McKnight v. Warden, Ohio State Penitentiary
Filing
99
SECOND SUPPLEMENTAL OPINION ON PETITIONER'S RENEWED MOTION FOR EVIDENTIARY HEARING ON GROUNDS FOR RELIEF TWENTY-SEVEN AND THIRTY-THREE - Upon reconsideration, the Magistrate Judge does not find that the Objections require amendment of the prior conclusion that McKnight is not entitled to an evidentiary hearing on his Twenty-Seventh and Thirty-Third Grounds for Relief. Regarding his reliance on Martinez v. Ryan, the Magistrate Judge concludes the claims/evidence adverted to in the Swanson Affidavit remain unexhausted in the Ohio courts and cannot be considered by this Court until they are exhausted. Signed by Magistrate Judge Michael R Merz on 12/31/2012. (kpf1)
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
:
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
-vsDAVID BOBBY, Warden,
:
Respondent.
SECOND SUPPLEMENTAL OPINION ON PETITIONER’S
RENEWED MOTION FOR EVIDENTIARY HEARING ON GROUNDS
FOR RELIEF TWENTY-SEVEN AND THIRTY-THREE
This capital habeas corpus case is before the Court on Petitioner's Objections (the
“11/30/2012 Objections,” Doc. No. 96) to the Magistrate Judge's Supplemental Opinion of
October 23, 2012 (Doc. No. 90), addressing whether the state court decisions on McKnight’s
Twenty-Seventh and Thirty-Third Grounds for Relief were entitled to AEDPA deference under
28 U.S.C. § 2254(d)(1) or (2). The Warden has responded to the Current Objections (Doc. No.
98) and Chief Judge Dlott has recommitted the matter to the Magistrate Judge for further
analysis (Doc. No. 97).
Non-Compliance with Page Limit Rule
McKnight’s 11/30/2012 Objections do not comply with S. D. Ohio Civ. R. 7.2(a)(3)
which provides:
1
In all cases in which memoranda exceed twenty (20) pages,
counsel must include a combined table of contents and a succinct,
clear and accurate summary, not to exceed five (5) pages,
indicating the main sections of the memorandum, the principal
arguments and citations to primary authority made in each section,
as well as the pages on which each section and any sub-sections
may be found.
While McKnight’s Objections include a table of contents (PageID 2799), no summary is
included.
Ground for Relief Twenty-Seven
In Ground for Relief Twenty-Seven, McKnight accuses his trial counsel of ineffective
assistance for failure to introduce evidence of his childhood abandonment by his father and a
cultural expert to testify about the impact on him of being the child of a mother from Trinidad
and a father from Guyana. In the Supplemental Opinion, the Magistrate Judge quoted at length
from the decision of the Ohio Fourth District Court of Appeals on appeal from denial of postconviction relief (Supplemental Opinion, Doc. No. 90, PageID 2732-2743).
Rejecting
McKnight’s seven arguments to the contrary, the Magistrate Judge concluded this was a decision
on the merits of these two claims. Id. at 2743-2750. In his 11/30/2012 Objections, McKnight
reprises those seven arguments.
Argument One: State Appellate Decision Was Not “On the Merits.”
McKnight argues that the Fourth District Court of Appeals’ decision1 was not “on the
merits” within the meaning of 28 U.S.C. § 2254(d)(1) because the standard of review applied
1
State v. McKnight, No. 07-CA-665, 2008-Ohio-2435, 2008 Ohio App. LEXIS 2o76, 2008 WL 2124076 (Ohio
App. 4th Dist. May 19, 2008).
2
was abuse of discretion.
In the Supplemental Opinion, the Magistrate Judge agreed that the court of appeals had
applied an abuse of discretion standard and had relied on State v. Gondor, 112 Ohio St. 3d 377
(2006) as authority for that standard. (Supplemental Opinion, Doc. No. 90, PageID 2743.) For
the proposition that such review does not constitute review on the merits, McKnight relied on
Vasquez v. Bradshaw, 345 Fed. Appx. 104, 2009 U.S. App. LEXIS 19979 (6th Cir. 2009)(Boggs,
J.) The Supplemental Opinion noted Judge Boggs expressly disclaimed deciding whether review
for abuse of discretion was review “on the merits” and that this particular review included a
lengthy analysis of the merits of these two claims.2 (Supplemental Opinion, Doc. No. 90,
PageID 2744.)
