Skatzes v. Warden Mansfield Correctional Institution

Filing 152

DECISION AND ORDER - To the extent the documents in question are purported to be used to expand the record based on improper bars of res judicata, failure to adjudicate, and unreasonable application of federal law, the Motion to Expand the Record i s DENIED. To the extent the request for expansion of the record supports Petitioner's actual innocence exception to procedural default claim, the Motion is GRANTED. Consistent with Cullen v. Pinholster, 563 U.S. 170 (2011), thedocuments will not be considered for any other purpose and any ruling on the merits will be strictly limited to evidence contained within the state court record. Signed by Magistrate Judge Michael R. Merz on 6/1/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GEORGE SKATZES,
Petitioner,

:

- vs -

Case No. 3:09-cv-289
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Mansfield Correctional
Institution,
:
Respondent.

DECISION AND ORDER

This capital habeas corpus case is before the Court on Petitioner’s Motion to Expand the
Record (ECF No. 145) and Motion to Correct and Expand the Record (ECF No. 146).
Additionally, the question of ripeness as to Skatzes’ gateway claim of actual innocence as it
pertains to the procedural posture of his First Ground for Relief, ineffective assistance of counsel
(See Traverse, ECF No. 42), as well as his Memorandum on Gateway Innocence Argument for
Discovery Documents Filed Under Seal are before the Court (ECF No. 96).
Each of the pending motions is a non-dispositive pre-trial motion which a Magistrate
Judge has authority to decide in the first instance, subject to appeal to the presiding District Judge.
The Court had previously granted discovery and the parties entered into a stipulated
protective order regarding sealing of the discovery (ECF Nos. 76, 81, 83, 104, 105, 108).
Petitioner then briefed the applicability of the discovery documents with respect to his argument
that, although this particular sub-claim was defaulted in state court, it fell under the miscarriage of
1

justice exception, to which the Warden responded (Memo on Gateway Actual Innocence, ECF
No. 96); (Response to Memo on Gateway Innocence, ECF No. 104). Status reports as to the
ripeness of the gateway innocence argument have been submitted by both parties (ECF Nos. 114,
115, 116) Petitioner has argued that the case is not yet ripe as he may request additional
discovery as developed through the deposition of trial counsel (ECF No. 114, PageID 21310).
Petitioner’s counsel planned to submit both the deposition transcripts as well as supporting
confidential discovery documents used during the depositions, and the Court had previously
granted him until September 30, 2014, to take the depositions and move to expand the record with
the discovery as it related to his gateway innocence argument. Id., see also Order Granting
Unopposed Motion to Continue Discovery until September 30, 2014, ECF No. 101.

On

September 30, 2014, Petitioner filed under seal a Motion to Expand the Record Under Habeas
Rule 7, with discovery attachments (ECF Nos. 118, 119). This was denied for failure to comply
with proper citation of record references, and Petitioner refiled (ECF Nos. 145, 146, 147).
Respondent asserts that the case is not only ripe but that consideration of the discovery documents
is precluded by Cullen v. Pinholster, 563 U.S. 170, (2011) (Warden’s Status Report, ECF No.
115, PageID 21312)(see also Warden’s Refiled Status Report, ECF No. 148, PageID 24197).

EXPANSION OF RECORD
Skatzes wishes to expand the record with the following:
(1)

The deposition transcript of trial counsel Robert Dixon with deposition exhibits;

(2)

The deposition transcript of trial counsel Jeffry Kelleher with deposition exhibits;

(3)

The affidavit of the post-conviction mitigation psychologist, Dr. Jeffrey Smalldon;

2

(4)

The set of records relied on by Dr. Smalldon and referenced by him during his
review of the case;

(5)

All exhibits attached to Skatzes’s Gateway Innocence Memorandum that were filed
with this Court under seal on January 21, 2014;

(6)

Transcript excerpts from the trials of Jason Robb, Carlos Sanders (Hasan), and
James Were that Skatzes relied on in his Traverse to support his gateway innocence
argument;

(7)

Transcript of Anthony Lavelle’s polygraph examination taken on May 17, 1994, that
Skatzes relied on in his Traverse to support his gateway innocence argument;

(8)

Affidavits and declarations taken from Wayne Flannigan, Roy Donald, Greg
Durkin, James Bell, and Leroy Elmore filed in other Lucasville cases, and relied on by
Skatzes in his Traverse to argue gateway innocence;

(9)

Transcript of a records deposition of Austin Stout, counsel for the Ohio Department
of Rehabilitation and Corrections [hereafter, ODRC], with exhibit, taken in this habeas
case on September 18, 2012, on the joint motion of the parties;

(10)
Recording and transcript of post-trial statement made by Prosecutor Daniel Hogan,
along with declaration of Derrick Jones who interviewed Hogan;
(11)
Declaration of attorney Staughton Lynd, authenticating materials obtained from
other Lucasville cases that Skatzes relied on [in] his Traverse;
(12)
Affidavit of habeas counsel Vicki Werneke, explaining her review of trial
counsel’s file, and;
(13)
Affidavit of habeas counsel Joseph Wilhelm, explaining his review of the trial
counsel’s files.
(Motion, ECF No. 146, PageID 24147.)
Skatzes asserts that the expansion is proper because these materials are “relevant to the
determination of the merits of the petition.” Id. at 24148.

He argues that in terms of his

ineffective assistance of counsel claims, his First, Third, Seventh, and Eleventh Grounds for
Relief, he is entitled to expansion of the record and de novo review. Id. at 24154-6. He bases this

3

on his belief that the Ohio Court of Appeals1 misapplied the procedural bar of res judicata to
several of his sub-claims, completely failed to adjudicate others, and that the decision is contrary
to an objectively unreasonable application of Supreme Court law under §§ 2254(d)(1). Id. at
PageID 24156-8.

Additionally, he argues that the expansion of the record is necessary in

determining whether there is a basis for a miscarriage of justice claim to excuse the procedural
default of sub-claim A in the First Ground for Relief. Id.
Respondent filed a Memorandum in Response to Petitioner’s Gateway Innocence
Argument on February 24, 2014 (ECF No. 104). The Warden primarily attacks Petitioner’s
position on the basis that the “newly offered evidence” is not new, but rather largely consists of
arguments presented at trial, and as such is not sufficient to meet the actual innocence gateway of
Schlup v. Delo, 513 U.S. 298, 324 (1995). Id. at PageID 21261-5. Later, in his status report, the
Warden further raises the argument that under Cullen v. Pinholster, 563 U.S. 170 (2011),
Petitioner is prohibited from presenting new material in federal court unless it falls under one of
the exceptions (ECF No. 115, PageID 21312). Respondent argues,
Skatzes fails to present any argument as to what exception under
Pinholster the additional discovery would be able to be considered
by this Court. It is no longer in doubt that review under §
2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.
Id. at PageID 21313.
Petitioner counters however that Pinholster is in effect only if the state court adjudicated
the claims on the merits (Motion, ECF No. 146, PageID 24152, citing Pinholster and McClellan
v. Rapelje, 703 F.3d 344, 351 (6th Cir. 2013)). If the state court’s adjudication deserves no

1

The Supreme Court of Ohio refused jurisdiction over his post-conviction appeal, so the court of appeals’ decision
serves as the last reasoned opinion under Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

4

deference, as Skatzes is presently arguing, then the federal court may take new evidence. Id. at
PageID 24153.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) took effect on April 24,
1996. Skatzes filed his petition on April 5, 2010 (Doc. No. 25). As Skatzes’ petition was
submitted after the Act was signed it is subject to its provisions. 28 U.S.C. § 2254(d), as amended
by the AEDPA, provides:
(d)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in state court proceedings unless the adjudication of the
claim(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States; or
(2)
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.
(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and
convincing evidence.
Any factual finding made by the state court is presumed to be correct and a petitioner must
rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e). A
state court’s decision is contrary to the Supreme Court’s clearly established precedent if (1) the
state court applies a rule that contradicts the governing law as set forth by the Supreme Court case
law, or (2) the state court confronts a set of facts that is materially indistinguishable from those in
5

