# McDuffie v. Jackson-Mitchell

> District Court, N.D. Ohio · October 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10664763

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10664763

## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM McDUFFIE, CASE NO. 3:22-CV-00098

Petitioner, JUDGE PAMELA A. BARKER

vs. MAGISTRATE JUDGE AMANDA M. KNAPP

WARDEN WANZA JACKSON-MITCHELL,
REPORT AND RECOMMENDATION
Respondent.

Petitioner William McDuffie (“Petitioner” or “Mr. McDuffie”) brings this habeas corpus
petition pursuant to 28 U.S.C. § 2254 based on his sentence and conviction for possession of
cocaine in Marion County Court of Common Pleas Case No. 2019CR0026. (ECF Doc. 1
(“Petition”).) He filed his Petition with the assistance of counsel on January 18, 2022. (Id.)
The matter was reassigned to the undersigned Magistrate Judge on February 15, 2022,
pursuant to General Order 2022-03. The case is briefed and ripe for disposition. (ECF Docs. 7
& 9.) For the reasons set forth herein, the undersigned recommends that the Court DISMISS the
Petition with prejudice on the basis of procedural default.
I. Factual Background
“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.” 28 U.S.C. § 2254(e)(1). The petitioner has the
burden of rebutting that presumption by clear and convincing evidence. See id.; Railey v. Webb,
540 F.3d 393, 397 (6th Cir. 2008).
The Third District Court of Appeals summarized the facts underlying Mr. McDuffie’s
conviction and sentence as follows:
{¶2} This case arose after the MARMET Drug Task Force (“Task Force”) obtained
and executed a search warrant at McDuffie's residence in Marion, Ohio on January
11, 2019. (Doc. No. 45). During the search of McDuffie’s bedroom, the Task Force
discovered 24.12 grams of crack cocaine located inside a plastic baggie hidden in
a plastic container. (Id.). Further, during the search, Kayla Hamm (“Hamm”),
McDuffie's girlfriend, was searched yielding the discovery of a cell-phone and
$1,089 in cash thought to be the proceeds of illegal-drug sales. (Id.). (See PSI).
{¶3} On January 24, 2019, the Marion County Grand Jury indicted McDuffie and
Hamm (in a joint indictment) on one count of Possession of Cocaine in violation of
R.C. 2925.11(A), (C)(4), a second-degree felony. (Doc. No. 2). McDuffie’s
indictment included a forfeiture specification as to property under R.C. 2941.1417
and R.C. 2981.02.1 (Doc. No. 2). On January 28, 2019, McDuffie appeared for
arraignment and entered a plea of not guilty. (Doc. No. 5).
[FN 1] Hamm ultimately plead guilty to Possession of Cocaine, a fourth-
degree felony. (Oct. 9, 2019 Tr. at 143-144).
{¶4} On October 9, 2019, McDuffie’s case proceeded to a jury trial, where he was
found guilty of Possession of Cocaine. (Doc. No. 64). At McDuffie’s sentencing
hearing, the State moved to dismiss the forfeiture specification in the indictment,
which the trial court granted. (Doc. No. 67).
State v. McDuffie, 2020-Ohio-5466, ¶¶ 2-4, 2020 WL 7018511, at * 1 (Ohio App. Ct. 2020);
(ECF Doc. 7-1, pp. 87-88.)
II. Procedural Background
A. State Court Conviction
On January 24, 2019, a Marion County Grand Jury charged Mr. McDuffie and his co-
defendant, Kayla Hamm, in a joint indictment. (ECF Doc. 7-1, pp. 3-4.) Mr. McDuffie was
charged with one count of Possession of Cocaine in violation of R.C. 2925.11(A), (C)(4), with a
forfeiture specification. (Id.) Mr. McDuffie entered a plea of not guilty. (Id. at p. 87.) On
October 8, 2019, the case proceeded to a jury trial, which concluded on October 9, 2019. (Id. at
p. 5.) The jury found Mr. McDuffie guilty as to Count One, Possession of Cocaine, a second-
degree felony.1 (Id.) The trial court subsequently granted the State’s motion to dismiss the
forfeiture specification. (Id.) On October 28, 2019, the trial court sentenced Mr. McDuffie to a
mandatory term of eight years in prison. (Id. at pp. 5, 755.) The trial court also imposed a
mandatory drug fine in the amount of $7,500.00 and advised Mr. McDuffie he would be subject

