# Monaco v. Forshey

> District Court, N.D. Ohio · February 4, 2025

URL: https://www.frixlaw.com/law-library/cases/10793864

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** February 4, 2025
- **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/10793864

## How later opinions describe it (automated extraction)

- finding unless the state prisoner can satisfy the cause and prejudice standard for the procedurally defaulted ineffective assistance of counsel claim, that claim cannot serve as cause for another procedurally defaulted claim
- holding that a district court's transportation order permitting a prisoner to obtain neurological testing in search of new evidence to support his habeas petition was not authorized under the All Writs Act or § 2254(e)(2

## Opinion text

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

JASON DAVID MONACO, ) CASE NO. 5:24-CV-01271-CAB
)
Plaintiff, )
) JUDGE CHRISTOPHER A. BOYKO
vs. ) UNITED STATES DISTRICT JUDGE
)
WARDEN JAY FORSHEY, ) MAGISTRATE JUDGE
) JONATHAN D. GREENBERG
Defendant. )
) REPORT & RECOMMENDATION,
) ORDER (DOC. NO. 21)

Table of Contents
I.  Summary of Facts .................................................................................................................2
II.  Procedural History ................................................................................................................4
III. Exhaustion and Procedural Default ....................................................................................15
IV.  Review on the Merits ..........................................................................................................46
V. Second Motion for Discovery .............................................................................................62
VI.  Conclusion ..........................................................................................................................66
This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the
Petition of Jason David Monaco (“Monaco” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to
28 U.S.C. § 2254. Monaco is in the custody of the Ohio Department of Rehabilitation and Correction
pursuant to journal entry of sentence in the case State v. Monaco, Tuscarawas County Court of Common
Pleas Case No. 2020CR080318. For the following reasons, the undersigned recommends that the Petition
be DENIED. Also before the Court is the pending Second Motion to Conduct Discovery (Doc. No. 21),
which the Court DENIES.
I. Summary of Facts
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state

court, factual determinations made by state courts are presumed correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir.
2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the
facts underlying Monaco’s conviction as follows:

{¶2} On August 14, 2020, Appellant was indicted for three counts of Gross
Sexual Imposition in violation of R.C. 2907.05, three counts of Sexual
Imposition in violation of R.C. 2907.06, one count of Kidnapping in violation
of R.C. 2905.01, one count of Rape in violation of R.C. 2907.02, one count of
Attempted Rape in violation of R.C. 2923.02 and 2907.02, four counts of
Disseminating Matter Harmful to Juveniles in violation of R.C. 2907.31, and
two counts of Pandering Obscenity Involving a Minor or Impaired Person in
violation of R.C.2907.321.
{¶3} On August 20, 2020, Appellant appeared with counsel and entered a plea
of not guilty.
{¶4} On October 21, 2020, Appellant appeared, again with counsel, to change
his plea from not guilty on the indictment to guilty. Appellant filled out a signed
Crim.R. 11 Change of Plea Form. The Form, in pertinent part, stated:
1) I have had the opportunity to discuss these matters with my attorney;
2) That I have confidence in my attorney, and accept his representation of
me in this matter;
3) That I have not been coerced or required to plead guilty, and that no
promises have been made to me by the Prosecuting Attorney, or anyone
representing the State of Ohio; EXCEPT that:
AGREED, that in exchange for pleading Guilty to the indictment, the State
will recommend that on Count Seven, this Court will impose upon the
Defendant an indefinite life sentence with no parole eligibility until he has
served 15 years; and that all other terms of remaining counts be served
concurrent to Count Seven for an aggregate prison term of 15 to life.
* * *
I have not been forced or threatened in any way to cause me to sign and
offer this plea. I offer this plea knowingly, intelligently and voluntarily. I
have consulted with my attorney and have his advice and consent. I am
satisfied with the legal representation and advice I received from my
attorney.
{¶5} At the change of plea hearing, Appellant’s counsel advised the court he
reviewed the Crim.R. 11 change of plea form with Appellant. Based on those
discussions, Appellant signed the form and entered a plea of guilty to the
indictment.
{¶6} During the colloquy the trial court reviewed the Crim.R. 11 change of plea
form with Appellant. Appellant acknowledged he signed the Crim.R. 11 form.
The trial court reviewed the charges in the indictment, the penalty agreed to for
a guilty plea, and asked if Appellant had any questions about the charges and
sentence. The trial court also advised Appellant of the Constitutional rights he
was waiving. Appellant acknowledged that he had no questions on the charges
or sentence. He said he understood the charges and still wanted to plead guilty.
After being fully advised of his rights, the charges against him, and the penalties
associated with those charges, Appellant entered a plea of guilty.
{¶7} Prior to sentencing, Appellee provided the trial court with a summary of
the facts of the case. Appellant had a close relationship with the victim and
began molesting her at an early age. Appellant filmed the victim without her
knowledge while she showered and engaged in sexual displays while in her
presence. Appellant digitally penetrated the victim’s vagina and made the
victim touch his penis. Appellant locked victim in the basement when she was
six years old and would not let the victim out until she engaged in sexual
conduct with him.
{¶8} At age 13, Appellant forcibly held down the victim and attempted vaginal
intercourse with victim, but was interrupted when someone else entered the
room. Throughout this time, Appellant showed the victim adult and child
pornography. Appellant used a webcam to record himself sexually abusing the
victim while simultaneously watching a video of another adult abusing a child.
A search of Appellant’s devices revealed a plethora of child pornography.
{¶9} Appellant’s counsel indicated that Appellant acknowledged his behavior
and would like as much mental health assistance as possible.
{¶10} The trial court sentenced Appellant as follows: Counts 5 and 6 merge
with Counts 3 and 4 for the purposes of sentencing. Count 1, 60 months in
prison; Count 2, 60 months in prison, Count 3, 18 months in prison; Count 4,
18 months in prison; Count 7, mandatory 15 years to life in prison; Count 8,
mandatory 10 years to life in prison; Count 9, 8 years in prison; Count 10, 18
months in prison; Count 11, 12 months in prison; Count 12, 18 months in
prison; Count 13, 180 days in prison; Count 14, 8 years in prison; and Count
15, 8 years in prison. The sentences were ordered to be served concurrently for
an aggregate sentence of 15 years to life.
{¶11} Appellant did not file an appeal from his conviction or sentence. Instead,
on October 29, 2020, Appellant filed a pro se motion to change his plea to not
guilty and appoint new counsel. Appellant alleged he was under duress and not
of sound mind due to extreme depression and anxiety when he signed his
acknowledgment. He also alleged that he did not understand the evidence
against him as his attorney did not go through the discovery documents with
him. Appellant stated he was not guilty of the accusations.
{¶12} On November 30, 2020, the trial court held a hearing on the pro se request
for Appellant to withdrawal [sic] his guilty plea. At the hearing, Appellant
stated on the date of the plea and sentencing he was very shaken. He
acknowledged that he discussed with counsel his plea, the rights he was
waiving, and penalties he would be facing. Appellant stated he did not review
the discovery provided by Appellee with his attorney. He stated he was
suffering from anxiety and depression but was not under the influence of drugs
or alcohol the day of sentencing. Appellant did not submit a professional report
to substantiate his claim of suffering from depression, anxiety, or any other
mental health condition likely to impair his ability to voluntarily, intelligently,
and knowingly enter a plea of guilty. Appellant acknowledged he reviewed the
evidence extracted from his electronic devices, that he knew the plea offer was
for fifteen years to life, and thought he should not have plead guilty because it
wasn’t a fair deal.
{¶13} The trial court overruled Appellant’s motion to withdrawal [sic] his post-
sentence guilty plea.
State v. Monaco, 2021-Ohio-3888, 2021 WL 5049059, at **1-2 (Ohio Ct. App. Oct. 29, 2021).
II. Procedural History
A. Trial Court Proceedings
On August 14, 2020, the Tuscarawas County Grand Jury indicted Monaco on the following charges:
two counts of gross sexual imposition, in violation of O.R.C. §§ 2907.05(A)(4), 2907.05(C)(2) (Counts One
and Two); two counts of gross sexual imposition, in violation of O.R.C. §§ 2907.05(A)(1), 2907.05(C)(1)
(Counts Three and Four); two counts of sexual imposition, in violation of O.R.C. §§ 2907.06(A)(4),
2907.06(C) (Counts Five and Six); one count of kidnapping, in violation of O.R.C. §§ 2905.01(A)(4),
2905.01(C)(3) (Count Seven); one count of rape, in violation of O.R.C. §§ 2907.02(A)(1)(b), 2907.02(B)
(Count Eight); one count of attempted rape, in violation of O.R.C. §§ 2923.02, 2907.02(A)(2), 2907.02(B)
(Count Nine); one count of disseminating matter harmful to juveniles, in violation of O.R.C. §§