a decision of the Supreme Court and nonetheless arrives at a result different from Supreme Court
precedent. Terry Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court’s decision
involves an unreasonable application of clearly established federal law “if the state court
identifies the correct governing legal rule [from the Supreme Court] . . . but unreasonably applies
it to the facts of the particular state prisoner’s case,” “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new context where it should not
apply,. . . [if the state court] unreasonably refuses to extend that principle to a new context where
it should.” Williams, 529 U.S. at 407-08.
In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a federal court’s
review of a state court decision under 28 U.S.C. § 2254(d)(1) is strictly limited to “review of the
state court record,” and that evidence acquired through an evidentiary hearing may not be
considered. Id. at 182.
In [Pinholster], the petitioner argued that his penalty phase attorney
was ineffective because that attorney failed to introduce mitigating
evidence of mental disorders. [Pinholster,] 131 S.Ct. at 1396. In
denying the petition, the Supreme Court held that a federal court’s
review of a state court decision under 28 U.S.C. § 2254(d)(1) is
strictly limited to “review of the state court record . . . .” Id. at 1399.
The Supreme Court further stated that section 2254(e)(2) only
“continues to have force where Section 2254(d)(1) does not bar
federal habeas relief.” Id. at 1401. The Supreme Court explained
this holding, stating that Section 2254(d) only governs claims that
were adjudicated on the merits in state court whereas Section
2254(e)(2)’s limit on habeas discovery “restricts the discretion of
federal habeas courts to consider new evidence when deciding
claims that were not adjudicated on the merits in state court.” Id.
[Pinholster] indicates that the Court cannot now consider the
contents of outside discovery in determining if the decision of the
state court was an “unreasonable application of [ ] clearly
established federal law,” so long as the state court ruling was made
on the merits. 28 U.S.C. § 2254(d)(1). FN1
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FN1. The plain language of 28 U.S.C. § 2254(d)(2) also
limits the Court’s review to of [sic] “the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2);
[Cullen]. 131 S.Ct. at 1400 n. 7. Thus, under both
Section[s] of 2254(d), the Court may not consider outside
evidence unless the petitioner did not already litigate the
issue on the merits.
Trimble v. Bobby, No. 5:10-CV-00149, 2011 U.S. Dist. LEXIS 42165, *5-6 (N.D Ohio, Apr. 19,
2011).
Rule 7 of the Rules Governing Section 2254 Cases, states generally that if a petition is not
dismissed, a judge may direct the parties to expand the record by submitting additional materials
related to the petition. “The purpose of Rule 7 ‘is to enable the judge to dispose of some habeas
petitions not dismissed on the pleadings, without the time and expense required for an evidentiary
hearing.’” 28 U.S.C. § 2254 (Rule 7, advisory committee notes); see also Jamison v. Collins, 291
F.3d 380, 387 (6th Cir. 2002).
“When expansion of the record is used to achieve the same end as an evidentiary hearing,
the petitioner ought to be subject to the same constraints that would be imposed if he had sought
an evidentiary hearing.” Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001).
Petitioner states “The requirements contained in Section 2254(e)(2)
are also applicable to Habeas Rule 7 motions.” Id. at 2, citing
Holland v. Jackson, 542 U.S. 649, 653 (2004); Owens v. Franks,
394 F.3d 490, 498-99 (7th Cir.2005); and Smith v. Palmateer, 397
F.3d 1236, 1241 (9th Cir. 2005). Respondent insists on the same
legal proposition, relying on Samatar v. Clarridge, 225 Fed. Appx.
366 (6th Cir. 2007). The Samatar court also relied on Owens and on
Boyko v. Parke, 259 F.3d 781 (7th Cir. 2001).
This Court agrees with the proposition because allowing a petitioner
to introduce evidence through expansion of the record which he or
she could not introduce at an evidentiary hearing because of §
7

2254(e)(2) would subvert the purpose of Congress in adopting the
statute as part of the AEDPA. Congress did not purport to amend
Habeas Rule 7, but AEDPA and the Habeas Rules are in pari
materia and should be interpreted consistently with one another to
carry out the Congressional purpose.2
Hughbanks v. Hudson, 2009 U.S. Dist. LEXIS 87848, *3-4 (S.D. Ohio 2009); followed Bays v.
Warden, Case No. 3:08-cv-076 (Decision and Order, ECF. No. 60, July 19, 2010).
Pursuant to AEDPA and before Pinholster, a prisoner could have introduced new evidence
gained in an evidentiary hearing or through discovery "only if [the prisoner] was not at fault in
failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed in
§ 2254(e)(2) were met." Holland v. Jackson, 542 U.S. 649, 652-53 (2004), citing Michael
Williams v. Taylor, 529 U.S. 420, 431-37 (2000). However, post-Pinholster, “the Sixth Circuit
has, under Section 2254(d)(1) review, disregarded evidence gathered during federal habeas
proceedings.” Group v. Robinson, 2015 U.S. Dist. LEXIS 124956, *5 (N.D. Ohio 2015), citing
Loza v. Mitchell, 766 F.3d 466, 494 (6th Cir. 2014). In reaching this conclusion the court quoted
Caudill v. Conover, 871 F. Supp. 2d 639, 645 (E.D. Ky 2012), in that “[i]t would defy logic to
preclude a petitioner from developing factual information in an evidentiary hearing [under
Pinholster], but allow [the petitioner] to introduce the same factual information via discovery and

2

In interpreting statutes, courts should
1. Decide what purpose ought to be attributed to the statute and to any
subordinate provision of it which may be involved; and then
2. Interpret the words of the statute immediately in question so as to carry out the
purpose as best it can, making sure, however, that it does not give the words
either (a) a meaning they will not bear, or (b) a meaning which would violate any
established policy of clear statement.

Hart and Sacks, THE LEGAL PROCESS (Eskridge & Frickey ed. 1994), p. 1169.

8

expansion of the record.” Id. Thus, the limitations in Pinholster apply to expansion of the record
as well as to evidentiary hearings. Moore v. Mitchell, 708 F.3d 760, 780-784 (6th Cir. 2013); see
also Campbell v. Warden, 2016 U.S. Dist. LEXIS 15557, *5 (S.D. Ohio 2016); Anderson v.
Robinson, 2014 U.S. Dist. LEXIS 85114, *7 (S.D. Ohio 2014); Baumgartner v. Eppinger, 2013
U.S. Dist. LEXIS 139320, *5 (N.D. Ohio 2013). Therefore, in order to obtain review of his
evidentiary documents as they pertain to his constitutional claims, a habeas petitioner must
overcome Pinholster and establish that the state court’s decision fails under § 2254(d)(1) or (2).

RES JUDICATA
In his first sub-section of claims, Skatzes argues that his motion to expand the record does
not fall under the Pinholster restrictions as the court of appeals improperly applied res judicata
against him on several of his sub-claims (Motion, ECF. No. 146, PageID 24156-7).
As Respondent previously noted in the Return of Writ, and again in his Memorandum in
Response to Petitioner’s Memorandum on Gateway Innocence, it is his position that Skatzes is
barred from merits review due to procedural default, specifically in Skatzes’ failure to appeal the
trial court’s denial of relief in post-conviction proceedings (Memo, ECF No. 104, PageID 21256
as it relates to Law, Moss, and Jefferson).
In addressing the doctrine of procedural default in habeas, Judge Spiegel noted in Jamison
v. Collins, 100 F. Supp. 2d 647, 669-70 (S.D. Ohio 2000) that:
Principles of comity necessary to a federal system narrow a federal
court’s review of a petition for a writ of habeas corpus brought by a
state prisoner. See Coleman v. Thompson, 501 U.S. 722, 731-32,
111 S.Ct. 2546, 115 L.Ed. 640 (1991). The Supreme Court explains
that “[u]nder our federal system, the federal and the state ‘courts
[are] equally bound to guard and protect rights secured by the
9

Constitution.”’ Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198,
71 L.Ed.2d 379 (1982) (quoting Ex parte Royall, 117 U.S. 241, 251,
6 S.Ct. 734, 29 L.Ed. 868 (1886)); see Coleman, 501 U.S. at 731,
111 S.Ct. 2546 (quoting the same). Thus, to ensure the states an
opportunity to protect these rights, the doctrine of procedural
default requires that the state court retain “the first opportunity to
protect these rights, the doctrine of procedural default requires that
the state court retain “the first opportunity to address and correct
alleged violations of state prisoner’s [sic] rights.” Coleman, 501
U.S. at 731, 111 S.Ct. 2546. The doctrine of procedural default
provides that, if a state court previously dismisses [sic] a state
prisoner’s federal claim on the grounds that the prisoner failed to
comply with a state procedural rule, then a federal court ordinarily
cannot consider the merits of that federal claim. Id. at 729-730, 111
S.Ct. 2546.

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
10

there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In his initial post-conviction proceeding Skatzes raised the claim that his trial counsel
were ineffective for falling to investigate and call exculpatory witnesses (Aaron Jefferson, Jesse
Bocook, Wayne Flannigan, defense counsel Jeffery Kelleher and Robert Dixon, three jurors, and
an attorney expert Richard Ketcham) regarding the David Sommers murder (Post-Conviction
Petition, ECF No. 68-7, PageID 8036-7). He argues that the state court erred in its determination
that the portion concerning inmate Aaron Jefferson was barred by res judicata (Motion, ECF No.
146, PageID 24156).
The trial court found that the affidavits of Aaron Jefferson, Jesse Bocook, and Wayne
Flannigan did not contain facts sufficient to render the sentence voidable as counsel’s decision
whether to call a witness is a matter of trial strategy. Further the court found that the portion
related to Aaron Jefferson could have been raised on direct appeal as Brookover testified during
Skatzes’ trial that Aaron Jefferson was present at the beating of Sommers [Trial Tr. 3506]
(Decision, Order, and Entry Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10,
PageID 8631-34). As Skatzes was represented by new counsel on direct appeal, this portion of
the ineffective assistance claim should have been raised then, and as such was barred by res
judicata in post-conviction. Id. at 8632 citing State v. Cole (1982), 2 Ohio St. 3d 112, 113-114.
Moreover, the additional evidence submitted by Skatzes failed to support a substantive ground for
relief. Id. at 8632-34.

