McGail v. Warden North Central Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

PATRICK A. McGAIL,

Petitioner, : Case No. 3:22-cv-119

District Judge Walter H. Rice

- vs - Magistrate Judge Michael R. Merz

TOM WATSON, WARDEN,

North Central Correctional Institution,

Respondent. :

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pursuant to 28 U.S.C. § 2254 by Patrick McGail with

the assistance of counsel, seeks relief from his convictions in the Common Pleas Court of Miami

County, Ohio. It is ripe for decision on the Petition (ECF No. 1), the State Court Record with

Exhibits 1-35 (filed as ECF No. 11 in Case No. 3:17-cv-251) and Exhibits 36-51 (ECF No. 14),

the Return of Writ (ECF No. 15), and Petitioner’s Reply (ECF No. 19).

Litigation History

On December 20, 2013, a Miami County grand jury indicted McGail on two counts of murder

in violation of Ohio Rev. Code § 2903.02(B) (counts 5 and 7), one count of aggravated burglary in

violation of Ohio Rev. Code § 2911.11(A)(2) (count 6), and one count of aggravated robbery in

violation of Ohio Rev. Code § 2911.01(A)(1) (count 8), all in connection with drug trafficking. All

charges carried a firearm specification. A jury found McGail guilty on all counts.

Before sentencing, McGail moved for a new trial based on juror misconduct. After the motion

was denied, McGail was sentenced to twenty-four years to life imprisonment. The Ohio Second

District Court of Appeals remanded for merger of the murder and aggravated robbery counts and

resentencing. State v. McGail, 55 N.E.3d 513 (Ohio Ct. App. 2015), appellate jurisdiction declined,

145 Ohio St. 3d 1460 (2016). The Common Pleas Court imposed the same aggregate sentence as

before.

McGail then brought a habeas petition in this Court, raising one ground for relief:

GROUND 1: McGail was deprived of his Sixth Amendment rights

to an impartial jury and to confront the evidence against him due to

juror misconduct and the subsequent application of the aliunde rule.

McGail v. Noble, No. 3:17-cv-251 (Petition, ECF No. 1, Page ID 5). The case was referred to the

undersigned who recommended the writ be issued, releasing McGail from custody unless the Common

Pleas Court held an evidentiary hearing regarding the juror misconduct claim. Judge Rice adopted that

recommendation and entered judgment November 13, 2018.

Notified of the issuance of the writ, Miami County Common Pleas Judge Stacy Wall conducted

the hearing after which the parties stipulated that the condition of the writ had been satisfied. The

Conditional Writ was dissolved on February 15, 2019 (ECF No. 29 in Case No. 3:17-cv-251).

Only one juror testified at the evidentiary hearing that the foreman’s comment about McGail’s

church attendance impacted her verdict. For reasons she explained at length, Judge Wall concluded

that juror’s testimony was completely incredible and she denied the motion for new trial (Entry, State

Court Record, ECF No. 14, Ex. 39). The Second District Court of Appeals affirmed, concluding Judge

Wall did not abuse her discretion in finding the jury foreman’s comment had no prejudicial impact on

the jury. State v. McGail, 163 N.E. 3d 270 (Ohio App. Jan. 27, 2021), appellate jurisdiction declined,

163 Ohio St.3d 1418 (2021).

McGail through counsel filed the instant Petition May 6, 2022, pleading one ground for relief:

Ground 1: McGail was deprived of his Sixth Amendment rights to

an impartial jury and to confront the evidence against him due to

juror misconduct.

(Petition, ECF No. 1, PageID 8).

Factual Context of the Case

The factual background of the case as found by the Second District Court of Appeals on

direct appeal is as follows1:

{¶ 3} The State presented evidence at trial that McGail and two

companions, Jason Sowers and Brendon Terrel, helped plan and

participate in an armed home invasion to steal marijuana from

Nathan Wintrow2. Text messages between Sowers' phone and

McGail's phone included planning of an event involving “Nate”

after Sowers got off work at 9 p.m. on October 30, 2013. The

messages discuss plans to sell the marijuana they expected to obtain

and to split the profits 50/50. On the night of October 30, 2013,

Sowers drove them to a parking lot in the vicinity of 218 East Canal

Street, a residence shared by Nate Wintrow, his fiancé Saddie

Barker, and the couple's two-year-old son. Sowers and his

accomplices took with them three masks and two guns. McGail also

always carried a U.S. Air Force survival knife that had been given

to him by his deceased grandfather. Although McGail testified that

he abandoned the others at the parking lot, the remainder of the

testimonial and physical evidence indicated that upon exiting

Sowers' vehicle, Terrel became nervous and decided to act as a

“lookout.” McGail and Sowers proceeded to the back of Wintrow's

house where they broke a window, reached inside, and unlocked a

1 On the formal distinction between findings of fact and the statement of facts on which a court of appeals is

adjudicating the appeal, see paged 19, infra.