2907.31(A)(1), 2907.31(F) (Count Ten); one count of disseminating matter harmful to juveniles, in violation
of O.R.C. §§ 2907.31(A)(1), 2907.31(F) (Count Eleven); one count of disseminating matter harmful to
juveniles, in violation of O.R.C. §§ 2907.31(A)(3), 2907.31(F) (Count Twelve); one count of disseminating
matter harmful to juveniles, in violation of O.R.C. §§ 2907.31(A)(3), 2907.31(F) (Count Thirteen); and two
counts of pandering obscenity involving a minor or impaired person, in violation of O.R.C. §§
2907.321(A)(1), 2907.321(C) (Counts Fourteen and Fifteen). (Doc. No. 19-1, Ex. 1.)
Monaco entered pleas of not guilty to all charges. (Doc. No. 19-1, Ex. 2-3.)
On October 21, 2020, the trial court held a change of plea and sentencing. (Doc. No. 19-1, Ex. 4.)
Monaco entered a plea of guilty to the indictment. (Id.) The State presented to the court that Counts Three,

Four, Five, and Six were allied offenses of similar import. (Id.) The State chose to proceed on Counts Three
and Four for purposes of sentencing. (Id.) Monaco made a brief statement on his behalf. (Id.) The trial
court sentenced Monaco to serve sixty months in prison on Count One, sixty months on Count Two, eighteen
months on Count Three, eighteen months on Count Four, a mandatory indefinite term of fifteen years to life
on Count Seven, a mandatory indefinite term of ten years to life on Count Eight, eight years on Count Nine,
eighteen months on Count Ten, twelve months on Count Eleven, eighteen months on Count Twelve, one
hundred eighty days on Count Thirteen, eight years on Count Fourteen, and eight years on Count Fifteen.
(Id.) The trial court ordered the sentences be served concurrently, for an aggregate sentence of fifteen years
to life. (Id.)

B. Motion for Change of Plea
On October 29, 2020, the trial court received a letter from Monaco dated October 24, 2020. (Doc.
No. 19-1, Ex. 5, PageID# 168.) In this letter, Monaco moved to change his plea to not guilty and for the
appointment of new counsel. (Id.) As grounds, Monaco asserted he “was under duress due to [his] extreme
depression and anxiety when [he] signed the Acknowledgment and was not of sound mind” and he “was not
aware of the details/evidence read by the Prosecutor after [he] signed the paper.” (Id.) Monaco stated that

his attorney “never went over the discovery documents” with him before “convincing” Monaco to plead
guilty. (Id.) Monaco told the court he was “not guilty of the accusations.” (Id.)
In an order dated November 2, 2020, the trial court construed the letter as a Motion for Change of
Plea to Not Guilty, directed the letter be docketed and served on counsel, and set the matter for a hearing on
November 30, 2020. (Doc. No. 19-1, Ex. 5, at PageID# 166-67.)
On November 30, 2020, the trial court held a hearing on the Motion for Change of Plea to Not Guilty.
(Doc. No. 19-2 at PageID# 680, 682.) On December 23, 2020, the trial court denied Monaco’s Motion for
Change of Plea to Not Guilty, finding Monaco failed to present evidence of a manifest injustice to support
withdrawal of his guilty plea. (Doc. No. 19-1, Ex. 6.)