to a period of post-release control. (Id. at pp. 5-6, 755-56.) The Judgment Entry of Sentencing
was docketed on October 31, 2019.2 (Id. at pp. 5-6.)
B. Direct Appeal
On November 15, 2019, Mr. McDuffie filed a notice of appeal with the Third District
Court of Appeals with the assistance of appellate counsel. (ECF Doc. 7-1, p. 8.) In his June 1,
2020 appellate brief (id. at pp. 9-27), he raised the following assignments of error:
1. Appellant’s due process right to a fair trial was violated by the admission of
evidence of other acts that were used to draw an improper character
inference.
2. Appellant’s due process right to a fair trial was violated by the prosecutor’s
improper comments regarding the credibility of a witness during closing
argument.
(id. at pp. 10, 12, 17-24). On June 26, 2020, Mr. McDuffie filed a pro se motion for leave to file
a supplemental brief. (Id. at pp. 52-66.) On July 7, 2020, the court of appeals granted Mr.
McDuffie’s motion for leave to file a supplemental pro se brief, granting him leave until July 22,
2020, to file his pro se supplemental brief. (Id. at p. 67.) The state filed its appellate brief on
July 7, 2020. (Id. at pp. 28-51.) On July 27, 2020, Mr. McDuffie filed his pro se supplemental
brief (id. at pp. 68-87), setting forth four additional assignments of error (id. at pp. 69-70). On
November 30, 2020, the Third District Court of Appeals affirmed the judgment of the trial court.

1 Ms. Hamm plead guilty to Possession of Cocaine, a fourth-degree felony. (ECF Doc. 7-1, p. 87, n.1; see also ECF
Doc. 7-1, p. 662.)

2 On that same date, a nunc pro tunc entry was filed to correct a clerical error in the Judgment Entry of Sentencing.
(ECF Doc. 7-1, p. 7.)
(ECF Doc. 7-1, pp. 86-100.) Mr. McDuffie did not timely appeal to the Supreme Court of
Ohio.3
C. First Motion for Delayed Appeal
On May 10, 2021, Mr. McDuffie filed a pro se notice of appeal from the November 30,

2020 judgment of the Third District Court of Appeals with the Supreme Court of Ohio (ECF
Doc. 7-1, pp. 101-03) and a motion for delayed appeal (id. at pp. 104-25) (Case No. 2021-0606).
He argued that he did not learn that he lost his appeal until December 23, 2020, and that he was
unable to file a notice of appeal within the required forty-five-day period due to COVID
restrictions and the lack of an adjudication on the issues raised in his supplemental brief. (Id. at
p. 108.) On May 21, 2021, the Supreme Court of Ohio granted Mr. McDuffie’s “motion for
delayed appeal due to COVID-19” and ordered him to “file a memorandum in support of
jurisdiction within 30 days from the date of [the] entry.” (Id. at p. 126.) On June 29, 2021, the
Supreme Court of Ohio dismissed Mr. McDuffie’s appeal because he had failed to file “a
memorandum in support of jurisdiction, due June 21, 2021, in compliance with the Rules of

Practice of the Supreme Court of Ohio and therefore [had] failed to prosecute [the] cause with
the requisite diligence.”4 (Id. at p. 127.)
D. Second Motion for Delayed Appeal
On November 16, 2021, Mr. McDuffie, through counsel, filed another notice of appeal
from the November 30, 2020 judgment of the Third District Court of Appeals with the Supreme

3 Mr. McDuffie’s notice of appeal was due on or before January 14, 2021. See Ohio S. Ct. Prac. R. 7.01(A)(1)(a)(i)
(requiring the filing of “a notice of appeal in the Supreme Court within forty-five days from the entry of the
judgment being appealed”).