In his 11/30/2012 Objections, McKnight quotes at length from Judge Boggs’ opinion in
Vasquez. The quoted language does not refute the analysis of Vasquez made in the Supplemental
Opinion. Judge Boggs expressly says the question whether to give AEDPA deference to an
appellate court decision applying an abuse of discretion standard is “unresolved.” He analogizes
to the Sixth Circuit’s refusal to defer to an Ohio appellate court “plain error” decision in Benge v.
Johnson, 474 F.3d 236 (6th Cir. 2007), but notes that “[o]ther cases have focused on the
reasoning actually followed by the state court and not the standard of review applied.” Vasquez,
345 Fed. Appx. at 111, n. 1, citing Fleming v. Metrish, 556 F. 3d 520 (6th Cir. 2009).
The Supplemental Opinion follows the latter approach and focuses on the reasoning
actually used by the Fourth District Court of Appeals.
The court of appeals stated that
McKnight’s claims not barred by res judicata “lack substantive merit.” McKnight, 2008-Ohio2435 at ¶ 1. As is clear from the lengthy quotations from the court of appeals’ decision in the
2
McKnight’s Ground for Relief Twenty-Seven encompasses his ninth and fifteenth claims for relief in postconviction.
3
Supplemental Opinion, that court extensively examined the merits of these two claims.
Nevertheless, McKnight argues, an abuse of discretion review in Ohio cannot be a merits
review for AEDPA purposes. However, McKnight cites not one case, from Ohio or any other
jurisdiction, holding that review under an abuse of discretion standard cannot be merits review
for AEDPA purposes. See Jermyn v. Horn, 266 F.3d 257 (3rd Cir. 2001)(A determination that a
petitioner failed to meet Pennsylvania’s “miscarriage of justice” standard constituted an
adjudication on the merits for AEDPA purposes.); Moreno v. Dretke, 362 F. Supp. 2d 773 (W.D.
Texas 2005), aff’d, 450 F.3d 158 (5th Cir. 2006)(Dismissal of an Atkins claim as an abuse of the
writ constituted a ruling on the merits for AEDPA purposes.) Obviously, if what occurred was
functionally a merits review and no error was found, there would have been no abuse of
discretion.
Argument Two:
McKnight Was Constitutionally Entitled to an Evidentiary Hearing in
the State Court.
McKnight’s second argument is that he was constitutionally entitled to an evidentiary
hearing in state court, relying on four Supreme Court cases from the period 1945-1956. The
Supplemental Opinion noted that none of these cases or any others in the fifty-six years since the
last of them was decided provided a holding “about the kind of evidentiary hearing which must
be permitted by the states in a collateral attack on a criminal judgment.” (Supplemental Opinion,
Doc. No. 90, PageID 2745.)
Not so, says McKnight. “Hawk v. Olson [326 U.S. 271 (1945),] is unambiguous as to the
federal right to a hearing in state court goes [sic]:
Petitioner states a good cause of action when he alleges facts
which support his contention that through denial of asserted
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constitutional rights he has not had the kind of trial in a state
court which the due process clause of the Fourteenth Amendment
requires. This, of course, does not mean that uncontradicted
evidence of a witness must be accepted as true on the hearing.
Credibility is for the trier of facts. The evidence may show that the
charge was served upon petitioner well in advance of the trial (see
note 5, supra) and that he had ample opportunity to consult with
counsel and secure any needed witnesses. He may have
intelligently waived his constitutional rights. Adams v. U.S. ex rel.
McCann, 317 U.S. 269, 275. Petitioner carries the burden in a
collateral attack on a judgment. He must prove his allegations but
he is entitled to an opportunity.
(11/30/2012 Objections, Doc. No. 96, PageID 2803-2804, quoting Hawk, 326 U.S. at 27879.)(Emphasis added.)