C. Direct Appeal
On January 5, 2021, Monaco, pro se, filed a motion for leave to file a delayed appeal with the Fifth
District Court of Appeals and a notice of appeal. (Doc. No. 19-1, Ex. 7-8.) On February 22, 2021, the state
appellate court granted Monaco’s motion for leave to file a delayed appeal. (Doc. No. 19-1, Ex. 9.) The
trial court granted Monaco’s motion for appointment of counsel and appointed counsel to represent Monaco
for his appeal. (Doc. No. 19-1, Ex. 10.) In his appellate brief, Monaco raised the following assignment of
error:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO WITHDRAW PLEA.
(Doc. No. 19-1, Ex. 11.) The State filed a brief in response. (Doc. No. 19-1, Ex. 12.)
On October 29, 2021, the state appellate court affirmed Monaco’s convictions. (Doc. No. 19-1, Ex.
13.) See also State v. Monaco, 2021-Ohio-3888, 2021 WL 5049059.
On January 4, 2022, Monaco, proceeding pro se, filed an untimely Notice of Appeal and motion for
delayed appeal, along with an affidavit in support, with the Supreme Court of Ohio. (Doc. No. 19-1, Ex.
14-15.) The Supreme Court of Ohio granted Monaco’s motion for leave to file a delayed appeal. (Doc. No.

19-1, Ex. 16.) In his Memorandum in Support of Jurisdiction, Monaco raised the following Propositions of
Law:
I. Trial shall be mandated in sex cases involving hearsay as the only evidence.
II. Any case involving multiple first and second degree felonies must have an
evidentiary hearing before any bargaining can take place.
(Doc. No. 19-1, Ex. 17.) The State filed a response in opposition. (Doc. No. 19-1, Ex. 18.)
On May 10, 2022, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant
to S.Ct. Prac.R. 7.08(B)(4). (Doc. No. 19-1, Ex. 19.)
On May 17, 2022, Monaco filed a motion for reconsideration. (Doc. No. 19-1, Ex. 20.)
On July 19, 2022, the Ohio Supreme Court denied Monaco’s motion for reconsideration. (Doc. No.
19-1, Ex. 21.)
C. Post-Conviction Filings
On November 18, 2021, Monaco, through counsel, filed a Petition to Vacate and Set Aside Sentence.

(“PCR Petition”) (Doc. No. 19-1, Ex. 22.) Monaco argued that his convictions were “void or voidable
because he was denied the effective assistance of counsel, in violation of the United States Constitution and
the Ohio Constitution.” (Id. at PageID# 291.) Monaco asserted that counsel did not meet with him timely
and did not review discovery with him. (Id. at PageID# 291-92.) In addition, Monaco averred that he had
a mental health breakdown and was placed on suicide watch in September 2020. (Id. at PageID# 292.)
Monaco argued that when he entered his guilty plea, he had not seen any discovery, he was unaware of the
evidence against him, and he chose to enter the plea because he feared his attorney was unprepared for trial.
(Id.) Monaco asserted that, as a result, his guilty plea in October 2020 “was not done with an understanding
of what he was doing.” (Id.) Monaco maintained that “[h]e knew that he was innocent of the charges against
him but felt that he was on his own because of the actions of counsel and his failure to represent him.” (Id.
at PageID# 293.) In addition, Monaco argued that at the time his trial counsel was representing him, trial

counsel “was being investigated by the Board of Professional Conduct for ethical violations.” (Id.) As
exhibits to his Petition, Monaco attached newspaper articles and a recommendation by the Board of
Professional Conduct of the Ohio Supreme Court regarding his trial attorney’s sexual relationship with a
divorce client in an unrelated case. (Id. at PageID# 304-45.)
On December 2, 2021, the trial court denied Monaco’s PCR Petition. (Doc. No. 19-1, Ex. 23.)
On December 28, 2021, Monaco, through counsel, filed a notice of appeal with the Fifth District
Court of Appeals. (Doc. No. 19-1, Ex. 24.) In his brief, Monaco raised the following two assignments of
error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
PETITIONER-APPELLANT MONACO’S TIMELY FILED PETITION FOR
POSTCONVICTION RELIEF PURSUANT TO O.R.C. 2953.21 WITHOUT
ISSUING FINDINGS OF FACT AND CONCLUSIONS OF LAW.
II. THE TRIAL COURT ERRED IN DENYING PETITIONER-APPELLANT
MONACO’S POST-CONVICTION RELIEF PETITION WHERE HE
PRESENTED SUFFICIENT EVIDENCE DEHORS THE RECORD TO
MERIT AN EVIDENTIARY HEARING.
(Doc. No. 19-1, Ex. 25.) The State filed a motion for remand for findings of fact and conclusions of law.
(Doc. No. 19-1, Ex. 26.) On March 8, 2022, Monaco filed a motion for remand for hearing and findings of
fact and conclusions of law. (Doc. No. 19-1, Ex. 27.)
On March 18, 2022, the state appellate court issued a judgment entry stating that the “appellate rules
do not permit the parties to agree to reverse the trial court and do not permit a summary disposition of an
appeal in this manner. The motion is taken under advisement, and the panel will issue a decision while
conducting merit review of the case.” (Doc. No. 19-1, Ex. 28.)
On April 6, 2022, the State filed its appellee brief. (Doc. No. 19-1, Ex. 29.)
On July 5, 2022, the state appellate court issued an opinion and judgment entry sustaining Monaco’s
first assignment of error. (Doc. No. 19-1, Ex. 30.) The state appellate court reversed and remanded the case

to the trial court to make findings of fact and conclusions of law. (Id.)
On August 3, 2022, the State filed a response to Monaco’s Petition for Post-Conviction Relief. (Doc.
No. 19-1, Ex. 33.)
On August 11, 2022, Monaco filed a motion to allow him the opportunity to reply to the State’s
response in opposition (Doc. No. 19-1, Ex. 34), which the trial court granted. (Doc. No. 19-1, Ex. 35.) On
September 2, 2022, Monaco filed his reply. (Doc. No. 19-1, Ex. 36.)
On June 22, 2023, the trial court issued a judgment entry that included findings of fact and
conclusions of law in compliance with the remand from the state appellate court. (Doc. No. 19-1, Ex. 37.)
The trial court found: (1) Monaco failed to meet his burden of proof as there was “no credible evidence”