4 The Rules of Practice of the Supreme Court of Ohio provide: “If the Supreme Court grants a motion for delayed
appeal, the appellant shall file a memorandum in support of jurisdiction within thirty days after the motion for
delayed appeal is granted. If a memorandum in support of jurisdiction is not timely filed after a motion for delayed
appeal has been granted, the Supreme Court will dismiss the appeal.” See Ohio S. Ct. Prac. R. 7.01(A)(4)(b).
Court of Ohio (ECF Doc. 7-1, pp. 128-30) and a motion for delayed appeal (id. at pp. 131-51)
(Case No. 2021-1402). In his motion for delayed appeal, Mr. McDuffie argued that “despite his
efforts,” he was unable to comply with procedural requirements necessary to have his cause
reviewed because he was indigent and pro se and “was unfamiliar with the relevant legal

standards and procedural requirements and lacked relevant background or education which
would have otherwise proven useful in ensuring timely compliance.” (Id. at pp. 131-32, 135.)
He also argued that his struggles in complying with the procedural requirements were further
compounded by “COVID-19 related issues within the Ohio prison system which . . . at times,
resulted in inconsistent access to libraries and otherwise impacted access to legal materials.”
(Id.) He requested the opportunity to file a memorandum in support of jurisdiction to raise the
following propositions of law:
1. A curative instruction does not unilaterally dispel a claim of prejudice where
the prosecution commits misconduct; and
2. Irrelevant evidence may not be used to attack a defendant’s character under
the guise of impeaching a witness.
(Id. at p. 132.) On December 2, 2021, the Supreme Court of Ohio denied Mr. McDuffie’s
second motion for delayed appeal. (Id. at p. 152.) In its entry denying the motion for delayed
appeal, the Supreme Court of Ohio stated:
Upon review of the decision on appeal, it has been determined that on June 29,
2021, in Supreme Court Case No. 2021-0606, State of Ohio v. William A. McDuffie,
this court dismissed for want of prosecution an appeal from the same judgment,
dated November 30, 2020, currently being appealed. Accordingly, this cause is
dismissed.

It is further ordered that no further motions for delayed appeal from the November
30, 2020 judgment entry of the Third District Court of Appeals shall be accepted
for filing.

(Id.)
E. Federal Habeas Corpus Petition
Mr. McDuffie raises two grounds for relief in his Petition:
Ground One: Prosecutorial misconduct resulted in a violation of Petitioner’s due
process rights.

Ground Two: The right to due process and confrontation are violated where
irrelevant, unnoticed evidence is admitted with the intention to prejudice the jury.

(ECF Doc. 1, pp. 6-8; ECF Doc. 1-2, pp. 3-8.)
III. Law & Analysis
A. Standard of Review Under AEDPA
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104–
132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), apply to petitions filed after the
effective date of the AEDPA. See Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). “As
amended by AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to
grant an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). Under 28 U.S.C. § 2254, federal courts may “entertain
only those applications alleging that a person is in state custody ‘in violation of the Constitution
or laws or treaties of the United States’” and in most instances, federal courts may not grant
habeas relief “unless . . . the applicant has exhausted state remedies.” Id. (citing 28 U.S.C. §§
2254(a), (b), (c)). If an application for writ of habeas corpus involves a claim that was
“adjudicated on the merits in State court proceedings,” the application “shall not be granted”
unless the adjudication:
(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.
28 U.S.C. § 2254(d)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100
(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the
petitioner. See Cullen, 563 U.S. at 181.
B. Legal Standard for Procedural Default
A federal court may not grant a writ of habeas corpus unless the petitioner has exhausted
all available remedies in state court. See 28 U.S.C. § 2254(b)(1)(A). A state defendant with
federal constitutional claims must fairly present those claims to the state courts before raising
them in a federal habeas corpus action. See 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459
U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); see also Fulcher

v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have jurisdiction to consider
a claim in a habeas petition that was not ‘fairly presented’ to the state courts”). To satisfy the
fair presentation requirement, a habeas petitioner must present both the facts and legal theories
underpinning his claims to the state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir. 2000). This means that the petitioner must present his claims to the state courts as federal
constitutional issues and not merely as issues arising under state law. See, e.g., Baldwin v.
Reese, 541 U.S. 27, 33-34 (2004); Franklin v. Rose, 811 F.2d 322, 324-25 (6th Cir. 1987). A
constitutional claim for relief must also be presented to the state’s highest court to satisfy the fair
presentation requirement. See O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Hafley v.

Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
A petitioner must also meet certain procedural requirements to have his claims reviewed
in federal court. See Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006).
“Procedural barriers, such as . . . rules concerning procedural default and exhaustion of remedies,
operate to limit access to review on the merits of a constitutional claim.” Daniels v. United
States, 532 U.S. 374, 381 (2001). Although procedural default is sometimes confused with
exhaustion, exhaustion and procedural default are distinct concepts. See Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies where state remedies are “still
available at the time of the federal petition.” Id. at 806 (quoting Engle v. Isaac, 456 U.S. 107,

125 n.28 (1982)). In contrast, procedural default applies where state court remedies are no
longer available. See Williams, 460 F.3d at 806.
Procedural default may occur in two ways. First, a petitioner may procedurally default a
claim if he fails “to comply with state procedural rules in presenting his claim to the appropriate
state court.” Id. In Maupin v. Smith, the Sixth Circuit articulated a four-prong analysis to be
used when determining whether a claim is procedurally barred due to failure to comply with a
state procedural rule: (1) whether there is a state procedural rule applicable to petitioner’s claim,
and whether petitioner failed to comply with that rule; (2) whether the state court enforced the
procedural rule; (3) whether the state procedural rule is an adequate and independent state
ground on which the state can foreclose review of the federal constitutional claim; and (4)

whether the petitioner can demonstrate cause for his failure to follow the rule and that he was
actually prejudiced by the alleged constitutional error. 785 F.2d 135, 138 (6th Cir. 1986); see
also Williams, 460 F.3d at 806 (“If, due to the petitioner’s failure to comply with the procedural
rule, the state court declines to reach the merits of the issue, and the state procedural rule is an
independent and adequate grounds for precluding relief, the claim is procedurally defaulted.”)
(citing Maupin, 785 F.2d at 138).
Second, “a petitioner may procedurally default a claim by failing to raise a claim in state
court, and pursue that claim through the state’s ‘ordinary appellate review procedures.’” See
Williams, 460 F.3d at 806 (quoting O’Sullivan, 526 U.S. at 848); see also Baston v. Bagley, 282
F.Supp.2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and every level [of the state
courts] cannot be considered in a federal habeas corpus petition.”); State v. Moreland, 552 N.E.
2d 894, 899 (Ohio 1990) (finding failure to present a claim to a state court of appeals constituted
a waiver). “If, at the time of the federal habeas petition, state law no longer allows the petitioner

to raise the claim, the claim is procedurally defaulted.” Williams, 460 F.3d at 806. Thus, even if
the exhaustion requirement is technically satisfied because no state remedies remain available to
the petitioner, the petitioner’s prior failure to present those claims for consideration in state court
may cause a procedural default that bars federal court review of the claims. See Williams, 460
F.3d at 806 (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)).
To overcome procedural default, a petitioner must: (1) show cause for the default and
demonstrate that actual prejudice resulted from the alleged violation of federal law; or (2) show
that there will be a fundamental miscarriage of justice if the claims are not considered. See
Coleman, 501 U.S. at 750. “A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006)

(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
C. Grounds One and Two

Respondent argues that the Petition should be dismissed because Grounds One and Two
were both procedurally defaulted. (ECF Doc. 7, pp. 5-9, 12-14.) Specifically, Respondent
argues that the claims in the Petition were procedurally defaulted because Mr. McDuffie did not
timely appeal the state court of appeals decision ruling on those claims to the Supreme Court of
Ohio and, when granted leave to file a delayed appeal, did not meet the deadline to file his
memorandum in support of jurisdiction as required by Ohio S. Ct. Prac. R. 7.01(A)(4)(b),
resulting in dismissal of his appeal.5 (Id. at pp. 5-9.) Respondent argues that that the Petition
should be dismissed based on procedural default, since Mr. McDuffie cannot show cause to
excuse the procedural default. (Id. at p. 9.) In the alternative, Respondent argues that Mr.
McDuffie’s grounds for relief are without merit and should be denied. (Id. at pp. 9-11, 14-23.)