The Magistrate Judge respectfully suggests counsel has not read Hawk carefully enough.
In that case the Supreme Court found the petitioner alleged he had been denied at trial the right
to “examine the charge, subpoena witnesses, consult counsel, and prepare a defense.” Hawk
must be one of thousands of United States Supreme Court cases finding a due process violation
in a state felony trial. As noted in the Supplemental Opinion, Hawk says nothing about the
process required in a state habeas proceeding, to which Hawk was remanded.
Argument Three:
The Post-Conviction Trial Court’s Decision that Trial Counsels’
Decisions Were “Strategic” Is Contrary to Clearly Established
Federal Law.
McKnight’s third argument is that the state post-conviction trial court decision that trial
counsels’ decisions were “strategic” and therefore not ineffective assistance of trial counsel is
contrary to Strickland v. Washington, 466 U.S. 668 (1984), and Wiggins v. Smith, 539 U.S. 510
(2003) (11/30/2012 Objections, Doc. No. 96, PageID 2806-2808).
This argument will be
analyzed if the District Court rejects the Magistrate Judge’s conclusion that the Fourth District
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Court of Appeals’ decision was on the merits.
Argument Four:
The Post-Conviction Trial Court’s Decision that McKnight Was Not
Prejudiced by His Trial Counsels’ Errors is an Objectively
Unreasonable Application of Strickland.
McKnight’s fourth argument is that the post-conviction trial court unreasonably applied
Strickland in finding McKnight suffered no prejudice from his counsels’ failure to present the
omitted evidence (11/30/2012 Objections, Doc. No. 96, PageID 2809-2811). This argument will
be analyzed if the District Court rejects the Magistrate Judge’s conclusion that the Fourth District
Court of Appeals’ decision was on the merits.
Argument Five:
The Ohio Court of Appeals Acted Contrary to Clearly Established
Federal Law by reviewing a Mixed Question of Federal Law and Fact
Under an Abuse of Discretion Standard.
This argument does not require analysis beyond that made in the Supplemental Opinion.
Argument Six:
The Ohio Court of Appeals Unreasonably Applied Strickland in
“Holding that Speculation About the Impact of New Mitigating
Evidence Cannot Establish Prejudice under Strickland. . . .”
McKnight’s argument here seems to be that trial courts deciding ineffective assistance of
trial counsel omission of evidence claims constitutionally must “speculate” about the impact of
that evidence and give the benefit of that speculation to the petitioner. As the Warden responds,
that claim is “facially implausible.” (Warden’s Opposition, Doc. No. 98, PageID 2825.) As the
quotation from Sears v. Upton, 130 S. Ct. 3259 (2010), hopefully makes clear, weighing the
probable impact of additional evidence does not mean that a court must accept a petitioner’s
speculation about that impact.
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Ground for Relief Thirty-Three
McKnight’s Thirty-Third Ground for Relief asserts he received ineffective assistance of
appellate counsel when his appellate attorneys (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.)
As noted in the Supplemental Opinion, McKnight raised these claims in the first instance
in the manner required by Ohio law – application for reopening the direct appeal in the Ohio
Supreme Court – and that court declined to consider the application without opinion.
(Supplemental Opinion, Doc. No. 90, PageID 2751, citing State v. McKnight, 109 Ohio St. 3d
1492 (2006).)
In his Supplemental Memorandum, McKnight argued the refusal of the Ohio Supreme
Court to consider the application was not a “decision on the merits” for purposes 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.) The Supplemental
Opinion rejected this argument, quoting Ohio S. Ct. Prac. R. 11.6 on the method for creating a
record on a motion for reopening (Supplemental Opinion, Doc. No. 90, PageID 2751).
In his 11/30/2012 Objections, McKnight essentially asserts that the Magistrate Judge has
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misread the Ohio Supreme Court Rule. He claims “[t]he Rule only permits the submission of an
affidavit – the equivalent of a legal memorandum – ‘which affidavit may include citations to
applicable authorities and reference to the record.’” (11/30/2012 Objections, Doc. No. 96,
PageID 2818, quoting Ohio S. Ct. Prac. R. 11.6(B)(4).) However, it was not Rule 11.6(B)(4) on
which the Supplemental Opinion relied, but Rule 11.6(B)(5). The text of both Rules is as
follows:
(B) An application for reopening shall contain all of the following:
***
(4) An affidavit stating the basis for the claim that appellate
counsel’s representation was ineffective with respect to the
propositions of law or arguments raised pursuant to S. Ct. Prac. R.