showing Monaco was denied the effective assistance of counsel; (2) Monaco failed to present “any credible
evidence to suggest that the defects complained of caused his plea to be less than knowingly, intelligently,
and voluntarily made”; (3) Monaco’s “claim that his plea was involuntary because he was of unsound mind
is barred by the doctrine of res judicata and not supported by the evidence”; and (4) the court lacked the
authority to grant Monaco’s request for discovery. (Id. at PageID# 507.) The trial court dismissed Monaco’s
PCR Petition without a hearing. (Id.)
On July 20, 2023, Monaco, through counsel, filed a timely notice of appeal with the Fifth District
Court of Appeals. (Doc. No. 19-1, Ex. 38.) In his appellate brief, Monaco raised the following two
assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE TRIAL
COURT DENIED PETITIONER-APPELLANT MONACO’S TIMELY
FILED PETITION FOR POSTCONVICTION RELIEF PURSUANT TO
O.R.C. 2953.21 BY FINDING THAT IT WAS BARRED BY THE
DOCTRINE OF RES JUDICATA.
II. THE TRIAL COURT ERRED IN DENYING PETITIONER-APPELLANT
MONACO’S POSTCONVICTION RELIEF PETITION WHERE HE
PRESENTED SUFFICIENT EVIDENCE DEHORS THE RECORD TO
MERIT AN EVIDENTIARY HEARING.
(Doc. No. 19-1, Ex. 39.) The State filed a brief in response. (Doc. No. 19-1, Ex. 40.)
On February 13, 2024, the state appellate court affirmed the trial court’s dismissal of Monaco’s PCR
Petition. (Doc. No. 19-1, Ex. 41.)
On March 28, 2024, Monaco, through counsel, filed a notice of appeal with the Supreme Court of
Ohio. (Doc. No. 19-1, Ex. 42.) In his memorandum in support of jurisdiction, Monaco raised the following
proposition of law:
I. THE TRIAL COURT ERRED WHEN IT FOUND THAT RES JUDICATA
APPLIED TO AN UNDERLYING CLAIM OF INEFFECTIVE
ASSISTANCE, AND IN SO FINDING DETERMINED THAT APPELLANT
WAS NOT ENTITLED TO A HEARING.
(Doc. No. 19-1, Ex. 43.)
On June 11, 2024, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to
S.Ct.Prac.R. 7.08(B)(4). (Doc. No. 19-1, Ex. 44.)
D. Application to Reopen Appeal under Ohio App. R. 26(B)
On December 13, 2021, Monaco filed a pro se Application to Reopen Appeal Pursuant to Ohio App.
R. 26(B). (Doc. No. 19-1, Ex. 31.) Monaco’s Application argued that appellate counsel was ineffective for
failing to raise the following arguments on direct appeal:
I. The Trial Court abused its discretion when it denied the Defendant his 5th
Amendment Right to Due Process when it failed to appoint new counsel upon
request.
II. The Trial Court erred when it failed to ensure that the defendants [sic] 6th
amendment right to be fully informed of the nature and cause of the accusations
were not infringed.
III. The Trial Court erred when it deprived the defendant of his 6th Amendment Right
to effective assistance of counsel.
IV. The Trial Court abused its discretion when it allowed prior defense counsel Kevin
Cox to continue to represent the defendant and committed overreach in doing so.
V. The Trial Court erred when it failed to prove that the defendants [sic] Ohio
Constitutional Rights in Art. I, § 10, Part 1 of 3 were not violated.
(Id. at PageID# 410.)
On January 13, 2022, the state appellate court overruled Monaco’s Application to Reopen, finding
Monaco had “failed to demonstrate appellate counsel’s performance fell below an objective standard of
reasonable representation” and “did not demonstrate he was prejudiced by appellate counsel’s representation
as required by Strickland and Bradley.” (Doc. No. 19-1, Ex. 32, PageID# 426-27.)
On February 23, 2022, Monaco, pro se, filed a timely notice of appeal with the Supreme Court of
Ohio. (Doc. No. 19-1, Ex. 32-A.) In his memorandum in support of jurisdiction, Monaco raised the
following propositions of law:
I. Appellate Counsel failed to argue; “The Trial Court abused its discretion when it
denied the Defendant his 5th Amendment Right to Due Process when it failed to
appoint new counsel upon request, a 6th Amendment Right.”
II. The Appellate Counsel failed to argue; “The Trial Court erred when it failed to
ensure that the defendants [sic] 6th Amendment Right to be fully informed of the
nature and cause of the accusations were not infringed.”
III. The Appellate Counsel failed to argue; “The Trial Court erred when it deprived the
defendant of his 6th Amendment Right to effective assistance of counsel.”
IV. The Appellate Counsel failed to argue; “The Trial Court abused its discretion when
it allowed prior defense counsel Kevin Cox to continue to represent the defendant
and committed overreach in doing so.”
V. The Appellate Counsel failed to argue; “The Trial Court erred when it failed to
prove that the defendants [sic] Ohio Constitutional Rights in Art. I, § 10, Part 1 of
3 were not violated.”
(Doc. No. 19-1, Ex. 32-B.)
On May 10, 2022, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to
S.Ct.Prac.R. 7.08(B)(4). (Doc. No. 19-1, Ex. 32-C.)
On May 17, 2022, Monaco filed a motion for reconsideration. (Doc. No. 19-1, Ex. 32-D).
On July 19, 2022, the Ohio Supreme Court denied Monaco’s motion for reconsideration. (Doc. No.

19-1, Ex. 32-E.)
E. Federal Habeas Petition
On July 1, 2024,1 Monaco filed a Petition for Writ of Habeas Corpus in this Court and asserted the
following grounds for relief:
GROUND ONE: Ineffective Assistance of Appellate Counsel in violation of the 6th
Amendment of the United States Constitution.
Supporting Facts: Failed to argue an obvious conflict of interest (Kevin Cox’s
representation during withdrawal of plea hearing); Failed to argue a direct denial of
counsel by the court (withdrawal of plea hearing); Failed to argue a complete
breakdown of attorney client relationship (Kevin Cox and Mr. Monaco);
Demonstrated constructive denial of counsel (failed to send requested and required
documents); Failed to properly investigate his clients [sic] case and act in his
client’s best interest; Overlooked an obviously coerced plea resulting in manifest
injustice.
GROUND TWO: Ineffective Assistance of Trial Counsel in Violation of the 6th
Amendment of the United States Constitution.
Supporting Facts: Used fear and intimidation to coerce plea; Conflict of interest;
A complete breakdown of attorney-client relationship; had multitudes of
exculpatory evidence he didn’t bother to investigate nor present including
character witnesses; Did not share discovery with client; Acted as an agent of the
State; Did not file a single motion; did not look into postponing trial due to his
clients [sic] mental state; Did not act in his clients [sic] best interest; Demonstrated
constructive denial of counsel; Told his client he had no choice but to plea and
used wife to coerce a plea; Utilized fabricated evidence to coerce plea; Told