In response, Mr. McDuffie argues that the Court should find his claims were not
procedurally defaulted or should excuse any procedural default (ECF Doc. 9, pp. 4-8, 19), and
should find his grounds for relief meritorious and grant him federal habeas relief (id. at pp. 8-19).
He contends that his “efforts [to seek review in the Supreme Court of Ohio] should . . . qualify as
a full and fair opportunity to resolve the claims raised herein.” (Id. at p. 7.) Even if his claims
were procedurally defaulted, he asserts there is cause to excuse the default and that a failure to
review his claims would result in a fundamental miscarriage of justice. (Id. at pp. 8, 19.)
1. Whether Claims in Grounds One and Two Were Procedurally Defaulted
The first way a petitioner may procedurally default is by failing “to comply with state
procedural rules in presenting his claim to the appropriate state court.” See Williams, 460 F.3d at

806. This is the basis upon which Respondent argues Mr. McDuffie procedurally defaulted.
(ECF Doc. 7, pp. 5-9.) To assess procedural default on this basis, courts in this circuit apply the
four-prong Maupin analysis. See Williams, 460 F.3d at 807 (citing Maupin, 785 F.2d at 138).
Under the first two prongs of the Maupin analysis, this Court must determine whether
Mr. McDuffie failed to comply with a procedural rule and whether the state enforced that rule.
See 785 F.2d at 138. Here, the Supreme Court of Ohio granted Mr. McDuffie’s first motion for

5 Respondent also argues that Mr. McDuffie’s second ground for relief was procedurally defaulted due to Mr.
McDuffie’s failure to raise a contemporaneous objection to the admission of the evidence on the same grounds at
trial. (Id. at pp. 12-14.) Because the undersigned finds Mr. McDuffie has procedurally defaulted both grounds for
the reasons explained herein, it is unnecessary to address Respondent’s alternative procedural default argument.
delayed appeal and ordered him to file a memorandum in support of jurisdiction within thirty
days, consistent with the procedural requirements in Ohio S. Ct. Prac. R. 7.01(A)(4)(b). (ECF
Doc. 7-1, p. 126.) Supreme Court Practice Rule 7.01(A)(4)(b) provides:
If the Supreme Court grants a motion for delayed appeal, the appellant shall file a
memorandum in support of jurisdiction within thirty days after the motion for
delayed appeal is granted. If a memorandum in support of jurisdiction is not timely
filed after a motion for delayed appeal has been granted, the Supreme Court will
dismiss the appeal.
Id. On June 29, 2021, the Supreme Court of Ohio dismissed Mr. McDuffie’s appeal because he
failed to file “a memorandum in support of jurisdiction . . . in compliance with the Rules of
Practice of the Supreme Court of Ohio and therefore . . . failed to prosecute [his] cause with the
requisite diligence.” (ECF Doc. 7-1, p. 127.) Thus, Mr. McDuffie failed to comply with a
procedural rule and the state enforced that rule. The first two Maupin prongs were met.
Under the third prong of the Maupin analysis, this Court must determine whether the
relevant procedural rule establishes an adequate and independent state law ground under which
the claim may be procedurally defaulted. See 785 F.2d at 138. The Sixth Circuit has observed
that “Ohio court rules indicate that the denial of a motion for a delayed appeal is a procedural
ruling, not a ruling on the merits.” Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). Lower
courts have further recognized that a failure to timely file a memorandum in support of
jurisdiction after the Supreme Court of Ohio granted a motion for delayed appeal is an adequate
and independent state law ground supporting procedural default. See, e.g., Armstrong v.
Jackson, No. 3:06CV087, 2009 WL 585853, at *15 (S.D. Ohio Mar. 6, 2009); Wood v. Noble,
No. 3:17-CV-215, 2017 WL 4076483, at *4 (S.D. Ohio Sept. 13, 2017) (finding the procedural
rule “fits all the criteria required by Maupin” and “protects and regularizes the Ohio Supreme
Court’s use of its scarce resources by enabling it to decide wha[]t cases are appropriate for its
time and attention”), report and recommendation adopted sub nom. Wood v. Warden, London
Corr. Inst., No. 3:17-CV-215, 2017 WL 4570295 (S.D. Ohio Oct. 11, 2017). The undersigned
finds that the third prong of the Maupin analysis has been met.6 This Court must therefore find
that the claims in Grounds One and Two of the Petition were procedurally defaulted unless Mr.
McDuffie is able to show “cause” excusing his failure to meet procedural requirements and

