McKnight v. Warden, Ohio State Penitentiary

Filing 90

SUPPLEMENTAL OPINION by Magistrate Judge Michael R Merz dated 10/22/2012. (kpf1)

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

Case No. 2:09-cv-059
:

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

-vsDAVID BOBBY, Warden,
:
Respondent.

SUPPLEMENTAL OPINION

Status of the Case

This capital habeas corpus case is presently pending before Chief Judge Dlott on
Petitioner’s Objections (Doc. No. 69) to the Magistrate Judge’s Decision and Order denying an
evidentiary hearing (Doc. No. 64). It is also pending before Judge Dlott on the Warden’s
Objections (Doc. Nos. 71, 86) to the Magistrate Judge’s Decision and Order (Doc. No. 68)
allowing an amendment of the Petition to add claims related to Ohio’s lethal injection protocol.
The Magistrate Judge denied Petitioner’s Renewed Motion for Evidentiary Hearing
without prejudice to its renewal with respect to Grounds for Relief Twenty-Seven (ineffective
assistance of trial counsel) and Thirty-Three (ineffective assistance of appellate counsel). In any
1

renewed motion, McKnight was to address whether the state court decisions on those Grounds for
Relief were entitled to deference under 28 U.S.C. § 2254(d)(1) or (2). McKnight has done so,
adding analysis under the Supreme Court’s recent decision in Martinez v. Ryan, 566 U.S. ___, 132
S. Ct. 1309, 182 L. Ed. 2d 272 (2012)(Doc. No. 77). The Warden has responded (Doc. No. 81)
and McKnight has filed a Reply (Doc. No. 85).

Ground Twenty-Seven: Ineffective Assistance of Trial Counsel

In his Twenty-Seventh Ground for Relief, McKnight claims his trial attorneys provided

ineffective assistance of counsel in that they failed to “conduct a reasonable investigation into the
background and mental health history of the client” and therefore failed “to introduce readily
available and compelling mitigating evidence . . .” (Petition, Doc. No. 9, ¶ 517, PageID 229).
One of the omitted themes was McKnight’s abandonment as a child by his father. Id. at ¶ 524,
PageID 231. Trial counsel testified in the state post-conviction proceeding that evidence related
to McKnight’s childhood before the age of fifteen was not offered because the trial judge indicated
that would lead to admission of McKnight’s juvenile adjudication for murder. Id. at ¶ 526,
PageID 232. McKnight pleads that further development of those facts would have led to valuable
mitigating evidence under Skipper v. South Carolina, 476 U.S. 1 (1986). Id.
McKnight also pleads that his counsel were ineffective for failure to introduce, by way of a
cultural expert, evidence of his cultural background (his parents are from Trinidad and Guyana)
and how a person of that background would assimilate into American culture. Id. at ¶¶ 531-532,
2

PageID 233-234.
McKnight’s claims of ineffective assistance of trial counsel in these two respects, paternal
abandonment and failure to present a cultural expert, were presented in his Petition for Post Conviction
Relief as claims nine and fifteen. The Ohio Court of Appeals affirmed denial of the claim nine relating to
paternal abandonment as follows:
In his ninth claim for relief, McKnight contends that 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 in his life
were dominant themes in his life. He also refers to lead defense counsel's
deposition in which he stated that he did not consider parental
abandonment as a mitigating factor.

The state contends that trial counsel investigated McKnight's
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.
"An ineffective assistance claim has two components: A petitioner
must show that counsel's performance was deficient, and that the
deficiency prejudiced the defense." Wiggins v. Smith (2003), 539
U.S. 510, 521, citing Strickland v. Washington (1984), 466 U.S.
668, 687; see, also, State v. Bradley (1989),42 Ohio St.3d 136.
"To establish deficient performance, a petitioner must demonstrate
that counsel's representation 'fell below an objective standard of
reasonableness.''' Wiggins at 521, quoting Strickland at 688. The
Supreme Court of the United States has refrained from
"articulat[ing] specific guidelines for appropriate attorney conduct
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and instead has emphasized that '[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.'" Id., quoting Strickland at 688. Thus, debatable
trial tactics and strategies do not constitute ineffective assistance of
counsel. See, e.g., State v. Clayton (1980), 62 Ohio St.2d 45, 49,
certiorari denied (1980), 449 U.S. 879.
Moreover, when addressing an ineffective assistance of counsel
claim, the reviewing court should not consider what, in hindsight,
may have been a more appropriate course of action. See State v.
Phillips (1995), 74 Ohio St.3d 72, 85, (stating that a reviewing court
must assess the reasonableness of the defense counsel's decisions at
the time they are made). Rather, the reviewing court "must be highly
deferential" Strickland at 689. As the Strickland court stated, a
reviewing court "must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id. at 689.
In evaluating whether claimed deficient performance prejudiced the
defense, the relevant inquiry is "whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result." Id. at
686. Thus, "(the defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome."
Id. at 694; see, also, Bradley at paragraph three of the syllabus ("To
show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable
probability that, were it not for counsel's errors, the result of the trial
would have been different". In the specific context of a capital case,
to demonstrate prejudice, a petitioner must show that "there is a
reasonable probability that the evidence would have swayed the jury
to impose life sentence." State v. Keith (1997), 79 Ohio St.3d 514,
536; see, also, Strickland at 695 (stating "[w]hen a defendant
challenges a death sentence * * * the question is whether there is a
reasonable probability that, absent the errors, the
sentencer-including an appellate court, to the extent it
independently reweighs the evidence-would have concluded that