11

Skatzes again raised this claim on appeal during post-conviction (Brief, ECF No. 70-1,
PageID 9971), as well as before the Ohio Supreme Court, which declined jurisdiction. (Memo,
ECF No. 70-11, PageID 11576-80). The state court of appeals affirmed both the trial court’s bar
of res judicata on the portion pertaining to Jefferson’s testimony as well as its holding on the
merits.
[*P58] Skatzes' sixth assignment of error states:
[*P59] "THE TRIAL COURT ERRED IN REJECTING
PETITIONER'S FIRST GROUND FOR RELIEF, THAT
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO
CALL EXCULPATORY WITNESSES REGARDING THE
SOMMERS MURDER."
[*P60] Skatzes presented affidavits from inmates Aaron Jefferson,
Jesse Bocook, and Wayne Flannigan, each of whom claimed that
Skatzes had not been involved in Sommers' murder, and from his
trial attorneys, who claimed that they had not had a strategic reason
for failing to call these inmate witnesses. Skatzes claims that these
affidavits demonstrate the ineffective assistance of trial counsel in
failing to call the inmates to testify on his behalf. The trial court
disagreed.
[*P61] As the trial court noted, testimony at Skatzes' trial revealed
that Jefferson had been present at Sommers' murder and might have
been able to provide exculpatory evidence. Thus, the failure to call
Jefferson could have been raised on direct appeal and is barred by
res judicata.
[*P62] Neither Jefferson, Bocook, nor Flannigan indicated in his
affidavit that Skatzes’ trial counsel or other agents of the state knew
of the information contained therein before trial, and the attorneys
do not claim that they knew this information before trial. If counsel
had no reason to know of or suspect these claims, the affidavits fail
to establish the constitutional violation of ineffective assistance of
counsel.
[*P63] Furthermore, the credibility of the inmates’ affidavits is
questionable. The trial court observed that the affidavits “raised
12

several red flags.” For example, the affidavits of Jefferson and
Bocook are inconsistent as to who was involved in killing
Sommers, and the inmates’ stories have changed over time.
[*P64] The trial court properly concluded that Skatzes’ evidence on
this issue did not establish that he had been denied the effective
assistance of counsel.
[*P65] The sixth assignment of error is overruled.
Skatzes, 2008-Ohio-5387; (Decision, ECF No. 70-11, PageID 11640-1.)
Applying the Maupin test to this case, the Court notes under Ohio law any constitutional
claims that depend on evidence outside the appellate record must be raised in a petition for postconviction relief under Ohio Revised Code § 2953.21 because evidence cannot be added to the
record on direct appeal. State v. Hooks, 92 Ohio St. 3d 83 (2001); State v. Hartman, 93 Ohio St.
3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997); State v. Scott, 63 Ohio App.
3d 304, 308 (1989); State v. Smith, 17 Ohio St. 3d 98, 101, fn. 1 (1985).

Conversely,

constitutional claims including ineffective assistance of trial counsel claims which are supported
by the trial record must be raised on direct appeal and will be barred by res judicata if defendant
attempts to raise the claim later in post-conviction proceedings. State v. Reynolds, 79 Ohio St. 3d
158, 161 (1997); State v. Steffen, 70 Ohio St.3d 399, 410 (1994); State v. Lentz, 70 Ohio St. 3d
527 (1994); In re T.L., 2014-Ohio-1840, ¶ 16, 2014 Ohio App. LEXIS 1804 (8th App. Dist. 2014).
“[P]resentation of competent, relevant, and material evidence dehors the record may defeat the
application of res judicata.” State v. Lawson, 103 Ohio App. 3d 307, 315 (12th Dist. 1995).
Harris v. Reed 489 U.S. 255, 264 (1989), does not preclude a finding that the state procedural rule
was actually enforced where the state court decision also relies on an alternative ground. Scott v.
Mitchell, 209 F.3d 854 (6th Cir. 2000). A claim is not procedurally defaulted unless the state court
actually enforced the procedural bar. Wogenstahl v. Mitchell, 668 F.3d 307, 327 (6th Cir. 2012).
13

An alternative ruling on the merits does not forgive a Petitioner’s waiver of his claims raised in
post-conviction hearing proceedings, nor does it prevent those claims from being procedurally
defaulted for habeas corpus review. See Harris, 489 U.S. at 264; Bowling v. Parker, 344 F.3d
487, 498 (6th Cir. 2003).
The Second District Court of Appeals enforced the procedural bar of res judicata. The
court found that Skatzes could have presented a portion of this evidence on direct appeal as it was
based on the record. The court then alternatively addressed the merits, reviewed Petitioner’s
evidence from outside the record presented in support of this claim, and concluded that the
additional evidence did not establish a constitutional violation. As previously stated, Harris v.
Reed does not preclude a finding that the state procedural rule was actually enforced where the
state court decision also relies on an alternative ground. Scott v. Mitchell, 209 F.3d 854 (6th Cir.
2000).
Determination of whether a state procedural ground is adequate and independent is a
federal question that the federal court itself must decide. Henry v. Mississippi, 379 U.S. 443, 447
(1965); Abie State Bank v. Weaver, 282 U.S. 765, 773 (1931). Ohio’s doctrine of res judicata in
criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), has been repeatedly
upheld in the Sixth Circuit as an adequate and independent state rule. Durr v. Mitchell, 487 F.3d
423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268
F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17
F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899,
913 (S.D. Ohio 2001); Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003). However, the mere
existence of a procedural bar is insufficient; the state courts must have relied on it. Caldwell v.

14

Mississippi, 472 U.S. 320, 327 (1985).
When . . . a state court decision fairly appears to rest on federal law,
or to be interwoven with the federal law, and when the adequacy
and independence of any possible state law ground is not clear from
the face of the opinion, we will accept as the most reasonable
explanation that the state court decided the case the way it did
because it believed that federal law required it to do so.
Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).
Skatzes did not follow the fairly established procedural rules as required by the Ohio
courts and the court enforced that rule against him. In addition, the court also addressed this
claim on the merits, and found that Skatzes was not able to establish that he had been denied
effective assistance of counsel under Strickland v. Washington, thus precluding excuse of any
procedural default under Maupin, supra.
Next Skatzes argues that the state court improperly applied the doctrine of res judicata on
the portions of his Seventh Ground for Relief pertaining to affidavits by inmates Taylor and Girdy
(Motion, ECF No. 146, PageID 24156). Skatzes presented the claim that counsel were ineffective
in their failure to investigate and present evidence to the post-conviction court that Eric Girdy
murdered Earl Elder (Post-Conviction Petition, ECF No. 68-7, PageID 8043-49). In support of
this claim he provided additional records not previously presented in the trial record which
included affidavits from both defense counsel, two jurors, an investigator for post-conviction
counsel, autopsy records, and the affidavits of Eric Girdy and Taylor. Petitioner also provided the
indictment and conviction of Eric Girdy for the murder of Earl Elder as supplemental evidence.
The trial court found that the evidence did not support post-conviction relief for ineffective
assistance of counsel under Strickland v. Washington and that the failure to call Taylor could have
been raised on direct appeal (Decision, Order, and Entry Denying Petitioner’s Post-Conviction
15

Petition, ECF No. 68-10, PageID 8636-7, 8639-41).
Skatzes again raised this claim on appeal, as well as raising it before the Ohio Supreme
Court (Brief, ECF No. 70-1, PageID 9957-63); (Memo, ECF No. 70-11, PageID 11570-6). The
court of appeals affirmed the trial court, holding:
[*P14] Skatzes' second assignment of error states:
[*P15] "THE TRIAL COURT ERRED IN REJECTING
PETITIONER'S FOURTH AND SIXTH GROUNDS FOR
RELIEF, THAT COUNSEL WAS INEFFECTIVE FOR FAILING
TO INVESTIGATE AND PRESENT EVIDENCE THAT
INMATE ERIC GIRDY MURDERED EARL ELDER AND FOR
FAILING TO INVESTIGATE AND CALL INMATES MICHAEL
TROCODARO AND THOMAS ANTHONY TAYLOR AS
EXCULPATORY WITNESSES."
[*P16] Skatzes claims that he was denied the effective assistance of
counsel because his attorneys did not investigate and present
evidence that another inmate, Eric Girdy, had murdered Earl Elder
or had witnessed Elder's murder and did not call inmates Michael
Trocodaro and Thomas Anthony Taylor as exculpatory witnesses.
[*P17] As the state points out, Skatzes did not argue in his petition
that his attorneys should have called Girdy as a witness to Elder's
murder. He argued only that counsel did not adequately pursue and
present evidence that Girdy had actually committed the murder.
Because it was not raised in the trial court, Skatzes has waived the
former argument.
[*P18] The state presented evidence at trial that Elder had been
attacked three times in the early hours of the riot: once in the
stairwell to which he fled with one of the guards as the riot began
and twice hours later in cell L-6-60. In all, Elder received 163 stab
wounds, as well as many other injuries, in these attacks, and
numerous inmates were involved. Skatzes was implicated in the
second attack, and Girdy seems to have been implicated in the third
attack. Many of Elder's stab wounds were superficial, but several
caused injuries that could have been fatal. During Elder's autopsy,
glass was found in one of his more serious wounds.
[*P19] In support of his argument that counsel was ineffective in
failing to discover and present evidence that Girdy had killed Elder,
16

