentiary rules governing hearsay evidence. McKnight,
2005-Ohio-6046 at ¶¶ 148-157.
The only federal law cited by the state supreme court in its discussion of McKnight’s claim
was Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96 (1892). In that case, two letters written
by a Mr. Walters expressing his intent to travel with a Mr. Hillmon from Wichita, Kansas, to
Colorado were excluded from evidence. The same month the letters were received by their

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addressees, a body was found at Crooked Creek. At first, the deceased was thought to be Mr.
Hillmon, but Hillmon’s various life insurers refused to pay on the policies, claiming Hillmon and
another man conspired to defraud the insurance companies and that Mr. Walters was the deceased,
not Mr. Hillmon. The Supreme Court found exclusion of Mr. Walters’ letters reversible error. It
reasoned that Walters’ letters were proof of his intent to travel with Hillmon on a route that took
them to Crooked Creek where the body was found. The Court stated
When the intention to be proved is important only as qualifying an
act, its connection with that act must be shown, in order to warrant
the admission of declarations of the intention. But whenever the
intention is of itself a distinct and material fact in a chain of
circumstances, it may be proved by contemporaneous oral or written
declarations of the party.
...
Upon principle and authority, therefore, we are of opinion that the
two letters were competent evidence of the intention of Walters at
the time of writing them, which was a material fact bearing upon the
question in controversy.
Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 295, 299-300 (1892). Hillmon never
mentions the Constitution or any amendment thereto and was decided as a matter solely about the
admissibility of evidence. In fact, the “Hillmon Doctrine” was later formalized as Fed. R. Evid.
803(3) and in the same rule in the Ohio Rules of Evidence.

Both before and after the

promulgation of the Federal Rules of Evidence, the Hillmon decision has been treated as an
evidentiary matter, not as one implicating the federal constitution. Shepard v. United States, 290
U.S. 96, 104-06 (1933); United States v. Diaz, 597 F.3d 56, 66 (1st Cir. 2010); Coy v. Renico, 414
F.Supp.2d 744, 766-72 (E.D. Mich. 2006); United States v. Smallwood, 299 F.Supp.2d 578, 585

83

(E.D. Va. 2004); United States v, Houlihan, 871 F.Supp. 1495, 1500 (D. Mass. 1994). The Sixth
Circuit has done so as well. United States v. Williams, 704 F.2d 315, 322 (6th Cir. 1983); United
States v. Hoffa, 349 F.2d 20, 45 (6th Cir. 1965).
Thus, the state court cited no federal constitutional law to suggest that it had considered the
federal constitutional component of McKnight’s claim, nor did it give any indication that the state
claim raised in McKnight’s fifteenth proposition of law “fully incorporate[d] a related federal
constitutional right.” Johnson v. Williams, 568 U.S. 289, 298 (2013). McKnight’s reference to
the federal constitution was not fleeting, as he cited several Supreme Court cases in his state
appellate brief. Id. at 299. While there is a slim possibility that the state court could have
regarded McKnight’s claim as “too insubstantial to merit discussion,” id., that seems unlikely
given the full discussion of the state claim asserted in the court’s opinion in McKnight’s fifteenth
proposition of law. As there is good reason to believe that the state supreme court simply
overlooked McKnight’s federal constitutional claim included in his fifteenth proposition of law on
direct appeal, this Court may address that part of his claim de novo.
McKnight cites a few Supreme Court cases for the general propositions that (1) in an
adversary system, the development of all relevant facts is fundamental; (2) “the defendant’s right
to be heard in his own defense is a basic component of due process and a fair trial; (3) a criminal
defendant must have a “meaningful opportunity to present a complete defense”; and (4) a
defendant must not be “stripped of his right to have sufficient time to advise with counsel and
prepare his defense.” Taylor v. Illinois, 484 U.S. 400, 408-09 (1988), citing United States v.
Nixon, 418 U.S. 683, 709 (1974); In re Oliver, 333 U.S. 257, 273 (1948); Crane v. Kentucky, 476

84

U.S. 683, 690 (1986), citing California v. Trombetta, 467 U.S. 479, 485 (1984); and Powell v.
Alabama, 287 U.S. 45, 59 (1932).

While those very general statements are surely true, the state

court determined that the parts of Emily Murphy’s notebooks that were excluded were not relevant
to her state of mind at the time of her death, in part because they were either undated entries or
were dated more than a year before her murder. McKnight, 2005-Ohio-6046 at ¶ 151. The state
court also observed that “most of the documents from Murray’s notebook and notepad that
mentioned suicide were admitted.” Id. at 123. In addition, McKnight has not argued that he did
not have sufficient time to “advise with counsel and prepare his defense.” Nor does he challenge
the state court factual findings as they relate to his habeas claim that his right to due process and a
fair trial was violated.
In his Traverse, McKnight cites Crane along with Washington v. Texas, 388 U.S. 14
(1967), Rock v. Arkansas, 483 U.S. 44 (1987), and Holmes v. South Carolina, 547 U.S. 319
(2006), all of which were cases before the Supreme Court on direct appeal, not on petitions for
habeas corpus relief. In Crane, the Court was presented with the question whether, after a
confession has been found to have been voluntary, the defense counsel may introduce evidence at
trial that it was unworthy of belief because it contained inconsistencies and due to the length of the
interrogation of the sixteen-year-old defendant and the manner in which it was conducted. 476
U.S. at 685-86. Washington struck down a Texas law that prohibited codefendants in the same
crime from testifying for one another and held that the Sixth Amendment right of an accused to
have compulsory process for obtaining witnesses in his favor is incorporated in the Due Process
Clause of the Fourteenth Amendment, and therefore applicable in state proceedings. 388 U.S. at

85

18-19. In the Rock case the question before the Court was “whether a criminal defendant’s right
to testify may be restricted by a state rule that excludes her posthypnosis [sic] testimony,” 483 U.S.
at 53, clearly not an issue in McKnight’s case as he was never hypnotized nor was he prohibited
from testifying in his own defense.
Finally, and most pertinent to McKnight’s claim, in the Holmes case the Supreme Court
recognized an accused’s right under the Due Process Clause of the Fourteenth Amendment while
noting that state rule makers “have broad latitude under the Constitution to establish rules
excluding evidence from criminal trials.” 547 U.S. at 324. The Court stated
While the Constitution . . . prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote,
well-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors
such as unfair prejudice, confusion of the issues, or potential to
mislead the jury. Plainly referring to rules of this type, we have
stated that the Constitution permits judges “to exclude evidence that
is repetitive . . . , only marginally relevant[,] or poses an undue risk
of harassment, prejudice, [or] confusion of the issues.” Crane, 476
U.S., at 689-690 (quoting Delaware v. Van Arsdall, 475 U.S. 673,
679.
Holmes, 547 U.S. at 326-27 (some citations, parallel citations, and internal quotation marks
omitted). The Court vacated and remanded Holmes’ case because the South Carolina Supreme
Court applied a state rule that stated, “[W]here there is strong evidence of [a defendant’s] guilt,
especially where there is strong forensic evidence, the proffered evidence about a third party’s
alleged guilt” may (or perhaps must) be excluded.” Id. at 329, citing State v. Holmes, 361 S.C.
333, 342 (2004). The problem with that rule, the Supreme Court explained, is that the trial
judge’s focus is not on the probative value or potentially damaging effects from admitting a
86

defendant’s third-party-guilt evidence, but is instead on the strength of the prosecution’s evidence.
Holmes, 547 U.S. at 329. In other words, “[i]f the prosecution’s case is strong enough, the
evidence of third-party guilt is excluded even if that evidence, if viewed independently, would
have great probative value and even if it would not pose an undue risk of harassment, prejudice, or
confusion of the issues.” Id., citing Holmes, 361 S.Ct. at 432
The evidence McKnight sought to have admitted at trial was not evidence of any
third-party’s guilt, but instead was intended to cast suspicion on Emily Murphy herself. The
theory of the defense’s case was that Emily Murphy had committed suicide, and Murray’s
reflections about her suicide attempt several months before her murder as well as other writings
pertaining to her mental health were admitted into evidence. McKnight argues that Murphy’s
written “fictional stories, several drawings, and [her] reflections on life that did not mention
suicide,” McKnight, 2005-Ohio-6046 at ¶ 151, should also have been admitted but were not.
Furthermore, the evidence McKnight wanted admitted that did not mention suicide predated the
evidence that was admitted and did mention suicide and hospitalization. It is difficult to imagine
how those circumstances could have deprived McKnight of “a meaningful opportunity to present a
complete defense.” Holmes, 547 U.S. at 331 (internal quotation marks omitted), quoting Crane,
476 U.S. at 690, in turn quoting Trombetta, 467 U.S. at 485. McKnight’s twelfth ground for relief
should be denied.

87

Thirteenth Ground for Relief

In his thirteenth Ground for Relief, McKnight alleges a member of his jury improperly
discussed McKnight’s case with a woman with whom he had recently had a relationship. (ECF
No. 127, PageID 15736-42.) He argues that the trial court’s in-chambers questioning of the juror
fell short of a full hearing under Remmer v. United States, 347 U.S. 227 (1954), and that his Fifth,
Sixth, and Fourteenth Amendment rights were violated as a result. Id. at PageID 15736.
Respondent begins by asserting McKnight’s ground for relief is procedurally defaulted to
the extent he failed to raise error under the Eighth Amendment in his appeal to the Supreme Court
of Ohio. (ECF No. 13, PageID 428.) But McKnight does not claim an Eighth Amendment
violation in his amended habeas petition here, nor did he do so in his initial petition or any other
amendments.

The Warden does not contend that the claim McKnight actually raises is

procedurally defaulted, only that it is without merit. Id. at 430-34.
McKnight unnecessarily repeats his claim in his Traverse, and argues that the
communication between the juror and his ex-girlfriend must be presumed to have been prejudicial
under Remmer.
When reviewing a state court judgment in habeas corpus proceedings, this Court is, as has
been noted above, bound to defer to the state court’s factual findings. Thus, it is useful to recite
the facts as found and relied upon by the Supreme Court of Ohio in its rejection of McKnight’s
parallel proposition of law.

88

{¶ 188} In proposition of law XIII, appellant argues that he was
denied a fair trial because one juror discussed the case with a
nonjuror during the trial.
{¶ 189} During the state’s case, the prosecutor informed the trial
court that Amy Warrix reported that her boyfriend, Terry Stewart, a
juror, “has been talking to her about the case.” The trial court then
called Juror Stewart into chambers for questioning. Juror Stewart
denied talking with Warrix about the trial. He stated that he had
“never discussed the case with her at all, nothing about the facts or
that deals with the case at all.” Juror Stewart said that Warrix may
have made these allegations against him because he had “left her
last night, and she’s a mean, hateful girl.” Juror Stewart said that
when Warrix tried to talk to him about the case, he told her, “I’m
under oath not to talk about it and not to hear about it.” He also told
the court that he had followed those instructions. Juror Stewart
also assured the court that he did not acquire any outside
information about the case as a result of being around Warrix.
{¶ 190} Following the completion of Juror Stewart’s questioning,
defense counsel stated, “I’m satisfied with his explanation.”
Defense counsel indicated that no further inquiry was necessary and
declined the opportunity to question Warrix. The trial court then
stated, “The Court is satisfied as well at this point.”
...
{¶ 192} Appellant argues that the trial court was obligated to
conduct a Remmer hearing to question Warrix, and possibly other
jurors, before making a determination that no improper contact had
occurred. . . . The defense, however, was “satisfied” with the
juror’s explanation and indicated that no further inquiry into the
allegations was necessary. Thus, the trial court did not abuse its
discretion. . . .
{¶ 193} Appellant has failed to demonstrate that any juror
misconduct occurred, and proposition XIII is overruled.
McKnight, 2005-Ohio-6046. In addition, Juror Stewart stated in chambers that he only talked to
Warrix about the food the jurors were eating and nothing about the case itself. (ECF No. 105-20,

89

PageID 6384.) When Warrix tried to discuss with him what she had seen on television about the
case, he told her he was under oath not to discuss it. Id. He told the court that he was following
the instructions and that he had “told Carolyn about it when I come up here [this morning]. I
come up and talked to them cops. . . . I even come up and talked to [Deputy] Whitmore” about
Warrix and her allegations. Id. at PageID 6385-86. Stewart expressed certainty that he had not
acquired any information about the case from Warrix, and assured the court that he would make his
decision as a juror based solely on the evidence produced in the trial. Id. at PageID 6388-89.
The prosecutor offered to make Warrix available to defense counsel for questioning, but both
attorneys declined. Id. at 6390.
In Remmer v. United States, 347 U.S. 227 (1954), the Supreme Court stated as follows:
In a criminal case, any private communication, contact, or
tampering directly or indirectly, with a juror during a trial about the
matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of the court made
during the trial, with full knowledge of the parties. The
presumption is not conclusive, but the burden rests heavily upon the
Government to established, after notice to and hearing of the
defendant that such contact with the juror was harmless to the
defendant.
Id. at 229. Later, however, the Court restated the Remmer standard to place the burden of
showing actual prejudice on petitioners when they allege juror partiality. Lang v. Bobby, 889
F.3d 803, 911 (6th Cir. 2018), citing Smith v. Phillips, 455 U.S. 209, 217 (1982).
The Sixth and Fourteenth Amendments guarantee a criminal
defendant an impartial jury in state-court proceedings. Mahdi v.
Bagley, 522 F.3d 631, 636 (6th Cir. 2008). The state fails to
vindicate that right for a defendant if “even a single biased juror”
sits on the panel. Williams [v. Bagley], 380 F.3d [932,] . . . 944 [(6th
90

Cir. 2004)] (citing Morgan v. Illinois, 504 U.S. 719, 729 (1992)).
If a trial court is faced with evidence of a juror’s bias, the court
“must conduct ‘a hearing with all interested parties permitted to
participate.’” United States v. Owens, 426 F.3d 800, 805 (6th Cir.
2005) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954).
A defendant must “do more than simply raise the possibility of bias”
in order to obtain a full Remmer hearing. Id. To the contrary, a
trial court needs to conduct a Remmer hearing only when the
defense raises a “colorable claim of extraneous influence.” Id.
(internal quotation and citation omitted).
An “extraneous
influence” is “one derived from specific knowledge about or a
relationship with either the parties or their witnesses.” Id. (internal
quotation and citation omitted). . . . A court must seek assurance
from the juror that she is capable of proceeding without bias, and if a
trial court “views juror assurances of continued impartiality to be
credible, the court may rely upon such assurances.” United States
v. Pennell, 737 F.2d 521, 533 (6th Cir. 1984).
Jackson v. Bradshaw, 681 F.3d 753, 766 (6th Cir. 2012)(parallel citations omitted).
Having recited the governing law established by the Supreme Court, this Court must
consider whether the Supreme Court of Ohio’s decision was contrary to or an unreasonable
application of that law or an unreasonable determination of the facts given the evidence before the
state trial court. 28 U.S.C. § 2254(d).
McKnight argues that Juror Stewart’s answers to the attorneys’ and trial court’s questions
in chambers reinforced rather than rebutted the presumption of prejudice. (ECF No. 17, PageID
741.) As noted above, however, the burden of raising a “colorable claim of extraneous influence”
is on the defense. Jackson, 681 F.3d at 766. Only then is a Remmer hearing required. Id. See
also, United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (noting that the Smith Court “held
that Remmer does not govern the question of the burden of proof where potential jury partiality is
alleged” and instead “controls the question of how the . . . court should proceed where such
91

allegations are made”). McKnight also declares that “[u]nder clearly established federal law,
jurors being exposed to extrinsic evidence or other extraneous influence violates a defendant’s
Sixth Amendment rights, and a state court decision that conflicts with this rule may justify habeas
relief . . . under the AEDPA.” (ECF No. 17, PageID 742-43.) That statement completely ignores
a defendant’s burden of proof to raise a colorable claim of extraneous influence.
In McKnight’s case, Juror Stewart himself reported Warrix’s attempt to engage him in a
conversation about the case before the jury was reconvened the next morning. He explained that
Warrix threatened to implicate him in inappropriate conversation about the case because he broke
off their relationship, and that appears to be precisely what she did as evidenced by the
prosecutor’s bringing the issue to the court’s attention the same morning. There is no indication
that Stewart shared any information about the incident with any other jurors.

The judge,

prosecutor, and defense counsel were all satisfied with Juror Stewart’s explanation of the events of
the previous night and agreed that no further questioning of him was necessary. Although
McKnight alleges his defense counsel were ineffective for not pressing for a Remmer hearing, this
Court recommends denial that claim, infra. Consequently, it cannot be said that the state court’s
denial of McKnight’s proposition of law was contrary to or an unreasonable application of federal
law or an unreasonable determination of the facts. Accordingly, McKnight’s thirteenth ground
for relief should be denied.

92

Fourteenth Ground for Relief

McKnight asserts that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were
violated when jurors who fell asleep during the presentation of evidence were permitted to remain
on the jury. (ECF No. 127, PageID 15742.) He cites two examples of one or more jurors
sleeping and states that no admonishment or other corrective action was taken by the court. Id. at
15744.
Respondent contends McKnight’s ground for relief is procedurally defaulted to the extent
he alleges violations of the Fifth, Eighth, and Fourteenth Amendments because he raised only a
Sixth Amendment claim in the state supreme court. (ECF No. 13, PageID 435-36.) In addition,
the Warden argues that even McKnight’s Sixth Amendment claim is procedurally defaulted since
there was no objection by his counsel respecting the sleeping jurors or the trial court’s handling of
the situation. Id. The Supreme Court of Ohio evaluated McKnight’s claim only for plain error,
and found none, Respondent states. Id. McKnight disputes the Warden’s allegation that he
presented only his Sixth Amendment claim in the state court, referring the Court to his state court
appellate brief. (ECF No. 17, PageID 744.) Whether or not McKnight alleged the violation of
his rights under one or many amendments to the Constitution is immaterial because under either
set of circumstances, the ground for relief is procedurally defaulted.
In the first instance of a juror apparently dozing off, the prosecutor brought the matter to
the court’s attention and suggested a break so the jurors could move around to counteract the
sleep-inducing effects of the “sweltering” heat in the courtroom. McKnight, 2005-Ohio-6046 at

93

¶¶ 173-76. In the second instance, again brought to the attention of the court by the prosecutor,
the court stated it would take note and be aware of the issue. Id. at ¶¶ 177-83. In neither instance
did defense counsel object that the jurors were apparently sleeping or to the court’s handling of the
matter. Thus, when McKnight raised it as a proposition of law on direct appeal, the state supreme
court evaluated the claim as follows:
{¶185} Appellant argues that the trial court should have
questioned [the second juror] to determine whether she was
sleeping, or in the alternative, . . . [that she] should have been
dismissed and replaced with an alternate juror. The defense did not
request either remedy at trial and expressed no dissatisfaction with
the trial court’s handling of the matter. Thus, in the absence of
plain error, this claim is waived. See State v. Childs (1968), 14
Ohio St.2d 56, paragraph three of the syllabus.
{¶186} No plain error occurred. There was only a vague
allegation that jurors were sleeping when the issue was first raised
with the trial court. [One j]uror was alleged to have been asleep
during a later portion of the trial, but the defense has provided no
evidence that this juror was in fact sleeping. Thus, whether [she] or
any other juror was in fact sleeping is speculative. The trial court
observed that [that juror] did not “move around like other jurors * *
* [and] just [maintained] a fixed position, as she [had] throughout.”
The trial court noted counsel’s concern about [the juror’s] sleeping,
but no further concern about sleeping jurors was raised during the
trial.
{¶187} Moreover, appellant has provided no evidence of
prejudice. Nothing in the record shows what part of the testimony,
if any, jurors actually missed. See [State v.] Sanders, 92 Ohio St.3d
[245,]253 [(2001)](affirming conviction where there was no
evidence that the juror missed large or critical portions of the trial).
Based on the foregoing, we reject proposition XI.
McKnight, 2005-Ohio-6046.
The reasoning contained in the trial court’s discussion of McKnight’s claim is remarkably

94

similar to that of the Sixth Circuit Court of Appeals in United States v Rafidi, 829 F.3d 437 (6th Cir.
2016), except that there it was defense counsel who brought the sleeping juror to the court’s
attention, by asking the court, “Is there anything you might be able to say to him?” Id. at 448.
The circuit court then explained that
The district court asked both defense counsel and the prosecution
whether they had witnessed a juror sleeping and remarked that it had
told the jurors to “stand and stretch.” Rafidi’s counsel did not
request that the district court take any further action following this
exchange, such as requesting that the juror be removed or that the
juror be questioned about sleeping. Rafidi’s counsel did not object
to the district court’s proposed solution nor did counsel move for a
mistrial. Because defense counsel did not request any further
action and did not raise the issue again during trial, we cannot say
that the district court plainly erred in addressing defense counsel’s
sleeping-juror allegation.
Id. The court of appeals also reasserted that “[A] juror who sleeps through much of the trial
testimony cannot be expected to perform his duties.” Id. at 448, quoting United States v. Warner,
690 F.2d 545, 555 (6th Cir. 1982).11
McKnight alleges the Supreme Court of Ohio “turned a blind eye to the reality of the
record,” that the ultimate responsibility of assuring a criminal trial is fair lies with the trial court so
the sleeping jurors should have been dismissed even without defense counsel’s request, and that
“prejudice must be presumed.” (ECF No. 17, PageID 749-50.) Yet the supreme court’s opinion
reflected a familiarity with the record and there is no evidence in the record before this Court to
indicate how long the jurors may have been dozing or what testimony they may not have heard.
Additionally, there is no authority cited for the proposition that prejudice should be presumed from

11 McKnight cites the same page of Warner, leaving out the part that specifies that the sleeping must be through
“much of the trial testimony” to warrant dismissal of a juror. (ECF No. 17, PageID 748.)

95

a juror’s dozing off. Consequently, even if McKnight had preserved the instant claim, it would be
unavailing.
It bears mentioning, too, that Rafidi, supra, was heard on direct appeal and was not
constrained by the stringent requirements of the AEDPA. Even so, the Sixth Circuit found no
plain error in Rafidi in a factual scenario very similar to that in McKnight’s trial. This Court
would be hard-pressed to conclude that the Supreme Court of Ohio’s same conclusion was
contrary to or an unreasonable application of federal law. For the reasons stated, McKnight’s
fourteenth ground for relief should be denied.