4

the balance of aggravating and mitigating circumstances did not
warrant death").
"'The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of
counsel.' Keith at 536. "'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 (CA7, 1993), 986 F.2d 1047, 1049." State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2. 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 272,
2004-0hio-971, at 1)189, quoting Wiggins at 521, quoting
Strickland at 690-691.
In State v. Mundt, 115 Ohio St.3d 22, 2007-0hio-4836, the court
discussed a capital defendant's claim that trial counsel rendered
ineffective assistance of counsel by failing to present certain
mitigation evidence. The court stated:
"In general, 'counsel's decision whether to call a
witness falls within the rubric of trial strategy and
will not be second-guessed by a reviewing court.'
State v. Treesh (2001),90 Ohio St.3d 460, 490. See
also State v. Hanna, 95 Ohio St.3d 285,
2002-Ohio-2221; State v. Williams, 99 Ohio St.d
493, 2003-Ohio-4396. 'It may be that often the best
strategy in a capital case is to attempt to humanize
the defendant by presenting evidence of his personal
qualities. We are unable to hold, however, that any
other strategy would be so unreasonable as to
constitute ineffective assistance of counsel.' Stanley
v. Zant (CA 11, 1983),697 F.2d 955. Moreover, in
evaluating the performance of counsel, 'strategic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after
less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.'
5

Strickland, 466 U.S. at 690-691,104 S.Ct 2052, 80
L.Ed.2d 674."
In Mundt, the court rejected the defendant's argument that defense
counsel rendered ineffective assistance of counsel during the
mitigation phase by choosing not to present evidence regarding the
defendant's low intelligence. The court noted that counsel's decision
did not result from any lack of investigation and, more importantly,
that the defendant failed "to demonstrate prejudice, i.e., a reasonable
likelihood that the outcome of the case would have been otherwise
but for the allegedly ineffective assistance." Id. at ¶ 159. The court
explained:
"[The defendant's] contention that being depicted as
a struggling special education student would have
humanized him is rank speculation. [His] claim that
the jury would have found this evidence compelling
is equally speculative."
ld.
Similarly, here, 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." Id.
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, 2002-Ohio-2128, at ¶ 195,
("As for the evidence relating to LaMar's background, we
acknowledge that it is entitled to some weight We accord it only
modest weight, however, just as we have done in other capital cases
of defendants with similarly troubled backgrounds") (citations
omitted); State v. Coley (2001),93 Ohio St. 3d 253, 273 ("Once
again, as we have been in a number of death penalty cases, we are
presented with a record that contains evidence of unrelenting,
shocking abuse of a child by adults, including a parent. However,
after weighing the aggravating circumstances against the mitigating
evidence, we find that the aggravating circumstances of murder in
the course of robbery and kidnapping outweigh the mitigation
evidence of Coley's young age and deprived childhood"); State v.
Hoffner (Mar. 23, 2001), Lucas App. No. L-95-181 (upholding
death sentence in spite of mitigating evidence of troubled
childhood).