Skatzes relied on evidence that included an affidavit from attorney
Alice Lynd, who assisted counsel in representing Skatzes in the
postconviction proceedings; the coroner's autopsy of Earl Elder; and
affidavits from defense counsel, attached to which was a copy of
Girdy's indictment for the aggravated murder of Earl Elder.
[*P20] According to Lynd, Girdy admitted to her that he had killed
Elder by stabbing him with a piece of glass. Skatzes claims that
this exculpatory evidence, coupled with the autopsy report
indicating that glass was found in one of Elder's more serious
wounds would have changed the outcome of his trial. He also
claims that Girdy's subsequent indictment for Elder's murder proves
that he was prejudiced by counsel's failure to investigate Girdy.
[*P21] The trial court concluded that the evidence presented
regarding Girdy did not support postconviction relief based on the
ineffective assistance of counsel. We agree. As the trial court
noted, there is nothing in the record to suggest that trial counsel
should have known about Girdy's purported involvement at the time
of Skatzes' trial. Lynd's interview with Girdy occurred much later,
and Skatzes' petition did not point to any reason why counsel should
have suspected that an interview with Girdy would be helpful to
their case. Hindsight is not permitted to distort the assessment of
what was reasonable in light of counsel's perspective at the time,
and counsel's actions were not objectively unreasonable if there was
no basis to suspect Girdy's alleged involvement.
[*P22] Skatzes also asserts that the state's subsequent indictment of
Girdy in 2005 for Elder's murder supports his theory that his
attorneys were ineffective and contradicts the state's theory in his
own case. The trial court properly concluded, however, that Girdy's
subsequent indictment did not show that Skatzes had been wrongly
convicted or that he had been denied the effective assistance of
counsel. The fact that Girdy may have been involved in these
attacks, even if he inflicted a potentially fatal blow, does not
preclude the conclusion that Skatzes was also culpable for Elder's
murder.
[*P23] Moreover, the trial court noted that Lynd's and Girdy's
affidavits were inconsistent. In Girdy's affidavit, he stated that,
after some other attacks on Elder, inmates Tim Williams, Doc Ellis,
and two other men punched Elder and stabbed him with a piece of
glass, after which he "became quiet." In other words, Girdy implied
that Williams, Ellis, and two other men inflicted the fatal blows.
Lynd claims that, in her interview with Girdy, he admitted that he
17

was one of the "other men." These inconsistencies call Girdy's
credibility into question and cast doubt on whether Girdy would
have been a helpful witness at trial.
[*P24] Skatzes also contends that the trial court erred in failing to
hold a hearing on his claims that his counsel was ineffective in
failing to call inmates Michael Trocodaro and Thomas Anthony
Taylor to testify on his behalf. Skatzes claims that both men were in
a position to witness the events in cell L-6-60, where Elder was
killed on the first night of the riot.
***
[*P27] Similarly, Taylor’s affidavit asserts that Skatzes did not
enter Elder’s cell the day Elder was killed. However, like
Trocodaro, Taylor gave statements in the months after the riot that
were consistent with the state’s evidence at trial that Skatzes and
Snodgrass had attacked Elder in cell L-6-60. Because Taylor had
made statements prior to trial that incriminated Skatzes, trial
counsel’s conduct did not fall below at objective standard of
reasonableness in failing to further investigate Taylor as a
potentially helpful witness.

[*P28] Finally, we address Skatzes' assertion that the trial court was
bound to presume that Girdy's, Trocodaro's, and Taylor's affidavits
were truthful under the authority of Calhoun, 86 Ohio St.3d at 284.
Skatzes implies that the court was unduly skeptical of these
affidavits in reviewing his petition for postconviction relief.
"However, not all affidavits accompanying a postconviction relief
petition demonstrate entitlement to an evidentiary hearing, even
assuming the truthfulness of their contents. Thus, where a
petitioner relies upon affidavit testimony as the basis of entitlement
to postconviction relief, and the information in the affidavit, even if
true, does not rise to the level of demonstrating a constitutional
violation, then the actual truth or falsity of the affidavit is
inconsequential." (Citations omitted.) Id. The trial court was
confronted with this exact situation. Even if the substance of the
affidavits was true, the affidavits did not establish that trial counsel
committed errors that affected the outcome of the trial or that
18

counsel's representation fell below an objective standard of
reasonableness.
Accordingly, Skatzes was not entitled to
postconviction relief on these bases.
[*P29] The second assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387 (2nd Dist. Ohio 2008); (Decision, ECF No. 70-11, PageID
11629-33.)
Skatzes is incorrect in his assertion that his claim was held to have been barred by res
judicata. To the contrary, the court of appeals addressed the claim on the merits and considered
the additional evidence presented. Thus, as the rule was not applied at all, it follows that the state
court could not have misapplied its own law relating to res judicata. As this sub-claim was
addressed on the merits, pursuant to Pinholster, the Court cannot now consider the contents of
additional discovery not previously before the state courts in reaching its determination whether
the decision of the state court was an “unreasonable application of [ ] clearly established federal
law.” 28 U.S.C. § 2254(d)(1).

Failure to adjudicate
In his next claim Skatzes argues that Pinholster is not applicable as the state courts failed
to adjudicate his claim on its merits (Motion, ECF No. 146, PageID 24157). A federal court’s
review of a state court decision under 28 U.S.C. § 2254(d)(1) is strictly limited to “review of the
state court record.” However, as the Pinholster Court stated, § 2254(e)(2) [only] “continues to
have force where Section 2254(d)(1) does not bar federal habeas relief.” Trimble v. Bobby, No.
5:10-CV-00149, 2011 U.S. Dist. LEXIS 42165, *6 (N.D Ohio, Apr. 19, 2011) citing Pinholster,
563 U.S. 170 (2011). The Supreme Court explained that § 2254(d) only governs claims that were
19

adjudicated on the merits in state court whereas § 2254(e)(2)’s limit on habeas discovery
“restricts the discretion of federal habeas courts to consider new evidence when deciding claims
that were not adjudicated on the merits in state court.” Trimble, 2011 U.S. Dist. LEXIS 42165, *6,
citing Pinholster (emphasis added). Thus, per Skatzes’ argument, he avoids § 2254(d) because
there was a failure to adjudicate on the merits, and as such his claims and the additional
supporting evidence may be considered under § 2254(e).
In his Seventh Ground for Relief, Skatzes asserts that the state courts failed to adjudicate
the portions of his claim pertaining to testimony by Marsh and Law (Motion, ECF No. 146,
PageID 24157). During post-conviction the trial court specifically found that:
Counsel was not ineffective for failing to investigate and call a
critical alibi witness regarding the murder of Earl Elder. Skatzes’
fifth ground for relief is, therefore, not well taken. Affidavits from
both defense counsel, three jurors, and Inmate Robert Lee Decker
were provided in support of the fifth ground for relief.
***
Although not mentioned in the fifth ground for relief, Skatzes
submitted an affidavit by Kenneth Law in support of his
postconviction relief petition. Petitioner’s Ex. 27. Kenneth Law
testified by affidavit that he saw members of the Black Gangster
Disciples (BGD) drag Elder from stairwell L-7 and beat him and
later saw Roger Snodgrass, Lucky Roper, Tim Williams and
Sterling Barnes participate in killing Earl Elder in L-6. As with
Decker’s affidavit testimony, Law’s statement indicates that Elder
was attacked on several occasions by several individuals. Albert
Klontz and David McLaughlin also testified by affidavit that
Skatzes was not present when inmates, after bringing Elder and
Ratcliff out of the stairwell, beat Elder and Ratcliff. Petitioner’s Ex.
30 and 32. These statements are consistent with Officer Ratcliff’s
testimony at trial that a group of black inmates pulled him and Elder
out of the stairwell. Trial Tp. 5130-5132. Ratcliff did not identify
Skatzes as being present when he was taken from the stairwell.
Ratcliff knew Skatzes prior to the riot. Trial Tp. 5199-5200. As a
result, the failure to present testimony from Decker, Klontz, and
20

McLaughlin did not prejudice the outcome of the trial as these
witnesses describe only one of several attacks on Earl Elder.
The evidence in support of the fifth ground of relief does not
contain sufficient operative facts to demonstrate a constitutional
violation and Skatzes’ fifth ground for relief is not well taken.
(Decision, Order, and Entry Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10,
PageID 8637-39) (emphasis added).
Under Pinholster, a habeas court cannot consider the contents of outside discovery in
determining if the decision of the state court was an “unreasonable application of [ ] clearly
established federal law,” so long as the state court ruling was made on the merits. 28 U.S.C. §
2254(d)(1). However, that is not the case here. The state court failed to make a ruling on the
merits because Skatzes failed to raise before it the testimony of inmates Law and Marsh as
support for his ineffective assistance of counsel claim in post-conviction relief. The trial court
addressed Law’s affidavit sua sponte and found it to be without merit and undoubtedly would
have treated Marsh’s affidavit in like manner. (“Although not mentioned in the fifth ground for
relief, Skatzes submitted an affidavit by Kenneth Law in support of his postconviction relief
petition . . .”) Skatzes’ appellate brief in post-conviction is devoid of reference to either Law or
Marsh as it relates to the murder of Elder, as is his subsequent appeal to the Ohio Supreme Court.
Even if he had raised the particulars of this claim, the court of appeals would have found that he
was barred from doing so based on his failure to properly raise it in the court below. As such, the
state court’s failure to adjudicate it on the merits does not fall under the Pinholster exception.
Skatzes cannot now expand the record with this evidence.