Fifteenth Ground Relief for Relief

In his fifteenth ground for relief, McKnight argues that an outburst from a trial spectator
during the closing arguments and the trial court’s failure to take curative action afterward violated
his rights to due process and to a fair trial under the Fifth, Sixth, Eighth, and Fourteenth
Amendments.

(ECF No. 127, PageID 15747.)

The “outburst” consisted of a spectator’s

single-word statement, “No,” after defense counsel suggested in closing argument that Emily
Murray and McKnight were considering having a relationship. (ECF No. 105-25, PageID 7179.)
Anticipating the Warden’s response, McKnight acknowledges that his trial counsel failed to
request any curative action, and preemptively offers his counsel’s ineffectiveness as cause for the
assumed procedural default.

Id.

McKnight also advances a sort of cumulative prejudice

argument in claiming the pretrial publicity, victim impact evidence, other acts evidence, character

96

evidence, the same or another spectator’s shout of approval when McKnight’s sentence was read,
and opinions expressed to the jurors from community members combined with the spectator’s
comment to deny him a fair trial before a fair and impartial jury. Id. at PageID 15748-50.
The Warden counters that McKnight raised the instant claim only insofar as he claims his
Sixth Amendment rights were violated, and that because his trial counsel did not lodge a
contemporaneous objection to the spectator’s comment, the entire ground for relief is procedurally
defaulted. (ECF No. 13, PageID 441.) In the alternative, Respondent contends McKnight’s
claim is meritless. Id. at PageID 443-44.
In his Traverse, McKnight argues against the procedural default of his ground for relief and
summarizes his presentation of it to the state court, offers cause for any default, and prejudice
therefrom. (ECF No. 17, PageID 753.) However, in Harris v. Reed, the Supreme Court held that
a federal claimant’s procedural default precludes federal habeas review . . . only if the last state
court rendering a judgment in the case rests its judgment on the procedural default[.]” 489 U.S.
255, 262-63 (1989), citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985); Ulster County Court
v. Allen, 442 U.S. 140, 152–54 (1979); see also Lovins v. Parker, 712 F.3d 283, 296 (6th Cir. 2013)
The fact is, however, that the state court ignored any procedural default and addressed the claim on
its merits, although it noted that McKnight’s counsel did not object or ask for a curative instruction
after either outburst. McKnight, 2005-Ohio-6046 at ¶¶ 194-204.
At trial, during defense counsel’s culpability-phase closing argument, a spectator said,
“No.” when the attorney stated that one witness testified that Emily Murphy and McKnight were
considering a relationship.

(ECF No. 105-25, PageID 7179.)

97

McKnight argues that the

disruption was of “sufficient magnitude for the court reporter to report it in the official transcript.”
(ECF No. 127, PageID 15747.) But that is precisely the court reporter’s duty and she would be
remiss in that duty if a spectator uttered anything audible during the proceedings and she did not
include the word or words spoken in the transcript. Thus, the fact that the court reporter
accurately recorded the words spoken in the courtroom is remarkable only as a testament to her
professionalism and proficiency.
The state supreme court stated as follows:
{¶ 203} “The impact of emotional outbursts at trial by witnesses or
spectators cannot be judged by an appellate court on a cold record.
‘Was the jury disturbed, alarmed, shocked or deeply moved? * * *
These questions necessarily depend on facts which no record can
reflect.’” State v. Hill (1996), 75 Ohio St.3d 195, 204, quoting
State v. Bradley (1965), 3 Ohio St.2d 38, 40. Thus, a trial court
must determine, as a question of fact, whether an emotional outburst
deprived the defendant of a fair trial. State v. Scott, 101 Ohio St.3d
31, 2004-Ohio-10, ¶ 44, [(Ohio 2004)]. “in the absence of clear,
affirmative evidence to the contrary, the trial court’s determination
will not be disturbed.” [State v.] Morales, 32 Ohio St.3d [252,] 255
[(Ohio 1987)].
{¶ 204} The record does not show whether the jurors heard the . . .
outburst, and if so, whether it had any effect on them. Further,
neither counsel brought the outburst to the trial court’s attention.
Thus, it would be speculative to conclude that the one-word outburst
was disruptive or prejudicial. Under these circumstances, we find
that no “clear, affirmative evidence” exists that the outburst
deprived appellant of a fair trial.
McKnight, 2005-Ohio-6046.
McKnight argues that the trial court’s failure to hold a Remmer hearing, question the jurors
as to whether the spectator’s comment would influence their verdict, or give a curative instruction
compromised the fairness of his trial. The Sixth Circuit has long recognized that
98

[I]t is ordinarily advisable for a trial judge to conduct a hearing
when there is third-party communication with the jury. We cannot
conclude, however, as [Petitioner] would have us, that the
*Constitution requires a trial court to sua sponte conduct a
full-blown evidentiary hearing every time a courtroom spectator
makes a comment within the jury’s hearing.
Where the
communication is innocuous and initiated by a spectator in the form
of an outburst, a hearing is not necessarily required. This is
particularly true when . . . the trial judge follows up with a statement
to the jury, allaying any apprehensions.
White v. Smith, 984 F.2d 163, 166-67 (6th Cir. 1993). In a more recent case, the Sixth Circuit
determined that the district court was within its discretion in finding the jurors would not be
prejudiced by a spectator’s outburst that “They murdered my son” during a cooperating witness’
testimony. United States v. Nagi, 541 Fed.App’x 556, 573 (6th Cir. 2013). Granted, the district
court immediately instructed the jurors to disregard the statement, but it is also true that the nature
of the spectator’s outburst in Nagi was qualitatively different than the single-word comment
uttered by the spectator in McKnight’s case. Similarly, the Sixth Circuit found a motion for
mistrial was properly denied without an evidentiary hearing where a “victim’s wife, in reference to
the defendant, repeatedly uttered ‘murderers and killers’” and where the trial court issued general
admonitions to the jury to be fair to both sides and presume the defendants were innocent until
proven guilty. Rogers v. Howe, 64 Fed. App’x 450, 457 (6th Cir. 2003). Furthermore, coming as
it did following the prosecutor’s argument that McKnight and Emily Murray were considering a
relationship, the spectator’s “No” could have had no impact on the jurors with regard to the
offenses with which McKnight had been charged with the possible exception of the kidnapping
count. Even if McKnight and Murray had been in a relationship, that would not have insulated
him from the kidnapping conviction; it is possible to kidnap intimates.
99

“It is clear that a defendant who fails to request a hearing or other relief ‘bears a heavy
burden.’” Mays v. Chandler, Case No. Crim. A. 6;06-426-DCR 2007 WL 2903212 at *7 (E.D
Ky. Sept. 28, 2007), quoting United States v. Walker, 1670 F.3d 1078, 1083 (6th Cir. 1998).
Given the context and nature of the spectator’s comment in this case and the absence of a request
for a hearing, admonition, or mistrial, this Court cannot say that the Ohio court’s decision
respecting the instant ground for relief was contrary to or an unreasonable application of federal
law as determined by the Supreme Court. Accordingly, McKnight’s fifteenth ground for relief
should be denied.

Sixteenth Ground for Relief

In his sixteenth ground for relief, McKnight contends his appearance before the jury while
shackled violated his rights to due process, a fair trial, and an impartial jury as guaranteed by the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (ECF No.
127, PageID 15750.) Respondent argues that the state court’s decision denying the claim is
entitled to deference under the AEDPA and that it is consequently meritless. (ECF No. 13,
PageID 445-48.) McKnight counters that since he was shackled in the courtroom and in the
jury’s presence, prejudice should be presumed and his convictions and sentence vacated. (ECF
No. 17, PageID 760-62.)
On direct appeal, the Supreme Court of Ohio resolved McKnight’s claim as follows:

100

{¶ 216} Defendant’s shackling. In proposition of law XVII,
appellant contends that he was denied a fair trial when the jury saw
him shackled.
{¶ 217} After the jury had started guilt-phase deliberations, the
jury returned to the courtroom for instructions prior to retiring for
the evening. Appellant was placed in handcuffs while the jurors
were leaving the courtroom. Although trial counsel acknowledged
that the handcuffing was “inadvertent,” the defense requested a
mistrial. In overruling the motion for mistrial, the trial court stated
that “Mr. McKnight has appeared throughout all stages of the
proceedings, * * * whenever the jury has been present, * * * he has
appeared in street clothing, and he has appeared free of any
restraints of any type, at least anything visible to the jury.”
{¶ 218} Over defense objection, the trial court provided a curative
instruction before the jury resumed its deliberations. The trial
court advised the jury: “If you have seen Gregory B. McKnight in
any type of restraints at any time during this proceeding, you are
hereby instructed to disregard it, as it does not bear on his guilt or
innocence in any manner.”
{¶ 219} No one should be tried while shackled, absent unusual
circumstances. Illinois v. Allen (1970), 397 U.S. 337, 344. Even
though the jury saw appellant handcuffed on one occasion, appellant
has failed to demonstrate prejudice. The jury’s view of him was
brief and inadvertent. Cf. State v. Kidder (1987), 32 Ohio St.3d
279, 285-286 (danger of prejudice is slight where a jury’s view of
defendant in custody is brief, inadvertent, and outside of the
courtroom).
{¶ 220} Moreover, the trial court’s curative instruction removed
any prejudice. See State v. Garner (1995), 74 Ohio St.3d 49, 59
(jury presumed to follow the trial court’s curative instructions).
Thus, the fact that the jury observed appellant handcuffed on one
occasion did not deprive him of a fair trial. Accordingly, we find
that proposition [of law] XVII lacks merit.
McKnight, 2005-Ohio-6046 (parallel citations and footnote omitted).
It is true that “[t]he Constitution forbids the use of visible shackles during the penalty phase

101

[of a capital trial], as it forbids their use during the guilt phase,” Deck v. Missouri, 544 U.S. 622,
624 (2005),12 but that prohibition is not unqualified. If the use of such security measures is
“justified by an essential state interest – such as the interest in courtroom security – specific to the
defendant on trial,” there is no constitutional prohibition against using such measures. Id. In
other words, the Constitution does not prohibit shackling, it prohibits routine shackling. Id. at
626. Moreover,
Where a defendant was seen shackled in the courtroom for a
significant period of time, courts have found the shackling
“inherently prejudicial.” However, if the defendant was seen
shackled outside the courtroom or was seen shackled in the
courtroom only briefly, prejudice has not been presumed and the
petitioner must prove he was actually prejudiced. ([C]itations
omitted.)
Keys v. Booker, 798 F.3d 442, 455 (6th Cir. 2015) (some quotation marks omitted).
The first barrier to habeas relief on McKnight’s claim is that the single incident of his being
handcuffed before all jurors were out of the courtroom is a far cry from the “routine” shackling
Deck prohibits. Defense counsel recognized that the handcuffing in the presence of some of the
jurors “was truly inadvertent” and that “I have never had a client treated with the respect and the
courtesy that Mr. McKnight has been shown by this Court and by the Sheriff’s staff.” Id. at
PageID 7312-13. The handcuffing of McKnight in the view of the jury can only be described as
brief.
Second, there is no clear evidence that any juror actually saw McKnight being handcuffed,

12
The Sixth Circuit has observed that it has twice held that “the principles underlying Deck were, in fact, clearly
established by the Supreme Court before its decision in Deck.” Mendoza v. Berghuis, 544 F.3d 650, 653 (6th Cir.
2008), citing Lakin v. Stine, 431 F.3d 959, 963 (6th Cir. 2005).

102

and neither the prosecutor nor the judge saw him being cuffed. (Trial Tr., ECF 105-26, PageID
7309-10.)

In fact, in objecting to the curative instruction later given, defense counsel

acknowledged that “an instruction may focus all twelve jurors on something that some or none
may have observed.” Id. at PageID 7313.
Third, the complained-of incident occurred when court had been adjourned for the day and
everyone was exiting the courtroom. Id. at PageID 7310-11. The trial judge remarked that the
jurors knew everyone was leaving, including McKnight. Id. at PageID 7311. As a convicted
murderer of two individuals facing death or a very long prison sentence, it would be nothing short
of folly to prepare to transport McKnight without restraints. Surely no juror would rest her
sentencing decision on the brief sight of McKnight being prepared to be transported to jail, even
assuming she did see the handcuffing.
Finally, because McKnight argues that any and all shackling inside the courtroom in the
presence of the jury is inherently prejudicial, he makes no attempt to demonstrate prejudice as
required when the jury’s exposure to the shackling is brief, and none is evident from the record
before this Court. See Keys, 798 F.3d at 455.
McKnight also argues error in the trial judge’s decision to give the jury a curative
instruction on the chance that any of the jurors actually saw McKnight being handcuffed. Before
giving the curative instruction, however, the trial judge gave defense counsel a chance to withdraw
their previously made motion for mistrial based on the handcuffing issue. (ECF No. 105-26,
PageID 7315.) McKnight’s counsel declined and argued strenuously against the instruction
saying it would amplify rather than cure the error and insisting that declaration of a mistrial was

103

the only remedy for the error. Id. at PageID 7315-19. Nevertheless, the court gave the jury
instruction as noted in the excerpt from the Supreme Court of Ohio’s decision, supra.
McKnight has offered no proof of prejudice attributable to the complained-of jury
instruction. In spite of his objection to the instruction, the Sixth Circuit has noted that when jurors
inadvertently catch a glimpse of a defendant in shackles and the trial judge instructs them in a
manner similar to the instruction given in McKnight’s case, “[t]here is the presumption that juries
will follow such curative instructions.” United States v. Moreno, 933 F.2d 362, 368 (6th Cir.
1991). In Moreno, the Sixth Circuit quoted with approval from United States v. Gomez-Pabon,
911 F.2d 847, 858 (1st Cir. 1990), where that court stated that “presumption will be defeated only if
there is an overwhelming probability that the jury will be unable to follow the court’s instructions,
and a strong likelihood that the effect . . . would be devastating to the defendant.” Since even
defense counsel acknowledged that they were unsure whether any of McKnight’s jurors even saw
him being handcuffed, rebutting the presumption in his case is insurmountable.
McKnight has failed to demonstrate that the brief opportunity jurors had to view him being
handcuffed in preparation for transport prejudiced him in any way, and has also failed to show any
prejudice from the trial court’s having given a curative instruction in case one or more jurors
actually saw his being handcuffed. The Supreme Court of Ohio’s rejection of McKnight’s claim
of error was neither contrary to nor an unreasonable application of Supreme Court law.
Accordingly, his sixteenth ground for relief should be denied.

104

Seventeenth Ground for Relief

In his seventeenth ground for relief, McKnight contends he was denied due process and a
fair trial due to the trial court’s instruction that the jury “must decide whether the State has proved
beyond a reasonable doubt that Gregory McKnight committed the aggravated murder for the
purpose of escaping detection, apprehension, trial or punishment for kidnapping and/or a theft
offense.” (ECF No. 127, PageID 15754-56; ECF No. 105-26, PageID 7269.) He argues that the
“and/or” wording of the court’s instruction deprived him of a unanimous verdict since some jurors
may have found him guilty of the charge on the basis of the kidnapping, some on the basis of the
theft, and others on the basis of both offenses. He makes the same argument with respect to the
court’s instruction on the aggravated robbery charge which allowed that jurors could find him
guilty if he knowingly obtained or exerted control over the Subaru Outback without consent or by
threat. McKnight states his claim by cutting and pasting from his appellate brief to the Supreme
Court of Ohio with very little modification and adding a paragraph parroting 28 U.S.C. § 2254(d),
and simply declaring that the state court’s decision does not comport with that law.
Respondent counters that the claim is procedurally defaulted because McKnight did not
raise it as an Eighth Amendment claim in the state court. (ECF No. 13, PageID 449.) That is
true as far as it goes (ECF No 106-14, PageID 9571-79), so to the extent McKnight relied on the
Eighth Amendment in his ground for relief, his claim is procedurally defaulted. But McKnight
did raise the claim as Fifth, Sixth, and Fourteenth Amendment violations. (ECF No. 106-15,
PageID 9571-79.) Respondent also argues that McKnight’s claim is procedurally defaulted

105

because he lodged no contemporaneous objection at the time the challenged instruction was given,
and because he invited any error by including the instruction he now challenges in his own
proposed jury instructions.
In his Traverse, McKnight addresses the Warden’s procedural default defense, offering his
attorneys’ ineffectiveness as cause and arguing that he was “required to prove that the mitigating
factors outweighed the aggravating circumstances, an impermissible shift of the burden of proof
which denied him due process and a fair and reliable sentencing determination.” (ECF No. 17,
PageID 765. He also repeats his argument from his petition.13 Id. at PageID 763-70.
McKnight raised the instant claim alleging violations of his Fifth, Sixth, and Fourteenth
Amendment rights in the Supreme Court of Ohio as his eighteenth proposition of law. (ECF No.
106-15, PageID 9571-79.) That court rejected the claim, reasoning, in relevant part, as follows:
{¶ 224} 2. Duplicative instructions. In proposition of law
XVIII, appellant argues that the instructions on the R.C.
2929.04(A)(3) escaping-detection specification and the separate
kidnapping and aggravated-robbery charges were duplicative and
violated his right to a unanimous jury verdict.
{¶ 225} Appellant’s failure to object to the alleged duplicative
nature of the instructions waived all but plain error. [State v.]
Underwood, 3 Ohio St.3d 12 [(1983)], syllabus. Moreover,
appellant’s proposed instructions included language that he now
contends was erroneous. Thus, appellant invited any error and may
not “take advantage of an error which he himself invited or

13

The Court notes that McKnight refers to his “conviction” on a kidnapping and/or theft offense in throughout his
petition and his traverse in his presentation of his seventeenth ground for relief, which concerns instruction on the
aggravating circumstance which the jury found beyond a reasonable doubt. But “[a]ggravating circumstances are not
separate penalties or offenses,” Poland v. Arizona, 476 U.S. 147, 156 (1986), so “[a] capital sentencer's finding, or
failing to find, an aggravating circumstance does not ‘convict’ or ‘acquit’ a defendant.” United States v. Lawrence,
735 F.3d 385, 427 (6th Cir. 2013), quoting Poland v. Arizona, 476 U.S. 147, 156 (1986). Moreover, “[t]he use of
‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible
persons.” Lowenfield v. Phelps, 484 U.S. 231, 244 (1988); Scott v. Mitchell, 209 F.3d 854, 884 (6th Cir. 2000).

106

induced.” State v. Bey (1999), 85 Ohio St.3d 487, 493, quoting Hal
Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d
20, paragraph one of the syllabus; State v. Seiber (1990), 56 Ohio
St.3d 4, 17.
{¶ 226} We reject appellant’s claims on the basis of plain error and
invited error. Instructions on the R.C. 2929.04(A)(3) specification
referred to appellant’s committing the murders for “the purpose of
escaping detection, apprehension, trial or punishment for
kidnapping and/or a theft offense.” (Emphasis added.) Appellant
argues that this instruction deprived him of his right to a unanimous
jury verdict because some of the jurors may have convicted him of
the (A)(3) specification on the basis of kidnapping and others on the
basis of aggravated robbery. The jurors did not convict appellant
of the (A)(3) specification on alternative theories, because the same
jury separately convicted of both kidnapping and aggravated
robbery. Cf. State v. Noling, 98 Ohio St.3d 44[, 57] ¶ 68 [(2002)];
State v. Keene (1998), 81 Ohio St.3d 646, 664. Thus, the outcome
of appellant’s case would not have been different had the
instructions been worded differently.

McKnight, 107 Ohio St.3d at 132 (parallel citations and internal quotation marks omitted). Thus,
the Supreme Court of Ohio rejected McKnight’s proposition of law for lack of a contemporaneous
objection at the time the challenged instruction was given, and because McKnight included the
language he argued was improper in his proposed jury instructions.
The Supreme Court has stated that “in all cases in which a state
prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas
corpus review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law; or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 3501, U.S. 722, 749 (1991)
(emphasis added). A federal habeas petitioner can procedurally
default a claim by “failing to obtain consideration of a claim by a
state court . . . due to a state procedural rule that prevents the state
courts from reaching the merits of the petitioner’s claim.” Seymour
107

v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citing Wainwright
v. Sykes, 433 U.S. 72, 80 (1977)). When the state procedural rule
prevents the state court from hearing the merits of the claim,
procedural default occurs when 1) a petitioner failed to comply with
the rule, 2) the state actually enforced the rule against the petitioner,
and 3) the rule is an “adequate and independent” state ground
foreclosing review of a federal constitutional claim. Willis v.
Smith, 351 F.3d 741, 744 (6th Cir. 2003). Failure to comply with
well-established and normally enforced procedural rules usually
constitutes “adequate and independent” state grounds for
foreclosing review. See id. at 745.
Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006)(parallel citations and footnote omitted).
The Sixth Circuit Court of Appeals has repeatedly held that Ohio’s contemporaneous objection
rule constitutes an independent and adequate state procedural rule which, when relied upon by the
state court, results in the default of the claim in federal habeas corpus proceedings. Gulertekin v.
Tinnelman-Cooper, 340 F.3d 415, 424 (6th Cir. 2003)(listing cases). Thus, McKnight’s ground
for relief is procedurally defaulted.
Even if that were not so, however, his claim would fail on the merits. As the state court
pointed out, the jury had already unanimously found McKnight guilty beyond a reasonable doubt
in the culpability phase of his trial. Given that fact, it is unlikely in the extreme that any of the
jurors would have held out for a life sentence for McKnight had the complained-of specification
referred only to one of the underlying offenses. It is true that the better practice would have been
to do just that, but this Court is authorized only to correct errors of a federal constitutional
dimension and even if McKnight’s ground for relief demonstrated such an error, it is difficult to
detect corresponding prejudice sufficient to warrant the extraordinary relief that is habeas corpus.
For the reasons stated, McKnight’s seventeenth ground for relief should be denied as

108

procedurally defaulted.