actual prejudice resulting from the alleged constitutional violations. Maupin, 785 F.2d at 138.
Before addressing the issues of cause and prejudice, the undersigned observes that the
record demonstrates an additional basis for procedural default on Grounds One and Two of the
Petition. On federal habeas review, a district court cannot consider issues that were not
presented at every level of the Ohio state court system. See Baston, 282 F.Supp.2d at 661.
Where a petitioner has not pursued a claim “through the state’s ‘ordinary appellate review
procedures,’” Williams, 460 F.3d at 806 (quoting O’Sullivan, 526 U.S. at 848), and “state law no
longer allows the petitioner to raise the claim, the claim is procedurally defaulted,” id. at 806.
Here, although the Supreme Court of Ohio allowed Mr. McDuffie an opportunity to
pursue his appeal through a delayed appeal after he failed to timely appeal in the first instance

(ECF Doc. 7-1, p. 126), that appeal is no longer available under Ohio law because he failed to
comply with the procedural rule for filing his memorandum in support of jurisdiction (id. at p.
127). Because Mr. McDuffie failed to present his claims in Grounds One and Two at every level
of the Ohio state court system, and there is no avenue available for him to raise his claims in
state court, the undersigned finds Grounds One and Two were procedurally defaulted on that
basis as well. See Agostini v. Collins, No. 20-3028, 2020 WL 3815671, at *2 (6th Cir. June 15,

6 The undersigned also observes that Mr. McDuffie’s second motion for delayed appeal (ECF Doc. 7-1, pp. 131-51),
which the Supreme Court of Ohio dismissed because the court had already “dismissed for want of prosecution an
appeal from the same judgment” (id. at p. 152), also amounted to the enforcement of a state procedural rule as
contemplated in the first two Maupin prongs. And the Supreme Court of Ohio’s dismissal of the second motion for
delayed appeal also enforced an adequate and independent state procedural rule, since “the Ohio Supreme Court
does not allow a second delayed direct appeal in felony cases.” Armstrong, 2009 WL 585853, at *6.
2020) (finding procedural default where Ohio Supreme Court dismissed petitioner’s delayed
appeal for want of prosecution after petitioner failed to file a timely memorandum in support of
jurisdiction); see also Scott v. Warden, No. 2:21-CV-04996, 2022 WL 1186184, at *8 (S.D. Ohio
Apr. 21, 2022), report and recommendation adopted sub nom. Scott v. Warden, Noble Corr.

Inst., No. 2:21-CV-4996, 2023 WL 2918022 (S.D. Ohio Apr. 12, 2023).
The fourth prong of the Maupin analysis addresses whether Mr. McDuffie can show
cause for his failure to follow the procedural requirement to timely file his memorandum in
support of jurisdiction and that he was actually prejudiced by the constitutional errors alleged in
Grounds One and Two. 785 F.2d at 138. Similarly, to excuse his procedural default for failing
to present the claims in Grounds One and Two at every level of the Ohio state court system, Mr.
McDuffie must: (1) show cause for the default and demonstrate that actual prejudice resulted
from the alleged violation of federal law; or (2) show that there will be a fundamental
miscarriage of justice if the claims are not considered. See Coleman, 501 U.S. at 750. The
undersigned therefore turns to whether there is a basis to excuse procedural default.