2 The victim’s name is consistently given as “Wintrow” in the State Court Record, but Petitioner spells the name

“Withrow.”

rear door. McGail and Sowers entered the house wearing masks and

brandishing handguns. They immediately encountered Wintrow,

Barker, and a third person, Kyle Ratcliffe, in a small laundry room

at the rear of the residence. An altercation ensued. Ratcliffe threw

McGail to the ground while Wintrow and Barker fought Sowers.

During the fight, Sowers discharged his gun, striking Wintrow in the

head with a bullet and killing him. Sowers and McGail then fled the

house. Ratcliffe found McGail's knife lying on the floor. He picked

it up and threw it at the intruders as they fled through the back yard.

Also discovered at or near the scene were a tennis shoe, a handgun,

and a white mask. McGail's recovered knife and the discarded mask

later were determined to have his DNA on them.

{¶ 4} Shortly after the shooting, police found Sowers in his car in

the parking lot where the trio had left it, which was about two blocks

from 218 East Canal Street. He was sweating, out of breath, and

wearing only one tennis shoe. He initially claimed to have been out

jogging. Inside the car, police later discovered the handgun used to

shoot Wintrow under the passenger seat, and wrapped in a dark

“hoodie” on the passenger seat was a second white mask. At about

the same time Sowers was discovered, police found Terrel walking

along another nearby street also about two blocks from the scene of

the shooting. He was wearing a dark hooded sweatshirt. As he was

speaking with officers, a third white mask fell from his sweatshirt.

Sowers admitted participating in the home invasion, and Terrel

admitted being a lookout. Sowers told police that he and McGail had

entered Wintrow's residence armed with guns and intending to steal

marijuana. Sowers also admitted being the person who shot

Wintrow. Terrel admitted participating in the planning of the home

invasion and serving as the lookout. He also implicated McGail.

{¶ 5} Following the shooting, McGail walked to his girlfriend

Jessica Shelton's home, which was a mile or less from the home

invasion. She testified that he arrived shortly after 11:00 p.m. He

was scared and visibly upset, had a fresh scratch on his nose and

cuts on his back and wrist, and was wearing a short-sleeved blue t-

shirt. She told the jury that McGail had admitted to her that he went

inside Wintrow's residence with Sowers and had gotten into a fight.

Shelton said McGail told her he heard a gunshot, saw someone on

the floor, and fled the house, dropping his mask and knife. She had

reported this same information to the police within a couple days of

the shooting. Prior to trial, Sowers and Terrel pled guilty to various

charges, and both testified for the State at McGail's trial.

{¶ 6} For his part, McGail testified in his own defense. He claimed

the plan to rob Wintrow had been devised by Brendon Terrel's older

brother, Rick, who was also a marijuana dealer. Although he

admitted being aware of the plan, he testified that he initially thought

Rick Terrel was joking. According to McGail, Rick Terrel

proceeded to obtain a gun, however, and accompanied McGail,

Sowers, and Brendon Terrel in the car they drove to the parking lot

near Wintrow's residence. At that point, McGail claimed he realized

they were serious and told the group he was not participating and

was leaving. McGail testified that Rick Terrel responded by taking

McGail's knife and cutting him. McGail fled, leaving behind his

knife, mask, and cell phone. He testified that he initially walked to

the square in downtown Troy, Ohio, before proceeding to his

girlfriend's house. He denied that he told his girlfriend that he was

involved in the home invasion or shooting.

McGail, supra, at 519-20.

Analysis

Second or Successive?

The instant Petition is the second habeas corpus petition filed seeking relief from the same

state court conviction and sentence. 28 U.S.C. § 2244(b), enacted by the Antiterrorism and

Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"),

deprives a district court of jurisdiction to consider a second or successive habeas petition unless

the circuit court of appeals has given the petitioner leave to file, which has not happened here.