6

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. In State v.
Clark (1988),38 Ohio St.3d 252, 255, the court held that "when a
defendant raises the issue of history, character and background
during the mitigation phase of a capital trial, he opens the door 'to all
relevant evidence.'" See, also, State v. Jackson (Oct. 5, 1989),
Cuyahoga App. No. 55758; Evid.R 405(B). In Clark, the defendant
offered evidence to show he was a "quiet, religious man and good
father" with a potential for rehabilitation. The court held that the
defendant's prior criminal record was admissible to rebut this
evidence. Additionally, the court noted that Evid.R. 405(B)
provides that once the defendant introduces character evidence, his
character witness is subject to cross-examination about relevant
specific instances of conduct.
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. The following conversation occurred:
Mr. Gleeson: * * * I'm aware that (defense counsel)
have had the opportunity and the benefit of
mitigation specialists, of an investigator, of moneys
for psychological assessment.
In fact, they had wanted to have the right person,
whether it's a specialist, go to New York, go to
Texas, to do the things that they should be doing in
mitigation, and I'm glad for it. But I'd like the record
to be clear as to the fact that these other people
whose information has not been presented today, is a
tactical decision that, quite frankly, I might make
myself, because I know where he's coming from.
7

And I don't know if he wants to put it on the record,
but I want to make sure it is put on the record that it is
a knowing, intelligent strategic decision that nothing
more will be presented at this point in time,
particularly from an expert point of view, things like
that.
The Court: Thank you, Mr. Gleeson. Mr. Carson, do
you care to give a response or follow-up, please?
Mr. Carson: We've done our best to prepare a
defense for Greg and evaluate everything that's
available. Ultimately, the trip wasn't taken to New
York or Texas either one only because of scheduling
and interviews were done by phone, but nonetheless,
they were done, and so the information was available
to us and was factored into the decision to prepare
and present the mitigation presentation we've given
today.
Mr. Canepa: One of the reasons why we raise this
now is because in the event there is a sentence of
death, you know, we have in our audience here Carol
Wright, who is assisting today and she's one of the
attorneys who would be the first in line to raise the
issue of ineffective assistance in mitigation for
failing to present experts and more family members
and so forth, and that claim is easily dealt with where
it's clear on the record and there's averments made
that all of that stuff was considered and discussed
with the client and that for tactical reasons, it wasn't
presented, and for the record, you know, the State is
very aware of the limitations because of the prior
homicide as a juvenile, and that seriously limits their
ability to present things, and we fully understand that
in the trial trenches, but sometimes that gets deluded
and obscured as it moves up the appellate process, so
we want to make it-in an abundance of caution, make
it abundantly clear that these trial lawyers are good,
they did everything they could do and considered
everything they had and made every effort to
8

investigate and that was discussed with their client,
because we find ourselves in the unsavory position
of having to defend the trial lawyers actions later on
appeal, and it makes our jobs a whole heck of a lot
more difficult where this kind of a record is not made
at this level.
The Court: All right, thank you, Mr. Canepa.
Mr. Carson: * * * * You know, I don't feel it's
appropriate for us to go through line by line what we
talked about with our client or what options were
considered, rejected, considered, adopted, adopted or
considered and left hanging, whatever the possible
scenarios there are.
Yes, I recognize the basis of the invitation. I made
my representation to the Court that, you know, Mr.
Toy, Mr. Miller and I have done everything we can
to prepare for this. We are severely constrained,
handcuffed, by the juvenile adjudication.
One of Greg's cousins was able to make it here from
New York. She's present. I am not calling her merely
because of the way the Court has ruled so far on
certain matters, that to introduce the evidence that
she would have is going to be, I am confident, ruled
to open the door to all kinds of things. So for that
reason, she is not being called as a witness.
Therefore, 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.
Accordingly, we find that the trial court did not abuse its discretion
by dismissing McKnight's ninth claim for relief.
State v. McKnight, No. 07CA665, 2008-Ohio-2435, ¶¶66-79, 2008 Ohio App. LEXIS 2076, 2008
WL 2124076 (Ohio App. 4th Dist. May 19, 2008).
On claim fifteen, failure to present a cultural expert, the court of appeals held:
9

In his fifteenth claim for relief, McKnight contends that trial counsel
rendered ineffective assistance of counsel by failing to reasonably
investigate and present mitigating evidence during the penalty
phase. In particular, he alleges that defense counsel should have
employed a cultural expert to explain the distinctions between an
African American and a Caribbean American. McKnight maintains
that the American Bar Association guidelines “instruct defense
counsel to investigate the client's ‘cultural’ influences for
mitigation” and that the Supreme Court of the United States has
affirmed the ABA guidelines “as the standard for determining what
is reasonable when evaluating counsel's performance in a capital
case.”