1 Under the mailbox rule, the filing date for a pro se petition is the date that a petitioner delivers it to prison
authorities. See Houston v. Lack, 487 U.S. 266 (1988). While the Petition herein did not arrive at the Court
for filing until July 16, 2024, Monaco states that he placed it in the prison mailing system on July 1, 2024.
(Doc. No. 1 at 19.) Thus, the Court will consider the Petition as filed on July 1, 2024.
petitioner he was being railroaded and it was political for the Judge; lied to client;
Innocence.
GROUND THREE: Direct Denial of Due Process through Coercion of a Plea In
Violation of the 5th and 14th Amendments of the United States Constitution.
Supporting Facts: Fear and intimidation used to coerce plea; Plea was coerced
while defendant was in a mentally unstable position; Plea was coerced while
defendant was under the influence of a mind altering substance thereby impairing
his cognitive abilities; Plea was coerced with the use of fabricated evidence.
GROUND FOUR: Constructive Denial of Counsel in Violation of the 6th amendment of
the United States Constitution.
Supporting Facts: 1. Trial counsel acted as an agent of the state during
withdrawal hearing; 2. Did not interview, comment, nor object to any of the
deliberations and interogations [sic] of his client during the hour and a half
withdrawal of plea hearing until the end when he teamed up with prosecutor and
judge; Malicious prosecution; Argued for the state concerning the fabricated
evidence of files allegedly found on computer [breach of contract]. Operated under
conflict of interest as he was accused of ineffectiveness; Did not investigate clients
[sic] mental health status, did not subpoena medical records.
GROUND FIVE: Direct Denial of Counsel by the Trial Court in Violation of the 6th
Amendment of the United States Constitution.
Supporting Facts: First ¶ of handwritten motion to withdraw requests
appointment of counsel; Counsel of choice not given under a direct conflict of
interest that is shown in the record; A complete breakdown of attorney client
relationship which is clear and apparent in the transcript from hearing; Petitioner
filed on his own three days after plea when he could calm down, clearly severing
ties with his paid attorney; was appointed David Blackwell prior to Kevin Cox, of
whom wife picked and hired Kevin.
GROUND SIX: Denial of 6th Amendment Right to a Fair Trial of the United States
Constitution.
Supporting Facts: Hereby incorporating previous claims 1 through 5; Judicial
bias - unachievable bond, biased assumptions stating “abuse took place over 10
years, bond will not be reduced” [All clear and present in the record]; coerced into
plea; not allowed to withdraw plea by same Judge; Bias shown in PCR, one page
denial that was reversed; bias shown in delayed findings; Judge was politically
motivated to prosecute case - rushed through in 75 days right before election with
her own husband on the ballot for other common pleas seat in conflict of interest.
(Doc. No. 1.)
On August 7, 2024, Monaco filed a motion for appointment of counsel. (Doc. No. 5.)
On August 29, 2024, Monaco sought leave to file a legal memorandum in support of his claims.
(Doc. No. 8.)
On September 5, 2024, the Court granted Monaco leave to file a legal memorandum in support of
his claims that did not exceed ten pages. (Non-document Order dated September 5, 2024.)
On September 10, 2024, Monaco filed a motion for leave of Court to conduct discovery. (Doc. No.

10.)
On September 25, 2024, Warden Jay Forshey (“Respondent”) filed a response in opposition to
Monaco’s motion to conduct discovery. (Doc. No. 11.)
On October 1, 2024, Monaco filed his legal memorandum in support of his claims. (Doc. No. 12.)
On October 4, 2024, Respondent sought an extension of time to file the Return of Writ (Doc. No.
13), which the Court granted. (Non-document Order dated October 4, 2024.)
On October 8, 2024, Monaco filed his reply in support of his motion for leave to conduct discovery.
(Doc No. 14.)
On October 30, 2024, the Court denied Monaco’s motion for appointment of counsel and motion to

proceed in forma pauperis. (Doc. Nos. 16-17.)
That same day, the Court denied Monaco’s motion for leave to conduct discovery. (Doc. No. 18.)
On November 7, 2024, Respondent filed the Return of Writ. (Doc. No. 19.)
On November 26, 2024, Monaco sought an extension of time to file his Traverse (Doc. No. 20),
which the Court granted. (Non-document Order dated November 26, 2024.)
On December 17, 2024, Monaco filed his second motion for leave of Court to conduct discovery.
(Doc. No. 21.)
On December 24, 2024, Respondent filed a response in opposition to Monaco’s second motion for
leave of Court to conduct discovery. (Doc. No. 22.)
On January 2, 2025, Monaco filed his Traverse. (Doc. No. 23.)
On January 6, 2025, Monaco filed his reply in support of his second motion for leave of Court to
conduct discovery. (Doc. No. 24.)
III. Exhaustion and Procedural Default

A. Legal Standard
Petitioners must exhaust their state remedies prior to raising claims in federal habeas corpus
proceedings. See 28 U.S.C. § 2254(b), (c). This requirement is satisfied “when the highest court in the state
in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s
claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990).
Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner
demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim
would result in a fundamental miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.

2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A claim may
become procedurally defaulted in two ways. Id. First, a petitioner may procedurally default a claim by
failing to comply with state procedural rules in presenting his claim to the appropriate state court. Id.; see
also Maupin v. Smith, 785F.2d 135, 138 (6th Cir. 1986). If, due to 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.2 Id.