Eighteenth Ground for Relief

In his eighteenth ground for relief, McKnight contends that his rights to due process, a fair
trial, and an impartial jury were violated by the trial court’s instructions concerning the kidnapping
charge, citing the Fifth, Sixth, Eighth, and Fourteenth Amendments. (ECF No. 127, PageID
15757.) Specifically, he states that the trial court’s instruction to the jury that should it find
McKnight guilty of the kidnapping charge, it must then determine whether she was released in a
safe place, unharmed. Id. The Warden correctly argues McKnight’s claim is procedurally
defaulted to the extent that it was not raised as a violation of McKnight’s Fifth or Eighth
Amendment rights in the state court. (ECF No. 13, PageID 455; Appendix, ECF No. 106-15,
PageID 9584.) McKnight counters that because his claim here is “substantially similar” to that
raised in the state court, it is saved from procedural default, whole and in part. (ECF No. 17,
PageID 771.)
A petitioner “fairly presents” the “substance of his federal habeas
corpus claim” when the state courts are afforded sufficient notice
and a fair opportunity to apply controlling legal principles to the
facts bearing upon the constitutional claim. [Anderson v.] Harless,
457 U.S. [4,] 6[ (1982)]. Although a certain degree of tinkering is
permissible, a petitioner does not fairly present a claim if he
presents an issue to the state courts under one legal theory, and then
presents the issue to the federal courts under a different legal theory.
Rather, he must present to the federal court essentially the same
facts and legal theories that were considered and rejected by the
state courts. Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir.
2002)(citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); Lott
109

v. Coyle, 261 F.3d 594, 607, 609 (6th Cir. 2001), Lott v. Bagley, 534
U.S. 1147 (2002).
Cowans v. Bagley, 236 F.Supp.2d 841, 857 (S.D. Ohio 2002)(parallel citations omitted).
McKnight argues, and the state supreme court agreed, that his exclusion of the “released in
a safe place, unharmed” instruction in his proposed jury instructions, preserved the instant claim
for appeal in the state court. McKnight, 2005-Ohio-6046 at ¶ 232. The state court went on to
address the merits of McKnight’s proposition of law.

Id. at ¶¶ 233-34.

Accordingly,

McKnight’s eighteenth ground for relief is preserved for habeas review to the extent that he
purports he raised it as a federal constitutional matter in the state court.
In relevant part, the state supreme court denied McKnight’s claim, reasoning as follows:
Appellant never argued that Murray was released unharmed in a
safe place. Thus, the language was not properly at issue.
Appellant argues that the instruction on release in a “safe place
unharmed” was prejudicial, turning a mitigating circumstance into
an aggravating element. That assertion, however, is speculative.
Moreover, overwhelming evidence supported the jury’s verdict on
the kidnapping and murder charges. Consequently, appellant
suffered no prejudice by the finding of the jury that Murray was not
released “in a safe place unharmed.”
Thus, we overrule
proposition XX.
McKnight, 2005-Ohio-6046 at ¶¶ 233-34. Noting that in McKnight’s appellate brief to that court
stated that “the jury could have used this element as proof for the underlying felony” (ECF No.
106-15, PageID 9587), and repeating that language verbatim in his habeas petition (ECF No. 127,
PageID 15759) and his Traverse (ECF No. 17, PageID 773), this Court finds nothing unreasonable
about the Supreme Court of Ohio’s conclusion that any supposed prejudice McKnight may have
suffered as a result of the “safe place unharmed” instruction is purely speculative.
110

For the reasons stated, McKnight’s eighteenth ground for relief should be denied.

Nineteenth Ground for Relief

In his nineteenth ground for relief, McKnight argues that his absence during Juror
Stewart’s voir dire regarding Amy Warrix’s alleged conversations with the juror about the trial
violated his right to be present. (ECF No. 127, PageID 15760.) He contends his lawyer’s waiver
of his presence from that in-chambers discussion violated his rights to a fair trial, due process, and
to confront the witnesses against him. Id. McKnight was also absent from a review of the
parties’ proposed jury instructions although he states he did not waive his presence in either
situation. Id.
The Warden does not advance a procedural default defense and instead counters that
McKnight waived his presence at any in-chambers discussions with counsel which included the
voir dire of Juror Stewart and the review of the proposed jury instructions. (ECF No. 13, PageID
461-62.) Furthermore, McKnight’s presence would not have contributed to the fairness of his
trial as the discussions involved matters about which McKnight would have had little to add
beyond his attorneys’ questions and comments. Id.
McKnight denies he consented to his absence at discussions held in chambers and insists
he was prejudiced by the court’s failure to obtain his knowing and intelligent consent to be absent
from the in-chambers discussions. (ECF No. 17, PageID 778-81.)
A defendant’s right to be present is not all encompassing or absolute. Polizzi v. United

111

States, 550 F.2d 1133, 1137 (9th Cir. 1976). “Due process does not assure ‘the privilege of
presence when presence would be useless, or the benefit but a shadow.’” Id., quoting Snyder v.
Massachusetts, 291 U.S. 97, 106-07 (1934). “Moreover, even improper exclusion of a defendant
from a ‘critical portion of the trial does not automatically require reversal, if in the particular case
the defendant’s absence was harmless beyond a reasonable doubt.” Id., citing Rogers v. United
States, 422 U.S. 35, 40 (1975) (dictum).

Exclusion from Juror Stewart’s In-Chambers Voir Dire

In United States v. Gagnon, 470 U.S. 522 (1985) (per curiam), a juror expressed concern to
the bailiff that the defendant, Gagnon, had been sketching portraits of the jury. The judge ordered
that the activity cease immediately, and Gagnon’s attorney suggested the concerned juror be
questioned in chambers to determine whether he had been prejudiced against Gagnon because of
the sketching. In chambers, and in Gagnon’s absence, the court explained to the juror that
Gagnon was an artist and meant no harm, that the drawings had been confiscated, and that he was
instructed not to make any more sketches. The juror stated he was satisfied and was able to
remain impartial as the trial continued. The Supreme Court stated:
We think it clear that respondents’ rights under the Fifth
Amendment Due Process Clause were not violated by the in camera
discussion with the juror. “[T]he mere occurrence of an ex parte
conversation between a trial judge and a juror does not constitute a
deprivation of any constitutional right. The defense has no
constitutional right to be present at every interaction between a
judge and a juror. . . .” Rushen v. Spain, 464 U.S. 114, 125-126
(1983)(Stevens, J., concurring in judgment).
112

The constitutional right to presence is rooted to a large extent in the
Confrontation Clause of the Sixth Amendment, e.g., Illinois v.
Allen, 397 U.S. 337 (1970), but we have recognized that this right is
protected by the Due Process Clause in some situations where the
defendant is not actually confronting witnesses or evidence against
him. In Snyder v. Massachusetts, 291 U.S. 97 (1934), the Court
explained that a defendant has a due process right to be present at a
proceeding “whenever his presence has a relation, reasonably
substantial, to the fulness of his opportunity to defend against the
charge. . . . [T]he presence of a defendant is a condition of due
process to the extent that a fair and just hearing would be thwarted
by his absence, and to that extent only.” Id., at 105-106; see also
Faretta v. California, 422 U.S; 806, 819, n.15 (1975). The Court
also cautioned in Snyder that the exclusion of a defendant from a
trial proceeding should be considered in light of the whole record.
291 U.S., at 115.
Gagnon, 470 U.S. at 526-27 (emphasis added; parallel citations omitted). McKnight has not put
forward any suggestion that his absence from the in camera discussion with Juror Stewart
thwarted the fairness of the hearing.

Thus, to the extent McKnight argues his federal

constitutional rights were violated by the trial court’s in camera questioning of Juror Stewart, he
has failed to demonstrate that the state court’s decision was an unreasonable application of federal
law as determined by the United States Supreme Court 28 U.S.C. § 2254(d)(1).
McKnight relies on Hopt v. Utah, 110 U.S. 574 (1884), for the proposition that “[a]
defendant is required to be present at every stage of the trial except when he voluntarily declines to
attend the proceedings.” (ECF No. 127, PageID 15761.) But as was observed in Illinois v. Allen,
“[t]he broad dicta in Hopt v. Utah . . . that a trial can never continue in the defendant’s absence
have been expressly rejected.” 397 U.S. 337, 342 (1970), citing Diaz v. United States, 223 U.S.
442 (1912). Hopt can also be distinguished from McKnight’s case because in Hopt, after having

113

been accused of bias, a “trier” was appointed to each juror and taken out of the courtroom to be
questioned by their trier out of the presence of the trial judge, the defendant, and his counsel.
Hopt, 110 U.S. at 577.
Furthermore, at McKnight’s trial the following colloquy took place during a pretrial
hearing on various motions:
[Defense counsel] Mr. Carson: [Prosecutor] Mr. Gleeson had
inquired of if we had no objection and if Greg [McKnight]
personally had no objection that in[-]chambers conferences be
conducted what I’ll refer to as the traditional manner which is the
Court and Counsel sometimes Court staff, but not the defendant
present and we are and Mr. McKnight is part of that we, we are in
agreement with proceeding in that manner as we did before here
on the record this morning. In[-]chambers conferences would
be conducted in the traditional Court, counsel and whatever
Court staff the Court wished to have present. Thank you.
Judge Simmons:
Gleeson.

All right.

Thank you, Mr. Carson.

Mr.

Mr. Gleeson: Your honor, I would like to go one step further and
get Mr. McKnight and ask him to say yes I (inaudible).
Judge Simmons: Sure. . . . All right. Just just just I’m fully
satisfied you’re in agreement, Mr. McKnight, but you would you
just heard what Mr. Carson said about when the Court would
have any discussions in chambers with counsel that that would be
either way those are typically conducted.
Mr. McKnight: Yes.
Judge Simmons: And he indicated that you and he were in
agreement that that could be done in that way and is that your
agreement?
Mr. McKnight: Yes, I agree with that.
(Trial Tr., ECF No. 105-1, PageID 3307-08.) It is difficult to interpret that colloquy in any way
114

other than that McKnight personally waived his presence at any in-chambers discussions during
his trial.

Exclusion From Review of Proposed Jury Instructions

McKnight’s argument on this point is sparse and devoid of any specificity.

What

instructions would he have offered or objected to that his attorneys did not? How would they
have made a difference in the outcome of his trial? McKnight provides no answers to those
questions. He merely states that his waiver of attendance at the review of the proposed jury
instructions is not on the record or in writing (despite his waiver on the record at the June 5, 2002,
hearing on various motions, supra), and that his exclusion at that “critical” hearing was therefore a
violation of his right to be present. As noted above, however, that right is not absolute, and
McKnight not persuaded this Court that the state supreme court’s overruling of his proposition of
law on the basis of his valid waiver of his right to be present at in-chambers conferences was
contrary to or an unreasonable application of federal law as determined by the Supreme Court.
For the foregoing reasons, McKnight’s nineteenth ground for relief should be denied.

Twentieth Ground for Relief

In his twentieth ground for relief, McKnight contends that the trial court’s instructions on
reasonable doubt violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights to due

115

process and a fair trial.

(ECF No. 127, PageID 15762.)

Specifically, he argues that the

instruction describing “beyond a reasonable doubt” as a level of certainty at which “an ordinary
person would be willing to rely and act upon it in the most important of his or her own affairs,”
given in both phases of his trial, allowed the jury to convict and sentence him on a lower standard
of proof than is required by the Constitution. Id. at PageID 15762-64.
The Warden counters that McKnight’s claim is procedurally defaulted because he never
raised the claim in the state court as a violation of his Fifth, Sixth, or Eighth Amendment rights.
(ECF No. 13, PageID 464.) The Warden further argues that the state supreme court’s rejection of
McKnight’s claim based on its own precedent is due deference in this Court. Id. at PageID 465.
McKnight does not contradict the Warden’s procedural default argument, but contends his
claim here is “substantially similar” to that raised in the state court which he alleges saves it from
default. (ECF No. 17, PageID 783.) He argues that Ohio’s definition of clear and convincing
evidence is distinctly similar to its definition of the reasonable doubt standard, and that as a
consequence, he was convicted on proof that was less than beyond a reasonable doubt and thereby
denied due process. Id. at 786. The definition he quotes, however, explicitly distinguishes the
two standards of proof:
Clear and convincing evidence is that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but not to the
extent of such certainty as is required beyond a reasonable doubt as
in criminal cases.
Id., quoting Cross v. Ledford, 161 Ohio St. 469, 477 (1954); accord: Pietrangelo v. Avon Lake,
149 Ohio St.3d 273, 2016-Ohio-5725, ¶ 14. But that instruction was never given at McKnight’s
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trial. The preliminary jury instruction on reasonable doubt was given as follows:
To find the defendant guilty, you must find that the State has proved
the defendant guilty by proof beyond a reasonable doubt.
Reasonable doubt is present when, after you have carefully
considered and compared all the evidence, you cannot say you are
firmly convinced of the truth of the charge.
Reasonable doubt is a doubt based on reason and common sense.
Reasonable doubt is not mere possible doubt, because everything
relating to human affairs or depending on moral evidence is open to
some possible or imaginary doubt.
Proof beyond a reasonable doubt is proof of such character that an
ordinary person would be willing to rely and act upon it in the most
important of his or her own affairs.
(ECF No. 105-13, PageID 5348.) Except for the first sentence in the quotation above, the same
instruction was given at the close of the culpability phase of McKnight’s trial (ECF No. 105-25,
PageID 7254), and at the conclusion of the penalty phase of his trial, the second and third
paragraphs of the instruction above were given, prefaced by, “Reasonable doubt is present when,
after you have carefully considered and compared all the evidence, you cannot say you are firmly
convinced that the aggravating circumstance of which Gregory B. McKnight was found guilty
outweighs the mitigating factors (ECF No. 105-27, PageID 7542).
Although McKnight’s challenging of an instruction never given at his trial is enough to
defeat his claim, the Court observes that McKnight also conspicuously neglects to mention the
Supreme Court case of Victor v. Nebraska, 511 U.S. 1 (1994), where the Court stated as follows:
The beyond a reasonable doubt standard is a requirement of due
process, but the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter of
course. Cf. Hopt v. Utah, 120 U.S. 430, 440-441 (1887). Indeed,
so long as the court instructs the jury on the necessity that the
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defendant’s guilt be proved beyond a reasonable doubt, see Jackson
v. Virginia, 443 US. 307, 320 (1979), the Constitution does not
require that any particular form of words be used in advising the
jury of the government’s burden of proof. Cf. Taylor v. Kentucky,
436 U.S. 478, 485-486 (1978). Rather, “taken as a whole, the
instructions [must] correctly conve[y] the concept of reasonable
doubt to the jury.” Holland v. United States, 348 U.S. 121, 140
(1954).
Id. at 5 (parallel citations omitted). The Court went on to explain that it had only found a
definition of reasonable doubt violative of the Due Process Clause one time, that being Cage v.
Louisiana, 498 U.S. 39 (1990)(per curiam), a death penalty case. Soon after Cage, the Court, in
an attempt to clarify the question courts must answer when a petitioner challenges a jury
instruction, stated that it is not how reasonable jurors could have understood the charge as a whole,
but “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in
a way’ that violates the Constitution.”

Estelle v. McGuire, 502 U.S. 62, 72 and n.4

(1991)(disapproving Cage), quoting Boyde v. California, 494 U.S 370, 380 (1990) (emphasis
added).
In any event, The Sixth Circuit has repeatedly held that the language McKnight challenges
does not violate due process. Franklin v. Bradshaw, 695 F.3d 439, 456 (6th Cir. 2012); White v.
Mitchell, 431 F.3d 517, 534 (6th Cir. 2005); Coleman v. Mitchell, 268 F.3d 417, 437 (6th Cir. 2001);
Buell v. Mitchell, 274 F.3d 337, 366 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 527 (6th Cir.
2000); Scott v. Mitchell, 209 F.3d 854, 884 (6th Cir. 2000); Thomas v. Arn, 704 F.2d 865, 867-68
(6th Cir. 1983). McKnight does not explain why the “reasonable doubt” instructions given in his
case should be treated differently from the same instructions in those cases. The Supreme Court
of Ohio’s rejection of McKnight’s claim on direct appeal was neither contrary to nor an
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unreasonable application of clearly established Supreme Court law. Consequently, his twentieth
ground for relief should be denied.

Twenty-first Ground for Relief

In his twenty-first ground for relief, McKnight argues that the exclusion of victim impact
evidence favoring a life sentence for him deprived him of his rights to due process and equal
protection as well as a fair and reliable sentencing determination, violating the Fifth, Sixth, Eighth,
and Fourteenth Amendments.

(ECF No. 127, PageID 15764.)

The Warden counters that

McKnight’s claim is procedurally defaulted to the extent he raised it as a violation of the Fifth and
Sixth Amendments. (ECF No. 13, PageID 467.) Additionally, the Warden contends that the
state court’s decision respecting the instant claim was neither contrary to nor an unreasonable
application of federal law as determined by the Supreme Court.

Id. at PageID 470-72.

McKnight replies that his habeas claim is substantially equivalent to the claim presented in the
state court which constitutes a fair presentation of the claim sufficient to defeat the Warden’s
procedural default defense. (ECF No 17, PageID 788.) As for the merits of his claim, he argues
that the affidavit and intended testimony of Emily Murray’s sister Kathleen Murray to the effect
that McKnight should not be sentenced to death because the proceedings following such a
sentence “may tear our family apart.”. (ECF No. 107, PageID 9975.) In addition, Kathleen
Murray begged the court to sentence McKnight to a life term of imprisonment rather than death
because Emily was opposed to the death penalty on religious and humanitarian grounds, the

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suffering his young children would experience from having a father on death row and eventually
executed, and Kathleen’s own opposition to the death penalty. Id. at PageID 9975-76.
The United States Supreme Court has recently summarized the law respecting victim
impact evidence as follows:
In Booth v. Maryland, 482 U.S 496 (1987), this Court held that “the
Eighth Amendment prohibits a capital sentencing jury from
considering victim impact evidence that does not “relate directly to
the circumstances of the crime.” Id., at 501-502, 507, n.10. Four
years later, in Payne v. Tennessee, 501 U.S. 808 (1991), the Court
granted certiorari to reconsider that ban on “‘victim impact’
evidence” relating to the personal characteristics of the victim and
the emotional impact of the crimes on the victim’s family.” Id., at
817. The Court held that Booth was wrong to conclude that the
Eighth Amendment required such a ban. Payne, 501 U.S. at 827.
That holding was expressly “limited to” this particular type of
victim impact testimony. Id., at 830, n.2. “Booth also held that
the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate
sentence violates the Eighth Amendment, . . . .” Ibid.
Bosse v. Oklahoma, ___ U.S. ___, ___, 137 S.Ct. 1, 1-2 (2016) (per curiam) (parallel citations
omitted). The Payne Court succinctly stated its holding: “We thus hold that if the State chooses
to permit the admission of victim impact evidence and prosecutorial argument on [the] subject [of
the personal characteristics of the victim and the emotional impact of the crimes on the victim’s
family], the Eighth Amendment erects no per se bar.” Payne, 501 U.S. at 827. But “Booth’s
prohibition on characterizations and opinions from a victim’s family members about the crime, the
defendant, and the appropriate sentence” survives Payne unless and until the Supreme Court
reconsiders that ban. Bosse, 137 S.Ct. at 2.
The Supreme Court of Ohio addressed the merits of McKnight’s Eighth and Fourteenth

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Amendments claim as follows:
{¶ 245} [A]ppellant’s constitutional rights were not violated by
the exclusion of testimony from [Emily] Murray’s family members
recommending that appellant receive a life sentence. In Lockett v.
Ohio (1978), 438 U.S 586, a plurality of the court held that a jury
should “not be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis
for a sentence less than death.” (Emphasis sic.) Id. at 604. It
noted, however, that “[n]othing in this opinion limits the traditional
authority of a court to exclude, as irrelevant, evidence not bearing
on the defendant’s character, prior record, or the circumstances of
his offense.” Id. at 605, fn. 12. Here, possible testimony from
Murray’s family members recommending a life sentence had no
relevance to appellant’s character, prior record, or the circumstances
of the offense.
{¶ 246} Second, appellant contends that the life-sentence
recommendations from Murray’s family were admissible as
victim-impact testimony. This argument also lacks merit.
{¶ 247} In State v. Huertas (1990), 51 Ohio St.3d 22, syllabus, this
court held “Expressions of opinion by a witness as to the
appropriateness of a particular sentence in a capital case violate the
defendant’s constitutional right to have the sentencing decision
made by the jury and judge.” Subsequently, the United States
Supreme Court held, “[I]f the State chooses to permit the admission
of victim impact evidence and prosecutorial argument on that
subject, the Eighth Amendment erects no per se bar.” Payne v.
Tennessee (1991), 501 U.S. 808, 827, overruling Booth v. Maryland
(1987), 482 U.S. 496, 507 (victim-impact evidence inadmissible at
sentencing phase of capital trial unless directly related to
circumstances of crime), and South Carolina v. Gathers (1989), 490
U.S. 805, 811 (extending Booth to prohibit prosecutor’s statements
regarding personal characteristics of victim). Payne did not
reexamine the propriety of victims’ families’ recommendations as
to the appropriate sentence or sanction their admission. See Payne,
501 U.S. at 830, fn. 2.

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{¶ 248} . . . Thus, the recommendations of the Murray family
concerning the appropriate sentence were not admissible as
victim-impact testimony.
{¶ 249} Finally, we find that the trial court did not err by failing to
consider the recommendations from Murray’s family and friends
before imposing the death sentence.
McKnight, 2005-Ohio-6046 (parallel citations omitted).
Although McKnight casts the evidence he claims was unconstitutionally excluded from the
penalty phase of his trial as victim impact evidence and as having bearing on McKnight’s history
and background, in reality it reflected Emily’s sister Kathleen Murray’s and her family’s opinion
on what sentence was appropriate for McKnight. Kathleen’s own and her deceased sister’s
opposition to the death penalty cannot be characterized as victim impact evidence. Sadly, the
effect of McKnight’s death sentence on his children and the grueling and lengthy ordeal endured
by Emily Murray’s family through the legal process that has followed McKnight’s conviction is
not victim impact evidence, either. Kathleen Murray uses those unquestionably painful realities
to argue for a sentence less than death for McKnight, which is in contradiction to those parts of
Booth that remain intact and Payne, supra. Even if Booth had not been modified by Payne, the
Payne Court’s observation that “the Eighth Amendment erects no per se bar[,]” Payne, 501 U.S.
827, to victim impact evidence in the penalty phase of capital trials does not create a constitutional
imperative that such evidence be admitted; that decision was left to the state courts’ discretion, to
which this Court must accord deference. Consequently, McKnight’s twenty-first ground for
relief should be denied.