McKnight claims that a cultural expert “would have been helpful in
bridging the communications gap that existed between counsel and
McKnight and his family.” He further claims that the lack of a
cultural expert deprived him of individualized sentencing and that a
cultural expert would have humanized him. Specifically, McKnight
claims that the following summary derived from the cultural
expert's report would have humanized him and helped sway the jury
to vote for a life sentence, as opposed to a death sentence:

“As Dr. Lewis's report indicates, McKnight was
tormented with his identity. He was raised in the
United States by an immigrant mother. McKnight's
mother Lewin was raised in Trinidad. His father,
who was absent from his life, was from Guyana. The
history of the Caribbean is complex. Additionally,
McKnight was raised within the strict Seventh Day
Adventist religion. As a child and young teenager, he
was deprived of activities that youth in the United
States traditionally experience. He was an outsider
who struggled to fit in. When McKnight resided in
Texas with his godparents (who were from
Trinidad), he suffered strict discipline—including
humiliating beatings at the hands of his godfather,
sometimes while McKnight was naked in the
shower.

10

Dr. Lewis also found that McKnight was haunted by feelings of
abandonment. Not only had his father left him when he was just an
infant, McKnight's mother had sent him to Texas to live with the
Chandlers (his godparents) when he was only three years old. Lewin
promised McKnight that she would bring him back to New York to
live with her when he turned five, but when she visited on his fifth
birthday, the Chandlers convinced Lewin to leave McKnight with
them. McKnight told his mother that she had lied to him; he
expressed his feeling that neither she nor anyone else liked him, and
that he believed she loved his brother more.
McKnight also often expressed feelings that he was the reason his
father had left. He believed he was not lovable and that his father
was ashamed of him. These feelings—according to his wife, his
mother, his cousin, and his aunt—made him a person who searched
for his sense of self in others. This, in turn, made McKnight
vulnerable to others who were able to easily manipulate him
because he wanted to fit in and gain the affection and approval of
others.”
The state disagrees with McKnight that the ABA standards set forth
the benchmark for judging the reasonableness of counsel's
performance in a capital case, but asserts that in any event,
“McKnight failed to meaningfully address and meet his burden of
showing prejudice.” The state argues, “In fact, if trial counsel
attempted to present evidence on McKnight's childhood, as his
post-conviction attorneys in hindsight argue they should have, the
State may have countered with McKnight's delinquent conduct
(murder) committed as a teenager. That seems to be something a
capital defendant's trial counsel would avoid if at all possible.”
In Wiggins, supra, the court considered an argument similar to the
one McKnight raises, i.e., that trial counsel performed deficiently by
limiting their investigation of potential mitigation evidence. The
court noted that in Strickland, it “defined the deference owed such
strategic judgments in terms of the adequacy of the investigations
supporting those judgments: ‘[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
11

investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgments.’ ” Wiggins at 521–522, quoting
Strickland at 690–691.
Thus, in a capital case when 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.
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 would
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, 106 S.Ct. 2464,
91 L.Ed.2d 144 (concluding that counsel engaged in extensive
preparation and that the decision to present a mitigation case would
have resulted in the jury hearing evidence that petitioner had been
convicted of violent crimes and spent much of his life in jail).
12

Additionally, McKnight merely speculates that evidence of his
cultural background would have humanized him to the jury and led
to a life sentence. As we indicated before, speculation is not
sufficient to demonstrate prejudice.
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 nonetheless refers to State v. Dixon (Mar. 13, 1997),
Cuyahoga App. No. 68338, to support his argument that counsel
rendered ineffective assistance by failing to employ a cultural
mitigation expert. That case, however, is distinguishable. In Dixon,
the court did not consider the evidence regarding a cultural
mitigation expert in the context of an ineffective assistance of
counsel claim, but instead the court considered whether the trial
court abused its discretion by prohibiting such evidence during the
mitigation phase. The reviewing court determined that the trial court
should have allowed the evidence to be heard. In contrast, here, the
question is not whether the trial court abused its discretion by
prohibiting the evidence, rather it is a question of whether defense
counsel's decision not to pursue this mitigation theory constituted
ineffective assistance of counsel. Because the two issues are not the
same, we do not find Dixon persuasive.
Accordingly, we find that the trial court did not abuse its discretion
by dismissing McKnight's fifteenth claim for relief and overrule
McKnight's second assignment of error.

13

Id., at ¶¶ 94-103. The Ohio Supreme Court declined to accept jurisdiction over an appeal. State
v. McKnight, 119 Ohio St. 3d 1487 (2008).
Where there has been one reasoned state court judgment rejecting a federal claim, there is a
rebuttable presumption that later unexplained orders upholding the judgment or rejecting the same
claim rest on the same ground. Ylst v. Nunnemaker, 501 U.S. 797 (1991). The district court
must look at the last state court disposition providing reasons for the decision. Joseph v. Coyle, 469
F.3d 441, 450 (6th Cir. 2006);Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). A state court’s
noncommittal denial of review is not controlling. McBee v. Abramajyts, 929 F. 2d 264, 267 (6th
Cir. 1991). Therefore it is the Vinton County Court of Appeals decision just quoted which must
be the focus of this Court’s analysis.