Burton v. Stewart, 549 U.S. 147 (2007); Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016). The

determination of whether a petition is second or successive must be made in the first instance by

the District Court. In re: Kenneth Smith, 690 F.3d 809 (6th Cir. 2012); In re Sheppard, 2012 U.S.

App. LEXIS 13709 (6th Cir. May 25, 2012).

"Although Congress did not define the phrase 'second or successive,'

. . . it is well settled that the phrase does not simply 'refe[r] to all §

2254 applications filed second or successively in time." Magwood

v. Patterson, 561 U.S. 320, 331-32 (2010) (quoting Panetti v.

Quarterman, 551 U.S. 930, 944 (2007)). Instead, for example,

"where . . . there is a new judgment intervening between . . . two

habeas petitions, an application challenging the resulting new

judgment is not 'second or successive' at all." Id. at 341-42; see also,

e.g., Panetti, 551 U.S. at 944-45 (explaining that a second-in-time

habeas petition is not second or successive if the claim(s) it raises

would have been unripe at the time of the first petition). This court

has clarified that the rule established by Magwood—that a second-

in-time petition is not second or successive when it follows an

intervening judgment—applies even when a petitioner, after

successfully challenging his sentence in a first petition, then

challenges "an unchanged and reinstated conviction" in the second

petition. King v. Morgan, 807 F.3d 154, 155-56 (6th Cir. 2015).

"[T]he existence of a new judgment," in other words, "is

dispositive," Magwood, 561 U.S. at 338: if there is a new judgment,

"the count begins anew," regardless of whether the new judgment

"capture[s] [a] new sentence[] or [a] new conviction[] or merely

reinstate[s] one or the other," King, 807 F.3d at 157.

In re: Kenneth W. Smith, 2018 U.S. App. LEXIS 8083 (6th Cir. Mar. 29, 2018).

In the Petition McGail concedes this is his second petition, but asserts it is not “second or

successive” within the meaning of § 2244(b) because the predicate of the claim arose after the

filing of the Petition in the prior habeas case and “lie [sic] in the trial court decision entered on

February 19, 2020.” (Petition, ECF No. 1-1, PageID 16, citing In re Wogenstahl, 902 F.3d 621,

627 (6th Cir. 2018).

[A] habeas petition was filed in in the Southern District of Ohio

under case number 3:17-cv-00251. Ultimately, the federal district

court remanded the case for an evidentiary hearing. McGail v.

Noble, No. 3:17-cv-00251, 2018 WL 5984055 (S.D. Ohio Nov. 14,

2018). This current petition is a continuation of those proceedings.

Although this petition is numerically the second petition, it is not

properly termed a “second or successive” petition pursuant to the

Sixth Circuit. The Sixth Circuit, in In re Wogenstahl, stated, “[A]

numerically second petition is not properly termed ‘second or

successive’ to the extent it asserts claims whose predicates arose

after the filing of the original petition.” 902 F.3d 621, 627 (6th Cir.

2018) (citation omitted). The predicates of this particular petition lie

in the trial court decision entered on February 19, 2020.

Consequently, the issues raised now arose after and because of the

filing of the original petition.

Id.

Respondent does not claim the instant Petition is second or successive, but if it were, this

Court would not have subject matter jurisdiction to consider its merits. Burton, supra. Existence

of subject matter jurisdiction is an issue a District Court must raise sua sponte. Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83 (1998).

Having done so, however, the Magistrate Judge concludes the instant Petition is not barred

by 28 U.S.C. § 2244(b). This is not a “continuation” of the prior case: Petitioner did not seek to

reopen the judgment in 3:17-cv-351 and the final judgment in that case has been fully executed.3

Instead, it is properly seen as a new case attacking an asserted constitutional error that occurred in

the state court case after this Court’s judgment was final. That asserted new constitutional error

is embedded in a new final appealable order, Judge Wall’s judgment of February 19, 2020 (Entry

& Decision, State Court Record, ECF No. 14, Ex. 39). The Magistrate Judge concludes this Court

has jurisdiction to consider the instant Petition on the merits.