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Twenty-second Ground for Relief

In his twenty-second ground for relief, McKnight contends the trial court’s instructions on
the aggravating circumstance in the penalty phase of his trial described one that is not authorized
by Ohio’s death penalty statute. (ECF No. 127, Page ID 15767-69.) The Warden responds that
McKnight’s claim is procedurally defaulted to the extent that he failed to raise it as a claim under
the “Fifth or Sixth Eighth Amendments [sic].” (ECF No. 13, PageID 473.) The record shows,
however, that McKnight did raise the instant claim as Eighth and Fourteenth Amendment
violations (ECF No. 106-14, PageID 9588), so it is not completely procedurally defaulted. The
Warden acknowledges as much, noting that the state supreme court addressed its merits on direct
appeal. (ECF No. 13, PageID 474-75.) McKnight repeats his “substantially similar” argument
against the Warden’s procedural default defense and goes on to state that the trial court’s
instruction as to the aggravating circumstances confused the jury and created a so-called
super-aggravating circumstance. (ECF No. 17, PageID 793-96.)
Although he does not say so in these terms, McKnight essentially argues that rather than
merging the aggravating circumstances in his case, the trial court cumulated them, adding weight
to the aggravating side of the weighing process and that by doing so the court deprived him of due
process and a fair sentencing determination.
McKnight was indicted and found guilty of the aggravated murder of Emily Murray. That
charge in the indictment included four death penalty specifications, all of which McKnight was
found guilty of beyond a reasonable doubt in the culpability phase of his trial.

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Those

specifications were (1) murder to escape detection, apprehension, trial, or punishment for another
offense pursuant to Ohio Rev. Code § 2929.04(A)(3); murder as a course of conduct in killing two
or more people pursuant to Ohio Rev. Code § 2929.04(A)(5); murder while committing or
attempting to commit kidnapping pursuant to Ohio Rev. Code § 2929.04(A)(7); and murder while
committing or attempting to commit aggravated robbery, pursuant to Ohio Rev. Code. §
2929.04(A)(7). It is true that the instructions given at different times during the penalty phase of
the trial were confusing, advising at one point that the §2929.04(A)(5) and the two (A)(7)
specifications should be counted as one, and later instructing that those same (A)(7) specifications
and the (A)(5) course-of-conduct specification should be treated as three separate aggravating
circumstances. McKnight, 2005-Ohio-6046 at ¶252. Just before deliberations, the trial court
instructed that there was only one aggravating circumstance which it explained was as follows:
The aggravated murder was committed while Gregory B. McKnight
was committing or attempting to commit or fleeing immediately
after committing or attempting to commit kidnapping and
aggravated robbery of Emily S. Murray and Gregory B. McKnight
was the principal offender, and the aggravated murder was part of a
course of conduct by Gregory B. McKnight involving killing two or
more persons.
McKnight, 2005-Ohio-6046 at ¶ 253.
The Supreme Court of Ohio found that the aggravating circumstances in Ohio Rev. Code §
2929.04(A)(5) and (A)(7) were not duplicative and should not have been merged by the trial court,
but that the error was harmless. McKnight, 2005-Ohio-6046 at ¶255, 256. It reasoned that
grouping the aggravating circumstances together did not alter their substance, id. at ¶256; or, as the
Warden puts it, “grouping the contents of three specifications into one does not change the weight”

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of them (ECF No. 13, PageID 478.) The Supreme Court of Ohio has held that “[o]nly the
aggravating circumstances related to a given count [of aggravated murder] may be considered in
assessing the penalty for that count,” State v. Cooey, 46 Ohio St. 3d 20, 38-39 (1989), which
contemplates that multiple aggravating circumstances may attach to a single count of aggravated
murder when determining the appropriate sentence.
Although both parties delve into the Ohio law respecting merger of aggravating
circumstances, the fairness or unfairness of the trial court’s merging of the aggravating
circumstances, its instruction to the jury on that topic, and whether the claimed error was harmless
or not, neither mentions Clemons v. Mississippi, 494 U.S. 738 (1990), where the Supreme Court
held that “the Federal Constitution does not prevent a state appellate court from upholding a death
sentence that is based in part on an invalid or improperly defined aggravating circumstance either
by reweighing of the aggravating and mitigating evidence or by harmless-error review.” Id. at
741. Soon after Clemons was decided, the Court clarified that “we have not suggested that the
Eighth Amendment permits the state appellate court in a weighing State to affirm a death sentence
without a thorough analysis of the role an invalid aggravating factor played in the sentencing
process.” Stringer v. Black, 503 U.S. 222, 230 (1992). Furthermore, “[w]hen the weighing
process itself has been skewed, only constitutional harmless-error analysis or reweighing at the
trial or appellate level suffices to guarantee that the defendant received an individualized
sentence.” Id. at 232. To that end, in affirming McKnight’s sentence of death, the Supreme
Court of Ohio expressly stated that “we have independently reevaluated the sentence and thereby
rectify any error in the merger of the aggravating circumstances.” McKnight, 2005-Ohio-6046 at

125

¶ 256. That rectification would involve dissecting the trial court’s instruction back into the three
separate aggravating circumstances, the first of the four having been merged with the (A)(7)
aggravating circumstances as duplicative. How that would have apportioned less weight on the
aggravating side of the scale is a mystery, but that is McKnight’s argument. In any case, the
Supreme Court of Ohio independently reweighed the three unmerged aggravating circumstances
and mitigating factors and concluded that the death sentence was appropriate. That decision is in
line with rather than in conflict with federal law as determined by the United States Supreme
Court. As such, McKnight’s twenty-second ground for relief should be denied.

Twenty-third Ground for Relief

In his twenty-third ground for relief, McKnight alleges his rights to due process and a fair
trial and sentencing determination were violated when the trial court instructed the jury to consider
all evidence relevant to the aggravating circumstance, leaving it to the jurors to sort the relevant
evidence from the irrelevant. (ECF No. 127, PageID 15770.) He acknowledges that trial
counsel did not object to the instruction, but also states that the Supreme Court of Ohio “concluded
that the trial court’s instruction was error.” (ECF No. 127, PageID 15770, 15772.) Aside from a
few Supreme Court cases standing for some very basic precepts of constitutional law, McKnight
cites state law in support his argument. Id. at 15771.
The Warden argues the claim is procedurally defaulted for lack of a contemporaneous
objection at trial, and notes the state supreme court’s conclusion that McKnight had consequently

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waived all but plain error and absence of plain error results in default. (ECF No. 13, PageID 480.)
In his Traverse, McKnight argues the substantial similarity of his claim to that raised in the
state court, cites trial counsel’s ineffective assistance as cause for his default, and contends that
prejudice resulted because the jury’s discretion was not suitably guided as a result of the
challenged instruction.
Ohio requires contemporaneous objections to perceived errors at trial and McKnight’s
attorneys failed to comply with that rule. The state supreme court actually enforced the rule by
finding McKnight had waived all but plain error. The Sixth Circuit has said that “[t]he [state]
court’s plain-error review is not considered a review on the merits.” Jells v. Mitchell, 538 F.3d
478, 511 (6th Cir. 2008). Ohio’s contemporaneous objection rule, that parties must preserve
errors for appeal by calling them to the attention of the trial court at a time when the error could
have been avoided or corrected, is an adequate and independent state ground of decision. State v.
Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also Wogenstahl v. Mitchell,
668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); State
v. Mason, 82 Ohio St. 3d 144, 162 (1998).
For habeas corpus relief to be warranted on the basis of an incorrect
jury instruction, a petitioner must show more than “the instruction is
undesirable, erroneous, or even universally condemned.” Estelle v.
McGuire, 502 U.S. 62, 72 (1991)(citing Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). A petitioner must establish that, taken
as a whole, the instructions were so infirm that they rendered the
entire trial fundamentally unfair. Id.; Henderson v. Kibbe,431 U.S.
145, 154 (1977); Hardaway v. Withrow, 305 F.3d 558, 565 (6th
Cir.2002); Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir.2001).
Because jury instruction errors typically are matters of state law, the
standard for demonstrating that a jury instruction caused
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constitutional error in a habeas proceeding “is even greater than the
showing required to establish plain error on direct appeal.”
Henderson [v. Kibbe], 431 U.S. [145,] 154 [1977].
Stallings v. Bagley, 561 F.Supp.2d 821, 855 (N.D. Ohio 2008) (parallel citations omitted). A
habeas petitioner’s burden when challenging jury instructions is to establish that “the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process.”
Cupp v. Naughten, 414 U.S. 141, 147 (1973).
As noted above, McKnight offers his attorneys’ ineffectiveness in failing to object as cause
for his procedural default. Even if his counsel had objected, however, the state court would have
overruled the objection. “An error instructing the jury to consider all relevant evidence – that is,
to make the relevance determination – is not reversible error unless it proves prejudicial to the
outcome.” Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2015 WL 2341094
(S.D. Ohio May 14, 2015) (Dlott, J.), aff’d 846 F.3d 832 (6th Cir. 2017), citing State v. Getsy, 84
Ohio St.3d 180, 201(1998); State v. Hale, 119 Ohio St.3d 118, 140 (2008). Although the state
courts in McKnight’s case found the challenged instruction to be erroneous, it determined that
“much of the guilt-phase evidence was relevant to the aggravating circumstances, the nature and
circumstances of the offense and the mitigating factors . . . , [and] properly admitted evidence
supports the jury’s finding that the aggravating circumstances outweigh the mitigating factors.”
McKnight, 2005-Ohio-6046 at ¶ 261. Furthermore, McKnight mentions only the autopsy and
crime scene photos (without any more specificity), “as well as other inflammatory matter as
relevant to the aggravating circumstances” (again without a clue as to which specific items he

128

refers) and does not explain how those items “so infected the entire trial that the resulting
conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).
McKnight has failed to demonstrate any deficiency in his counsel’s representation, nor has
he shown any prejudice counsel’s failure to object to the challenged jury instruction.
Consequently, his procedural default of his claim is unexcused. As such, his twenty-third ground
for relief should be denied.

Twenty-fourth Ground for Relief

In his twenty-fourth ground for relief, McKnight contends that the penalty-phase life
verdict forms misled the jurors into believing that they had to unanimously find that the
aggravating circumstances did not outweigh the mitigating factors beyond a reasonable doubt.
(ECF No. 127, PageID 15774-76.)
The Warden argues McKnight’s claim is procedurally defaulted because he raised it
asserting violations of the Eighth and Fourteenth Amendments in the state court, but here he raises
it under those amendments as well as the Fifth and Sixth Amendments. (ECF No. 13, PageID
483.) Although the Warden proceeds as if McKnight’s failure to include the alleged Fifth and
Sixth Amendment violations when he presented his claim to the state court results in default of the
entire claim, in fact only the unpreserved part of his claim is so defaulted. Apparently in the
alternative, the Warden also reminds the Court that it must give deference to the state court’s ruling
that McKnight invited any error by proposing jury instructions nearly identical to those given and

129

that counsel’s failure to object to the challenged instruction rendered the claim subject only to
plain error review, of which the state court found none. Id. at PageID 483-84.
McKnight raised the impropriety of the verdict forms in conjunction with the relevant jury
instructions pertaining to the weighing of the aggravating circumstances and mitigating factors as
part of his twenty-fourth proposition of law in the Supreme Court of Ohio. That court decided the
claim as follows:
{¶ 262} In proposition of law XXIV, appellant argues that the
penalty-phase instructions and the language of the verdict forms
improperly placed the burden of proof on the defense for the
life-sentence options.
{¶ 263} The defense failed to object to these instructions and
verdict forms and waived all but plain error. [State v.] Underwood,
3 Ohio St.3d 12 [(1983)], syllabus. . . .
{¶ 264} [T]here was no plain error. The trial court instructed the
jury: “If all twelve of you find that the State of Ohio proved
beyond a reasonable doubt that * * * the aggravating circumstance *
* * is sufficient to outweigh the mitigating factors in this case, then
it will be your duty to decide that the sentence of death shall be
imposed on Gregory B, McKnight.
{¶ 265} “If you find that the State of Ohio has failed to prove
beyond a reasonable doubt that the aggravating circumstance
Gregory B. McKnight was guilty of committing is sufficient to
outweigh the mitigating facts present in this case, then it will be
your duty to decide which of the * * * life sentence alternatives
should be imposed[.] * * *
{¶ 266} “If the weight of the aggravating circumstance and
mitigating factors are equal, then you must proceed to consider the
life sentence alternatives. You are not required to unanimously
find that the State failed to prove that the aggravating circumstance
outweighs the mitigating factors before considering one of the life
sentence alternatives.”

130

{¶ 277}[sic] The language in the verdict forms tracked these
instructions. The three verdict forms presenting life sentence
options stated: “We, the jury, being duly impaneled and sworn, do
hereby find that the aggravating circumstance that Gregory B.
McKnight was found guilty of committing, does not outweigh the
mitigating factors presented in this case by proof beyond a
reasonable doubt.” The verdict forms then provided the jury with
the options of life imprisonment with parole, life imprisonment
without the possibility of parole for 30 years, or life imprisonment
without the possibility of parole for 25 years.
{¶ 268} The instructions and the language of the verdict forms for
the life-sentence options did not place the burden of proof on the
defense. When read as a whole, the instructions of the trial court
and the language of the verdict forms effectively informed the jury
that a death-penalty recommendation could be returned only after a
unanimous vote that the aggravating circumstance outweighed the
mitigating factors beyond a reasonable doubt. See State v Davis
(1996), 76 Ohio St.3d 107, 117. As to the life-sentence options, the
instructions and the language of the verdict forms simply instructed
the jury that it must decide among the life-sentence options if it
found that the state had failed to prove that the aggravating
circumstances outweighed the mitigating factors. See State v.
Taylor (1997), 78 Ohio St.3d 15, 29. We reject proposition XXIV.
McKnight, 2005-Ohio-6046.
Thus, the state court determined McKnight waived his verdict forms claim because his
attorneys failed to lodge a contemporaneous objection. Ohio’s contemporaneous objection rule
requires that parties preserve errors for appeal by calling them to the attention of the trial court at a
time when the error could have been avoided or corrected. State v Glaros, 170 Ohio St. 471
(1960) (paragraph one of the syllabus). That rule has repeatedly been found to be an independent
and adequate state ground of decision upon which a procedural default finding may rest in federal
habeas corpus. See, e.g., Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v.
Mitchell, 455 F.3d 662, 673 (6th Cir. 2006).
131

To excuse the procedural default of his claim, McKnight must demonstrate cause for the
default and prejudice therefrom. “Absent cause and prejudice, ‘a federal habeas petitioner who
fails to comply with a state’s rules of procedure waives his right to federal habeas corpus review.’”
Boyle v Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85
(6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986).

McKnight offers the

ineffectiveness of his trial counsel to excuse his procedural default. (ECF No. 17, PageID 806.)
McKnight repeats much of his argument as it was presented to the state court, claiming that
the trial court’s instructions to the jury that their verdict, whether for one of the life alternatives or
the death penalty, must be unanimous. That is a true statement of the law in Ohio. Anything less
than a unanimous verdict in the penalty phase of a capital trial requires the trial judge to sentence
the offender to one of the life-sentence options. State v. Springer, 63 Ohio St.3d 167 (1992)
(syllabus); see also Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir. 2012), quoting Keith v.
Mitchell, 455 F.3d 662, 673 (6th Cir. 2006). The life verdict forms that McKnight challenges do
not contradict the state law.
McKnight argues that the life verdict forms placed a burden of proof upon him by requiring
him to show that the aggravating circumstance did not outweigh the mitigating factors beyond a
reasonable doubt. (ECF No. 127, PageID 15775.) He also argues that those verdict forms are
contrary to Ohio law which allows for one juror to block a death sentence. Id. It is true in Ohio
that in order to sentence a capitally convicted defendant to one of the life options, the jury must be
unanimous. McKnight’s argument sounds vaguely like the “acquittal of the death penalty first”
claim that is not unfamiliar to any attorneys or judges who have worked these cases, but he only

132

challenges the life sentence verdict forms. Even where a sentencing verdict form misstates the
standard by stating that “the ‘mitigating factors are sufficient’ to outweigh the aggravating
circumstance,” the court found it unnecessary to reverse the sentencing determination because the
parties and judge generally referred to a correct standard during the proceedings. Hill v. Mitchell,
400 F.3d 308, 326-27 (6th Cir. 2005). Furthermore, McKnight’s jury was specifically instructed
that:
You should proceed to consider and choose one of the life sentence
alternatives if any one or more of you conclude that the State has
failed to prove beyond a reasonable doubt that the aggravating
circumstance outweighs the mitigating factors. One juror may
prevent a death penalty determination by finding the aggravating
circumstance does not outweigh the mitigating factors.
(ECF No 105-27, PageID 7545-47 (emphasis added).)
Because the life verdict forms in McKnight’s case were correct statements of the law and
because it was made perfectly clear to the jurors that one juror could prevent a death sentence, his
claim would have had little chance of success had his attorneys objected to the verdict forms at the
proper time. They cannot have been ineffective for failing to raise a losing claim. Consequently,
their performance cannot provide cause for McKnight’s default of his claim. Accordingly, his
twenty-fourth ground for relief should be denied as procedurally defaulted.

Twenty-fifth Ground for Relief

In his twenty-fifth ground for relief, McKnight contends that the trial court violated his
Fifth, Sixth, Eighth, and Fourteenth Amendment rights by (1) merging the four aggravating
133

circumstances of which he was found guilty into one “non-statutory . . . super aggravating
circumstance, (2) considered his use of a firearm in multiple offenses as an aggravating
circumstance and his failure to release Emily Murray unharmed, (3) considered the nature and
circumstances of Emily Murray’s murder during a kidnapping as an aggravating circumstance.
(ECF No. 127, PageID 15776-79.) He also argues that the trial court erred in considering the
mitigating factors only insofar as they had an effect on “minimizing, lessening or excusing the
degree of [McKnight’s] murderous conduct.” Id. at PageID 15778, quoting the trial court’s
sentencing opinion at ECF No. 106-13, PageID 9309.
Respondent counters that McKnight’s claim is procedurally defaulted because he did not
raise it in the state court as arising under all four of the amendments he includes in his ground here.
(ECF No. 13, PageID 489.) The record shows, however, that McKnight did raise the instant
claim as violative of his Eighth and Fourteenth Amendment rights in the state court (ECF No.
106-15, PageID 9602), so barring any other default, this Court will consider the claim to that
extent. Respondent further argues that McKnight’s claim is meritless.
In his reply, McKnight acknowledges that the Supreme Court of Ohio determined that its
independent weighing of the mitigating factors and aggravating circumstances cured any error in
the trial court’s sentencing opinion, but he later characterized that court’s independent weighing as
an “attempt[] to independently cure the recognized errors . . . contrary to or an unreasonable
application of clearly established federal law.” (ECF No. 17, PageID 814, 815-16, emphasis
added.)
The relevant parts of the trial court’s sentencing opinion are as follows:

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In this case the aggravating circumstance which is to be weighed
against the mitigating factors is as follows:
The aggravated murder was committed while Gregory B.
McKnight was committing or attempting to commit or fleeing
immediately after committing or attempting to commit
kidnapping and aggravated robbery of Emily S. Murray, and
Gregory B. McKnight was the principal offender, and the
aggravated murder was part of a course of conduct by Gregory
B. McKnight involving killing two or more persons.
Regarding the aggravating circumstance, the Defendant kidnapped
Emily S. Murray and took her to his property in a remote area of
Vinton County, some three hours from her residence at Kenyon
College in Gambier, Ohio. Instead of releasing her in a safe place
and unharmed, McKnight shot Emily in the head, intentionally
killing her, and then concealed her body in his trailer such that
Emily remained missing for 36 days. McKnight committed
Aggravated Robbery by using a firearm and intentionally killing
Emily Murray by shooting her in the head.
...
Mitigating factors are factors that lessen the moral culpability of
Gregory B. McKnight or diminish the appropriateness of a death
sentence.
...
The aggravating circumstance in this case deserves great weight.
There is nothing mitigating about the offense itself. . . . [T]he
aggravating circumstance that [Emily’s murder] was done while
committing aggravated robbery by the use of a firearm makes the
murder even more vicious. In short, Mcknight [sic] viciously took
Emily Murray’s life in a cold-blooded manner.
Against this backdrop, the mitigating factors of the Defendant’s age,
his work record, and his family’s testimony that he is a good father
have very little effect in minimizing, lessening, or excusing the
degree of the Defendant’s murderous conduct.
(ECF No. 106-13, PageID 9305-09.)
135

The Supreme Court of Ohio found McKnight’s claim of trial court error in the sentencing
opinion meritless, reasoning as follows:
{¶ 311} In proposition of law XXV, appellant asserts that there are
numerous flaws in the sentencing opinion of the trial court.
{¶ 312} First, appellant argues that the sentencing opinion of the
trial court improperly considered the kidnapping and
aggravated-robbery
aggravating
circumstances,
R.C.
2929.04(A)(7),
and
the
course-of-conduct
aggravating
circumstance, R.C. 2929.04(A)(5), as one “superaggravating”
circumstance. As discussed earlier in proposition XXI, the trial
court erred by combining the two nonduplicative aggravating
circumstances into a single aggravating circumstance. We have
independently reevaluated the sentence and rectified this error in
our sentencing evaluation. See State v. Fox (1994), 69 Ohio St.3d
183, 191; State v. Lott [(1990)], 51 Ohio St.3d [160,] 170.
{¶ 313} Second, appellant contends that the trial court considered
the following nonstatutory aggravating circumstances as
aggravating factors: his use of a firearm, his failure to release
Murray in a “safe place and unharmed,” and his concealment of
Murray's body “such that Emily remained missing for 36 days.”
We reject this argument because “[u]nder R.C. 2929.03(F), a trial
court * * * may rely upon and cite the nature and circumstances of
the offense as reasons supporting its finding that the aggravating
circumstances were sufficient to outweigh the mitigating factors.”
State v. Stumpf (1987), 32 Ohio St.3d 95, paragraph one of the
syllabus; see, also, Dickerson [(1989)], 45 Ohio St.3d [206,] 212.
{¶ 314} Third, appellant asserts that the trial court improperly
considered the “intentional killing” of Murray during a kidnapping.
The trial court could properly refer to the “intentional killing” of
Murray in discussing the R.C. 2929.04(A)(7) aggravating
circumstance because intent is an element of the underlying felony
murder. See State v. Campbell (2000), 90 Ohio St.3d 320, 345.
{¶ 315} Finally, appellant argues that the trial court misconstrued
the mitigating factors as evidence offered to reduce his culpability
for the crimes. “[M]itigating factors under R.C. 2929.04(B) are not
necessarily related to a defendant's culpability but, rather, are those
136

factors that are relevant to the issue of whether an offender
convicted under R.C. 2903.01 should be sentenced to death.” State
v. Holloway (1988), 38 Ohio St.3d 239, paragraph one of the
syllabus.[14]
{¶ 316} The sentencing opinion thoroughly discussed the
mitigating evidence in appellant's case. The trial court also
properly stated that the “aggravating circumstance must * * * be
weighed against the mitigating factors about the individual which
would weigh in favor of a decision that a life imprisonment sentence
is the appropriate sentence.” Thus, the trial court used the proper
standard in weighing the aggravating circumstance against the
mitigating factors. Nevertheless, the trial court improperly
concluded that “the mitigating factors * * * have very little effect in
minimizing, lessening or excusing the degree of the Defendant's
murderous conduct.” Again, we have independently reevaluated
the sentence and rectified this error in the sentencing opinion. Fox,
69 Ohio St.3d at 191.
McKnight, 2005-Ohio-6046 (parallel citations omitted).15
The state court cited no federal law in its discussion of McKnight’s claim, and the state
cases it did cite do not rely on Supreme Court law, with one exception, Lott. The federal case
governing the ability of a state court’s independent weighing of mitigating factors and aggravating
circumstances is, of course, Clemons v. Mississippi,494 U.S. 738 (1990), which Lott cited for the
following proposition:
[I]t is within the province of this court to conduct its own careful
appellate reweighing of aggravating circumstances against
mitigating factors to produce a “measured consistent application” of

14

There is no syllabus in Holloway, but the quoted sentence appears at page 242 of that case.