Argument One: State Appellate Decision Not “On the Merits.”

McKnight first argues that he is not precluded from an evidentiary hearing because the
court of appeals’ decision is not on the merits. (Supplemental Memorandum, Doc. No. 77,
PageID 2540-2541.) He notes that Ohio courts of appeals are required to review common pleas
court post-conviction decisions for abuse of discretion, rather than de novo, Id. at 2540, citing
State v. Gondor, 112 Ohio St. 3d 377 (2006). The court of appeals did indeed rely on Gondor for
the appropriate standard of review. State v. McKnight, 2008-Ohio-2435 ¶ 15, 2008 Ohio App.
LEXIS 2076, 2008 WL 2124076 (Ohio App. 4th Dist. May 19, 2008).
McKnight then argues that “review for abuse of discretion is not likely to constitute a
14

decision ‘on the merits’ within the meaning of AEDPA.” (Supplemental Memorandum, Doc. No.
77, PageID 2540, citing Vasquez v. Bradshaw, 345 Fed. Appx. 104, 111, n.1, 2009 U.S. App.
LEXIS 19979 (6th Cir. 2009)). Vasquez is not a published opinion of the Sixth Circuit and
therefore not binding precedent even on the issues it actually decided. More importantly, Judge
Boggs made it clear the court was not deciding whether review for abuse of discretion constituted
a decision on the merits.
Here the court of appeals examined the merits at length and gives no indication that the trial
court opinion was arguably wrong but within the margin of error allowed by the abuse of
discretion standard of review. It is not uncommon for appellate courts, even when they look
closely at the merits of an appealed issue, to affirm on the basis of no abuse of discretion where that
is the governing standard. The Magistrate Judge concludes the court of appeals’ decision here
was a decision on the merits within the meaning of 28 U.S.C. § 2254(d).

Argument Two: McKnight Constitutionally Entitled to Evidentiary Hearing in the State Court

McKnight next argues that he was entitled, under the United States Constitution, to an
evidentiary hearing in the state trial court. (Supplemental Memorandum, Doc. No. 77, PageID
2541-2543, citing Hawk v. Olson, 326 U.S. 271, 278-279 (1945); Palmer v. Ashe, 342 U.S. 134,
135-38 (1951); Com. of Pa. ex rel Herman v. Claudy, 350 U.S. 116, 118-19, 123 (1956); Uveges v.
Pennsylvania, 335 U.S. 437, 438-442 (1948); and Rice v. Olson, 324 U.S. 786, 791-92 (1945)).
All of these cases enforce the right to counsel at trial in felony cases in the period between
Powell v. Alabama, 287 U.S. 45 (1932), and Gideon v. Wainwright, 372 U.S. 335 (1963), when the
15

Court was recognizing that right where there were “special circumstances.” In Gideon, of course,
the right was expanded to all persons charged with felonies without proof of special circumstances.
There is simply no holding in these or in any Supreme Court case decided in the fifty-six years
since the last of them was handed down about the kind of evidentiary hearing which must be
permitted by the states in a collateral attack on a criminal judgment.

Argument Three: Trial Court Error in Finding Strategic Choices Were Made by Attorneys

Argument Four: Trial Court Error in Finding No Prejudice under Strickland

In his third argument, McKnight asserts the state trial court decision in post-conviction was
contrary to or an unreasonable application of Supreme Court precedent when it conclusively
presumed McKnight’s trial attorneys were not ineffective because they based their actions on
allegedly strategic decisions (Supplemental Memorandum, Doc. No. 77, PageID 2543-2545).
In his fourth argument, McKnight asserts the trial court erred in finding that there was no
prejudice in failing to present the additional mitigating evidence. Id. at PageID 2545-2548.
For the reasons stated above as to Argument One, the decision of the Fourth District Court
of Appeals was the last reasoned judgment on the merits of McKnight’s ineffective assistance of
trial counsel claims, and the judgment this Court must review.

16

Argument Five: The Standard of Review Applied by the Ohio Court of Appeals Was
Contrary to Clearly Established Federal Law.