11.6(B)(3) and the manner in which the claimed deficiency
prejudicially affected the outcome of the appeal, which affidavit
may include citations to appropriate authorities and references to
the record;
(5) Any relevant parts of the record available to the applicant and
all supplemental affidavits upon which the applicant relies.
Thus while McKnight is correct that the (B)(4) affidavit is essentially the equivalent of a legal
memorandum, that is not true of the (B)(5) affidavits.
With respect to the provision for additional affidavits in Rule 11.6(B)(5), McKnight
argues that “no procedure exists that permits the development of the factual basis required to
vindicate the federal constitutional right in state court. . . .” (11/30/2012 Objections, Doc. No.
96, PageID 2818). The procedure for creating affidavits is well known: interview the relevant
witness, reduce his or her relevant testimony to writing, and have it sworn before a notary. If an
evidentiary hearing is needed to resolve factual questions, Rule 11.6(H) provides that such a
hearing can be held by the Supreme Court itself “or referred to a master commissioner.” Both of
those hearing bodies have subpoena power to compel the presence and testimony of witnesses
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and the production of documents.
McKnight argues that the Magistrate Judge previously allowed him to depose his
appellate counsel because “the governing state court rule prevented the diligent McKnight from
presenting the factual basis for the claim to the state court.” (11/30/2012 Objections, Doc. No.
96, PageID 2818). What the Magistrate Judge wrote was “[s]o far as this Court is aware, the
Ohio appellate courts do not allow evidentiary development on collateral proceedings to show
ineffective assistance of appellate counsel.” (Decision and Order Granting in Part and Denying
in Part Petitioner’s Motion for Leave to Conduct Discovery, Doc. No. 31, PageID 1312.)
Obviously at that point the Magistrate Judge was unaware of Ohio S. Ct. Prac. R. 11.6(B)(5) and
11.6(H). While this is no excuse for the Magistrate Judge’s incomplete research, the Rule was
not cited by the Warden’s counsel in opposition. In any event, the prior statement is plainly
wrong: Rule 11.6 does provide for evidentiary development of a claim of ineffective assistance
of appellate counsel. And of course the discovery was granted in February, 2011, before Cullen
v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), was decided in April.
Impact of Martinez v. Ryan
In his Supplemental Memorandum, McKnight sought to benefit from the 2012 decision
in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012). He asserted
Martinez entitled him to discovery and an evidentiary hearing at which he could show ineffective
assistance of post-conviction counsel 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 2752.)
9
The Supplemental Opinion held Martinez was inapplicable because the Fourth District
Court of Appeals decided the post-conviction claims on the merits and not on the basis of any
procedural default by post-conviction counsel (Supplemental Opinion, Doc. No. 90, PageID
2752-2755).
In the 11/30/2012 Objections, McKnight quotes the Magistrate Judge’s finding that
“there is not procedural default held against McKnight by the state courts to which Martinez
would have any application.” (Doc. No. 96, PageID 2820). In the very next sentence, he claims
this finding is clearly erroneous, but he does not cite to any procedural default ruling. Id. Instead
he says the “new evidence” changes the nature of McKnight’s ineffective assistance of trial
counsel claim so much “that it amounts to a new claim which has never been presented in state
court.” Id.
This new “compelling mitigating evidence” which has been “subsequently discovered” is
said in the Supplemental Memorandum (Doc. No. 77, PageID 2568) to be summarized in the
Affidavit of Pamela Swanson, attached as Exhibit B to the Supplemental Memorandum (Doc.