2. Whether Cause and Prejudice Excuse the Procedural Default
Mr. McDuffie concedes he did not timely file an appeal with the Supreme Court of Ohio
and did not comply with the procedural rule that required him to file a memorandum in support
of jurisdiction (ECF Doc. 1, p. 13; ECF Doc. 1-2, p. 1; ECF Doc. 9, p. 5), but he argues that his
efforts—including his appeal to the Third District Court of Appeals and his attempts to seek
review before the Supreme Court of Ohio—and his status as “an indigent, incarcerated individual
laboring in unfamiliar waters during a global pandemic . . . should . . . qualify as a full and fair
opportunity to resolve the claims raised herein” (ECF Doc. 9, p. 7).
To establish “cause” to excuse procedural default, a petitioner must point to “something
external . . . that cannot fairly be attributed to him” and “show that some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Coleman,
501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Mr. McDuffie argues

that there is sufficient cause to excuse his procedural default because he “was unable to secure
counsel to file in the Ohio Supreme Court within the time frame proscribed” (ECF Doc. 9, p. 6)
and “[a] lack of financial and legal resources, coupled with an unprecedented global pandemic,
should amount to sufficient cause which caused Mr. McDuffie prejudice in that he was unable to
meet Ohio’s deadlines” (id. at p. 8). For the reasons set forth below, the undersigned concludes
that Mr. McDuffie’s arguments regarding “cause” are inadequate and must fail.
As to Mr. McDuffie’s stated inability to secure counsel within the specified time frame,
the Sixth Circuit has held that “pro se status before the Ohio Supreme Court is insufficient to
establish cause to excuse . . . procedural default.” Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.
2004); see also Canales v. Gray, No. 5:18CV1857, 2021 WL 3056317, at *2 (N.D. Ohio July 20,

2021) (“[A] petitioner’s pro se status and limited access to the prison law library are insufficient
to establish cause to excuse procedural default.”) (citing Bonilla, 370 F.3d at 498). And as to
Mr. McDuffie’s asserted lack of financial and legal resources, the Sixth Circuit has similarly held
that “ignorance of the law and procedural requirements,” such as legal filing deadlines, “is
insufficient to establish cause to excuse . . . procedural default.” Bonilla, 370 F.3d at 498.
As to the unspecified impact of the “unprecedented global pandemic” on Mr. McDuffie’s
ability to comply with state procedural rules, courts have consistently held that “bare bone
assertions” regarding the pandemic, without “specific details as to how the COVID-19
pandemic” caused the procedural default, are insufficient to excuse default. Black v. Warden,
Pickaway Corr. Inst., No. 2:22-CV-3087, 2023 WL 8811032, at *19 (S.D. Ohio Dec. 20, 2023)
(emphasis in original) (citing cases), report and recommendation adopted, No. 2:22-CV-3087,
2024 WL 1735073 (S.D. Ohio Apr. 23, 2024); see, e.g., Kincaid v. Campbell, No. 2:21-CV-
10574, 2024 WL 1054525, at *5 (E.D. Mich. Mar. 11, 2024) (recognizing that the “pandemic

itself is extraordinary,” but finding that the petitioner failed “to explain with specificity” how the
pandemic impeded his ability to prepare and timely file the required application); Holt v. Mays,
No. 121CV01168JDBJAY, 2023 WL 2416395, at *4 (W.D. Tenn. Feb. 13, 2023),
reconsideration denied, No. 121CV01168JDBJAY, 2023 WL 2411024 (W.D. Tenn. Mar. 8,
2023) (finding petitioner’s “bald assertion that the pandemic precluded him from exhausting . . .
insufficient in the absence of specific factual support,” and he had therefore “failed to show
cause and prejudice to excuse the defaults”); see also Scott, 2022 WL 1186184, at *9 (finding
COVID-19 did not constitute cause to excuse petitioner’s procedural default).7
Mr. McDuffie’s arguments regarding the impact of the pandemic on his ability to meet
procedural requirements are limited to generalized assertions that there was “an unprecedented

global crisis, which significantly impacted incarcerated individuals” and that he “made the best
efforts he could as an indigent, incarcerated individual laboring in unfamiliar waters during a
global pandemic, but was unable to actually file a memorandum in support of his positions
seeking jurisdiction.” (ECF Doc. 9, pp. 6-7.) These bare bones assertions lack specific factual
support, and are insufficient to establish cause to excuse his default. Accordingly, the
undersigned finds that Mr. McDuffie has failed to establish sufficient cause to excuse his
procedural default. Since Petitioner has failed to demonstrate the requisite “cause” to excuse his