In his fifth argument, McKnight asserts the Fourth District Court of Appeals applied a
standard of review -- abuse of discretion -- which was contrary to clearly established Supreme
Court precedent. (Supplemental Memorandum, Doc. No. 77, PageID 2549-2550, citing Ornelas
v. United States, 517 U.S. 690 (1996); Lilly v. Virginia, 527 U.S. 116 (1999); and United States v.
Bajakajian, 524 U.S. 321 (1998). McKnight expressly asserts that the law is “[w]hen an appellate
court reviews a lower court’s disposition of a mixed question of federal law and fact, a de novo
standard of review must be applied.” Id. at PageID 2549.
In Ornelas, the Supreme Court reversed the Seventh Circuit application of a clear error
standard to review of district court findings on a motion to suppress. The case in no way speaks to
any constitutional mandate for state appellate courts to review trial court decisions. Indeed, the
Court did not find that de novo review was constitutionally required within the federal courts.
Rather, it imposed the de novo standard as a matter of policy. 517 U.S. at 699.
In Lilly, the plurality opinion states:
Nothing in our prior opinions, however, suggests that appellate
courts should defer to lower courts' determinations regarding
whether a hearsay statement has particularized guarantees of
trustworthiness. To the contrary, those opinions indicate that we
have assumed, as with other fact-intensive, mixed questions of
constitutional law, that "independent review is . . . necessary . . . to
maintain control of, and to clarify, the legal principles" governing
the factual circumstances necessary to satisfy the protections of the
Bill of Rights. Ornelas v. United States, 517 U.S. 690, 697, 134 L.
Ed. 2d 911, 116 S. Ct. 1657 (1996) (holding that appellate courts
should review reasonable suspicion and probable cause
determinations de novo). We, of course, accept the Virginia courts'
17

determination that Mark's statements were reliable for purposes of
state hearsay law, and, as should any appellate court, we review the
presence or absence of historical facts for clear error. But the
surrounding circumstances relevant to a Sixth Amendment
admissibility determination do not include the declarant's in-court
demeanor (otherwise the declarant would be testifying) or any other
factor uniquely suited to the province of trial courts. For these
reasons, when deciding whether the admission of a declarant's
out-of-court statements violates the Confrontation Clause, courts
should independently review whether the government's proffered
guarantees of trustworthiness satisfy the demands of the Clause.
527 U.S. at 136. Only four justices concurred in this portion of the opinion. Even if this had
become a majority opinion, its holding would have been about the standard of review of “the
government’s proffered guarantees of trustworthiness of a declarant’s out-of-court statements,”
not to establish a general constitutional requirement for state appellate review of trial court
decisions. The Court has not had occasion to develop this particular point further because Lilly
has been superseded by Crawford v. Washington, 541 U.S. 36 (1994).
The relevant language in Bajakajian is in footnote 10
At oral argument, respondent urged that a district court's
determination of excessiveness should be reviewed by an appellate
court for abuse of discretion. See Tr. of Oral Arg. 32. We cannot
accept this submission. The factual findings made by the district
courts in conducting the excessiveness inquiry, of course, must be
accepted unless clearly erroneous. See Anderson v. Bessemer City,
470 U.S. 564, 574-75, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985). But
the question of whether a fine is constitutionally excessive calls for
the application of a constitutional standard to the facts of a particular
case, and in this context de novo review of that question is
appropriate. See Ornelas v. United States, 517 U.S. 690, 697, 134 L.
Ed. 2d 911, 116 S. Ct. 1657 (1996).
524 U.S. at 337. Like Ornelas, Bajakajian is a case within the federal courts and does not suggest
that de novo review is constitutionally mandated even within the federal court hierarchy, much less
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imposed upon the States.
In sum, McKnight has exhibited no holdings of the United States Supreme Court requiring
that state appellate review of trial court post-conviction decisions must be de novo.

Argument Six: The Ohio Court of Appeals and Speculation About Prejudice under Strickland.