2 In Maupin, the Sixth Circuit established a four-step analysis to determine whether a claim is procedurally
defaulted. 785 F.2d at 135. Under this test, the Court decides (1) whether the petitioner failed to comply
with an applicable state procedural rule, (2) whether the state courts actually enforced the state procedural
sanction, (3) whether the state procedural bar is an “independent and adequate” state ground on which the
state can foreclose federal review, and (4) whether the petitioner has demonstrated “cause” and “prejudice.”
Id. at 138–39; Barkley v. Konteh, 240 F. Supp.2d 708 (N.D. Ohio 2002). “In determining whether a state
court actually enforced a procedural rule, we apply the ‘plain statement’ rule of Michigan v. Long, 463 U.S.
1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).” Lovins v. Parker, 712 F.3d 283, 296 (6th Cir. 2013) (“a
procedural default does not bar consideration of a federal claim on either direct or habeas review unless the
Second, a petitioner may also procedurally default a claim by failing to raise and pursue that claim
through the state’s “ordinary appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). If, at the time of the federal habeas petition, state law no longer allows
the petitioner to raise the claim, it is procedurally defaulted. Engle v. Isaac, 456 U.S. 107, 125 n.28, 102

S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731–32, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991); Lovins, 712 F.3d 283, 295 (6th Cir. 2013) (“a claim is procedurally defaulted where
the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the
federal petition is filed because of a state procedural rule.”) This second type of procedural default is often
confused with exhaustion. Exhaustion and procedural default, however, are distinct concepts. AEDPA’s
exhaustion requirement only “refers to remedies still available at the time of the federal petition.” Engle,
456 U.S. at 125 n.28. Where state court remedies are no longer available to a petitioner because he failed
to use them within the required time period, procedural default and not exhaustion bars federal court review.
Id. In Ohio, a petitioner is not entitled to raise claims in post-conviction proceedings where those claims

could have been raised on direct appeal. Id. Thus, if an Ohio petitioner failed to raise a claim on direct
appeal, which could have been raised, the claim is procedurally defaulted. Id.
A claim is adequately raised on direct appeal if it was “fairly presented” to the state court. To fairly
present a claim to a state court a petitioner must assert both the legal and factual basis for his claim. See
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a “petitioner must present his claim
to the state courts as a federal constitutional issue-not merely as an issue arising under state law.” Koontz
v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A petitioner can take four actions in his brief which are
significant to the determination as to whether a claim has been fairly presented as a federal constitutional

last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on the
procedural bar.”) (citations omitted).
claim: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases
employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the
mainstream of constitutional law. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

A petitioner’s procedural default, however, may be excused upon a showing of “cause” for the
procedural default and “actual prejudice” from the alleged error. See Maupin, 785 F.2d at 138–39.
“Demonstrating cause requires showing that an ‘objective factor external to the defense impeded counsel’s
efforts to comply’ with the state procedural rule.” Franklin v. Anderson, 434 F.3d 412, 417 (6th Cir. 2006)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Meanwhile, “[d]emonstrating prejudice requires
showing that the trial was infected with constitutional error.” Id. Where there is strong evidence of a
petitioner’s guilt and the evidence supporting petitioner’s claim is weak, the actual prejudice requirement is
not satisfied. See United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Perkins
v. LeCureux, 58 F.3d 214, 219–20 (6th Cir. 1995); Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994).

Prejudice does not occur unless petitioner demonstrates “a reasonable probability” that the outcome of the
trial would have been different. See Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003) (citing Strickler
v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
Finally, a petitioner’s procedural default may also be excused where a petitioner is actually innocent
in order to prevent a “manifest injustice.” See Coleman v. Thompson, 501 U.S.722, 749–50, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991). Conclusory statements are not enough—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, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). See also Allen v. Harry, 497 F. App’x 473, 480 (6th Cir.

2012).
B. Application to Petitioner
1. Ground One
In Ground One, Monaco argues ineffective assistance of appellate counsel based on the following:
(1) failure to argue an obvious conflict of interest (trial counsel’s representation during withdrawal of plea

hearing); (2) failure to argue a direct denial of counsel by the court (withdrawal of plea hearing); (3) failure
to argue a complete breakdown of attorney client relationship (trial counsel and Monaco); (4) demonstrated
constructive denial of counsel (failed to send requested and required documents); (5) failure to properly
investigate his client’s case and act in his client’s best interest; and (6) overlooked an obviously coerced
plea resulting in manifest injustice. (Doc. No. 1 at 5.)
Respondent argues that Monaco fairly presented Ground One to the state courts. (Doc. No. 19 at
16.)
“In Ohio, claims of ineffective assistance of appellate counsel are not cognizable in the normal
course of post-conviction proceedings, and must be raised through an application to reopen the direct appeal
pursuant to Ohio Rule of Appellate Procedure 26(B).” Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012).

While Monaco filed a 26(B) Application, he argued appellate counsel was ineffective for failing to raise
five assignments of trial court error on direct appeal, in addition to failing to request “an evidentiary
hearing allowing subpoena of medical records from the Jail,” failing to request an oral hearing in Monaco’s
defense, and failing to correct “several misstated facts” in reply to the State’s appellate brief. (Doc. No. 19-
1, Ex. 31, at PageID# 411-15.) The Sixth Circuit has held “‘that the doctrine of exhaustion requires that a
claim be presented to the state courts under the same theory in which it is later presented in federal court.’”
Williams v. Bagley, 380 F.3d 932, 969 (6th Cir. 2004) (quoting Wong v. Money, 142 F.3d 313, 322 (6th
Cir.1998)). Relatedness of the issues between a claim presented to the state courts and one not presented to
the state courts will not save the unpresented claim. Lott v. Coyle, 261 F.3d 594, 607 (6th Cir. 2001).
Reading Monaco’s pro se filings broadly, the Court finds Monaco fairly presented the following
claims to the state courts: (1) failure to argue a direct denial of counsel by the court and (2) failure to properly
investigate his client’s case and act in his client’s best interest. Monaco’s other claims of ineffective
assistance of appellate counsel are procedurally defaulted.
a. Cause and Prejudice

Monaco may nevertheless obtain a merits review of the procedurally defaulted claims if he can
demonstrate cause for the default and prejudice resulting therefrom, or that failure to review the claim would
result in a fundamental miscarriage of justice. See Lundgren, 440 F.3d at 763.
As Respondent failed to argue Ground One was procedurally defaulted, Monaco raises no argument
regarding cause and prejudice. The Court’s review of the record reveals no basis for cause. The Court notes
a petitioner’s pro se status or lack of legal training is insufficient to establish cause to excuse the procedural
default of his ineffective assistance of counsel claims. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004).
As Monaco fails to show cause, the Court need not consider the prejudice prong. Smith v. Murray,
477 U.S. 527, 533–34 (1986).