15

In his reply, McKnight contends that the state supreme court relied on two Supreme Court cases he cited in his
appellate brief to that state court, those being Stringer v. Black, 503 U.S. 222 (1992), and Sochor v. Florida, 504 U.S.
527 (1992), but as the reader can see, citation to those cases appear nowhere in the state court’s discussion of
McKnight’s claim. (See ECF No. 17, PageID 811.) Indeed, neither of those cases is cited in the opinion of the
Supreme Court of Ohio at all.

137

the death penalty which would be in no way unfair to the defendant.
. . . “Nothing inherent in the process of appellate reweighing is
inconsistent with the pursuit of the foregoing [twin] objectives.”
Lott, 51 Ohio St. 3d at 170 (alteration in original), quoting Clemons, 494 U.S. at 748.16
The Court assumes without finding that the quoted sections from the trial court’s
sentencing opinion were error as McKnight alleges.

Clemons, then, is the federal law as

determined by the Supreme Court governing McKnight’s claim.

But McKnight does not

acknowledge Clemons in his petition or his reply and makes no attempt to explain how the state
supreme court’s decision is contrary to or an unreasonable application of the holding of that case.
Consequently, he has failed to demonstrate entitlement to habeas corpus relief.
Because McKnight has ignored the governing federal law as determined by the Supreme
Court, and because he has not demonstrated that the Supreme Court of Ohio’s sentencing decision
and reweighing of the aggravating circumstances and mitigating factors is contrary to or an
unreasonable application of that governing federal law, his twenty-fifth ground for relief should be
denied.

16

Interestingly, about six years prior to Clemons, the Supreme Court of Ohio held that the error resulting from a trial
court’s failure to comply with Ohio Rev. Code § 2929.03(F)(requiring the trial court to make specific findings as to the
existence of any mitigating factors, the aggravating circumstances the defendant was found guilty of, and why the
aggravating circumstances outweighed the mitigating factors) could be cured by independent review at the appellate
stage of the proceedings. State v. Maurer, 15 Ohio St.3d 239, 247 (1984). Later, the state supreme court expanded
the Maurer holding by stating, “We have previously held that our independent review of a sentence will cure any flaws
in the trial court’s opinion.” State v. Fox, 69 Ohio St.3d 183, 191 (1994), citing Maurer, supra.

138

Twenty-Sixth Ground for Relief

In his next ground for relief, McKnight alleges his trial counsel were ineffective at all
phases of his trial.
It is well settled that the law governing ineffective assistance of counsel claims is
Strickland v. Washington, 466 U.S. 668 (1984), which states as follows:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings,
it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
...
When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.
...
Judicial scrutiny of counsel’s performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
139

assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action “might be
considered sound trial strategy.” See Michel v. Louisiana, . . . 350
U.S. [91,] 101 [(1955)].
Strickland, 466 U.S. at 687-89.
In assessing trial counsel’s performance in capital cases, the Supreme Court has made it
clear that the “ABA standards for counsel in death penalty cases provide the guiding rules and
standards to be used in defining the ‘prevailing professional norms’ in ineffective assistance
cases.” Hamblin v. Mitchell, 354 F.3d 482, 486 (6th Cir. 2004), quoting Wiggins v. Smith, 539
U.S. 510, 524 (2003); see also ABA Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases (1989).
The Supreme Court of Ohio addressed the merits of McKnight’s claim on direct appeal as
follows:
{¶ 300} In proposition of law XXVI, appellant raises numerous
instances of alleged ineffective assistance of counsel during both
phases of his trial. Reversal of a conviction for ineffective
assistance of counsel “requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense.”
Strickland v. Washington (1984), 466 U.S. 668, 687. Accord State
v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus.
{¶ 301} First, appellant complains that his counsel conducted
inadequate voir dire of a prospective juror. “‘The conduct of voir
dire by defense counsel does not have to take a particular form, nor
do specific questions have to be asked.’” State v. Cornwell (1999),
86 Ohio St.3d 560, 568, quoting State v. Evans (1992), 63 Ohio
St.3d 231, 247.
{¶ 302} Appellant argues that counsel was [sic] deficient in failing
to question Juror I-30 about her opinion regarding appellant’s guilt
140

after Juror I-30 indicated her belief, in the juror questionnaire, that
appellant was guilty of the charged offenses. One question in the
juror questionnaire asked, “Based on what you may have heard
about this case, do you have an impression or opinion about what
happened or who is responsible?” Juror I-30 answered[,] “yes” and
explained, “In the case of the death of the girl, I believe the body
was found on his premises, although this does not mean he did it, it
doesn’t look good for him.”
{¶ 303} Juror I-30’s response on the questionnaire did not indicate
that she had formed a preconceived belief of appellant’s guilt.
Moreover, Juror I-30 indicated that she had not formed an opinion
about who or what caused the death of Julious or Murray in other
responses on the questionnaire.
{¶ 304} Moreover, during the prosecutor’s voir dire, Juror I-30
was asked whether she had formed any opinions about the case, and
Juror I-30 answered, “Not necessarily. No.” As noted in State v.
Watson (1991), 61 Ohio St.3d 1, 13, defense counsel “need not
repeat questions about topics already covered by * * * opposing
counsel.” Furthermore, “counsel is in the best position to
determine whether any potential juror should be questioned and to
what extent.” State v. Murphy (2001), 91 Ohio St.3d 516, 539.
Thus, the defense counsel was [sic] neither remiss nor ineffective.
{¶ 305} Appellant raises other instances of alleged ineffectiveness
of counsel, but none prejudiced him. As discussed in other
propositions of law, Appellant was not prejudiced by his counsel’s
failure to request the removal of an alleged sleeping juror
(proposition XI), or by counsel’s failure to request a Remmer
hearing to explore allegations that a juror had discussed the case
with his girlfriend (XIII). Furthermore, appellant was not
prejudiced by his counsel’s failure to request curative instructions
following a courtroom outburst (XVI), or by his counsel’s failure to
request curative instructions following a courtroom outburst (XVI),
or by his counsel’s failure to object to prosecutorial misconduct
(XXVII), gruesome photographs (XII), life-sentence options on the
verdict forms (XXIV), or character and impact testimony about
Murray (III). Appellant also suffered no prejudice from his
counsel’s failure to object to various guilt-phase (IX, XVIII, XX,
and XXIX) and penalty-phase (XXIII and XXIX) instructions.
Moreover, appellant was not prejudiced by his counsel’s failure to
141

request that evidence be stricken that related to appellant’s marital
infidelities or his reaction to the police prior to the date of the
offenses (III).
{¶ 306} We also reject appellant’s argument that his counsel was
[sic] ineffective by waiving appellant’s presence at in-chambers
proceedings without consulting him. Appellant personally waived
his presence at in-chambers proceedings, and this waiver was valid
for the two in-chambers proceedings that he challenged (XIV).
{¶ 307} Finally, appellant argues that the cumulative effect of his
counsel’s ineffectiveness necessitates reversal. Appellant received
a fair trial, and any error was nonprejudicial. See Braden,
2003-Ohio-1325, ¶ 123. None of appellant’s claims establish
ineffective assistance of counsel and proposition XXVI is
overruled.
Pretrial

McKnight alleges his trial counsel were ineffective in litigating the motion to suppress and
two supplements because they (1) failed to argue that the affidavit providing probable cause to
search McKnight’s trailer and property contained no allegation or supporting facts indicating that
any crime was being committed; (2) failed to bring to the trial court’s attention certain inaccuracies
in the warrant affidavit, argued in their supplemental motion to suppress only about discrepancies
as to who among the Vinton County officers received the information from the Knox County
officers regarding Emily Murray’s status as a missing person, and; (3) failed to attack the veracity
of the warrant affidavit and focused instead on whether it established probable cause. McKnight
also alleges his trial counsels’ failures led to the admission of illegally obtained evidence in
violation of his Fourth Amendment rights. (ECF No. 127, PageID 15779-85.) Respondent

142

states that McKnight’s claim is procedurally defaulted (ECF No. 13, PageID 508), but that is not
so. He raised trial counsels’ ineffectiveness pertaining to the affidavit supporting the warrant to
search his trailer and property as his twelfth claim in his second amended post-conviction petition.
(ECF No. 108-5, PageID 10946-48.)
The underlying warrant affidavit claim was discussed at length in this Court’s
consideration of McKnight’s first ground for relief and was found meritless. For the reasons
stated there, and because counsel were “not required to raise meritless arguments to avoid a charge
of ineffective assistance of counsel,” Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998);
see also Kelly v. Lazaroff, 846 F.3d 819, 830-31 (6th Cir. 2017)(stating “appellate counsel cannot
be considered ineffective for failing to raise a meritless claim”), McKnight’s claim that his counsel
were ineffective for their handling of the warrant affidavit in the motions to suppress and in the
suppression hearing should be denied.
Next, McKnight contends his attorneys were ineffective for failing to support their motion
for a change of venue and its supplement with evidence of the “media firestorm” following
discovery of the bodies on McKnight’s property which was amplified later when the trial court
dismissed of the capital components of the indictment due to the financial impact it would have on
small, rural Vinton County. Id. at PageID 15785-91. He also alleges that as his trial progressed,
the news media kept the community apprised of how much his defense was costing taxpayers,
compromising his ability to be tried by a fair and impartial jury even further.
Respondent acknowledges that McKnight raised an ineffective assistance of trial counsel
claim in his twenty-sixth proposition of law on direct appeal to the Supreme Court of Ohio, and

143

proceeds to argue that the claim is both procedurally defaulted and meritless. (ECF No. 13,
PageID 508.) There, however, McKnight did not raise any ineffectiveness on the part of his trial
counsel having to do with pretrial publicity or media reports of the cost of his defense to
taxpayers.17 (Appellate Brief, ECF No. 106-14, PageID 9607-16.) In his second ground for
relief in post-conviction, McKnight raised his pretrial publicity claim, but not his cost-of-defense
claim. (Petition, ECF No. 107-6, PageID 10479, ECF No. 107-7, PageID 10480.)
On direct appeal from the trial court’s denial of McKnight’s post-conviction petition, the
Ohio Court of Appeals decided as follows:
{¶ 28} . . . McKnight contends that his defense attorneys rendered
ineffective assistance of counsel by failing to present the available
media reports in support of the motion to change venue. He asserts
that the evidence would have demonstrated pervasive publicity and
prejudicial content.
...
{¶ 30} Here, we find that McKnight could have raised this
ineffective assistance of counsel claim on direct appeal. “A claim
of ineffective assistance of counsel presented in a postconviction
petition may be dismissed under the doctrine of res judicata when
the petitioner, represented by new counsel on direct appeal, has
failed to raise on appeal the issue of trial counsel’s competence and
the issue could fairly have been determined without evidence dehors
the record.” State v. Sowell, [73 Ohio App.3d 672, 676 (1991)],
citing State v. Cole (1982), 2 Ohio St.3d 112. . . . In this case,
McKnight had different counsel on appeal than he did at trial.
Also, his ineffective assistance of counsel claim could fairly have

17

McKnight did raise a pretrial publicity claim on direct appeal, but not one claiming his counsel were ineffective for
not adequately supporting the motion for a change of venue. Instead, he alleged trial court error due to the court’s
denial of his request for funds to hire an expert in demographics to demonstrate that McKnight could not get a fair trial
in Vinton County. There, he placed blame on the trial court stating that the “deficiency [in McKnight’s evidence that
a fair trial was impossible] is attributable solely to the trial court’s denial of his requested expert assistance,” (ECF No.
106-15, PageID 9513 (emphasis added)), essentially admitting the fault was not with his trial counsel.

144

been determined without evidence dehors the record. Therefore,
res judicata bars this claim.
{¶ 31} Furthermore, McKnight’s second claim fails on the merits.
As one court has noted, counsel’s failure to include every piece of
publicity surrounding a case does not amount to ineffective
assistance of counsel when the trial court is well aware of the level
of publicity. State v. Moreland (Jan. 7, 2000), Montgomery App.
No. 17557. Here, the trial court was well aware of the extent of
pretrial publicity. Thus, counsel’s failure to document the pretrial
publicity through the use of newspaper articles could not have
prejudiced McKnight.
{32} Accordingly, we find that the trial court did not abuse its
discretion by dismissing McKnight’s second claim for relief.
McKnight, 2008-Ohio-2435.
In his Traverse, McKnight briefly contradicts the court of appeals’ decision respecting the
procedural status of his habeas claim, saying only that parts of it were presented to the state court
on direct appeal, and parts were presented in post-conviction, and that each sub-claim was decided
on its merits in the state courts. (ECF No. 17, PageID 820.) That is patently untrue.
The state appellate court’s discussion of the merits of McKnight’s post-conviction claim is
concerning for a couple of reasons. First, in the Moreland case, it’s clear that some evidence of
extensive pretrial publicity was included in his counsel’s motion for a change of venue. State v.
Moreland, No. 17557, 2000 WL 5933 at *8 (Ohio App. 2nd Dist. Jan. 7, 2000). According to
McKnight, his trial counsel failed to supplement the motion for a change of venue with any
supporting news articles. (ECF No. 127, PageID 15790.) Second, this Court’s attention has not
been directed to any evidence in the record that the trial judge was “well aware of the extent of
pretrial publicity” by either party, and the court of appeals cited none in its opinion.

145

Nevertheless, that court unequivocally stated its reliance on Ohio’s doctrine of res judicata
in dismissing McKnight’s claim as one that could have been brought on direct appeal, and
McKnight neither challenges that finding nor offers cause and prejudice for the default. As has
been stated throughout this Report, res judicata is an independent and adequate procedural rule
which, when relied upon by the state court and without a demonstration of cause and prejudice,
precludes federal habeas corpus review. Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir.
2001). Thus, to the extent McKnight argues his trial counsel were ineffective for failing to
support the motion for a change of venue due to pretrial publicity, his claim should be denied as
procedurally defaulted.
As for his claim that media updates on the cost of McKnight’s defense deprived him of a
fair trial, he has not directed this Court to anyplace in the record showing that claim was ever
presented to the state courts. That matter was not mentioned in his ineffective assistance of trial
counsel claim on direct appeal or in McKnight’s post-conviction proceedings. Hence, it is
procedurally defaulted, and McKnight offers no excusing cause or prejudice for the default. That
part of his ineffective assistance of trial counsel claim should be denied as well.
McKnight also faults his trial counsel for failing to include race as a basis for their motion
for a change of venue, alleging that in a county of approximately 12,806 persons, Caucasians
comprised 98.1% of the total population, while African Americans made up only 0.4%, citing the
United States Census Bureau’s 2000 population statistics for Vinton County. (ECF No. 127,
PageID 15792.)

(Second Amended Post-Conviction Petition, ECF No. 108-5, PageID

10952-54.) Respondent acknowledges that McKnight raised the claim in his post-conviction

146

proceedings and that the state court decided the merits of the claim, but found it meritless. (ECF
No. 13, PageID 519-20.)
The Supreme Court of Ohio overruled McKnight’s claim reasoning as follows:
{¶ 89} In his fourteenth claim for relief, McKnight contends that
trial counsel rendered ineffective assistance by failing to argue for a
change of venue based upon race. He asserts that he could not
receive a fair trial in an overwhelmingly white community.
{¶ 90} We . . . find that res judicata bars McKnight’s fourteenth
claim for relief. McKnight does not offer any evidence that was
unavailable for him to use on direct appeal. He cites statistical
evidence and testimony from the voir dire transcript to support this
claim. Both items were available for him to use on direct appeal.
{¶ 91} Additionally, McKnight’s claim lacks substantive merit.
In State v. Elmore, Licking App. No. 2005-CA-32,
2005-Ohio-5940, the court considered and rejected a similar
argument. In that case, the defendant, like McKnight, argued that
trial counsel rendered ineffective assistance of counsel by failing to
request a change of venue due to the lack of African-Americans in
the available jury pool. In rejecting this argument, the court
explained:
As previously noted appellant failed to present evidence
outside of the record to * * * indicate deliberate exclusion of
‘distinctive groups’ of the jury venire or jury panel involved.
The statistical data and juror questionnaires do nothing to
demonstrate intentional, systematic exclusion of minorities in
the jury-selection process.
Moreover, each impaneled juror confirmed that he or she had
not formed an opinion about the guilt or innocence of the
accused, or could put aside any opinion, and that he or she
could render a fair and impartial verdict based on the law and
evidence. State v. Treesh (2001), 90 Ohio St.3d 460, 464.
Id. at ¶¶ 69-70; see, also, State v. Braswell, Miami App. No. 2001
CA22, 2002-Ohio-4468, at ¶ 8 (rejecting argument that trial court
should have changed venue based upon racial composition when
147

defendant failed to present evidence that the venire did not represent
a fair cross section of the community or that any of the jurors who
did serve was unable to render an impartial verdict); State v. Jones
(2001), 91 Ohio St.3d 335, 341, (concluding that trial court did not
err by denying defendant’s motion to change venue based upon
racial composition of county when defendant failed to show that
jury venire failed to represent fair cross-section of the community).
Similarly, here, McKnight failed to show that the jury venire failed
to contain a representative cross-section of the community or that
any of the seated jurors were unable to render an impartial verdict.
Accordingly, we find that the trial court did not abuse its discretion
by dismissing his fourteenth claim for relief.
McKnight, 2008-Ohio-2435.
First, the state court’s finding that McKnight’s claim is procedurally defaulted is in error.
It is true that the statistical material McKnight uses to support his claim was available at the time of
his trial, but his claim is that his attorneys were ineffective for not presenting that evidence before
or during his trial. As such, it was appropriate for McKnight to raise his ineffectiveness claim in
post-conviction with supporting evidence. As has been noted above, federal habeas corpus
review survives a state court’s misapplication of its own procedural rule. Thus, this Court turns to
the merits of McKnight’s claim.
“The Sixth Amendment secures to criminal defendants the right to be tried by an impartial
jury drawn from sources reflecting a fair cross section of the community.” Berghuis v. Smith, 559
U.S. 314, 319 (2010), citing Taylor v. Louisiana, 419 U.S. 522 (1975). In order to establish a
prima facie violation of that right, a defendant must show:
(1) that the group alleged to be included is a ‘distinctive’ group in
the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation
148

to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979). McKnight has not argued that he is included in a
“distinctive” group in the Vinton County community in which he was tried, but even assuming that
he is, he cannot show that the representation of that “distinctive” group on his jury was
unreasonable in relation to the number of such persons in the community. He himself has alleged
that the black or African-American population in Vinton County is 0.4%. (ECF No. 127, PageID
15792.) It is no surprise, then, that his jury was made up of white or Caucasian people, which
make up 98.1% of the county’s population. Id. Nor has he produced any evidence whatsoever
that any black prospective jurors, if there were any, were systematically excluded from the venire.
Thus, McKnight’s attorneys were not ineffective for failing to argue for a change of venue due to
the racial makeup of his jury venire.
To demonstrate endemic racism in Vinton County, McKnight cites the statistics just
mentioned and contends they “indicate a social climate inherently hostile to a black capital
defendant” especially where the victim was a white female. (ECF No. 127, PageID 15792.) He
also cites Turner v. Murray, 476 U.S. 28, 35 (1976) for the proposition that “more subtle, less
consciously held racial attitudes . . . could also influence a juror’s decision in [a] case.” Id. at
PageID 15793.
The Supreme Court has long answered in the negative “the question whether a complex
statistical study that indicates a risk that racial considerations enter into capital sentencing
determinations proves that [a] petitioner’s . . . capital sentence is unconstitutional under the Eighth

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or Fourteenth Amendment.” McCleskey v. Kemp, 481 U.S. 279, 282-83 (1987). Here, the Court
has no “complex statistical study” to even consider,18 only McKnight’s assertion that because the
county in which he committed his crimes is overwhelmingly white, he was denied a fair and
impartial jury and thus a fair trial and sentencing hearing.
McKnight alleges that racial bias was evident in the jury venire, quoting two prospective
jurors who admitted racist attitudes. (ECF No. 127, PageID 15793.) While their statements are
odious, both were properly dismissed for cause without objection by either party, and because the
jurors were subjected to voir dire on their feelings about race individually, none of the other
prospective jurors would have heard their objectionable opinions. (Trial Tr., ECF No. 105-5,
PageID 3733-44; ECF No. 105-8, 4351-54, 4369-70, 4376, 4387.) Suffice it to say that the
quotations from unidentified sources on the Internet also cited by McKnight for support of his
claim do not even weakly accomplish that goal. (ECF No. 127, PageID 15793.) Accordingly,
McKnight’s claim that his counsel were ineffective for failing to include the alleged existence of
“endemic” racism in Vinton County in their motion for a change of venue should be denied.
McKnight further alleges his attorneys provided ineffective assistance when they failed to
adequately question an individual identified as Juror I-30 further about her husband’s previous
work as a law enforcement officer, her feelings about the death penalty and when it is appropriate,
her purported prejudgment of McKnight’s guilt, the importance of her religion in her life, her
experiences as a crime victim, and her belief that defendants who are convicted of crimes are

18

McKnight requested funds for a scientific jury study which the trial court denied stating his “generalized assertion
does not qualify as the ‘particularized showing’ required by [State v.] Mason, 82 Ohio St.3d 144 [(1998)], syllabus.
Furthermore, comprehensive voir dire examination of the seated jurors about pretrial publicity negated any need for a
scientific jury survey of public opinion within Vinton County.” McKnight, 2005-Ohio-6046 at 66.