3 Petitioner asserts this Court “remanded” the case to the Common Pleas Court for an evidentiary hearing.

Technically, a remand is an order from an appellate court to a trial court in the same judicial system. We have no

authority to “remand” a state court judgment to the trial court. However, issuance of a conditional writ of habeas

corpus where satisfaction of the condition depends on new trial court action has very much the same effect.

Merits

The Positions of the Parties

McGail’s sole ground for relief claims he was denied a fair trial by juror misconduct in

violation of his Sixth Amendment rights to be convicted only upon evidence introduced in open

court and to confront the witnesses against him (Memorandum in Support of Petition, ECF No. 4,

PageID 30, relying on Parker v. Gladden, 385 U.S. 363, 365 (1966); and Turner v. State of

Louisiana, 379 U.S. 466, 472-73 (1965)).

McGail’s defense at trial consisted largely of his own testimony denying involvement in

the home invasion and character evidence from himself and others about his heavy involvement

in the past in church activities at St. Patrick’s Catholic Church in Troy. It is now an adjudicated

fact that the jury foreman told the jury that he himself was a member of that congregation and that

he “had not seen McGail in church lately.” The parties stipulated that this comment by the foreman

violated McGail’s constitutional rights. The foreman was purportedly speaking from personal

observation, but not under oath and without McGail’s having an opportunity to cross-examine.

The critical question raised by this admitted fact is whether or not the constitutional

violation was harmless. Petitioner argues it was prejudicial, emphasizing its purported impact on

Juror Kylie Spiers4 and likely impact on other jurors as well because of its religious nature (Memo

in Support, ECF No. 4, PageID 34-38).

With one exception, Respondent raises no affirmative defenses, but asserts the Ohio courts’

decision is neither contrary to nor an objectively unreasonable application of clearly established

Supreme Court precedent. The exception is Respondent’s assertion that Petitioner has

4 This was the juror’s name at the time of trial and she is consistently referred to by this name in the state court

proceedings and in the prior habeas case. Petitioner advises us that she is now known as “Kylie Kautz.” Intending

no disrespect to this person and whatever her reasons may have been for changing her name, this Report will refer to

her as “Spiers” for consistency among the opinions.

procedurally defaulted on his claim that the Ohio courts should not have considered the subjective

impact of the foreman’ statement on the jurors, but rather should have considered only the likely

objective impact on an average rational juror (Return, ECF No. 15, PageID 925-26). Otherwise,

Respondent defends the state courts’ decision directly on the merits.

Respondent spends three paragraphs arguing its procedural default defense. In contrast,

Petitioner spends six pages arguing against procedural default (Reply, ECF No. 19, PageID 932-

37). On the merits, Petitioner again emphasizes the religious nature of the offending comment. Id.

at PageID 938. Second, he notes that Respondent did not comment on the lack of opportunity he

had to refute the comment. Id. Third, he reiterates that the state courts placed too much reliance

on the strength of the evidence of guilt. Id. at 938-39. Fourth, he finds unpersuasive Respondent’s

efforts to distinguish Parker. Id. at PageID 939-41. Fifth, he again argues the irrelevance of

subjective impact, contending “The question the state courts were to analyze, and this Court is called

to consider, is what impact the foreman’s improper statements was [sic] likely to have on a hypothetical

reasonable juror.” Id. at PageID 941. The only subjective effect the Ohio courts should have considered

is the “impact of the statement on the jurors as it related to the length of discussion the improper

statements spurred.” Id. citing Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000). Finally he

claims that the “relevant substance of [Spiers’] affidavit—which the prior district court viewed with

grave concerns regarding the impact on the jury—was confirmed by the evidentiary hearing.” Id. at

PageID 942.

Magistrate Judge’s Analysis

Procedural Default

The Magistrate Judge finds that Respondent’s procedural default defense is not well taken.

That defense bars habeas consideration of claims not fairly presented to the state courts. Coleman v.

Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000).

That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could

not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977);

Engle v. Isaac, 456 U.S. 107, 110 (1982).

Respondent raises the defense to bar consideration of Petitioner’s argument that a trial court

conducting a Remmer hearing may only consider the likely objective impact of extraneous

evidence on a hypothetical reasonable juror, rather than the actual subjective impact on the jurors

who heard it. That is an argument about whether a court should admit certain evidence in a

Remmer hearing and how the court should assess the evidence that has been gathered.