De Novo Review
21

In his next sub-group of arguments, Skatzes argues for the expansion of the record as the
Court should review de novo the remainder of his ineffective assistance of trial counsel claims
(Motion, ECF No. 146, PageID 24157). “When the federal court’s review is de novo, it has the
discretion to take new evidence to resolve the petitioner’s claim.” Id., citing Sanchez v. Roden,
753 F.3d 279, 307-08 (1st Cir. 2014), and Milton v. Miller, 744 F.3d 660, 673 (10th Cir. 2014).
Specifically, Petitioner asserts that he is entitled to de novo review of his First, Third,
Seventh, and Eleventh Grounds for Relief as the state court of appeals misapplied the procedural
bar of res judicata to several sub-claims, failed to adjudicate others, and the adjudication on the
merits as to his remaining sub-claims under ineffective assistance of counsel were objectively
unreasonable under §§ 2254(d)(1) and (d)(2) (Motion, ECF No. 146, PageID 24157-8).
As to his First Ground for Relief, Skatzes challenges as unreasonable the adjudication on
the portions of the claim pertaining to testimony by inmates Law, Moss, and Jefferson, and expert
witness Bartollas. He raised this claim before the trial court, which held that “[c]laims eleven,
thirteen, fourteen, and sixteen, raise issues regarding Skatzes’ conviction and sentencing for his
role in the murder of Correction Officer Robert Vallandingham. . . . [and] raise questions as to
who actually killed Officer Vallandingham. The claims do not raise constitutional questions
relevant to Skatzes conviction and sentencing for the officer’s death.” (Decision, Order, and Entry
Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8641.)
The court found that in regard to the eleventh ground, the Jefferson affidavit offered in
support of Skatzes’ ineffective assistance of counsel claim alleging their failure to investigate and
call exculpatory witnesses was cumulative to the testimony presented at trial and thus offered
insufficient operative facts to support post-conviction relief (Decision, Order, and Entry Denying

22

Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8641-2).
Similarly, it found that Law’s affidavit in support of the thirteenth ground, ineffective
assistance of counsel for failure to investigate and call impeaching witnesses against a key state
witness, Anthony Lavelle, regarding the Vallandingham murder, likewise failed to support postconviction relief as the evidence was consistent with the State’s theory at trial (Decision, Order,
and Entry Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8642-44).
In addition the court found that “counsel was [sic] not ineffective for not investigating or
calling Kenneth Law as a witness. Skatzes has not shown trial counsel was [sic] or reasonably
should have been aware of Law’s affidavit testimony.

Law’s affidavit testimony is dated

September 2003, eight years after the trial.” (Decision, Order, and Entry Denying Petitioner’s
Post-Conviction Petition, ECF No. 68-10, PageID 8644.)
As for the sixteenth ground, ineffective assistance for failing to present evidence that
Skatzes was not pleased with Vallandingham’s death, the trial court found that defense counsel
did in fact present this evidence during trial and that the additional evidence offered was either
cumulative or, as in the case of the affidavit testimony of inmates Robert Decker, Albert Klontz
and David Marsh was contrary to Skatzes' testimony at trial (Decision, Order, and Entry Denying
Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8645-47).
Further, Skatzes had not presented evidence that trial counsel were aware, or reasonably
should have been aware of Klontz’s and Marsh’s potential testimony (Decision, Order, and Entry
Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8646).
Therefore, “[t]he evidence provided in support of the sixteenth ground for relief does not
provide sufficient evidence outside the record to demonstrate a constitutional violation sufficient

23

to render the verdict or sentence voidable.” (Decision, Order, and Entry Denying Petitioner’s
Post-Conviction Petition, ECF No. 68-10, PageID 8647.)
Under his “general” ineffective assistance of trial counsel claims, Skatzes argued
ineffective assistance in counsel’s failure to call a prison culture expert. The court found that the
record does not indicate why the failure to call a prison culture expert could not have been raised
on direct appeal and that the affidavits presented in support did not pass the minimum threshold to
overcome res judicata (Decision, Order, and Entry Denying Petitioner’s Post-Conviction Petition,
ECF No. 68-10, PageID 8647-48).
Skatzes presented a similar ground on post-conviction appeal, but as it specifically related
to the Sommers’ murder, not the Vallandingham murder. See ECF No. 70-1, PageID 9971-75.
He failed to raise the majority of this claim [portions relating to affidavits by inmates Law, Moss,
Jefferson, Marsh], and as such they are now defaulted. He did however preserve his ineffective
assistance of counsel claim for failure to call a prison culture expert. The court of appeals held:
[*P7] When a petition for postconviction relief claims that trial
counsel was ineffective, “[b]efore a hearing is granted, the
petitioner bears the initial burden *** to submit evidentiary
documents containing sufficient operative facts to demonstrate the
lack of competent counsel and also that the defense was prejudiced
by counsel’s ineffectiveness.” State v. Jackson (1980), 64 Ohio
St.2d 107, 111, 413 N.E.2d 819; State v. Norton (August 6, 1999),
Greene App. No. 99-CA-23, 1999 Ohio App. LEXIS 3631. We
review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington
(1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674, and adopted
by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio
St.3d 136, 538 N.E.2d 373. Trial counsel is entitled to a strong
presumption that his or her conduct falls within the wide range of
reasonable assistance. Strickland, 466 U.S. at 688. To reverse a
conviction based on ineffective assistance of counsel, it must be
demonstrated that trial counsel’s conduct fell below an objective
standard of reasonableness and that his errors were serious enough
24

to create a reasonable probability that, but for the errors, the result
of the trial would have been different. Id.

***

[*P72] Skatzes' eighth assignment of error states:
[*P73] "THE TRIAL COURT ERRED IN DENYING
PETITIONER'S TWELFTH GROUND FOR RELIEF, THAT HE
WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE TRIAL COUNSEL FAILED TO CALL A PRISON
CULTURE EXPERT TO EXPLAIN HIS STATEMENT
RELEVANT TO THE VALLANDINGHAM MURDER."
[*P74] Skatzes asserts that, had his attorney called a prison culture
expert to testify at trial, he would have been acquitted of
Vallandingham's murder. He claims that such an expert would have
explained that the hesitation Skatzes allegedly expressed during the
discussions of whether to kill a guard "were as far as an inmate
could go in expressing dissent without fear of personal bodily injury
or possibly even death." The state claims that this claim is barred
by res judicata because it could have been raised on direct appeal,
that the evidence would have been cumulative of other evidence
that Skatzes was hesitant to kill the guard, and that such evidence
would not have been admissible because an expert was not needed
to interpret Skatzes' comments.
[*P75] The trial court concluded that Skatzes' claim was barred by
res judicata because the record establishes that counsel's failure to
call a prison culture expert could have been raised on direct appeal.
Further, the court concluded that Skatzes had not shown that the
failure to call a prison culture expert fell below an objectively
reasonable level of representation.
[*P76] Because Skatzes' argument about the need for a prison
culture expert relies, at least in part, on evidence outside the record,
it may not have been properly raised on direct appeal, as the trial
court suggested. However, we agree with the trial court's
conclusion that Skatzes failed to show that it was objectively
unreasonable not to call such an expert. We question whether the
peer pressure that existed in the midst of the riot was really an issue
about which expert testimony was needed or appropriate. Extensive
25

evidence was presented to the jury about the dynamics within and
among the various prison gangs during the riot, the amount of
violence used to control and punish inmate behavior, and the stress
of the negotiations with authorities. In our view, the jurors were
capable of interpreting Skatzes' behavior under these circumstances
without the benefit of expert testimony. Thus, trial counsel could
have reasonably concluded that such an expert was unnecessary.
[*P77] The eighth assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387 (2nd Dist. Ohio 2008).
The Second District corrected the trial court’s res judicata error, addressed the ineffective
assistance claim on its merits and properly applied the Strickland standard in considering the
effectiveness of counsel. Strickland states that:
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 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.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and resulting prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010),
citing Knowles v. Mirzayance, 556 U.S. 111 (2009). The Second District’s’ decision was not an
objectively unreasonable application of the controlling federal law. The court correctly identified
Strickland v. Washington, 466 U.S. 668 (1984), as the governing standard for ineffective
assistance of counsel claims and properly applied that standard to its analysis.
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
26

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 a 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."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
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 overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood
of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but
the difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
27

likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington, 562 U.S. at 111-112. The court of appeals considered the evidence from outside the
trial record and found that the jurors were capable of interpreting Skatzes’ behavior during the
riot and as such he had failed to make a showing under Strickland that counsel were ineffective
or that he was prejudiced by this omission. “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.”
(Decision, Order, and Entry Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10,
PageID 8631-35, citing State v. Treesh, 90 Ohio St. 3d 460, 490, 2001-Ohio-4, 739 N.E.2d at
749.) Further, there is no error in the court’s failure to address the portions relating to the
affidavits of the other inmates as that claim was not presented to it.
Next, Skatzes argues that the court of appeals decision in his Third Ground for Relief as
it related to Bocook, Flannigan, and Marsh was unreasonable. The trial court found that counsel
were not deficient under the Strickland standard in “falling to investigate and call exculpatory
witnesses regarding the David Sommers murder” as the affidavits provided by inmates Bocook
and Flannigan were provided well after Skatzes’ trial (Decision, Order, and Entry Denying
Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8631-35).
The trial court noted that “[g]enerally, 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.” Id. at
8632, citing State v. Treesh, 90 Ohio St. 3d 460, 490, 2001-Ohio-4, 739 N.E.2d at 749. As held
by the post-conviction trial court, none of the additional evidence provided by Skatzes indicated
that trial counsel were aware of the information provided in the affidavits during the trial. Id. at
8634.