The Fourth District Court of Appeals found that McKnight’s claims that the paternal
abandonment and cultural background evidence would have led to a life sentence was speculative
and therefore not sufficient. (See quotations supra at pages 6 and 13.) McKnight asserts “[t]he
United States Supreme Court squarely rejected that line of reasoning in Sears v. Upton, 130 S. Ct.
3259 (2010).” (Supplemental Memorandum, Doc. No. 77, PageID 2550.)
The relevant passage in Sears is as follows:
We certainly have never held that counsel's effort to present some
mitigation evidence should foreclose an inquiry into whether a
facially deficient mitigation investigation might have prejudiced the
defendant. To the contrary, we have consistently explained that the
Strickland inquiry requires precisely the type of probing and
fact-specific analysis that the state trial court failed to undertake
below. [Footnote omitted.] In the Williams decision, for instance,
we categorically rejected the type of truncated prejudice inquiry
undertaken by the state court in this case. 529 U.S., at 397-398, 120
S. Ct. 1495, 146 L. Ed. 2d 389. And, in Porter, we recently
explained:
To assess [the] probability [of a different outcome
under Strickland], we consider the totality of the
available mitigation evidence--both that adduced at
trial, and the evidence adduced in the habeas
proceeding--and reweig[h] it against the evidence in
aggravation.” 558 U.S., at ____, 130 S. Ct. 447, 454,
175 L. Ed. 2d 398 (internal quotation marks omitted;
third alteration in original).
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That same standard applies--and will necessarily require a court to
“speculate” as to the effect of the new evidence--regardless of how
much or how little mitigation evidence was presented during the
initial penalty phase. Indeed, it is exactly this kind of probing
inquiry that Justice Scalia now undertakes, post, at ___ - ___, 177 L.
Ed. 2d, at 1037-1039, and that the trial court failed to do. In all
circumstances, this is the proper prejudice standard for evaluating a
claim of ineffective representation in the context of a penalty phase
mitigation investigation.
130 S. Ct. at 3266-3267, quoting Porter v. McCollum, 558 U.S. 30 (2005). Thus the relevant
holding of Sears is not that state courts must “speculate” as to whether the additional proffered
mitigation evidence would have resulted in a different sentence. Rather, any court engaged in
prejudice analysis under Strickland must weigh “the totality of the available mitigation evidence”
and decide if there is a reasonable probability that the additional evidence would have change the
result. Given the context, the Court did not hold that courts must speculate and if the results of the
speculation are favorable to a petitioner, he must be given the benefit of the speculation. Instead,
the Court was recognizing that, inevitably, a court’s reweighing of the mitigation evidence must
project what the likely result would be without being able to present the evidence to a hypothetical
jury and ask what effect it has.
Review of the court of appeals’ decision shows it did not violate the holding in Sears by
concluding that, because some mitigating evidence was presented, further inquiry into prejudice is
precluded.

Rather, it carefully considered the proffered additional evidence of impact on

McKnight of paternal abandonment and Caribbean American culture and found it was unlikely to

20

have resulted in a different sentence.

Argument Seven: Appellate Error in Affirming the Trial Court.
McKnight asserts the appellate court acted contrary to or unreasonably applied clearly
established Supreme Court law to the extent it adopted trial court reasoning. The Magistrate
Judge does not understand this argument to require analysis separate from that already given.
Conclusion:
Because the Fourth District Court of Appeals decided McKnight’s ineffective assistance of
trial counsel claims on the merits, he is not entitled to an evidentiary hearing on those claims under
Pinholster.

Ground Thirty-Three: Ineffective Assistance of Appellate Counsel

In his Thirty-Third Ground for Relief, McKnight asserts he received ineffective assistance
of appellate counsel in that his appellate counsel failed to claim trial counsel were ineffective in
that they: (1) failed to challenge all (as opposed to some of) the false statements in the affidavit of
probable cause supporting the search of his home which disclosed the bodies of the two people he
was convicted of murdering, and (2) failed to seek a change of venue from Vinton County because
of racial discrimination there. (Petition, Doc. No. 9, ¶ 607, PageID 254, incorporating by
reference the claims of ineffective assistance of trial counsel made in Ground Twenty-Five.)
McKnight raised these claims in the method provided by Ohio law for raising ineffective

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assistance of appellate counsel claims in a capital case, to wit, by applying to the Ohio Supreme
Court for reopening pursuant to Ohio Sup. Ct. Prac. R. XI, § 61. The Application was filed
February 27, 2006, and denied without opinion. State v. McKnight, 109 Ohio St. 3d 1492 (2006).
McKnight contends that this decision by the Ohio Supreme Court is not a decision “on the
merits” within the meaning of 28 U.S.C. § 2254(d) “[b]ecause McKnight was prevented by
operation of state law from developing and presenting evidence in support of his claim of the
denial of effective assistance of appellate counsel. . . .” (Supplemental Memorandum, Doc. No.
77, PageID 2553.)
McKnight is not contending that the rule was applied improperly in this case. Rather, he
makes a facial attack, claiming that the Rule does not allow
. . . any petitioner to supplement the record before the court with any
information in the form of additional affidavits or depositions from
appellate counsel that address any of the critical factors for a Mapes
analysis.
In essence, Rule 11.6 permits the Petitioner to make a legal
argument about why he or she was deprived of the effective
assistance of appellate counsel without any factual development simply on the record that was before the court at the time of the
appeal.