The claim that has been made here is that the extraneous evidence from the jury foreman

violated Petitioner’s Sixth Amendment rights. That claim has been fairly presented to all of the

courts who have heard the case. The procedural default doctrine does not preclude a new or

somewhat modified argument made in favor of a claim already fairly presented, as this claim was.

The Magistrate Judge agrees with Petitioner that the first large section of the Return

arguing procedural default (ECF No. 15, PageID 896-900) does not cite cases in support of

particular relevant proposition of laws relevant to this case. Instead it appears to be boilerplate

language which is familiar to the Court from the usual habeas corpus practice of the Attorney

General’s Office. Because it is not applied to particular instances of alleged procedural default in

the case in suit, it is not helpful to the Court.

Because it is a new argument about a constitutional claim which was fairly presented to

the state courts, rather than a new claim, Petitioner’s argument about objective versus subjective

impact is not barred by procedural default.

Was the Constitutional Error in this Case Harmless?

The parties agree the jury foreman’s comment about McGail’s church attendance was

unconstitutional. The question to be resolved in this case is whether the error was harmless or not.

Both Judge Wall and the Ohio Second District Court of Appeals understood this to be the critical

question and decided it on the merits.

Judge Wall began her decision by discussing what the jurors’ testimony showed about what

Foreman Westgerdes actually said (Entry and Decision Finding Defendant was not Prejudiced by

Juror Misconduct, State Court Record, ECF No. 14, Ex. 39, PageID 681-85). She then held the

burden of proof of prejudice was on McGail and he had not met it, Id. at 685-707. Her conclusion

was prefaced by a thorough discussion of the credibility of all eleven jurors who testified5, with

particular attention to Juror Spiers whom she found completely incredible for reasons she

thoroughly discussed.

Represented by the same counsel who represents him here, McGail appealed to the Ohio

Second District Court of Appeals, pleading as his sole Assignment of Error: “The Common Pleas

Court erred in finding that McGail was not prejudiced when his constitutional right to an impartial

jury and to confront the evidence against him was violated.” He claimed the reasons Judge Wall

gave for finding no prejudice “have already been rejected by federal courts reviewing this case.”

5 The twelfth juror was out of state. On interview by an investigator, he did not remember any comment from the

foreman.

(Appellant’s Brief, State Court Record, ECF No. 14, PageID 722). He noted that there is a

presumption of prejudice when extrajudicial information reaches a jury. Id. at PageID 724, citing

Remmer v. United States, 347 U.S. 227 (1954), and then noted the expressions of concern about

prejudice Judge Rice and the undersigned expressed in the first habeas case.

The Second District affirmed. State v. McGail, 167 N.E. 3d 70 (2nd Dist. Jan. 27,

2021)(Froelich, J.). It rejected McGail’s argument that this Court’s judgment in the prior case

created dispositive law of the case. Id. at ¶ 82. Judge Froelich noted that “The only information

before the federal court about the foreman's statement and its impact was Spiers's affidavit.” Id.

at ¶ 86. But now, after the evidentiary hearing,

we have the benefit of the evidence from the evidentiary hearing and

the trial court's factual findings to inform us of the nature of

Westgerdes's statement, the context that the statement was made, the

credibility of Spiers and the allegations in her affidavit, and the

effect of Westgerdes's statement on the jurors. Most notably, Spiers

acknowledged at the evidentiary hearing that portions of her

affidavit were incorrect, including the “so he must be lying” portion

of her allegation regarding Westgerdes's church comment. In short,

given that we are presented with a different factual landscape, we

conclude that the federal court's evaluation of prejudice under more

limited facts is not dispositive.

Id. at ¶ 87.

As to the impact of the foreman’s comments, “Leaving Spiers (Juror #11) aside, the trial

court found that the jurors represented the typical rational juror and that the foreman's comment

had no impact on those jurors’ decisions at trial.” Id. at ¶ 89. Acknowledging that impact on one

juror could be sufficient to prove prejudice, the Second District concluded “On this record, the

trial court's conclusion that Spiers's testimony was not credible was not unreasonable, arbitrary,

and unconscionable” (i.e. not an abuse of discretion under Ohio law) and there was no error in

Judge Wall’s conclusion “that the actual jurors were representative of rational jurors.” Id. at ¶ 94.

It found Parker, supra, to be factually distinguishable and affirmed. Id. at ¶ 101.