28

The evidence fails to demonstrate trial counsel was aware of the
alleged impeaching and exculpatory evidence at the time of trial,
that interviewed witnesses would have given impeaching or
exculpatory evidence favorable to Skatzes at the time of trial, or
that further investigation was necessitated by the original
interviews or testimony provided in the Robb Trial. The evidence,
also, fails to demonstrate that any alleged deficiency by trial
counsel resulted in prejudice.
Id. As such, the court held that Skatzes failed to making a showing that counsel were deficient
and that the deficiency resulted in prejudice.
On appeal, the Second District affirmed:

[*P7] When a petition for postconviction relief claims that trial
counsel was ineffective, “[b]efore a hearing is granted, the
petitioner bears the initial burden *** to submit evidentiary
documents containing sufficient operative facts to demonstrate the
lack of competent counsel and also that the defense was prejudiced
by counsel’s ineffectiveness.” State v. Jackson (1980), 64 Ohio
St.2d 107, 111, 413 N.E.2d 819; State v. Norton (August 6, 1999),
Greene App. No. 99-CA-23, 1999 Ohio App. LEXIS 3631. We
review the alleged instances of ineffective assistance of trial
counsel under the two prong analysis set forth in Strickland v.
Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d
674, and adopted by the Supreme Court of Ohio in State v. Bradley
(1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Trial counsel is
entitled to a strong presumption that his or her conduct falls within
the wide range of reasonable assistance. Strickland, 466 U.S. at
688. To reverse a conviction based on ineffective assistance of
counsel, it must be demonstrated that trial counsel’s conduct fell
below an objective standard of reasonableness and that his errors
were serious enough to create a reasonable probability that, but for
the errors, the result of the trial would have been different. Id.
***
[*P58]

Skatzes'

sixth

assignment

of

error

states:

[*P59] "THE TRIAL COURT ERRED IN REJECTING
PETITIONER'S FIRST GROUND FOR RELIEF, THAT
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO
CALL EXCULPATORY WITNESSES REGARDING THE
29

SOMMERS MURDER."
[*P60] Skatzes presented affidavits from inmates Aaron Jefferson,
Jesse Bocook, and Wayne Flannigan, each of whom claimed that
Skatzes had not been involved in Sommers' murder, and from his
trial attorneys, who claimed that they had not had a strategic reason
for failing to call these inmate witnesses. Skatzes claims that these
affidavits demonstrate the ineffective assistance of trial counsel in
failing to call the inmates to testify on his behalf. The trial court
disagreed.
[*P61] As the trial court noted, testimony at Skatzes' trial revealed
that Jefferson had been present at Sommers' murder and might
have been able to provide exculpatory evidence. Thus, the failure
to call Jefferson could have been raised on direct appeal and is
barred by res judicata.
[*P62] Neither Jefferson, Bocook, nor Flannigan indicated in his
affidavit that Skatzes' trial counsel or other agents of the state
knew of the information contained therein before trial, and the
attorneys do not claim that they knew this information before trial.
If counsel had no reason to know of or suspect these claims, the
affidavits fail to establish the constitutional violation of ineffective
assistance of counsel.
[*P63] Furthermore, the credibility of the inmates' affidavits is
questionable. The trial court observed that the affidavits "raise
several red flags." For example, the affidavits of Jefferson and
Bocook are inconsistent as to who was involved in killing
Sommers, and the inmates' stories have changed over time.
[*P64] The trial court properly concluded that Skatzes' evidence
on this issue did not establish that he had been denied the effective
assistance of counsel.
[*P65] The sixth assignment of error is overruled.

State v. Skatzes, 2008-Ohio-5387 (2nd Dist. Ohio 2008).
The first prong of the Strickland analysis is not satisfied by pointing to something a trial
attorney could have done but did not do. Rather, with respect to the first prong of the Strickland
30

test, the Supreme Court has commanded:
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 [emphasis added]. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within a 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."
Strickland, 466 U.S. at 689. In other words, counsel’s performance is measured by “prevailing
professional norms” at the time of the alleged errors. Strickland, supra, at 690; Maryland v.
Kulbicki, 577 U.S. ___, 136 S. Ct. 2, 193 L. Ed. 2d 1 (2015); Rickman v. Bell, 131 F.3d 1150,
1154 (6th Cir. 1997). The Supreme Court reemphasized the deference which must be given to
state court determinations on ineffective assistance questions:
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 572 U.S. ___, ___
(2014), slip op. at 4.
When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ___, ___ (2013), slip op. at
9)(quoting Strickland v, Washington, 466 U.S. 668, 690 (1984);
internal quotation marks omitted). In such circumstances, federal
courts are to afford “both the state court and the defense attorney
the benefit of the doubt.” Burt, supra, at ____, 134 S.Ct., at 13.
Woods v. Etherton, 578 U.S. 1149, 1151-52, (per curiam; unanimous), reversing Etherton v.
31

Rivard, 800 F.3d 737 (6th Cir. 2015). The state court applied the proper standard and performed
the proper analysis. As such, its decision was neither unreasonable nor contrary to federal law as
articulated by the Supreme Court of the United States. As the analysis was proper under
2254(d)(1) and (2), Skatzes cannot now, pursuant to Pinholster, expand the record with
additional evidence, nor is he entitled to de novo review on this ground.
Skatzes next argues that the decision on his Seventh Ground for Relief as it pertains to
testimony by inmates Girdy and Trocodaro was objectively unreasonable.

[*P14] Skatzes' second assignment of error states:
[*P15] "THE TRIAL COURT ERRED IN REJECTING
PETITIONER'S FOURTH AND SIXTH GROUNDS FOR
RELIEF, THAT COUNSEL WAS INEFFECTIVE FOR FAILING
TO INVESTIGATE AND PRESENT EVIDENCE THAT
INMATE ERIC GIRDY MURDERED EARL ELDER AND FOR
FAILING TO INVESTIGATE AND CALL INMATES
MICHAEL TROCODARO AND THOMAS ANTHONY
TAYLOR AS EXCULPATORY WITNESSES."
[*P16] Skatzes claims that he was denied the effective assistance
of counsel because his attorneys did not investigate and present
evidence that another inmate, Eric Girdy, had murdered Earl Elder
or had witnessed Elder's murder[,] and did not call inmates
Michael Trocodaro and Thomas Anthony Taylor as exculpatory
witnesses.
[*P17] As the state points out, Skatzes did not argue in his petition
that his attorneys should have called Girdy as a witness to Elder's
murder. He argued only that counsel did not adequately pursue and
present evidence that Girdy had actually committed the murder.
Because it was not raised in the trial court, Skatzes has waived the
former argument.
[*P18] The state presented evidence at trial that Elder had been
attacked three times in the early hours of the riot: once in the
stairwell to which he fled with one of the guards as the riot began
and twice hours later in cell L-6-60. In all, Elder received 163 stab
32

wounds, as well as many other injuries, in these attacks, and
numerous inmates were involved. Skatzes was implicated in the
second attack, and Girdy seems to have been implicated in the
third attack. Many of Elder's stab wounds were superficial, but
several caused injuries that could have been fatal. During Elder's
autopsy, glass was found in one of his more serious wounds.
[*P19] In support of his argument that counsel was ineffective in
failing to discover and present evidence that Girdy had killed
Elder, Skatzes relied on evidence that included an affidavit from
attorney Alice Lynd, who assisted counsel in representing Skatzes
in the postconviction proceedings; the coroner's autopsy of Earl
Elder; and affidavits from defense counsel, attached to which was
a copy of Girdy's indictment for the aggravated murder of Earl
Elder.
[*P20] According to Lynd, Girdy admitted to her that he had killed
Elder by stabbing him with a piece of glass. Skatzes claims that
this exculpatory evidence, coupled with the autopsy report
indicating that glass was found in one of Elder's more serious
wounds would have changed the outcome of his trial. He also
claims that Girdy's subsequent indictment for Elder's murder
proves that he was prejudiced by counsel's failure to investigate
Girdy.
[*P21] The trial court concluded that the evidence presented
regarding Girdy did not support postconviction relief based on the
ineffective assistance of counsel. We agree. As the trial court
noted, there is nothing in the record to suggest that trial counsel
should have known about Girdy's purported involvement at the
time of Skatzes' trial. Lynd's interview with Girdy occurred much
later, and Skatzes' petition did not point to any reason why counsel
should have suspected that an interview with Girdy would be
helpful to their case. Hindsight is not permitted to distort the
assessment of what was reasonable in light of counsel's perspective
at the time, and counsel's actions were not objectively
unreasonable if there was no basis to suspect Girdy's alleged
involvement.
[*P22] Skatzes also asserts that the state's subsequent indictment
of Girdy in 2005 for Elder's murder supports his theory that his
33