b. Actual Innocence
Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages
of justice, the United States Supreme Court has recognized a narrow exception to the cause requirement
where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent”
of the substantive offense. Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (citing
Carrier, 477 U.S. at 495–96); see also Schlup, 513 U.S. at 327 (1995). Actual innocence means “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623–24, 118 S.Ct. 1604,
140 L.Ed.2d 828 (1998). To be credible, such a claim requires the petitioner to support his allegations of
constitutional error with new and reliable evidence that was not presented at trial. Schlup, 513 U.S. at 324;
see also Gulertekin v. Tinnelman–Cooper, 340 F.3d 415, 427 (6th Cir. 2003). Absent new evidence of
innocence, “even the existence of a concededly meritorious constitutional violation is not in itself sufficient
to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.”
Schlup, 513 U.S. at 316.
Here, Monaco does not identify any new, reliable evidence of his actual innocence.3 The Court finds

Monaco has not demonstrated he is entitled to the actual innocence exception.
2. Ground Two
In Ground Two, Monaco argues he received ineffective assistance of trial counsel on the following
grounds: (1) counsel used fear and intimidation to coerce a plea; (2) conflict of interest; (3) a complete
breakdown of the attorney-client relationship; (4) counsel had multitudes of exculpatory evidence that
counsel failed to investigate or present, including character witnesses; (5) counsel did not share discovery
with Monaco; (6) counsel acted as an agent of the State; (7) counsel did not file a single motion; (8) counsel
did not look into postponing the trial due to Monaco’s mental state; (9) counsel did not act in Monaco’s best
interest; (10) constructive denial of counsel; (11) counsel told Monaco he had no choice but to plead and

used Monaco’s wife to coerce a plea; (12) counsel utilized fabricated evidence to coerce a plea; (13) counsel
told Monaco he was being railroaded and the matter was political for the judge; (14) counsel lied to Monaco;

3 Furthermore, any such actual innocence claim is “‘seriously undermine[d]’ by his guilty plea.” Gay v.
State, No. 3:19-cv-00610, 2020 WL 1332405, at *3 (M.D. Tenn. Mar. 23, 2020) (quoting Smith v. Warden,
Case No. 7:17CV00072, 2018 WL 3130948, at *2 (W.D. Va. June 26, 2018)). “In United States v. Broce,
the Supreme Court of the United States held that by pleading guilty, ‘the accused is not simply stating that
[the accused] did the discrete acts described in the indictment; [the accused] is admitting guilt of a
substantive crime.’ 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).” Smith v. Warden, 2018
WL 3130948, at *2. While Monaco challenges the validity of his guilty plea, “[s]olemn declarations in
open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
(15) Monaco was innocent; and (16) counsel failed to defend Monaco at sentencing. (Doc. No. 1 at 7; Doc.
No. 12 at 6.)
Respondent argues that Monaco fairly presented the following claims of ineffective assistance of
trial counsel to the state courts: (1) coercion of a plea; (2) counsel failed to review discovery with Monaco;
and (3) counsel failed to act in Monaco’s best interest. (Doc. No. 19 at 17.) Respondent asserts that all

other subclaims presented in Ground Two are procedurally defaulted, and Monaco cannot show cause and
prejudice to excuse the default. (Id. at 17, 19-20.) Nor has Monaco presented new, reliable evidence to
support a claim of actual innocence. (Id. at 20-21.)
In his Traverse, Monaco argues that he fairly presented all of Ground Two’s subclaims to the state
courts. (Doc. No. 23 at 14.) Monaco asserts that regarding trial counsel’s conflict of interest and the
breakdown of the attorney-client relationship, the state appellate court’s rejection of Monaco’s 26(B)
Application “was a clear misapplication of law and contrary to law.” (Id. at 13.) Monaco states: “The
Petitioner will ‘show that decision was contrary to, or an unreasonable application of, clearly established
law per U.S.C. § 2254(d)(1) based only on ‘the record that was before the state court that adjudicated the

claim on the merits.’ Cullen v. Pinholster, 563 U.S. 170, 181 (2011).’ (Doc. #18, page 3, PAGEID#62) in
Grounds 1 & Ground 2, further detailed below.” (Doc. No. 23 at 13-14.) Monaco argues that trial counsel’s
conflict of interest and ineffectiveness “was further argued with evidence dehors the record in Mr. Monaco’s
PCR, which detailed what is shown as a complete breakdown of attorney client relationship, and argued as
such in subsequent Appeal.” (Id. at 14.) Finally, Monaco maintains that “Ground two is not in procedural
default, as it and all sub claims were also ‘fairly presented’ and either ruled on contrary to law, or otherwise
not ruled on the merits.” (Id. at 16.)
Monaco’s direct appeal consisted of a single claim: abuse of discretion by the trial court in denying
Monaco’s motion to withdraw his guilty plea. (Doc. No. 19-1, Ex. 11 at PageID# 191.) However, appellate
counsel argued as part of that assignment of error that “there are two primary issues”: “a combined-error of
whether Appellant was represented by highly competent counsel and whether Appellant understood the
nature of the charges against him” and “whether Appellant was possibly not guilty.” (Id. at PageID# 192.)
Appellate counsel argued trial counsel had failed to educate Monaco as to the allegations against him or
discuss discovery with Monaco, and trial counsel had not challenged the exhibits put forth by the State. (Id.

at PageID# 192-93.) In Monaco’s pro se Memorandum in Support of Jurisdiction in his appeal to the
Supreme Court of Ohio, Monaco argued the state appellate court “erred when it . . . missed 3 clear
constitutional issues,” including his Sixth Amendment right to effective assistance of counsel. (Doc. No.
19-1, Ex. 17 at PageID# 251.) Monaco included trial counsel’s failure to review discovery with Monaco
and “fully educate” Monaco, and trial counsel’s failure to defend against the accusations of the State. (Id.
at PageID# 251-52.) For the first time, Monaco argued a conflict of interest as the trial court allowed trial
counsel to continue to represent Monaco when Monaco had alleged ineffective assistance of trial counsel
before the hearing.4 (Id. at PageID# 251.)
In his PCR Petition, Monaco, through counsel, argued that Monaco’s convictions were “void or

voidable” on the basis of ineffective assistance of counsel based on the following: trial counsel failed to
discuss discovery with Monaco or the evidence against him; Monaco entered a guilty plea because he was
afraid trial counsel was unprepared for trial; when Monaco entered his guilty plea, he was suffering from
mental health issues and anxiety, was taking medication, and did not understand what he was doing; Monaco
knew he was innocent but “felt that he was on his own because of the actions of counsel and his failure to