McGail exhausted available state court remedies by appealing to the Supreme Court of

Ohio, but that court declined jurisdiction. State v. McGail, 163 Ohio St.3d 1418 (2021).

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

McGail claims the Second District’s decision fails both tests (Reply, ECF No. 19, PageID

937). He asserts the Second District’s decision fails to give “any weight, let alone great weight”

to the religious nature of Westgerdes’ comment and the failure to do so was contrary to “clearly

established law.” Id. at PageID 938.

As to § 2254(d)(1), McGail cites no Supreme Court authority at this point in his Reply to

support his claim that the Second District’s decision is either contrary to or an objectively

unreasonable application of clear Supreme Court precedent.

As to § 2254(d)(2), the weight to be given to the religious nature of Westgerdes’ comment,

the factual conclusions reached by the Second District are not unreasonable in light of the evidence

at the hearing. Judge Froelich’s opinion in no way denies the religious nature of the comment or

suggests that the religious nature of the comment is irrelevant. The salient question is what impact

the comment had. Every juror except Spiers testified either that he or she did not hear it or that it

made no difference in his or her vote. Every juror, including Spiers, testified there was no

discussion of the comment.

Certainly the undersigned and Judge Rice understood that extrajudicial evidence about a

religious matter had a higher likelihood of being prejudicial than other types of evidence, but this

Court did not conclude that a comment about McGail’s religious practice such as the one attributed

to Westgerdes in the original Spiers’ Affidavit would have been per se prejudicial. Had this Court

done so, there would have been no need for an evidentiary hearing. The purpose of that hearing

was to determine as best as possible what Westgerdes actually said and what impact it had.6

McGail has not shown in any way that the evidence at the hearing7 shows the religious nature of

the foreman’s comment produced actual prejudice against him.

Constitutional error in a habeas case is not required to be harmless beyond a reasonable

doubt as is required on direct appeal by Chapman v. California, 386 U.S. 18 (1967). Rather,

constitutional error is harmless if the habeas court is satisfied it did not have a substantial and

injurious effect or influence in determining the verdict. Brecht v. Abrahamson, 507 U.S. 619

(1993), adopting standard from Kotteakos v. United States, 328 U.S. 750 (1946). A federal court

may grant habeas relief only if a constitutional violation had a substantial and injurious effect or

influence in determining the jury’s verdict. Williams v. Bauman, 759 F.3d 630, 637 (6th Cir.2014).

This standard calls for reversal when the reviewing court lacks a “fair assurance” that the outcome

of a trial was not affected by evidentiary error. Beck v. Haik, 377 F.3d 624 (6th Cir. 2004). Brecht

6 Note that the original Spiers’ Affidavit attributed to Westgerdes the statement that McGail must be lying, but

Spiers admitted at the hearing that he did not say that and the “lying” comment was her own interpolation.

7 In attempting to show prejudice here, McGail is limited to the evidence presented to the state court. Cullen v.

Pinholster, 563 U.S. 170 (2011); Shinn v. Martinez Ramirez, 596 U.S. ___, 142 S.Ct. 1718 (2022).

applies post-AEDPA “whether or not the state appellate court recognized the error and reviewed

it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705." Fry v. Pliler, 551 U.S. 112 (2007).

Judge Wall and the Second District did not cite Brecht. Instead, both courts found there

was no prejudicial impact of the Westgerdes comment. Logically, a finding of no prejudicial

impact is the equivalent of finding no harmful impact. As stated above, McGail has not shown

that the finding of no prejudicial impact is unreasonable in light of the evidence presented at the

hearing.

Secondly, McGail challenges Respondent’s failure “to address the likelihood of prejudice

caused by McGail’s lack of opportunity to diminish the impact of the juror foreman’s improper

statements.” (Reply, ECF No. 19, PageID 938). However, McGail cites to no evidence that the lack

of confrontation contributed anything to a likelihood of prejudice. Judge Wall treated the evidentiary

hearing as being held in support of a motion for new trial and this Court had set the parameters of that

hearing: McGail was to have an opportunity to establish what Westgerdes said and what its impact

was on the jury. To that end, Westgerdes was available to be cross-examined. Moreover, there is no

indication McGail sought to present at the hearing any evidence that would have refuted the comment

by showing recent religious practice.