Id. at PageID 2555.
McKnight’s counsel simply misread the rule. Rule 11.6(B)(5) requires the filing with an
application to reopen of “all supplemental affidavits upon which the applicant relies.” Rule
11.6(H) provides: “If the Supreme Court determines that an evidentiary hearing is necessary, the

1

At PageID 2554, McKnight refers to the rule in question by its current designation, Ohio S. Ct. Prac. R. 11.6.

22

evidentiary hearing may be conducted by the Supreme Court or referred to a master
commissioner.”
The premise of McKnight’s argument is belied by the text of the rule which does permit
introduction of evidence in support of a claim of ineffective assistance of appellate counsel.
McKnight presents no other argument about why the Ohio Supreme Court denial of reopening is
not a decision on the merits and it will therefore be accepted as such a decision by this Court.
Therefore Petitioner is precluded from an evidentiary hearing on his ineffective assistance of
appellate counsel claims by Pinholster.

Impact of Martinez v. Ryan

In the concluding section of his Supplemental Memorandum, McKnight argues that he
received ineffective assistance of post-conviction counsel and this should lead the Court to grant
him discovery and an evidentiary hearing “so that he can more fully demonstrate that he has
“cause” under Martinez [v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)], to
excuse any failure to raise or develop bases for his federal constitutional claim that he was denied
effective assistance of counsel at the penalty phase.” (Supplemental Memorandum, Doc. No. 77,
PageID 2571.)
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court had held that an
attorney’s ignorance or inadvertence in a postconviction proceeding did not qualify as cause to
excuse a procedural default. Coleman remained the law for twenty years and the District Court in

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Martinez and the Ninth Circuit on appeal in that case applied Coleman to bar consideration of an
ineffective assistance of trial counsel claim which had been procedurally defaulted by failure to
raise the claim by the first attorney who could have raised it. The Supreme Court reversed,
holding:
To protect prisoners with a potentially legitimate claim of
ineffective assistance of trial counsel, it is necessary to modify the
unqualified statement in Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default. This opinion qualifies
Coleman by recognizing a narrow exception: Inadequate assistance
of counsel at initial-review collateral proceedings may establish
cause for a prisoner's procedural default of a claim of ineffective
assistance at trial.

132 S. Ct. at 1315. The Court noted that Arizona “does not permit a convicted person alleging
ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner
must bring the claim in state collateral proceedings.” Id. at 1313. As the Court noted, citing
Massaro v. United States, 538 U.S. 500 (2003), Arizona parallels the federal system in this regard:
federal court claims of ineffective assistance of trial counsel cannot be raised on direct appeal even
if they depend on the record; they must be raised by motion to vacate under 28 U. S.C. § 2255.
Because a collateral petition was the only proceeding in which an ineffective assistance of trial
counsel claim could be raised in Arizona, the Supreme Court thought it should be made more like
the situation where a claim of ineffective assistance of trial counsel can be raised on direct appeal,
where a defendant is constitutionally guaranteed the effective assistance of counsel so that a
defective representation on direct appeal can provide excusing cause. See discussion, Martinez,
132 S. Ct. at 1317.
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The precise holding in Martinez is
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where
the state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at trial.
The second is where appointed counsel in the initial-review
collateral proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for certificates
of appealability to issue).

Id. at 1318-1319. The Court emphasized the narrowness of the new rule. “Coleman held that
an attorney's negligence in a postconviction proceeding does not establish cause, and this remains
true except as to initial-review collateral proceedings for claims of ineffective assistance of
counsel at trial.” Id. at 1319. “The rule of Coleman governs in all but the limited circumstances
recognized here.” Id. at 1320.
Martinez only applies to excuse a procedural default of an ineffective assistance of trial
counsel claim. In this case McKnight’s claims of ineffective assistance of trial counsel were
decided on the merits by the Fourth District Court of Appeals as set forth above. That court in no
way attempted to avoid deciding the claims on the merits by pointing to any procedural default in
McKnight’s presentation of the claims.

Thus there is no procedural default held against

McKnight by the state courts to which Martinez would have any application.

25

McKnight makes a lengthy argument about the deficiencies in post-conviction counsels’
performance (Supplemental Memorandum, Doc. No. 77,PageID 2562-2569). That argument is
beside the point. Martinez does not create a new right to effective assistance of post-conviction
counsel.

Instead, it permits a habeas petitioner who has been found to have procedurally

defaulted on an ineffective assistance of trial counsel claim to offer the ineffective assistance of
trial counsel as excusing cause. Turner v. Hudson, 2012 U.S. Dist. LEXIS 150319, *9 (S.D. Ohio
Oct. 18, 2012). Martinez does not support granting an evidentiary hearing in this case.
October 22, 2012.
s/ Michael R. Merz
United States Magistrate Judge

26