attorneys were ineffective and contradicts the state's theory in his
own case. The trial court properly concluded, however, that
Girdy's subsequent indictment did not show that Skatzes had been
wrongly convicted or that he had been denied the effective
assistance of counsel. The fact that Girdy may have been involved
in these attacks, even if he inflicted a potentially fatal blow, does
not preclude the conclusion that Skatzes was also culpable for
Elder's murder.
[*P23] Moreover, the trial court noted that Lynd's and Girdy's
affidavits were inconsistent. In Girdy's affidavit, he stated that,
after some other attacks on Elder, inmates Tim Williams, Doc
Ellis, and two other men punched Elder and stabbed him with a
piece of glass, after which he "became quiet." In other words,
Girdy implied that Williams, Ellis, and two other men inflicted the
fatal blows. Lynd claims that, in her interview with Girdy, he
admitted that he was one of the "other men." These inconsistencies
call Girdy's credibility into question and cast doubt on whether
Girdy would have been a helpful witness at trial.
[*P24] Skatzes also contends that the trial court erred in failing to
hold a hearing on his claims that his counsel was ineffective in
failing to call inmates Michael Trocodaro and Thomas Anthony
Taylor to testify on his behalf. Skatzes claims that both men were
in a position to witness the events in cell L-6-60, where Elder was
killed on the first night of the riot.
[*P25] Trocodaro stated by affidavit that Skatzes did not enter
Elder's cell on L-block. He claimed that only Roger Snodgrass had
been involved in the first attack in the cell and that inmate Lucky
Roper and a few other inmates inflicted the final blows in a later
attack. Trocodaro claimed that Skatzes was protecting inmates in
L-block, including Elder, rather than harming anyone. These
claims contradicted the statements Trocodaro made to Highway
Patrol officers shortly after the riot, in which he provided a version
of events consistent with the state's evidence at trial. Specifically,
in May 1993, Trocodaro had reported seeing Skatzes escorting
Snodgrass to Elder's cell and holding the door while Snodgrass
stabbed Elder. Skatzes' trial attorney stated by affidavit that he had
spoken with Trocodaro before trial, but Trocodaro not did provide
information that called into doubt Skatzes' involvement in Elder's
murder.
34

[*P26] Based on Skatzes' evidence with respect to Trocodaro, the
trial court properly concluded that ineffective assistance of counsel
had not been demonstrated. Because there is no evidence that
Trocodaro told a version of events exonerating Skatzes prior to
Skatzes' trial, trial counsel's conduct did not fall below an objective
standard of reasonableness in failing to call Trocodaro as a witness
or to further investigate him. Moreover, considering the starkly
inconsistent stories told by Trocodaro in May 1993 and in his
affidavit, there is no reasonable probability that Trocodaro's
testimony would have been deemed so reliable as to have affected
the outcome of the trial.
[*P27] Similarly, Taylor's affidavit asserts that Skatzes did not
enter Elder's cell the day Elder was killed. However, like
Trocodaro, Taylor gave statements in the months after the riot that
were consistent with the state's evidence at trial that Skatzes and
Snodgrass had attacked Elder in cell L-6-60. Because Taylor had
made statements prior to trial that incriminated Skatzes, trial
counsel's conduct did not fall below an objective standard of
reasonableness in failing to further investigate Taylor as a
potentially helpful witness.
[*P28] Finally, we address Skatzes' assertion that the trial court
was bound to presume that Girdy's, Trocodaro's, and Taylor's
affidavits were truthful under the authority of Calhoun, 86 Ohio
St.3d at 284. Skatzes implies that the court was unduly skeptical of
these affidavits in reviewing his petition for postconviction relief.
"However, not all affidavits accompanying a postconviction relief
petition demonstrate entitlement to an evidentiary hearing, even
assuming the truthfulness of their contents. Thus, where a
petitioner relies upon affidavit testimony as the basis of entitlement
to postconviction relief, and the information in the affidavit, even
if true, does not rise to the level of demonstrating a constitutional
violation, then the actual truth or falsity of the affidavit is
inconsequential." (Citations omitted.) Id. The trial court was
confronted with this exact situation. Even if the substance of the
affidavits was true, the affidavits did not establish that trial counsel
committed errors that affected the outcome of the trial or that
counsel's representation fell below an objective standard of
reasonableness. Accordingly, Skatzes was not entitled to
35

postconviction relief on these bases.
[*P29] The second assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387 (2nd Dist. Ohio 2008).
For the reasons set forth in the previous claim, the decision of the state court was neither
an unreasonable application of Strickland, nor contrary to that precedent. As such, it is subject to
the Pinholster restrictions placed upon 2254(d)(1) and (2) and Skatzes is not entitled to de novo
review nor an expansion of the record as to this ground.
Next, Skatzes argues that he is entitled to de novo review and an expansion of the record
to include additional materials to support his Eleventh Ground for Relief, ineffective assistance
of trial counsel during the mitigation phase.
This claim was presented in both direct appeal and post-conviction proceedings. On
direct appeal the court found that counsel were not ineffective in their failure to bring Skatzes’
alleged mental illness to the attention of the trial court as the record failed to established that he
suffered from any such illness. State v. Skatzes, 2004-Ohio-6391, ¶223, 104 Ohio St. 3d 195
(2004). The court found that defense presented witnesses to attest to the fact that Skatzes was
different from the other Aryans, that he treated everyone with respect, and that he acted as a
peacemaker. Id. at ¶¶225-237. In addition, several witnesses spoke as to how Skatzes helped
protect the prison guard hostages during the inmate takeover. Id. at ¶¶238-239. Despite the
evidence presented, the jury found that “the aggravating circumstances as to the murder of Elder,
the murder of Vallandingham, and the murder of Sommers outweigh the mitigating factors
beyond a reasonable doubt.” Id. at ¶245. The trial judge agreed, and the court of appeals
affirmed on direct appeal.
In post-conviction, Skatzes raised additional claims of ineffective assistance of counsel

36

during mitigation, to wit:

that trial counsel were ineffective in failing to hire a qualified

mitigation specialist and in their failure to direct the mitigation; that counsel were ineffective in
their failure to limit the scope of the mitigation investigation; that counsel failed to properly
explain the purpose and need for mitigation to Skatzes as well as to his family and
acquaintances; counsel were ineffective in their failure to identify and present information
pertaining to Skatzes’ abusive upbringing, dysfunctional childhood, his head trauma, and his
efforts to be a loving husband and father; counsel’s ineffectiveness in their selection of a
psychologist; and counsel’s ineffectiveness in their failure to investigate circumstances involving
“riot duress.” The trial court again found that Skatzes did not make a showing pursuant to
Strickland that his counsel had been deficient in this phase of the hearing, nor that these alleged
deficiencies had prejudiced him. Rather the court found that the many alleged instances of
incompetent lawyering were either barred by res judicata or lacked merit (Decision, Order, and
Entry Denying Petitioner’s Post-Conviction Petition, ECF No. 68-10, PageID 8648-53, 865663).
On appeal the state court held:
[*P88] Skatzes' eleventh assignment related to the denial of
postconviction relief states:
[*P89] "THE TRIAL COURT ERRED IN DENYING
PETITIONER'S TWENTIETH, TWENTY-THIRD, TWENTYFOURTH, TWENTY-FIFTH, AND TWENTY-SEVENTH
GROUNDS FOR RELIEF, THAT HE WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL
COUNSEL FAILED TO CONDUCT AND PRESENT AN
ADEQUATE MITIGATION CASE."
[*P90] Skatzes contends that trial counsel failed to utilize a
"wealth of information" that could have helped to mitigate his
sentence and that counsel was thus ineffective in representing him.
Specifically, Skatzes contends that his attorneys did not hire a
competent mitigation expert to investigate the evidence that might
37

have been offered in his case. As a result, he claims that he was
deprived of the possibility that a lesser sentence might have been
imposed if counsel had more thoroughly explored and presented
evidence about his childhood, a prior head injury, and his mental
health.
[*P91] Skatzes relies on Wiggins v. Smith (2003), 539 U.S. 510,
123 S.Ct. 2527, 156 L.Ed.2d 471, which held that trial counsel
cannot make a reasonable strategic decision not to present
extensive evidence about a defendant's background in mitigation
without having first investigated the defendant's background. The
Court held that, without an investigation, counsel cannot be
presumed to have made a reasonable and informed strategic
decision. The Court defined the deference owed an attorney's
strategic judgments in terms of the adequacy of the investigations
supporting those judgments, stating:
[*P92] [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
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, 539
U.S. at 521-522, citing Strickland, 466 U.S. at 690-691. See, also,
Williams v. Taylor (2000), 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
[*P93] In Wiggins, the Court concluded that the trial attorneys had
acted unreasonably and ineffectively in failing to investigate
Wiggins' background before deciding not to present mitigating
evidence based on his background during the sentencing
proceedings. In a report prepared for the postconviction
proceedings, a forensic social worker reported that Wiggins, who
was 27 years old and had no history of violent behavior, had
suffered severe physical and sexual abuse in his childhood. His
alcoholic mother had left Wiggins and his siblings home alone for
days, forcing them to beg for food and eat paint chips and garbage.
She locked the kitchen to keep the children from getting food, and
she beat them if they broke in. She had sex with men while her
children were in the same bed and, on one occasion, intentionally
burned Wiggins on a hot stove burner. When he had been removed
38