Most of the evidence about McGail’s religious practice related to his practice at a younger age,

around the time of his Confirmation as a young teenager, and came from the St. Patrick’s youth

director. The evidence about recent practice was his uncorroborated claim he had gone to church after

Wintrow’s death to ask forgiveness for not having done more to prevent the crime. Was there available

corroboration? Available detail about his request for forgiveness? Did he ask for forgiveness apart

from private prayer? Nothing responsive to these questions was offered.

Petitioner notes Respondent did not “challenge [his] character evidence” and so Westgerdes’

comment was not cumulative. (Reply, ECF No. 19, PageID 938). We have no explanation of that

from the State’s trial counsel, but it could well be that the State wished to focus on the facts of the

crime and regarded evidence of McGail’s religious practice six or seven years earlier as a distraction.

McGail next argues that the Second District’s decision is an unreasonable application of Parker

(Reply, ECF No. 39, PageID 939-41). Parker was convicted of second-degree murder at trial and

sought post-conviction relief on the basis of extrajudicial statements by the sequestration bailiff: ‘Oh

that wicked fellow (petitioner), he is guilty’; and on another occasion said to another juror under

similar circumstances, ‘If there is anything wrong (in finding petitioner guilty) the Supreme Court

will correct it.' 385 U.S. at 363-64. Finding a Sixth Amendment violation, the trial court had

granted relief. The Oregon Supreme Court had reversed8, but the Supreme Court of the United

States reinstated the relief, following Turner v. State of Louisiana, 379 U.S. 466 (1965). One juror

had testified that that she was prejudiced by the statements, which supported the trial court's

finding ‘that the unauthorized communication was prejudicial and that such conduct materially

affected the rights of the defendant.’ Id. at 470-71. Dissenting from the brief per curiam opinion,

Justice Harlan warned how the decision might encourage convicted felons to “‘intimidate, beset

and harass,’ a discharged jury in an effort to establish possible grounds for a new trial.” 385 U.S.

at 369, citing Stein v. People of State of New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97

L.Ed. 1522,

There are some obvious distinctions of this case from Parker: the bailiff was a state official

put in place to manage the jury and his opinion was on the ultimate question – guilt or innocence

8 Oregon’s ten-person verdict rule, a remnant of Jim Crow, featured in the decision. See Edwards v. Vannoy, 593

U.S. ___, 141 S. Ct. 1547 (2021); and Ramos v. Louisiana, 590 U. S. ___, 140 S. Ct. 1390, 206 L. Ed. 2d 583

(2020), does not apply retroactively to cases on collateral review. Ramos plainly announced a new rule because it

overruled an existing precedent, Apodaca v. Oregon, 406 U.S. 404 (1972).

– rather than an ancillary question relating to character as here. But more importantly, the

Magistrate Judge finds no objectively unreasonable application. In Parker the trial judge held a

hearing and found prejudicial impact9. Here the trial judge held an extensive hearing and found

no prejudicial impact. Parker did not hold that extrajudicial contact is prejudicial per se, but

upheld the trial court’s weighing of the evidence of impact. Although this Court found the

extrajudicial comment as reported in the Spiers’ Affidavit to be of serious concern, Judge Rice

ordered a hearing on the impact. If prejudicial impact were a foregone conclusion, there would

have been no need for a hearing. If McGail believed the law did not warrant a hearing, he could

have appealed, which he did not. Of course, as we now know, the Spiers Affidavit seriously

distorted the facts. For example, her attribution of the comment “he was lying” to Westgerdes was

in fact her own inference.

Next McGail claims the state court placed too much emphasis on the strength of evidence

of guilt in finding lack of prejudice (Reply, ECF No. 19, PageID 938-39). However, he gives no

reason why jurors could not reasonably have found the other evidence of guilt persuasive. There

was a good deal of physical evidence that McGail was present when the crime was committed and

had participated in the planning. Co-defendants’ testimony undermined his claim to have

withdrawn from the conspiracy before it was carried out. Immediately after leaving the scene,

McGail fled to his girlfriend’s home where he admitted to far more involvement than he did on

the witness stand. McGail, 55 N.E. 513, ¶ 5. Her testimony and that of the co-conspirators almost