150

treated too leniently. (ECF No. 127, PageID 15797-98.) He further contends his counsel were
ineffective when they did not challenge Juror I-30 because she stated she believed the defense had
to prove that “that he did not do it in some way or shape or form or other the fact [sic] that he is not
guilty.” Id. at PageID 15799. McKnight states he was deprived of a fair trial because his
attorneys failed to challenge Juror I-30. Id. at PageID 15800.
McKnight points to several statements Juror I-30 made in her juror questionnaire or during
voir dire about which his counsel should have inquired further. The Court will take each in turn.
First, he contends his counsel should have explored how being the mother of two young
daughters would affect Juror I-30’s ability to be a fair and impartial juror. (ECF No. 127, PageID
15797.) Scanning some of the juror questionnaires, however, the Court finds that many of the
prospective jurors had children, daughters included, and were not questioned about the impact
their parenthood would have on their ability to be fair and impartial, yet McKnight does not
contend his counsel were ineffective for failing to question those prospective jurors about any
parental bias.
Next, McKnight takes issue with Juror I-30’s husband’s previous experience as a law
enforcement officer. (ECF No. 127, PageID 15797.) On her questionnaire, Juror I-30 stated,
“My husband was a policeman in the Army many years ago. Worked with drug sniffing dogs.”
(ECF No. 119-6, PageID 12980.) She also indicated that she did not know when her husband
served in the military and that he had been a teacher at Vinton County Schools for the past six
years. Id. at PageID 12981-82. Some of the other prospective jurors also indicated they had one
or more relatives who worked in law enforcement or the security field, including the military.

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Like Juror I-30, they were not questioned about how their relatives’ experience might affect their
ability to be fair and impartial if empaneled as a juror in McKnight’s case.
McKnight also faults his attorneys for failing to question Juror I-30 further about her
statement on her questionnaire that she believes the death penalty is appropriate if there is “no
doubt that the person did the crime” and the permanence of that opinion. (ECF No. 127, PageID
15797 (emphasis in original).) His criticism of his attorneys here is puzzling because it sounds
like Juror I-30 was prepared to hold the prosecution to a more stringent standard than the law
requires.

Nevertheless, during voir dire Juror I-30 acknowledged that she understood the

prosecution would be held to the standard “beyond a reasonable doubt,” and that she would hold
the prosecution to that standard. (ECF No. 105-5, PageID 3869, 3879, 3884.)
Next, McKnight states his counsel should have questioned Juror I-30 further about her
position on the death penalty. (ECF No. 127, PageID 15797.) When given the choice of
checking “Favor,” “Opposed,” or “no opinion” as to her feelings, she checked “Favor.” (ECF No.
119-6, PageID 12983.) In voir dire, however, she acknowledged that she could sign either a death
verdict or a life sentence verdict after weighing the aggravating circumstance against the
mitigating factors. (ECF No. 105-5, PageID 3871-72.)
McKnight also contends his attorneys were ineffective for failing to inquire further about
Juror I-30’s pre-trial opinion that he was guilty of the offenses charged. (ECF No. 127, PageID
15798.) He bases that allegation on Juror I-30’s response to the questionnaire question, “Based
on what you may have heard about this case, do you have an impression of opinion about what
happened and who is responsible?” (ECF No. 119-6, PageID 12984.) Juror I-30 answered, “In

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the case of the death of the girl, I believe the body was found on his premises, although this does
not mean he did it, it doesn’t look good for him (McKnight)[.]” Id. When questioned on voir
dire about what she knew about the crimes, Juror I-30’s answers showed that she had read or heard
only the very basics of the murders and she stated she could base her verdict on the facts and
evidence presented in court. (ECF No. 105-5, PageID 3873-76.)
McKnight then contends his attorneys should have questioned Juror I-30 about her
religious life. (ECF No. 1127, PageID 15798.) On her questionnaire, she noted that she belongs
to a “religious or spiritual group, denomination, or set of teachings,” that she was “very” active,
and that she had never “held a position of responsibility in her religious community.” (ECF No.
119-6, PageID 12986.) Her recognition of the prosecution’s burden to prove McKnight’s guilt
beyond a reasonable doubt and her confirmation that she would reach her verdict based on the
evidence presented in court as noted in the previous paragraphs overcomes McKnight’s suspicion
that further questioning of Juror I-30’s religious beliefs and activities would reveal bias on her
part.
McKnight also faults his counsel for failing to question Juror I-30 about her having been
the victim of a burglary and a bank robbery. (ECF No. 127, PageID 15798.) She indicated
satisfaction with law enforcement’s handling of the offenses, however, and stated those
experiences had “no affect” [sic] on her impressions of the criminal justice system even though the
home burglary was unsolved. (ECF No. 119-6, PageID 12987-88.) Juror I-30 expressed an
understanding that “it would have been very hard to find the person [who burglarized her home] –

153

no witnesses, etc.” Id. Thus, there was no reason to suspect bias on her part from those
experiences, and thus, no call to question her further about them.
Juror I-30 should have been questioned about her “strong belief in punishment for those
convicted of a crime,” McKnight argues. (ECF No. 127, PageID 15798.) To the question asking
her to describe her personal feelings concerning the issue of crime, Juror I-30 answered, “If you
commit a crime you should be punished in some form or other.” (ECF No. 119-6, PageID
12988.) Her answer is completely devoid of any hint of an unusual, unique, or excessively harsh
attitude toward crime and punishment.
McKnight argues Juror I-30’s opinion that people convicted of crimes are treated too
leniently deserved more questioning by his counsel. (ECF No. 127, PageID 15798.) A quick
scan of a few of the juror questionnaires reveals that is not an uncommon opinion. Juror I-30
expressed an understanding of her duties as a juror, an ability to judge the case based solely on
evidence presented in the trial, and an ability to weigh the aggravating circumstances and
mitigating factors to arrive at an appropriate sentence under the law. (ECF No. 105-5, PageID
3871-83.)
One final note. For each of the allegations in which McKnight contends his attorneys
should have more thoroughly questioned Juror I-30, he offers no evidence that such questioning
would have revealed bias on her part. He apparently has never tried to interview Juror I-30 to see
if his suggestion that her questionnaire answers evidence such bias. Thus, for that reason and the
reasons stated above, McKnight’s claim that his attorneys were ineffective for not delving into
Juror I-30’s answers more thoroughly should be denied.

154

Next, McKnight claims his counsel should have objected to the trial court’s preliminary
instruction that “discrepancies in a witness’ testimony, or between his testimony and that of others,
if there are any, does not necessarily mean that you should disbelieve the witness, as people
commonly forget facts or recollect them erroneously after the passage of time” and that their
failing to do so rendered their performance deficient.

(ECF Nol. 127, PageID 15801-02.)

[J]ury instructions typically are matters of state law that do not
warrant federal relief [unless] the . . . instruction violate[s] a
constitutional right. Estelle, 502 U.S. at 72. Upon review, a court
must determine whether there is a reasonable likelihood that the jury
applied the instruction in a way that prevents consideration of
constitutionally relevant evidence. Boyde, 494 U.S. at 380. The
impropriety of the instruction must be considered in the context of
the instructions as a whole and of the entire record. Id. Since jury
instruction errors typically are matters of state law, the standard for
demonstrating that a jury instruction caused constitutional errors in
a habeas proceeding “is even greater than the showing required to
establish plain error on direct appeal.” Henderson v. Kibbe, 431
U.S. 145, 154 (1977).
Cunningham v. Hudson, No. 3:06CV0167, 2010 WL 5092705 at *65 (N.D. Ohio Dec. 7, 2010),
vacated on other grounds and remanded, 756 F.3d 477 (6th Cir. 2014). McKnight argues that the
trial court’s instruction on discrepancies between witnesses’ testimonies was “fatal” to his defense.
(ECF No. 127, PageID 15802.)
McKnight presented the jury instruction claim to the Supreme Court of Ohio on direct
review as his ninth proposition of law. The court noted trial counsel’s failure to object, evaluated
the claim for plain error, and found none. McKnight, 2005-Ohio-6046 at ¶¶ 221-23. McKnight
has not acknowledged the Supreme Court’s observation in Henderson quoted above. Moreover,
the state courts have repeatedly found no error, plain or otherwise, when the same instruction has

155

been given in other cases. State v. Cunningham, 105 Ohio St. 3d 197, 2004-Ohio-7007 at ¶¶
554-56 (2004); State v. Singleton, No. 98301, 2013-Ohio-1440 at ¶ 31 (Ohio App. 8th Dist. Apr.
11, 2013); State v. Williams, No. 94616, 2011-Ohio-925 at ¶¶ 39-40(Ohio App. 8th Dist. Mar. 3,
2011); State v. Holloway, Nos. 99AP-1455, 99AP-1456, 2000 WL 1455686 at *8 (Ohio App. 10th
Dist. Sept. 28, 2000); State v. Dougherty, No. 5-94-2,1996 WL 517300 at *30 (Ohio App. 3rd Dist.
Sept. 12, 1996); State v. Joseph, No. 1-91-11, 1993 WL 531858 at *10 (Ohio App. 3rd Dist. Dec.
23, 1993); State v. Scudder, No. 91AP-506, 1992 WL 302432 at *14 (Ohio App. 10th Dist. Oct. 20,
1992). Thus, even if McKnight’s attorneys had objected to the instruction, it is unlikely the
objection would have been sustained. Failure to object when overruling is virtually assured does
not constitute ineffective assistance of counsel.
McKnight alleges his counsel also provided ineffective assistance when they failed to
object to “inflammatory victim impact testimony” offered by the prosecutor during the culpability
phase of his trial. (ECF No. 127, PageID 15803.) Specifically, he contends his counsel should
have objected to the prosecutor’s statements about Emily’s life and her personality characteristics,
the impact of her murder on her family and friends, Emily’s tattoo and its meaning, and the
prosecutor’s reiteration of that evidence in closing argument. Id. at PageID 15803-6. See also
Ground For Relief Eleven, supra. He raised this part of his ineffective assistance of trial counsel
claim as part of his twenty-sixth proposition of law on direct appeal to the Supreme Court of Ohio.
(ECF No. 106-15, PageID 9614.) As explained in the state court’s opinion, each instance of
alleged victim impact evidence was justified to show that Emily Murray was in close
communication with her parents and roommates, would not spontaneously have left Gambier

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without letting some or all of them know where she was going, and was religious, responsible, and
generally content. McKnight, 2005-Ohio-6046 at ¶¶ 91-104. That evidence was relevant to the
identification of her body and to the prosecution’s response to the defense’s theory of the case that
Emily was unstable and had committed suicide. Id. The trial court had denied McKnight’s
motion in limine and it is unlikely that it would have sustained an objection during the trial even if
one had been lodged by McKnight’s counsel.
In his next argument, McKnight claims his counsel were rendered ineffective assistance
when they failed to request a hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954),
after learning that Amy Warrix had alleged that Juror Stewart had discussed the case with her.
(ECF No. 127, PageID 15806.)

The underlying claim involving Warrix and Stewart was

considered and recommended denied in McKnight’s thirteenth ground for relief, supra. Thus, his
ineffective assistance of counsel claim here should be denied as well.
Next, McKnight alleges his trial counsel were ineffective when they failed to request a
curative instruction after a spectator reacted to defense counsel’s suggestion that Emily and
McKnight were considering a relationship by saying, “No.” (ECF No. 127, PageID 15811, citing
ECF No. 105-25, PageID 7179.) Here, too, McKnight argues he was entitled to a Remmer
hearing, which his counsel did not request, further exacerbating their ineffectiveness. (ECF No.
127, PageID 15812.) He also mentions that a spectator expressed approval when the death
sentence was announced, and that his counsel failed to address that “disruption.” Id. at PageID
15815. As for the underlying claim about a spectator’s saying “No” following the prosecutor’s
suggestion, denial of that matter was recommended in the Court’s discussion of McKnight’s

157

fifteenth ground for relief. For the reasons stated there, his counsel were not ineffective for
failing to object to the spectator’s comment. Furthermore, at the conclusion of the sentencing
hearing in which the trial court adopted the jury’s recommendation of death, a spectator said “Yes”
upon announcement of the death sentence. (ECF No. 105-28, PageID 7631.) At that stage, there
would be no reason for trial counsel to have objected to the spectator’s statement since the jury had
been excused several days prior, and the trial was at that very moment concluded. McKnight
could have suffered no prejudice from the spectator’s comment.
In addition, McKnight faults his attorneys for not objecting to allegedly gruesome
photographs that “had no probative value and were highly prejudicial and inflammatory.” (ECF
No. 127, PageID 15815-16.) He claims that photographs of the crime scene, Emily’s body as it
was found inside McKnight’s trailer, and autopsy photographs should have been objected to by his
counsel but were not.

(ECF No. 127, PageID 15815.) 19

The state supreme court found

McKnight was not prejudiced by the admission of the photographs, McKnight, 2005-Ohio-6046 at
¶ 305, and McKnight has failed to demonstrate otherwise here.
In Ohio,
Properly authenticated photographs, even if gruesome, are
admissible in a capital prosecution if relevant and of probative value
in assisting the trier of fact to determine the issues or are illustrative
of testimony and other evidence, as long as the danger of material
prejudice to a defendant is outweighed by their probative value and
the photographs are not repetitive or cumulative in number.
State v. Maurer, 15 Ohio St. 3d 239, paragraph seven of the syllabus (1984). Of course, in a

19

In his motion in limine, in fact, McKnight requested that all photographs of his deceased victim be excluded at trial,
a patently unreasonable request. (ECF No. 17, PageID 700.)

158

murder trial, photographs of the victim are likely to be gruesome, but they are necessary to prove
that a murder was actually committed and the identity of the victim. McKnight does not allege
that any photographs admitted at his trial were repetitive, cumulative, or improperly authenticated.
The Ohio court’s finding that McKnight had suffered no prejudice from the photographs of Emily
Murray in death admitted at his trial leads to the conclusion that McKnight’s attorneys were not
ineffective for failing to object to their admission.
McKnight argues that his trial counsel waived his presence during a critical phase of his
trial, to wit, the in-chambers questioning of Juror Stewart respecting Amy Warrix’s allegations,
which constituted ineffective assistance. Id. at PageID 15816. He states that any waiver of his
constitutional right to be present during that conversation must be in writing or orally on the
record, and that no such waiver appears in the record. Id. at PageID 15817. McKnight presented
the underlying claim to the state supreme court on direct appeal as his fourteenth proposition of
law, claiming violations of his rights under federal constitutional amendments. (ECF No. 106-15,
PageID 9552-55.) The Supreme Court of Ohio found as follows:
We also reject appellant’s argument that his counsel was [sic]
ineffective by waiving appellant’s presence at in-chambers
proceedings without consulting him. Appellant personally waived
his presence at in-chambers proceedings, and this waiver was valid
for the two in-chambers proceedings that he challenged.
McKnight, 2005-Ohio-6046 at ¶ 306. McKnight raised the underlying claim as his nineteenth
ground for relief here, and its denial is recommended above. Because the underlying claim is
meritless given McKnight’s on-the-record waiver at his presence at in-chambers conferences, his
trial counsel were not ineffective in relying on that waiver.

159

Finally, McKnight contends his trial counsel were ineffective when they failed to object to
numerous instances of alleged prosecutorial misconduct. (ECF No. 127, PageID 15818-19.) He
states that the prosecutor engaged in misconduct by
1.

Presenting victim impact evidence and evidence about
Emily’s character,

2.

Prejudicial other acts evidence and McKnight’s reaction to
police presence at a club,

3.

Speculating on what Emily was thinking during the events
that ended her life,

4.

Attempted to improperly rebut defense arguments regarding
blood and firearm evidence, and

5.

Shifting the burden of proof by noting that the defense failed
to present witnesses.

Id. at PageID 15819. In addition, McKnight argues that the cumulative effect of those instances
of prosecutorial misconduct deprived him of a fair trial. Id. McKnight included each of these
underlying instances of alleged prosecutorial misconduct in his twenty-seventh proposition of law
on direct appeal to the Supreme Court of Ohio. McKnight, 2005-Ohio-6046 at ¶¶ 269-299.
Each, with the exception of the fourth, was rejected because McKnight’s counsel failed to object
and the state court found no plain error, id, and each has been determined to have been
procedurally defaulted for habeas corpus purposes, see Thirty-First Ground for Relief, infra. All
that is left for this Court to consider in this ground for relief is whether McKnight has established
the ineffectiveness of his trial counsel to excuse the procedural default of his sub-claims.
The first two of McKnight’s assertions that his counsel were ineffective for not objecting to
alleged prosecutorial misconduct were considered de novo in his eleventh ground for relief, supra,
160

and found meritless based upon the state supreme court’s factual findings in relation to those
matters. As has been previously stated, attorneys are not ineffective for failing to lodge an
objection that is sure to be overruled.
The third allegation of ineffective assistance of trial counsel for failure to object to
prosecutorial misconduct concerns the prosecutor’s culpability-phase speculation in his rebuttal
argument that Emily had returned to her dorm room to get her car keys so she could give McKnight
a ride home from work, that being his home in Gambier, not the trailer in Ray, Ohio. When
considering the underlying claim of prosecutorial misconduct, the Supreme Court of Ohio found
as follows:
[A]ppellant asserts that the prosecutor acted improperly when he
speculated about what was in Murray’s mind. Testimony was
introduced that Murray returned to her dorm room on the night she
disappeared and got her keys. The prosecutor argued that this was
for the purpose of “giving Greg a ride home to Met O Wood Lane in
Gambier, not to Vinton County. “That’s what was in Emily’s
mind.” This argument represented fair comment on the evidence
and was not plain error.
McKnight, 2005-Ohio-6046 at ¶ 289. Also, the jury was instructed that “the opening statements
and closing arguments of counsel are designed to assist you. They are not evidence.” (ECF No.
105-25, PageID 7256.) In addition, in the prosecution’s closing argument, as opposed to the
rebuttal argument quoted above, the prosecutor stated, “We don’t know what Emily Murray
consented to with regard to Mr. McKnight in the early hours of November 3rd. We don’t know
whether she agreed to give him a ride home – by ‘a ride home,’ I mean a ride home in Gambier.”
Id. at PageID 7150. An attorney’s failure to object to an improper but isolated statement by a
prosecutor is recognized as a legitimate strategy to avoid drawing attention to the statement and
161

possibly anchoring it in the minds of the jurors. See Campbell v. Warden, No. 1-14-cv-13, 2015
WL 7710761 at *10 (S.D. Ohio Nov. 30, 2015) (Merz, Mag. J.). In many instances, a foregone
objection “might be considered sound trial strategy.” Strickland, 466 U.S. at 689. That, paired
with the strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance, id., means McKnight’s claim of ineffective assistance of trial counsel for
their failure to object to the prosecutor’s isolated comment must fail.
Next, McKnight contends his counsel were ineffective when they failed to object to the
prosecutor’s alleged mischaracterization in closing arguments of a defense argument respecting a
.357 Ruger firearm.
The Supreme Court of Ohio acknowledged trial counsel’s failure to object and found no
plain error, reasoning as follows:
{¶ 290}
[A]ppellant argues that the prosecutor’s rebuttal
improperly responded to defense arguments. During closing
argument, trial counsel discussed the state’s failure to test the DNA
of blood found on the 357 Ruger that had belonged to Kimberly
Zimmerman, the sister of Kathy McKnight[, Appellant’s wife].
Counsel argued that even though “the gun was ruled out as the
possible gun used in Emily Murray’s case, why wouldn’t [the
police] check it for Julious?” According to the defense, the failure
to conduct DNA testing was “a colossal blunder, * * * a deliberate
act, and it ought to make you sick.”
{¶ 291} In rebuttal, the prosecutor reminded the jury, “This gun
was tested ballistically. This gun was not the murder weapon that
was held up to Emily Murray’s head and shot through her skull.”
The prosecutor then argued, “How does this blow the whole case
out of the water? It doesn’t, not at all. This gun was at the
Zimmermans’ in May. ‘Now, it wasn’t tested, so that means that
Kim Zimmerman did it, ha-ha.’ Guess who else lived with the
Zimmermans in May of 2000? This guy.”