No. 77, PageID 2578-2583). The first ten paragraphs of that Affidavit are devoted to criticizing
the work done by McKnight’s now-deceased post-conviction counsel, Ruth Tkacz. At the end of
the Affidavit, Ms. Swanson describes the new evidence she has discovered:
Lewin [McKnight, Petitioner’s mother], like her son, chose not to
provide information to the post-conviction team that would have
been critical to mitigation, particularly, information regarding
cultural child-rearing practices; Gregory’s problems in school;
issues of abandonment by primary caregivers; physical abuse;
traumatization and brutalization by older youths who viewed him
as a disposable commodity; and childhood diagnosis of Attention
Deficit-Hyperactivity Disorder. Ms. McKnight, later, admitted that
her son’s poor relationship with his post-conviction counsel
influenced what she did and did not share with me3 at post3
In the beginning of the Affidavit, Ms. Swanson explains that she was actually the post-conviction mitigation
specialist, but did not uncover this evidence in that capacity because Ms. Tkacz controlled what she did in the case.
10
conviction. The wealth of information obtained at the habeas stage
of appeals, was due to Gregory [McKnight] forming a trusting
relationship with habeas counsel at the Office of the Federal Public
Defender.
Working with habeas counsel, I was able to conduct the mitigation
investigation that should have been done at the Office of the Ohio
Public Defender either at trial or on postconviction. I interviewed
Lewin McKnight and obtained her life history that had not been
given to either the trial or post-conviction team. She talked about
the abandonment of the family by Greg’s father when Greg was
seven months old and how it devastated Lewin and had a longterm negative impact on Greg. I was also able to obtain
information about her extremely difficulty [sic] pregnancy with
Gregory. Lewin also spoke about the problems Greg had in school,
particularly, how he was teased because of his dark skin. She
believed that the client eventually left school because he could no
longer tolerate his treatment in school. He turned to the streets,
where he was easily manipulated by older youths into selling
drugs. Greg, she believes was used by the older youths because he
sought in them, the father who abandoned him. It was a loss that
Greg never recovered from. He wanted to have a relationship with
his father was denied any relationship by the father. They never
met, as Curbert McKnight, Gregory’s father died in 1995.
I was also able to confirm much of the information about the
problems of abandonment by Curbert McKnight and the negative
effect it had on Gregory from Stella Spence, Lewin’s sister, her
husband Wortley Spence and their daughters Melanie and Latoya
Spence. None of them had been previously interviewed for
purposes of trial or postconviction. The devastation Greg felt was
also attested to by members of the Weekes family of Shepherd,
Texas. The family kept the client from 1982 to 1984. I interviewed
Beulah Weekes, her husband, Edmund, as well as, sons Earl,
Andy, and spoke with sons, Lester and Derek. Derek Weekes
explained how Lewin worked 16 hour days and went to bed after
[sic] immediately after cooking dinner; leaving Greg to his own
devices, starved for attention, since he was ignored by his mother
and brother. I also [interviewed] Steven Chandler, oldest son of
Noel and Gloria Chandler, the client’s godparents (with whom
Gregory had also lived), as well as Ollie and Zachary Dykes.
Zachary and Greg were in the same juvenile detention facility in
Columbus. Zachary’s mother, Ollie, took “adopted” [sic] Greg
when he was released from detention. They both talked about the
client’s racial isolation in rural southern Ohio, where he lived with
his wife and her family. With the exception of one interview of
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Gloria Chandler by telephone, none of these people had been
contacted by either the trial or post-conviction teams.
The Chandlers explained that they had been the primary caregivers
for Gregory from the day he came home from the hospital.
Gregory was sent to live with them in Texas after they moved there
and lived with them off and on for several years. The Chandlers
were strict Seventh Day Adventists. Home life was extremely
strict, especially in comparison to the complete lack of supervision
Gregory had when in New York with his mother. The cultural
differences were likewise shocking. The Chandlers lived in a
mostly white rural area – where Gregory’s extremely dark skin
stood out and made him the subject of considerable harassment.
Gregory was subjected to severe beatings by the Chandlers when
he was in junior high school and before – and at the hands of his
mother when he was with her. Greg was eventually sent back to
NY when the Chandlers could no longer control his comings and
goings. I also interviewed the Chandler children who had lived
with Gregory. None of them had been previously interviewed by
the trial or postconviction teams.