9 McGail argues that “nowhere in Parker is there a suggested requirement that the court evaluate the credibility

of jurors who claim to have been prejudiced.” (Reply, ECF No. 19, PageID 940, emphasis sic). This

argument ignores the fact that there was a Remmer hearing in Parker at which impact on individual jurors was

considered. The Supreme Court’s opinion does not suggest this was error or that the result – finding at least one juror

seriously impacted – was irrelevant.

certainly had more negative impact on McGail’s credibility than the positive impact of McGail’s

religious education teacher’s testimony about his church participation several years in the past.10

McGail again argues the distinction between subjective and objective impact. He claims:

“The question the state courts were to analyze, and this Court is called to consider, is what impact

the foreman’s improper statements was likely to have on a hypothetical reasonable juror.” (Reply,

ECF No. 19, PageID 941). To the contrary, what Judge Rice ordered was “The evidentiary hearing

will concern questions of what the jury foreperson said about McGail and/or his family’s church

attendance and/or participation and its impact on the jury and its members.” 2018 WL 5984055

*8 (emphasis in original). Be that as it may, Judge Wall’s opinion considered both questions. She

found the jurors except for Spiers to be rational jurors, but she also found Westgerdes’ comment

did not prejudice any one of them individually.

McGail next argues “No significant facts changed to justify the state courts’ determination

that a different factual landscape permitted departure from the District Court’s analysis.” The

Magistrate Judge strongly disagrees. The only factual basis for this Court’s decision in the prior

habeas case was the Spiers’ Affidavit. When called upon to testify live and subject to cross-

examination, she admitted to serious problems with the Affidavit’s account of the facts. Most

importantly she admitted that her conclusion in the Affidavit that Westgerdes said McGail was

lying was her own inference and not something Westgerdes said. If we accept McGail’s premise

that a jury foreperson like Westgerdes had as much authority with jurors as the bailiff in Parker,

then Spiers had falsely attributed to Westgerdes a statement as damaging as the bailiff’s in Parker:

10 Westgerdes’ reported comment that “people change”, made during jury consideration of the church participation

evidence, is a completely proper comment about the weight of evidence actually presented, as opposed to the

interjection of Westgerdes’ observational testimony about McGail’s current level of practice.

Parker’s bailiff said he was guilty; Westgerdes allegedly said “he’s lying” when McGail’s entire

case was built on his credibility. And Spiers admitted Affidavit was wrong on this point.

McGail criticizes Respondent for treating factual statements by the Second District as

“findings of fact”:

Respondent suggests that the district court of appeal’s summary of

the evidentiary hearing constitutes “findings of fact” under 28

U.S.C. § 2254(e), the state court of appeals did not make findings of

fact, the state trial court did, so it is questionable why a recitation of

the court of appeals decision would be viewed as dispositive here.

(Reply, ECF No. 19, PageID 942, n.5). In citing the Second District’s statement of facts as the

relevant factual findings entitled to deference under 28 U.S.C. § 2254(e), the Respondent, as is

standard with the Attorney General’s Office, relies on Warren v. Smith, 161 F.3d 358 (6th Cir. Nov.

23, 1998). In explaining the standard under § 2254(e), the Sixth Circuit did not make this

distinction, but merely held “we presume correct the factual findings made by the state court.” Id.

at 361. McGail does not suggest what difference this distinction makes in this case.

Conclusion

The Miami County Court of Common Pleas correctly interpreted our final judgment in the

prior habeas case and gave Petitioner McGail the Remmer hearing to which he was entitled, finding

first that his constitutional rights were violated by the jury foreman’s comment. The trial court

then found the constitutional violation was harmless. In doing so, it applied the relevant Supreme

Court precedent, especially Parker, and its application was not unreasonable. Moreover its

decision was not based on an unreasonable determination of the facts, given the evidence presented

at the hearing. Therefore it is respectfully recommended that the Petition herein be dismissed

with prejudice.

When entering judgment in this case, the Court is obliged to make a ruling on the certificate

of appealability issue. Because the parties have not briefed that issue, it is also recommended that

if the Court accepts the recommendation to deny the writ, Petitioner be required to move for a

certificate of appealability within thirty days of the date of that decision.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. A party may respond

to another party’s objections within fourteen days after being served with a copy thereof. Failure

to make objections in accordance with this procedure may forfeit rights on appeal. #

November 30, 2022.

s/ Michael R. Merz

United States Magistrate Judge

20