162

{¶ 292} The defense opened the door to the prosecutor’s rebuttal.
The prosecutor’s comment that the .357 Ruger was not linked to
Murray’s murder explained the absence of DNA testing of blood on
the weapon. Furthermore, the prosecutor’s statement that the failure
to conduct DNA testing did not exculpate appellant as to the murder
of Julious was not improper. This was fair comment in the face of
the defense argument that the state’s failure to conduct DNA testing
was a “colossal blunder” and a “deliberate act. Moreover,
“[p]rosecutors are entitled to latitude as to what the evidence has
shown and what inferences can reasonably be drawn from the
evidence.” State v. Smith (1997), 80 Ohio St.3d 89, 111. Thus,
we find no plain error.
McKnight, 2005-Ohio. McKnight states that the supreme court’s decision meets the requirements
of 28 U.S.C. § 2254(d)(1) and (2), but that conclusory statement does not establish the
unreasonableness of the state court’s rejection of McKnight’s claim. McKnight’s bare-bones
argument fails to demonstrate his entitlement to habeas corpus relief.
McKnight then alleges that his trial counsel were ineffective when they failed to object to
the prosecutor’s questioning why the defense called no witnesses. (ECF No.127, PageID 15838.)
He contends the prosecutor’s comment shifted the burden of proof to the defense, but as the
Supreme Court of Ohio noted, “The prosecutor may comment upon the failure of the defense to
offer evidence in support of its case.” McKnight, 2005-Ohio-6046 at ¶ 293, citing State v.
Clemons, 82 Ohio St.3d 438, 452 (1998), and State v. Bies, 74 Ohio St.3d 320, 326 (1996). Thus,
even if defense counsel had objected to the prosecutor’s comment, it would have been overruled.
Counsel cannot have been ineffective for failing to lodge an objection that was sure to be
overruled.
McKnight also alleges the cumulative effect of his counsel’s failure to object to the stated
instances of alleged prosecutorial misconduct amounts to a denial of due process. As each
163

instance was either meritless or harmless, cumulation of their effect amounts to no effect. As
such, and for all of the reasons stated, McKnight’s claim that his counsel were ineffective during
the culpability phase of his trial should be denied.

Twenty-Seventh Ground for Relief

In his twenty-seventh ground for relief, McKnight contends his trial counsel failed to
provide effective assistance in the penalty phase of his trial when they neither investigated nor
presented evidence showing the effect his father’s abandonment had on him as a child, the
circumstances surrounding McKnight’s previous adjudication for a murder he committed at the
age of fifteen, or his experiences during his incarceration for that murder which he posits could
explain his subsequent behavior.

(ECF No. 127, PageID 15822-23.)

He also faults the

mitigation investigation because the mitigation specialist never traveled to New York or Texas,
two States in which McKnight had lived for a time as a child, to interview family members. Id. at
PageID 15823. McKnight states that his trial counsel believed the guilt phase of his trial was
unwinnable and that his case was a mitigation case from the beginning, which he alleges
constitutes ineffective assistance.

Id.

In addition, he claims that the lack of a thorough

investigation by either the mitigation specialist or a cultural expert into his Caribbean background,
culture, and religious upbringing deprived him of an individualized sentencing hearing, and that
his counsel misidentified him as an African-American. Id. at PageID 15825. All of these
failures, he contends, violated the obligations established by the American Bar Association

164

Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 31 Hofstra
L. Rev 913, 1017 (2003), undermining the integrity and reliability of the sentencing determination.
Id. at PageID 15826.
Respondent does not address McKnight’s twenty-seventh ground for relief in her return of
writ, but the Court observes that McKnight’s claim in habeas is considerably broader than the one
presented to the state court in his post-conviction petition. In post-conviction, his ninth and
fifteenth claims focused on trial counsel’s failure to present evidence in mitigation about his
father’s abandonment of him in childhood, the lasting effects of that abandonment (ECF No.
107-8, PageID 10497-98), and his counsel’s misidentification of him as an African-American; he
asserts he is properly identified as Caribbean-American. (ECF No. 108-5, PageID 10955-57).
The additional arguments here are consequently procedurally defaulted and McKnight offers no
excusing cause or prejudice for failing to present those sub-claims to the state court. The Ohio
Fourth District Court of Appeals addressed in post-conviction the merits of the claim of ineffective
assistance of trial counsel for failure to adequately investigate and present evidence on the
parental-abandonment issue:
{¶ 66} In his ninth claim for relief, McKnight’s trial counsel
rendered ineffective assistance of counsel by failing “to present
available, relevant, and compelling mitigating evidence to the jury.”
He claims that trial counsel failed to investigate, prepare, and
present mitigating evidence regarding his character, history, and
background, and in particular, his father’s abandonment.
McKnight alleges that the evidence would have humanized him and
provided the jurors with reasons to spare his life. To support this
claim, McKnight relies upon affidavits from his mother, his
maternal aunt, and a family friend in which they asserted that
McKnight’s feelings of paternal abandonment and the lack of a
father-figure [sic] in his life were dominant themes in his life. He
165

also refers to lead defense counsel’s deposition in which he stated
that he did not consider parental abandonment as a mitigating factor.
{¶ 67} The state contends that trial counsel investigated
McKnight'’ background and decided not to present the evidence.
The state points to a discussion held on the record where lead
defense counsel related his thought that calling certain mitigation
witnesses would open the door to McKnight’s prior juvenile murder
conviction. The state thus asserts that counsel was not deficient but
instead made a strategic decision. The state further argues that
McKnight did not suffer prejudice.
...
{¶ 72} “The decision to forgo the presentation of additional
mitigating evidence does not itself constitute proof of ineffective
assistance of counsel.” [State v.] Keith[, 79 Ohio St.3d 514,] 536
[(1997)]. “Attorneys need not pursue every conceivable avenue;
they are entitled to be selective State v. Murphy [2001], 91 Ohio
St.3d 516, 542, quoting United States v. Davenport (C.A.7, 1993),
986 F.2d 1047, 1049.” State v. Davis, 116 Ohio St.3d 494[, ___
(2008)]. Furthermore, [t]he presentation of mitigating evidence is
a matter of trial strategy. Keith at 530. Moreover, strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable. State v. Bryan,
101 Ohio St.3d, 2004-Ohio-971, at ¶ 189, quoting Wiggins at 521.
...
{¶ 75} McKnight’s argument that evidence regarding his paternal
abandonment would have humanized him and caused the jury to
vote for a life sentence is rank speculation. Additionally, courts
have upheld death sentences in spite of mitigation evidence that a
defendant had a troubled childhood See, e.g., State v. LaMar, 95
Ohio St.3d 181 at ¶ 195[(2002)] . . .; State v. Coley (2001), 93 Ohio
St.3d 253, 273 . . .; State v. Hoffner (Mar. 23, 2001), Lucas App. No.
L-95-181 . . . .
{¶ 76} Furthermore, counsel made a tactical decision not to
present this mitigation evidence for fear that it would open the door
to evidence regarding McKnight’s prior juvenile murder
adjudication.
166

...
{¶ 77} Here, had counsel chosen to present evidence regarding
McKnight’s background as a child, particularly his feelings of
paternal abandonment, counsel would have opened the door to
evidence regarding his prior juvenile murder adjudication, as the
trial court properly warned. Thus, as the record clearly indicates,
McKnight’s trial counsel’s decision not to present mitigating
evidence regarding childhood issues of paternal abandonment and
the lack of a father figure was a strategic decision to avoid possibly
opening the door to his prior juvenile murder adjudication. After
McKnight finished presenting mitigation evidence, the state
requested the court to place on the record defense counsel’s decision
not to present additional mitigation evidence.
McKnight, 2008-Ohio-2435. At that point, the state court quoted extensively from the trial
transcript, wherein defense counsel explained that the defense team was “severely constrained,
handcuffed, by the juvenile adjudication.” Id. at ¶ 77. In addition, counsel stated that a relative
of McKnight’s from New York was present but would not be called because given the trial court’s
previous rulings on “certain matters,” presumably the juvenile adjudication, he was confident that
the witness’ testimony would “open the door to all kinds of things.” The court of appeals
concluded that “based on this record, we find that trial counsel made a strategic decision after full
and fair consideration and investigation. As such, trial counsel’s performance was not deficient.
Consequently, trial counsel was not ineffective.” Id. at ¶ 78.
In addressing McKnight’s claim that a cultural expert should have been obtained to testify
on the cultural differences between African-Americans and Caribbean-Americans and the effect
such testimony may have had on McKnight’s jury, the state court of appeals reasoned as follows:
{¶ 95} McKnight claims that . . . the lack of a cultural expert
deprived him of individualized sentencing . . . . Specifically,
167

McKnight claims that the . . . summary derived from the cultural
expert’s report [submitted in support of his post-conviction claim]
would have humanized him and helped sway the jury to vote for a
life sentence, as opposed to a death sentence.
...
{¶ 98}
[W]hen a defendant challenges defense counsel’s
investigation of potential mitigating evidence, the focus is “on
whether the investigation supporting counsel’s decision not to
introduce mitigating evidence of [the defendant’s] background was
itself reasonable.” Wiggins at 523. “In assessing counsel’s
investigation, we must conduct an objective review of their
performance, measured for ‘reasonableness under prevailing
professional norms,’ which includes a context-dependent
consideration of the challenged conduct as seen ‘from counsel’s
perspective at the time.’ (‘[E]very effort [must] be made to
eliminate the distorting effects of hindsight’).” (Cites omitted.)
Id.
{¶ 99} Here, defense counsel made a tactical decision not to
present further mitigation evidence. Even assuming that in
hindsight, introducing cultural mitigation evidence would have been
an appropriate theory, we may not evaluate counsel’s decision in
hindsight. Instead, we must consider counsel’s decision at the time
it was made and accord counsel’s decision deference. At the time
counsel made the decision, they reasonably believed that presenting
further mitigation evidence would open the door to McKnight’s
prior juvenile murder adjudication. And counsel appears to have
been correct in this regard. In his postconviction deposition,
Attorney Carson stated that the judge warned defense counsel that if
they brought up anything that predated McKnight’s detention as a
juvenile, then they should open the door to his prior juvenile
adjudication for murder, which the defense obviously wanted to
avoid.
Therefore, McKnight cannot overcome the strong
presumption that counsel made a reasonable strategic decision.
Consequently, we do not find counsel’s decision to decline to
present further mitigation evidence deficient. See Darden v.
Wainwright (1986), 477 U.S. 168, 186 (concluding that counsel
engaged in extensive preparation and that the decision to present a
mitigation case would have resulted in the jury hearing evidence

168

that petitioner had been convicted of violent crime and spent much
of his life in jail.
{¶ 100} Additionally, McKnight merely speculates that evidence
of his cultural background would have humanized him to the jury
and led to a life sentence. . . . [S]peculation is not sufficient to
demonstrate prejudice.
{¶ 101} Furthermore, other Ohio appellate courts have rejected
claims that failure to use cultural mitigation evidence constitutes
ineffective assistance of counsel. See State v. Issa (Dec. 21, 2001),
Hamilton App. No. C-000793 (“A postconviction claim does not
show ineffective assistance of counsel merely because it presents a
new expert opinion that is different from the theory used at trial.
This claim involved nothing more than an alternative mitigation
theory and did not provide substantive grounds for postconviction
relief”); State v. Murphy, (Dec. 26, 2000), Franklin App. No.
00AP-233 (“Encouraging jurors to decide a defendant’s sentence
based on conclusions about groups of people, delineated by race or
ethnicity, is [an] anathema to individualized sentencing.
Sentencing in capital cases should be about the crime and the
individual characteristics of the defendant. There is no room for
group guilt or group mitigation.”).
McKnight, 2008-Ohio-2435.
McKnight presented the depositions of Herman Carson, Robert Aaron Miller, and Robert
Toy, McKnight’s trial counsel.

Herman Carson stated that the defense had engaged two

mitigation specialists, Kelly Keiby and Jessica Love. (ECF No. 108-5, PageID 10996), but that
counsel had been warned by the trial judge that if any evidence about McKnight’s juvenile
adjudication for murder was introduced, it would open the door for the prosecution to bring in the
juvenile adjudication. (ECF No. 108-5, PageID 10997-98.) Robert Toy stated in his deposition
that there would be “no hope” for McKnight if the juvenile adjudication were known to the jury.
Id. at PageID 11127.

McKnight has not demonstrated that the evidence of his father’s

169

abandonment and his Caribbean rather than African roots would have overcome the devastating
impact of his previous adjudication for murder. Nor does he offer support for his allegation that
such evidence would have humanized him to the jurors or caused even one of them to vote for a
life sentence. It is difficult to imagine what amount or weight of evidence would overcome the
fact of McKnight’s previous adjudication for murder, in fact, but parental abandonment and being
a cultural minority does not do so. McKnight’s trial counsel made a reasonable decision not to
introduce such evidence and risk, in fact, guarantee, that his previous adjudication for murder
would be presented to the jury by the prosecutor. Accordingly, his twenty-seventh ground for
relief should be denied.

Twenty-Eighth Ground for Relief

In his twenty-eighth ground for relief, McKnight contends his trial counsel were
ineffective when they failed to object to the trial court’s penalty-phase instruction that the jury
should “consider all of the testimony and evidence relevant to the aggravating circumstance
Gregory B. McKnight was found guilty of committing and mitigating factors raised at both phases
of the trial and final arguments of counsel.” (ECF No. 127, PageID 15827.) Respondent argues
the claim is both procedurally defaulted and meritless. (ECF No. 13, PageId 521.) McKnight
asserts that he presented his claim as part of his twenty-sixth proposition of law on direct appeal
and thereby preserved it for habeas corpus review. (ECF No. 17, PageID 874.)

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After discussing in some detail various other ineffective assistance of trial counsel
sub-claims that were included in McKnight’s twenty-sixth proposition of law, the Supreme Court
of Ohio addressed the instant sub-claim summarily: “Appellant also suffered no prejudice from
his counsel’s failure to object to various . . . penalty-phase . . . instructions. . . . None of
appellant’s claims establish ineffective assistance of counsel, and proposition XXVI is overruled.”
McKnight, 2005-Ohio-6046 at ¶¶ 305, 307. Thus, the claim was properly presented to the state
court, which decided it on the merits.
In his Traverse, McKnight relies primarily on State v. Getsy, where Getsy argued that it is
the trial court’s responsibility to determine what evidence is relevant, not the jury’s, and the court
agreed. 94 Ohio St.3d 180,201 (1998). In Getsy, however, specific items of evidence were
sought to be excluded from the evidence given to the jury during their penalty-phase deliberations.
Id. Here, McKnight has identified no item of evidence to which trial counsel should have
objected and which was so prejudicial as to have compromised the fairness of the jury’s
penalty-phase verdict. Without such specificity, this Court has no foundation upon which to find
the state court’s rejection of McKnight’s ineffective assistance of trial counsel claim contrary to or
an unreasonable application of federal law as determined by the United States Supreme Court.
Thus, his claim that his trial counsel were ineffective in not objecting to the challenged jury
instruction should be denied.

171

Twenty-Ninth Ground for Relief

In his twenty-ninth ground for relief, McKnight contends his trial counsel’s failure to
object to the jury verdict forms constituted ineffective assistance.

(ECF No. 127, PageID

15831-32.) Respondent again argues the claim is both procedurally defaulted and meritless.
(ECF No. 13, PageID 522.) McKnight counters that he raised the claim as part of his twenty-sixth
proposition of law. (ECF No. 127, PageID 879.)
McKnight raised the underlying claim concerning the verdict forms in his twenty-fourth
ground for relief in these proceedings. For the reasons stated there, trial counsel’s failure to
object to the forms was not deficient performance in any way. McKnight’s twenty-ninth ground
for relief should be denied.

Thirtieth Ground for Relief

Next, McKnight alleges his trial counsel were ineffective in failing to object to “flawed
instructions given during the trial and penalty phase[s] of his trial[, p]articularly a flawed
instruction as to reasonable doubt, releasing the victim in a safe place unharmed, and allowing the
jury to select alternative felonies as elements.” (ECF No. 127, PageID 15832.)
The underlying claims forming the basis for each of the three instances of alleged
ineffective assistance of trial counsel McKnight includes in the instant ground for relief has been
addressed in McKnight’s twentieth ground for relief. Not only was the challenged instruction not

172

given at McKnight’s trial, but the Sixth Circuit has repeatedly held that the instruction actually
given in McKnight’s case is neither contrary to nor an unreasonable application of federal law as
determined by the United States Supreme Court. Here, however, the question remains as to
whether the state trial court would have sustained an objection to the instruction given and whether
McKnight would have been prejudiced by his attorneys’ failure to lodge the objection. The
answer to that question is “No.” The Supreme Court of Ohio has repeatedly rejected challenges
to the instruction given in McKnight’s case.

State v. Jones, 91 Ohio St.3d 335, 347-48,

2001-Ohio-57 (stating, “We have repeatedly affirmed the constitutionality of R.C. 2901.05(D)'s
definition of reasonable doubt. See State v. Hessler (2000), 90 Ohio St.3d 108, 115; State v.
Getsy (1998), 84 Ohio St.3d 180, 202.”). Thus, even if trial counsel would have objected to the
reasonable doubt instruction, it would surely have been overruled. Counsel cannot have been
ineffective for failing to lodge such an objection. Accordingly, McKnight’s thirtieth ground for
relief should be denied.

Thirty-First Ground for Relief

In his thirty-first ground for relief, McKnight contends several instances of prosecutorial
misconduct violated his constitutional rights to due process and a fair trial. (ECF No. 127,
PageID 15833-40.) Respondent argues the claim is partially procedurally defaulted insofar as
McKnight claims a violation of his Fifth and Sixth Amendment rights, is meritless, and that
McKnight has not provided any argument as to why the state court’s decision on the claim was

173

unreasonable. (ECF No. 13, PageID 527.) In his Traverse, McKnight argues that his claim was
not “fully adjudicated” by the state supreme court for two reasons: (1) the court’s opinion does
not address every instance of alleged prosecutorial misconduct he recites in his appellate brief, and
(2) the court failed to consider the cumulative effect of the alleged prosecutorial misconduct.
(ECF No. 17, PageID 890-907.)
Respondent’s claim of procedural default as to McKnight’s Fifth and Sixth Amendment
rights claims is correct. He raised the present claim only as violations of his Eighth and
Fourteenth Amendment rights. (ECF No. 106-15, PageID 9617-25.)
When addressing claims of prosecutorial misconduct, “the clearly established Federal law
relevant here is our decision in Darden v. Wainwright, 77 U.S. 168 (1986), which explained that a
prosecutor's improper comments will be held to violate the Constitution only if they so infected the
trial with unfairness as to make the resulting conviction a denial of due process. Id. at 181
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).” Parker v. Matthews, 567 U.S.
37, 45 (2012)(parallel citations and internal quotation marks omitted).
The specifics of McKnight’s claim is that the prosecutors violated his Eighth and
Fourteenth Amendment rights when they “saturated the trial with emotionally charged victim
impact and character evidence,” “introduced irrelevant and inflammatory evidence that McKnight
engaged in infidelities during his marriage,” “presented testimony . . . regarding McKnight’s
reaction to the presence of police at a club,” elicited testimony that officers went to McKnight’s
trailer to serve an indictment for burglary on McKnight, “speculated as to what was in Murray’s
mind,” made improper rebuttal respecting the blood on the .357 weapon, commented on the

174

defense’s failure to present any witnesses in their case in chief, improperly included argument on
the “escaping detection” aggravating circumstance in his penalty-phase argument after the trial
court and excluded it from consideration, and referred to McKnight’s marital infidelities in their
penalty-phase closing argument. (ECF No. 127, PageID 15833-40.) Nowhere in his ground for
relief does McKnight address the question before this Court, which is: How is the Supreme Court
of Ohio’s decision on these claims contrary to or an unreasonable application of federal law as
determined by the United States Supreme Court or an unreasonable determination of the facts in
light of the evidence presented in the state court. See 28 U.S.C. § 2254(d). He mentions in a
footnote that the state supreme court found the sub-claim concerning his reaction to the police at
the club was harmless, and he recites the language from the statute just cited in the final paragraph
of his ground for relief, but that is inadequate to meet the standard required by the statute. In
addition, all of these sub-claims were presented in McKnight’s eleventh and twenty-second
grounds for relief where he argued them without alluding to prosecutorial misconduct per se, and
this Court recommended those grounds for relief be denied. The same facts and argument fair no
better when scrutinized under the category of prosecutorial misconduct. Nor do they coagulate
into cumulative error, as McKnight suggests.
McKnight’s thirty-first ground for relief should be denied.

175

Thirty-Second Ground for Relief

In his thirty-second ground for relief, McKnight alleges juror misconduct in that two jurors
improperly considered some facet of the “nature and circumstances of the crime” as an
aggravating circumstance when deliberating on his sentence. (ECF No. 127, PageID 15841-42.)
Respondent argues the claim is partially procedurally defaulted and that the state court of appeals
found it barred by the doctrine of res judicata in McKnight’s post-conviction proceedings. (ECF
No. 13, PageID 539-45.)
McKnight presented the claim to the state courts as his fifth assignment of error in
post-conviction, alleging the jurors’ misconduct violated his Sixth, Eighth, and Fourteenth
Amendment rights. (ECF No. 107-7, PageID 10485-87.) Respondent’s defense of procedural
default rests on McKnight’s addition here of an allegation that his Fifth Amendment rights were
also violated. Because that part of his claim was not included in his state court proceedings, it is
procedurally defaulted.
Without reciting the entirety of the state court of appeals’ decision on the matter, it found
as follows:
{¶ 45} To support his claim, McKnight submitted an affidavit
from Assistant State Public Defender, Kathryn Sandford, who was
present at interviews with two of McKnight’s jurors following the
trial. Attorney Sandford stated that one of the jurors asserted that
she voted for death because of the “brutality” of the crimes . . . .
Attorney Sandford stated that the juror advised, “[T]he only factor
that could have weighed in favor of a life sentence was if the defense
had proven in any way that McKnight was not responsible for the
crimes.”