7 Courts have also held that “[l]ockdowns, segregation, and limited law library access are normal aspects of prison
life,” Kincaid, 2024 WL 1054525, at *4 (citing cases), so that “general claims about prison Covid cases and
associated lockdowns and quarantines with limited law library access do not establish cause to excuse . . . default,”
id. at *5 (citing cases).
procedural default it is not necessary to consider the issue of “prejudice.” Engle v. Isaac, 456
U.S. 107, 134, n. 43 (1982).
3. Whether Procedural Default Should Be Excused Because There Will Be a
Fundamental Miscarriage of Justice if His Claims Are Not Considered

Even if he cannot establish “cause” and “prejudice” to excuse his procedural default, Mr.
McDuffie argues that his procedural default should be excused because a fundamental
miscarriage of justice would result if his claims are not heard on the merits, explaining:
allowing these factors [lack of financial and legal resources along with the
unprecedented global pandemic] to preclude federal review would result in a
fundamental miscarriage of justice. Mr. McDuffie has consistently raised two
legitimate claims. This was not an instance of an intentional attempt to bypass
Ohio’s review system in favor of the federal system. Rather, factors outside of Mr.
McDuffie’s control combined to frustrate his ability to seek redress in the Ohio
Supreme Court. But for those circumstances which were, in part, extraordinary,
Mr. McDuffie would not face a bar and, as such, has sufficient cause to excuse any
possible default that would otherwise result in dismissal.

(ECF Doc. 9, p. 8.)
A procedural default can be excused if a petitioner shows there will be a “fundamental
miscarriage of justice” if his claims are not considered. See Coleman, 501 U.S. at 750. “A
fundamental miscarriage of justice results from the conviction of one who is ‘actually innocent.’”
Lundgren, 440 F.3d at 764 (quoting Murray, 477 U.S. at 496). For an actual innocence claim to
be credible, a petitioner must “support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995). He must further “show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.” Id. at 327. This is intended to permit
petitioners with “truly extraordinary” cases a “meaningful avenue by which to avoid a manifest
injustice.” Id. (internal quotations omitted). Notably, “‘actual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Mr. McDuffie asserts there will be a fundamental miscarriage of justice if his claims are
not heard (ECF Doc. 9, p. 8) and states in a conclusory fashion that “[t]he dread that an innocent

person’s life may be forfeited due to an unfair proceeding has historically been recognized as one
that makes the issuance of a writ of habeas corpus felicitous” (ECF Doc. 9, p. 19). However, he
does not assert his actual innocence, and has not supported “his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial,” Schlup, 513
U.S. at 324, or shown that “it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence,” id. at 327.
The undersigned finds Mr. McDuffie’s general assertions that a fundamental miscarriage
of justice will occur if his claims are not considered do not satisfy his burden to show that his
procedural default should be excused due to a finding of “actual innocence.” See Schlup, 513

U.S. at 322 (“To ensure that the fundamental miscarriage of justice exception would remain
‘rare’ and would only be applied in the ‘extraordinary case,’ while at the same time ensuring that
the exception would extend relief to those who were truly deserving, [the] [Supreme] Court [has]
explicitly tied the miscarriage of justice exception to the petitioner’s innocence.”)
For the reasons set forth above, the undersigned finds the claims in Ground One and
Ground Two were procedurally defaulted, and that Mr. McDuffie has not met his burden to show
cause and prejudice or a fundamental miscarriage of justice to excuse that default. Accordingly,
the undersigned recommends that the Court DISMISS Ground One and Ground Two with
prejudice.8
IV. Recommendation
For the reasons stated herein, the undersigned recommends that the Court DISMISS the

Petition with prejudice on the basis of procedural default.

October 22, 2024

/s/ Amanda M. Knapp
AMANDA M. KNAPP
UNITED STATES MAGISTRATE JUDGE

OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of
Courts within fourteen (14) days after being served with a copy of this document. Failure to file
objections within the specified time may forfeit the right to appeal the District Court’s order. See
Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019); see also Thomas v. Arn, 474 U.S. 140, 106
S. Ct. 466, 88 L. Ed. 2d 435 (1985).

8 In light of Mr. McDuffie’s procedural default of Grounds One and Two, it is unnecessary to consider Respondent’s
alternative arguments for denial of Grounds One and Two on the merits.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664763. Public record. Not legal advice.