Gregory’s isolation in Texas and feelings of abandonment and
returns to New York where he had little to no supervision from his
mother made him ripe for the brutal gang initiation and
indoctrination that was to follow. Dino Johnson (now a youth
outreach coordinator) and his gang recruited young boys like Greg,
in New York’s notorious LeFrak City.
I was able to visit the metropolitan housing complex with Dino
Johnson. LeFrak was a huge complex of towers and tunnels. The
building’s courtyards were divided into fiercely defended gang
territories. Socialization between buildings was strictly forbidden
by gang members. Young boys were traumatized and brutalized by
older gang members in order to desensitize them to the acts of
violence they were expected to commit. The boys were, then, taken
out of town to sell drugs for their handlers. The children were often
abandoned or disposed of, when they were no longer of use or
became a liability. Mr. Johnson believes that Greg was disposed of
in such a manner. Harvey Halliburton, an Ohio gang expert, stated
that Greg was dumped into the middle of a brutal gang war when
he came to Columbus. He was faced with losing his own life, when
he was robbed. This was verified by Mr. Johnson who stated that
Greg would have been killed if he had been unable to replace the
money that his handler had lost when the client was robbed of the
drugs he was supposed to sell. Greg, not the money, was the
disposable commodity in that situation.
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I also interviewed his maternal cousin, Gail King Fagan, who lived
with Greg and his family when she and her mother first came from
Trinidad. Greg pushed Gail out of harm’s way when the two
children were caught in the line of fire, just outside of LeFrak. I
also interviewed Olda King, Gail’s mother who provided
information about the McKnight family in Trinidad. All of the
witnesses interviewed talked about how the client strived to be a
good person despite not having the skills or resources to do so.
Records collected echoed statements made by the witnesses.
All of this information was available to the trial team and would
have been available to me during the post-conviction investigation,
had I been permitted to conduct such an investigation. It is my
opinion, that Gregory McKnight's life history contains compelling
mitigating evidence that not only humanizes him but is critical to
explaining his behavior in the crimes he was charged with but also
in the earlier juvenile murder adjudication.
Id. at PageID 2580-2583. This copious information has never been presented to the state courts.
To some extent, it might be regarded as further support for the ninth claim for relief – failure to
present available evidence on the impact of paternal abandonment.
Some of the cultural
information might be used to show prejudice from not presenting a cultural expert, the fifteenth
claim for relief. But most of it would support completely new claims and none of it has been
presented to the state courts.
McKnight notes that “the federal courts may determine that a claim is defaulted if there is
no remaining state corrective process available where the claim can be presented.” (11/30/2012
Objections, PageID 2820, citing Strickler v. Greene, 527 U.S. 263, 278 (1999), and Webb v.
Mitchell, 586 F.3d 383, 389 (6th Cir. 2009).) But Ohio does allow a person to file a subsequent
post-conviction petition under Ohio Revised Code § 2953.23 under certain conditions.
McKnight has not attempted to present this new evidence in such a petition. This Court should
not assume the Ohio courts would find these new claims/evidence procedurally defaulted.
Indeed the jurisprudence of Martinez is sufficiently undeveloped that the Ohio courts might
13
recognize its applicability here to excuse the failure to present this evidence earlier.
At this stage of the case, however, there exists no state court finding of procedural default
to which Martinez could apply. Rather than hypothesize such a finding and then go through the
lengthy discovery and hearing process to decide whether Ms. Tkacz’s performance was deficient
and prejudicial, initial evaluation of these new claims/evidence should be left to the Ohio courts.
Conclusion
Upon reconsideration, the Magistrate Judge does not find that the Objections require
amendment of the prior conclusion that McKnight is not entitled to an evidentiary hearing on his
Twenty-Seventh and Thirty-Third Grounds for Relief. Regarding his reliance on Martinez v.
Ryan, the Magistrate Judge concludes the claims/evidence adverted to in the Swanson Affidavit
remain unexhausted in the Ohio courts and cannot be considered by this Court until they are
exhausted.
December 31, 2012.
s/ Michael R. Merz
United States Magistrate Judge
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