176

{¶ 46} . . . [A second] juror stated that the evidence of McKnight’s
guilt was “too strong to vote for life.”
...
{¶ 48} Evidence Rule 606(B) prohibits a party from using a juror’s
statement to impeach a verdict. See State v. Robb (2000), 88 Ohio
St.3d 59, 79. . . .
{¶ 49} Thus, Evid.R. 606(B) prohibits both a juror’s statements
and hearsay testimony concerning the juror’s statements provided in
an affidavit unless evidence aliunde[20] exists; that is, evidence that
is extraneous and independent, based upon the firsthand knowledge
of one who is not a juror. (Citations to state court cases omitted.) . .
. The rule is vital not only to protect jurors from harassment by
defeated parties, but to ensure finality of verdicts and preserve “the
sanctity of the jury room and the deliberations therein.” Wittman v.
Akron, Summit App. No. 21375, 2003-Ohio-56127, ¶ 10. . . .
...
{¶ 51} Here, McKnight offered an affidavit containing Attorney
Sandford’s recollection of juror interviews attesting to their
deliberations during the sentencing phase of McKnight’s trial. The
statements constitute internal evidence of the jury’s deliberations,
which the aliunde rule flatly prohibits. Therefore, the trial court
properly concluded that Evid.R. 606(B) prohibited it from
considering the affidavit when evaluating McKnight’s
postconviction petition. Moreover, Sandford’s affidavit attesting
to what the jurors stated is complete hearsay. (Citation omitted.)
...
{¶ 53} Accordingly, we find that the trial court did not abuse its
discretion by dismissing McKnight’s fifth claim for relief.
McKnight, 2008-Ohio-2435.

20

Once again, McKnight has argued the merits of his juror

Aliunde (ay-lee-yәn-dee) adj. [Latin] (17c) From another source; from elsewhere. BLACK'S LAW

DICTIONARY (11th ed. 2019).
177

misconduct claim rather than explaining what specific Supreme Court holding eviscerates the
aliunde rule, which exists in both the Ohio and Federal Rules of Evidence. Simply repeating
arguments made in the state court and concluding with a single sentence declaring that the state
court’s decision is contrary to or an unreasonable application of federal law, or an unreasonable
determination of the facts in light of the evidence before the state court is woefully inadequate
under 28 U.S.C. § 2254(d).
For the reasons stated above, it is recommended that McKnight’s thirty-second ground for
relief be denied.

Thirty-Third Ground for Relief

In his thirty-third ground for relief, McKnight contends his appellate counsel provided
ineffective assistance on direct appeal to the Supreme Court of Ohio. (ECF No. 127, PageID
15843-44.) Specifically, he argues that his appellate counsel should have raised as error on direct
appeal trial counsel’s ineffectiveness in failing to challenge the allegedly false statements
contained in the probable cause affidavit, and trial counsel’s failure to seek a change of venue
based on the racial bias of the venire that was revealed in voir dire. Id. at PageID 15844.
A criminal defendant is entitled to effective assistance of counsel on appeal as well as at
trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey,
469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 (6th
Cir. 2008). Counsel must be appointed on appeal of right for indigent criminal defendants.

178

United States v. Cronic, 466 U.S. 648 (1984); Anders v. California, 386 U.S. 738 (1967); Douglas
v. California, 372 U.S. 353 (1963). The Strickland test applies to appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of
ineffective assistance of appellate counsel, then, the court must assess the strength of the claim
that counsel failed to raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v.
Parker, 515 F.3d 682, 707 (6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts to
ineffective assistance only if a reasonable probability exists that inclusion of the issue would have
changed the result of the appeal. Id., citing Wilson.
The underlying issue forming the basis of the first of those arguments was discussed in
McKnight’s first and twenty-sixth grounds for relief, supra. There, this Court determined that the
underlying claim was not cognizable in habeas corpus and, even if it were, it was meritless. Thus,
appellate counsel were not ineffective for failing to include a proposition of law alleging trial
counsel were ineffective in not attacking the veracity of the statements in the affidavit supporting
the warrant. McKnight’s thirty-third ground is meritless for that same reason.

Thirty-Fourth Ground for Relief

In his thirty-fourth ground for relief, McKnight contends there was insufficient evidence to
convict him and that his convictions were against the manifest weight of the evidence. (ECF No.
127, PageID 15845.) Respondent acknowledges that the state supreme court addressed and
denied the claim on its merits on direct appeal but notes this Court’s obligation to defer to that

179

decision unless it clearly violates 28 U.S.C. § 2254(d). (ECF No. 13, PageID 547-55.)
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency
challenge should be assessed against the elements of the crime, not against the elements set forth in
an erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193 L.
Ed. 2d 639 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the AEDPA, two levels of deference to state decisions are required:

180

In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier of
fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008). Notably, “a court may sustain a conviction based upon
nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir.
2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, “it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational
trier of fact could have agreed with the jury.” Cavazos v. Smith, 565
181

U.S. 1, ___, 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (2011) (per curiam).
And second, on habeas review, “a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U.S.
___, ___, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
McKnight specifically argues that the evidence resulting in his conviction on the
kidnapping charge as well as the associated aggravating circumstance attached to his aggravated
murder charge was insufficient to sustain his convictions. (ECF No. 127, PageID 15845-48; ECF
No. 17, PageID 922-30.) Before recounting the state supreme court’s reasoning on the instant
claim, this Court observes that claims asserting that a petitioner’s conviction is against the
manifest weight of the evidence are matters of state law and are not cognizable in habeas corpus.
Nash v. Eberlin, 437 F.3d 519, 522 (6th Cir. 2006); Arnold v. Warden, 832 F. Supp. 2d 853, 861
(S.D. Ohio 2011) (Black, J.); Ob’Saint v. Warden, 675 F. Supp. 2d 827, 832 (S.D. Ohio 2009)
(Beckwith, J.); Huffman v. Brunsman, 650 F. Supp. 2d 725, 735 (S.D. Ohio 2008) (Barrett, J.).
Thus, this Court confines itself to the claim of insufficient evidence.
The Supreme Court of Ohio reasoned as follows in rejecting McKnight’s claim:
{¶ 70} In reviewing a claim of insufficient evidence, “[t]he
relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus, following Jackson v. Virginia (1979),
182

443 U.S. 307; see also, State v. Thompkins (1997), 78 Ohio St.3d
380.
...
{¶ 72} Appellant argues that the state did not prove that he
kidnapped Murray. Appellant argues that no witnesses testified
that they saw him remove or restrain Murray, and no evidence was
presented about where she was murdered. . . .
{¶ 73} We find that appellant’s sufficiency claim[] lack[s] merit.
The state proved that appellant kidnapped Murray by showing that
Murray and appellant left work at approximately the same time on
the night Murray disappeared, that Murray’s car was found parked
behind appellant’s trailer, and that Murray’s murdered body was
found rolled in a carpet inside appellant’s trailer. Further, the
evidence proved that Murray did not have her wallet, driver’s
licenses, and credit cards when she disappeared and that Murray did
not tell anyone she was leaving the area, despite her habit of
informing friends of her whereabouts. Additionally, appellant lied
when Murray’s friend asked about her, and appellant also told a
co-worker that she was “probably dead.” Appellant also falsely
told Kimberly Zimmerman that the Subaru behind his trailer
belonged to his boss or a friend, “and they were down there
probably hunting.”
{¶ 74} The evidence also established that the location of Murray’s
murder was appellant’s trailer. A copper bullet jacket found in the
living room of the trailer had Murray’s DNA on it, and a bullet hole
was discovered in the bloodstained living-room[sic] carpet.
{¶ 75} We also reject appellant’s claim that the evidence was
insufficient because there were no eyewitnesses. We have “long
held that circumstantial evidence is sufficient to sustain a conviction
if that evidence would convince the average mind of the defendant’s
guilt beyond a reasonable doubt.” State v. Heinish (1990), 50 Ohio
St.3d 231, 238. Here, circumstantial evidence, forensic testimony,
and appellant’s own statements proved beyond a reasonable doubt
that appellant kidnapped and murdered Murray. Forensic evidence
showed that the copper bullet jacket and bullets removed from a tree
behind appellant’s trailer were fired from the same firearm.”

183

Moreover, the fact that appellant used a gun for target practice on
his property linked him to the weapon that killed Murray.
{¶ 76} . . . Proposition 1 is overruled.
McKnight, 2005-Ohio-6046.
McKnight emphasizes that “[t]he relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt[.]” 2005-Ohio-6046, quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis supplied). In other words, a petitioner must
demonstrate that no rational trier of fact, not even one, could find that the prosecutor met his or her
burden of proving every element of the crime beyond a reasonable doubt. That is a very high
standard, and McKnight has not succeeded in meeting it. Instead, he makes his argument as if to
the state court on direct appeal, and concludes by simply stating that the state court’s thorough
evaluation of his claim is contrary to or an unreasonable application of federal law or an
unreasonable determination of the facts given the evidence before the state court.

Such

conclusory statements do not demonstrate any weakness or error in the Supreme Court of Ohio’s
decision quoted above. As such, McKnight has not shown entitlement to federal habeas corpus
relief, and his thirty-fourth ground for relief should be denied.

Thirty-Fifth Ground for Relief

In his thirty-fifth ground for relief, McKnight alleges that Ohio’s appellate and
proportionality review in death penalty cases violates his Fifth, Sixth, Eighth, and Fourteenth
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Amendment rights. (ECF No. 127, PageID 15849-55.) Respondent counters that McKnight’s
claim is both meritless and procedurally defaulted. (ECF No. 13, PageID 556-60.) McKnight
argues he raised the instant claim on direct appeal and that the state supreme court decided it on its
merits. (ECF No. As for the part of his claim alleging Ohio’s death penalty statutes fail to provide
a constitutionally valid proportionality review, that claim has been rejected over and over. While
“[t]he concept of proportionality is central to the Eighth Amendment,” Graham v. Florida, 560
U.S. 48, 59 (2010), the Constitution does not require a proportionality review comparing one death
penalty case to another, Pulley v. Harris, 465 U.S. 37, 42-43 (1984), something McKnight fails to
acknowledge. Since proportionality review takes place in Ohio as part of the trial court’s
sentencing procedure and in the Supreme Court of Ohio on direct appeal, McKnight’s thirty-fifth
ground for relief is without merit and should be denied.

Thirty-Sixth Ground for Relief

In his thirty-sixth ground for relief, McKnight argues the trial court and the Supreme Court
of Ohio arbitrarily violated their duties to independently weigh the aggravating circumstance and
mitigating factors in many ways: (1) the supreme court refused to consider and give effect to
“relevant and powerful mitigating evidence”; (2) the trial court refused to admit evidence in
mitigation that Emily Murray’s family was opposed to the death sentence for McKnight, and; (3)
both courts ignored the obvious racism inherent in McKnight’s case. (ECF No. 127, PageID
15855-61.) Respondent contends McKnight’s claim is procedurally defaulted in part and also

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repeats what appears to be the entire independent sentencing evaluation by the Supreme Court of
Ohio.

(ECF No. 13, PageID 561-67.)

In both his Petition and his Traverse, McKnight

essentially copies the claim as it was presented to the Supreme Court of Ohio on direct appeal, cf.
Appellate Brief, ECF No. 106-15, PageID 9628-31; Petition, ECF No. 127, PageID 15855-61; and
Traverse, ECF No. 17, PageID 943-49, adding that “[t]he Supreme Court of Ohio’s failure to
correct this arbitrary sentence is an unreasonable application of clearly established federal law as
enunciated by the Supreme Court of the United States.” (ECF No. 127, PageID 15861.)
McKnight specifically argues the state courts failed to give appropriate weight, or in some
cases even refused to consider, mitigating evidence that he supported and was devoted to his
family, that he was a good father to his two young children, that he cared for his mother-in-law
when she was sick, that he helped an acquaintance with her children, that McKnight had worth as a
human being, and that he had held his job at the Pirate’s Cover for three months and was in line for
a promotion. Id. at PageID 15857-61. But the trial court’s sentencing evaluation acknowledged
most of those factors and gave them each “some weight.” (ECF No. 106-15, PageID 9307-08.)
The factor not mentioned in the trial court’s opinion is that McKnight helped a friend with her
children. The record shows that McKnight asked Dana Bostic if she needed diapers for her
daughter or anything else for her children after Julious disappeared (Trial Tr., ECF No. 105-20, p.
1015, 1032), but nowhere does it indicate he brought anything to her household other than
groceries on one occasion, id. at p. 1118, and the mitigatory effect of that one act of generosity
after he had murdered Bostic’s boyfriend/roommate, Julious, is very weak.21

21

There are other instances of “Greg” helping Bostic by taking care of her children while she was out of the home, but

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McKnight also contends the trial court violated his right to “due process and a reliable
review of the arbitrariness of his sentence of death” by failing to take into consideration numerous
letters, etc., from family members and friends of Emily Murray’s expressing her and their
opposition to the death penalty as a general matter, and requesting that McKnight be sentenced to
life imprisonment instead. (ECF No. 127, PageID 15859.) The United States Supreme Court
has never held that evidence of a victim’s or her family’s opinions on the appropriate sentence is a
requirement of due process in a capital case. The opposite, in fact, is true:
In Booth v. Maryland, 482 U.S. 496 (1987), this Court held that “the
Eighth Amendment prohibits a capital sentencing jury from
considering victim impact evidence” that does not “relate directly to
the circumstances of the crime.” Id., at 501–502, 507, n.10. Four
years later, in Payne v. Tennessee, 501 U.S. 808, (1991), the Court
granted certiorari to reconsider that ban on “‘victim impact’
evidence relating to the personal characteristics of the victim
and the emotional impact of the crimes on the victim's family.”
Id., at 817. The Court held that Booth was wrong to conclude that
the Eighth Amendment required such a ban. Payne, 501 U.S. at
827. That holding was expressly “limited to” this particular type of
victim impact testimony. Id., at 830, n.2. “Booth also held that
the admission of a victim's family members' characterizations
and opinions about the crime, the defendant, and the
appropriate sentence violates the Eighth Amendment,” but no
such evidence was presented in Payne, so the Court had no occasion
to reconsider that aspect of the decision. Ibid.
The Oklahoma Court of Criminal Appeals has held that Payne
“implicitly overruled that portion of Booth regarding
characterizations of the defendant and opinions of the sentence.”
Conover v. State, 933 P.2d 904, 920 (1997) (emphasis added); see
also Ledbetter v. State, 933 P.2d 880, 890–891 (Okla.Crim.App.
1997). The decision below presents a straightforward application
of that interpretation of Payne. A jury convicted petitioner Shaun

it is clear from the record that that was Gregory Julious, not Gregory McKnight. (Se, e.g., ECF No. 105-20, p. 996,
1023.)

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Michael Bosse of three counts of first-degree murder for the 2010
killing of Katrina Griffin and her two children. The State of
Oklahoma sought the death penalty. Over Bosse's objection, the
State asked three of the victims' relatives to recommend a sentence
to the jury. All three recommended death, and the jury agreed.
Bosse appealed, arguing that this testimony about the appropriate
sentence violated the Eighth Amendment under Booth. The
Oklahoma Court of Criminal Appeals affirmed his sentence,
concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58,
360 P.3d 1203, 1226–1227. We grant certiorari and the motion for
leave to proceed in forma pauperis, and now vacate the judgment of
the Oklahoma Court of Criminal Appeals. . . .
The Oklahoma Court of Criminal Appeals has recognized that
Payne “specifically acknowledged its holding did not affect”
Booth's prohibition on opinions about the crime, the defendant, and
the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That
should have ended its inquiry into whether the Eighth Amendment
bars such testimony; the court was wrong to go further and conclude
that Payne implicitly overruled Booth in its entirety. “Our
decisions remain binding precedent until we see fit to reconsider
them, regardless of whether subsequent cases have raised doubts
about their continuing vitality.” Hohn v. United States, 524 U.S.
236, 252–253 (1998).
The Oklahoma Court of Criminal Appeals remains bound by
Booth's prohibition on characterizations and opinions from a
victim's family members about the crime, the defendant, and the
appropriate sentence unless this Court reconsiders that ban. The
state court erred in concluding otherwise. . . .
The judgment of the Oklahoma Court of Criminal Appeals is
vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.
Bosse v. Oklahoma, 137 S.Ct. 1, 1-3 (2016) (per curiam). Thus, the state courts’ exclusion of
Murray’s family’s and friends’ letters advocating for a life sentence for McKnight was not
contrary to or an unreasonable application of federal law as determined by the United States
Supreme Court, and instead aligned perfectly with Supreme Court law.
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McKnight also reiterates his proportionality arguments, but that matter has been fully
considered in the Court’s discussion of McKnight’s previous ground for relief.
For the reasons stated, McKnight’s thirty-sixth ground for relief should be denied.

Thirty-Seventh Ground for Relief

In his thirty-seventh ground for relief, McKnight challenges the constitutionality of Ohio’s
death penalty statutes. (ECF No. 127, PageID 15861-64.) The state supreme court considered
the constitutionality of Ohio’s death penalty statutes as a “settled issue” stating “In proposition of
law XXX, appellant attacks the constitutionality of Ohio’s death-penalty statutes. This claim
has . . . been resolved.” McKnight, 2005-Ohio-6046 at ¶ 309. The Supreme Court has not held
Ohio’s or any other state’s death penalty scheme violative of the Constitution since Gregg v.
Georgia, 428 U.S. 153 (1976). See, e.g., Baze v. Rees, 553 U.S. 35 (2008). Thus, it is impossible
for McKnight to demonstrate that the Supreme Court of Ohio’s decision is contrary to or an
unreasonable application of federal law as determined by the holdings of the United States
Supreme Court. 28 U.S.C. § 2254(d)(1). Accordingly, McKnight’s thirty-seventh ground for
relief should be denied.

Thirty-Eighth Ground for Relief

In his thirty-eighth ground for relief, McKnight contends execution by lethal injection, as

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used in Ohio, violates the Eighth and Fourteenth Amendments to the Constitution. (ECF No. 127,
PageID 15864-66.) As a general matter, the Supreme Court has repeatedly upheld lethal injection
as a method of execution. Bucklew v. Precythe, 139 S. Ct. 1112 (2019); Glossip v. Gross, 576
U.S. 863 (2015); Baze v. Rees, 553 U.S. 35 (2008). To the extent McKnight seeks to challenge
Ohio’s method of lethal injection execution, that claim must be brought in an action under 42
U.S.C. § 1983 and is not cognizable in habeas corpus. In re Campbell, 874 F.3d 454 (6th Cir.
2017). Cases challenging Ohio’s method of lethal injection execution under § 1983 have been
pending in this Court since shortly after the Supreme Court of the United States authorized such
suits in Nelson v. Campbell, 541 U.S. 637 (2004). Those cases are currently consolidated in In re
Ohio Execution Protocol Litig., Case No. 2:11-cv-1016, and most Ohio death row inmates are
plaintiffs. Although McKnight has never been a plaintiff in that case, nothing prevents him from
intervening or filing a separate suit, and thus litigating any method of execution claims.
McKnight’s thirty-eighth ground for relief should be dismissed without prejudice as not
cognizable in habeas corpus.

Thirty-Ninth Ground for Relief

In his thirty-ninth ground for relief, McKnight alleges the unconstitutionality of Ohio’s
system of post-conviction relief. (ECF No. 127, PageID 15866-68.) Post-conviction state
collateral review is not a constitutional right, even in capital cases. Murray v. Giarratano, 492
U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551 (1987); Estelle v. Dorrough, 420 U.S. 534,

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536 (1975); Hugueley v. Mays, 964 F.3d 489, 496 (6th Cir. 2020), citing Lackawanna Cty. Dist.
Att'y v. Coss, 532 U.S. 394, 402 (2001) and Murray, 492 U.S. at 10; Kirby v. Dutton, 794 F.2d 245
(6th Cir. 1986) (claims of denial of due process and equal protection in collateral proceedings not
cognizable in federal habeas because not constitutionally mandated). Accord, Greer v. Mitchell,
264 F. 3d 663, 681 (6th Cir. 2001); Trevino v. Johnson, 168 F.3d 173 (5th Cir.1999); Johnson v.
Collins, No. 96-3513, 1998 WL 228029, 145 F.3d 1331 (TABLE) (6th Cir. 1998); Zuern v. Tate,
101 F. Supp. 2d 948 (S.D. Ohio 2000) (Rice, C.J.), rev’d on other grounds, 336 F.3d 478 (6th Cir.
2003).

Fortieth Ground for Relief

Here, McKnight alleges the cumulative effect of the foregoing grounds for relief amount to
a violation of his right to due process, a fair trial, and a fair and reliable sentencing determination.
(ECF No. 127, PageID 15868-69.) “The Supreme Court has not held that distinct constitutional
claims can be cumulated to grant habeas relief.” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.),
opinion corrected on denial of reh'g, 307 F.3d 459 (6th Cir. 2002). After Lorraine, the Sixth
Circuit explicitly repudiated cases in which it had found cognizable in habeas corpus cumulative
error resulting from distinct constitutional claims. Moore v. Parker, 425 F.3d 250, 256 n.4 (6th
Cir. 2005). Consequently, McKnight has not established entitlement to habeas relief and his
fortieth ground for relief should be denied.

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Forty-First Ground for Relief

In his forty-first ground for relief, McKnight alleges that his execution under Ohio’s
current lethal injection protocol will subject him to cruel and unusual punishment in violation of
the Eighth Amendment because it “presents an objectively intolerable risk of the wanton infliction of
serious physical and psychological pain, as well as a torturous or lingering death resulting in an
execution that will not be in accord with the “dignity of man.” (Petition, ECF No. 127, PageID 15869).
This claim is not cognizable in habeas corpus for the same reasons given as to ground for relief
thirty-eight and should be dismissed without prejudice on the same basis.

Forty-Second Ground for Relief

In his forty-second ground for relief, McKnight asserts that his execution pursuant to
Ohio’s current lethal injection protocol will, in various ways, deprive him of equal protection of
the law in violation of the Equal Protection Clause of the Fourteenth Amendment. (Petition, ECF
No. 127,PageID 15871.) This claim is not cognizable in habeas corpus on the same basis as

grounds for relief thirty-eight and forty-one.

Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that grounds for
relief one through thirty-seven, thirty-nine, and forty be dismissed with prejudice and that grounds
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for relief thirty-eight, forty-one, and forty-two be dismissed without prejudice.
Under Rule 11 of the Rules Governing § 2254 Cases, the Court must in any final judgment
adverse to the Petitioner make a determination on whether a certificate of appealability should
issue as to any claim. No recommendation is made on that question herein because the parties
have not yet briefed the question. A schedule for such briefing will be set after any objections to
this Report are resolved.

September 14, 2020.
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. 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. 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.

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