to foster care, Wiggins continued to suffer abuse. He was
physically abused by two foster mothers and was molested and
raped by a foster father. In another foster home, he was repeatedly
gang-raped by other children in the home. Wiggins, 539 U.S. at
513-517. Moreover, Wiggins' trial counsel did not hire a forensic
social worker to prepare a social history of Wiggins, even though
the state made funds available for that purpose. Some of counsel's
statements at trial indicated that counsel had no knowledge of the
abuse. These factors led the Court to conclude that counsel's
investigation of mitigation evidence did not reflect reasonable
professional judgment, and thus did not meet Strickland's
performance standards. Id. at 533.
[*P94] Skatzes contends that, as in Wiggins, his counsel failed to
thoroughly and effectively investigate his background for
mitigation evidence and to present that evidence at trial. In
affidavits from his attorneys and the mitigation investigator,
Skatzes presented evidence that the mitigation investigator hired
by his attorneys was inexperienced and that the attorneys did not
closely oversee her work. Skatzes' attorneys also claim in their
affidavits that they were unaware of any abuse or neglect. The
mitigation investigator stated that she spoke with Skatzes' sister
numerous times during her investigation, but that other family
members did not return her calls and that Skatzes attempted to
"dictate" the questions she would ask.
[*P95] Although Skatzes' attorneys appear to have been unaware
of the alleged abuse in his childhood, there is no suggestion in the
petition for postconviction relief that Skatzes' abuse was analogous
to the abuse in Wiggins. When he sought postconviction relief,
Skatzes' former wife, who did not have first-hand knowledge of
many of the incidents recounted in her affidavit, offered the
following evidence: Skatzes' mother raised him, his sister, and two
older half-brothers alone; he was close to his sister but his
relationships with the older half-siblings were strained; Skatzes'
mother brought many men to the house and engaged in sexual
activity with them; Skatzes' mother verbally abused the children;
Skatzes' father's death when he was 14 hit him very hard; Skatzes'
mother was "cold" and "bitter" and did not show any warmth
toward the children; and the children's clothes were often dirty,
second-hand, and a source of embarrassment. A childhood friend
also stated by affidavit that Skatzes' half-brothers frequently "beat
on him." Although these factors paint a picture of Skatzes'
childhood that is far from than idyllic, they are much less
egregious than the incidents endured by Wiggins.

39

[*P96] There are also several references in the record to the fact
that Skatzes did not cooperate with the involvement of his family
in his defense. Skatzes apparently thought that the corrections
officer who testified on his behalf was treated harshly by the
prosecutors, and he therefore did not want family members called
to testify. According to the mitigation investigator, this lack of
cooperation extended to her efforts to speak with Skatzes' family.
He placed limits on what he wanted the investigator to do, and
family members did not cooperate with her efforts to contact them.
Thus, trial counsel's ignorance of the abuse now alleged does not
appear to have been attributable to a lack of effort, but to a lack of
cooperation. As such, it does not constitute ineffective assistance
of counsel.
[*P97] Skatzes also contends that trial counsel should have
gathered and presented evidence about his "possible traumatic
head injury" and depression. On direct appeal, however, Skatzes
challenged counsel's effectiveness for failing to present evidence
of mental illness. These arguments are substantially similar.
Moreover, Skatzes' evidence in support of a head injury and
consequent behavioral issues was very thin. He presented an
affidavit and report from Douglas W. Scharre, M.D., a professor of
neurology and psychiatry, who noted "mild" and "slight"
impairments and "hints" of dysfunction. We think it very unlikely
that this evidence would have had a significant impact on the jury's
determination.
[*P98] In sum, we conclude that the trial court did not abuse its
discretion when it concluded that the proffered mitigation evidence
would not have changed that outcome of the trial and that counsel
were not ineffective in failing to discover or present it.
[*P99] The eleventh assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387 (2nd Dist. Ohio 2008).
Again, for the reasons previously stated, the decision of the state court was neither
unreasonable application of United States Supreme Court law, nor contrary to it. As such, it is
subject to the Pinholster restrictions placed upon 2254(d)(1) and (2) and Skatzes is neither
entitled to de novo review nor an expansion of the record as to this ground.

40

ACTUAL INNOCENCE SUB-CLAIM

The actual innocence argument arises from Skatzes’ First Ground for Relief, sub-claim
A, ineffective assistance of trial counsel regarding Vallandingham’s murder, specifically,
counsel’s failure to call favorable witnesses to rebut the State’s allegations as to Skatzes’
involvement in Vallandingham’s murder (Memo on Gateway Innocence, ECF No. 96, PageID
20479, 20487). Skatzes concedes that this claim was not properly raised in the state courts and is
therefore procedurally defaulted. Id. at PageID 20488. He further argues however, that this
default can be excused under the miscarriage of justice exception under Murray v. Carrier, 477
U.S. 478, 495 (1986) and that Schlup v. Delo, 513 U.S. 298 (1995), can serve as a gateway for
habeas merits review on the defaulted sub-claim.
At this time the Court does not analyze Respondent’s argument as to whether or not the
submitted documents constitute new evidence sufficient to support a claim of actual innocence.
Rather, the Court decides the question of whether these documents can be considered under
Pinholster in reaching a decision as to whether Skatzes has met the threshold for the actual
innocence gateway to excuse procedural default on this sub-claim (See Warden’s Response to
Memo on Gateway Innocence Argument, ECF No. 104); (Warden’s Status Report, ECF No.
115).
Recall that the Supreme Court held in Cullen v. Pinholster, 563 U.S. 170 (2011), that a
federal court’s review of a state court decision under 28 U.S.C. § 2254(d)(1) is strictly limited to
“review of the state court record,” and that evidence acquired through use of an evidentiary
hearing may not be considered. Id. at 1399. The Supreme Court further stated that section
2254(e)(2) only “continues to have force where Section 2254(d)(1) does not bar federal habeas

41

relief.” Id. at 1401.
However, a federal court can appropriately consider evidence outside the state-court
record when Pinholster's limitations are inapplicable.

For instance, when a federal court

determines that a state court's decision was unreasonable, and hence not subject to AEDPA
deference, consideration of new evidence not presented in state court is appropriate. See, e.g.,
Mosley v. Atchison, 689 F.3d 838, 853 n.1 (7th Cir. 2012); Johnson v. Finn, 665 F.3d 1063, 1069
(9th Cir. 2011). An evidentiary hearing may also be appropriate when the state court has rejected
a claim on a procedural, as opposed to a substantive ground. See, e.g., McClellan v. Rapelje, 703
F.3d 344, 351 (6th Cir. 2013) ("Pinholster only applies to limit consideration of additional
evidence when the state court has previously decided the same merits issue later presented to the
federal court.")
Further, this Court has recently held, that under Pinholster, additional discovery
documents that could not be considered in deciding the question presented by 28 U.S.C. §
2254(d)(1), may be considered in determining whether a Petitioner has met the Schlup gateway
innocence standard. Jackson v. Warden, 2014 U.S. Dist. LEXIS 110700, *7 (S.D. Ohio 2014);
Hazel v. Warden, 2014 U.S. Dist. LEXIS 113597, * 59 (S.D. Ohio 2014); Clemmons v. Warden,
2012 U.S. Dist. LEXIS 146029, *19 (S.D. Ohio 2013). “A claim of actual innocence offered to
excuse procedural default is not a substantive claim for habeas corpus relief, but a “gateway”
claim and therefore not subject to the Pinholster restrictions.” Pettus-Brown v. Warden, 2015
U.S. Dist. LEXIS 11884, *2 (S.D. Ohio 2015).
Therefore, the discovery evidence tendered in support sub-claim A of the First Ground
for Relief is permitted for the limited purpose of deciding whether Skatzes has presented
sufficient evidence to satisfy the actual innocence gateway to excuse his procedural default. As

42

Petitioner has filed under seal a motion to expand the record with discovery documents in
connection with trial counsel’s depositions (Doc. Nos. 146, 147 and attachments), the Court’s
previous discovery ruling and scheduling is complete, and the actual innocence claim is now ripe
for merits review.

Conclusion

To the extent the documents in question are purported to be used to expand the record
based on improper bars of res judicata, failure to adjudicate, and unreasonable application of
federal law, the Motion to Expand the Record is DENIED. To the extent the request for
expansion of the record supports Petitioner’s actual innocence exception to procedural default
claim, the Motion is GRANTED. Consistent with Cullen v. Pinholster, 563 U.S. 170 (2011), the
documents will not be considered for any other purpose and any ruling on the merits will be
strictly limited to evidence contained within the state court record.

June 1, 2017.
s/ Michael R. Merz
United States Magistrate Judge

43