4 “[U]nder Ohio law, a constitutional question cannot ordinarily be raised before the Ohio Supreme Court
unless it was first presented to the intermediate appellate court.” Reed v. Jenkins, Case No. 3:15-cv-00620,
2016 WL 6311235, at *6 (N.D. Ohio June 22, 2016) (citations omitted), report and recommendation
adopted by 2016 WL 6393350 (N.D. Ohio Oct. 27, 2016). As the Sixth Circuit has explained, “‘The Ohio
Supreme Court has stated that it will not consider constitutional claims not raised and preserved in the Ohio
Court of Appeals.’” Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir. 1985) (quoting Fornash v. Marshall, 686
F.2d 1179, 1185 n.7 (6th Cir.1982) (additional internal citations omitted).
represent him”; when counsel was representing Monaco, trial counsel was being investigated by the Board
of Professional Conduct for ethical violations, and trial counsel’s preoccupation with this matter resulted in
trial counsel’s failure “to provide effective representation in a case involving a life sentence.” (Doc. No.
19-1 Ex. 22 at PageID# 291-93.) In his reply in support of his PCR Petition, Monaco argued that trial
counsel failed to act in his best interest when trial counsel represented Monaco during the hearing on the

motion to withdraw after Monaco had accused trial counsel of ineffective assistance; “[r]ather than being
an advocate for Mr. Monaco, counsel had every incentive to protect himself, and completely fail to look
after the best interests of the client.” (Doc. No. 19-1, Ex. 36, at PageID# 489.) Monaco appealed the denial
of his PCR Petition to the state appellate court and the Supreme Court of Ohio. (Doc. No. 19-1, Ex. 39;
Doc. No. 19-1, Ex. 42.) In his appeal to the Supreme Court of Ohio, Monaco, through counsel, argued for
the first time that counsel was “ineffective due to a complete failure and breakdown in the attorney client
relationship.” (Doc. No. 19-1, Ex. 43, at PageID# 604.)5
In his 26(B) Application, Monaco argued that he received ineffective assistance of appellate counsel
when appellate counsel failed to argue that the “Trial Court erred when it deprived the defendant of his 6th

Amendment Right to effective assistance of counsel” and that the “Trial Court abused its discretion when it
allowed prior defense counsel Kevin Cox to continue to represent the defendant and committed overreach
in doing so.” (Doc. No. 19-1, Ex. 31, at PageID# 410.) Monaco argued appellate counsel should have
requested an evidentiary hearing to get a subpoena for medical records from the jail, which trial counsel
should have done as well. (Id. at PageID# 413.) Monaco asserted that the records would have shown he
was depressed, suicidal, and experiencing hallucinations, as well as the psychotropic medications he was
taking at the time. (Id.) Monaco also argued that appellate counsel was ineffective for failing to argue that
the trial court abused its discretion to allow trial counsel to represent Monaco after Monaco accused trial

5 See n.4, supra.
counsel of ineffective assistance of counsel, creating a conflict of interest. (Id. at PageID# 414.) Monaco
appealed the denial of his 26(B) Application to the Supreme Court of Ohio. (Doc. No. 19-1, Ex. 32-A, 32-
B.)
The Court notes that while Monaco raised ineffective assistance of appellate counsel claims relating
to appellate counsel’s failure to raise certain arguments relating to trial counsel on direct appeal, it is well-

established that “bringing an ineffective assistance claim in state court based on counsel’s failure to raise an
underlying claim does not preserve the underlying claim for federal habeas review because the two claims
are analytically distinct.” Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008). As another district court
within this Circuit has explained:
[U]nder Ohio law, an application for reopening pursuant to App. R. 26(B), or a
“Murnahan” motion, is a procedural mechanism for raising claims of appellate
counsel ineffectiveness, not for bootstrapping underlying constitutional claims
that were omitted from the direct appeal in the first place. Fair presentment
requires a petitioner to present his claims to the state courts in a procedure and
manner that will provide the state courts with the opportunity to apply
controlling legal principles. Picard v. Connor, 404 U.S. 270, 276–77, 92 S.Ct.
509, 30 L.Ed.2d 438 (1971). To the extent petitioner is suggesting that raising
a claim in a Rule 26(B) application is equivalent to raising that claim on direct
appeal, he is in error. The notion that any constitutional claim raised in an
application for reopening is fairly presented to the state courts in the same
manner as if that claim had been raised in a timely direct appeal is untenable
and unsupported by case law. The only claims that can be preserved in a Rule
26(B) application for reopening, therefore, are claims of ineffective assistance
of appellate counsel.
Stojetz v. Ishee, 389 F. Supp. 2d 858, 898–99 (S.D. Ohio 2005). See also Wogenstahl v. Mitchell, 668 F.3d
307, 343 (6th Cir. 2012); White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005); Enyart v. Coleman, 29 F.
Supp. 3d 1059, 1098 (N.D. Ohio 2014); White v. Shewalter, Case No. 1:10CV1265, 2012 WL 2711463, at
*10 (N.D. Ohio March 14, 2012), report and recommendation adopted by 2012 WL 2741551 (July 9, 2012).
Thus, Monaco’s 26(B) Application did not preserve his underlying ineffective assistance of trial counsel
claims.
In addition, the Sixth Circuit has held “‘that the doctrine of exhaustion requires that a claim be
presented to the state courts under the same theory in which it is later presented in federal court.’” Williams
v. Bagley, 380 F.3d 932, 969 (6th Cir. 2004) (quoting Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998)).
Relatedness of the issues between a claim presented to the state courts and one not presented to the state
courts will not save the unpresented claim. Lott v. Coyle, 261 F.3d 594, 607 (6th Cir. 2001).

Based on the Court’s review of the record, the Court finds Monaco fairly presented the following
claims related to ineffective assistance of trial counsel: (1) conflict of interest during plea withdrawal
hearing; (2) failure to share discovery with Monaco; (3) failure to act in Monaco’s best interest; and (4)
coercion of a guilty plea.6 The Court finds the remainder of the claims to be procedurally defaulted.
c. Cause and Prejudice
Monaco may nevertheless obtain a merits review of the procedurally defaulted claims if he can
demonstrate cause for the default and prejudice resulting therefrom, or that failure to review the claim would
result in a fundamental miscarriage of justice. See Lundgren, 440 F.3d at 763.
In his Traverse, Monaco alludes to ineffective assistance of appellate counsel as cause to excuse his

procedural default, arguing that the state appellate court’s rejection of Monaco’s 26(B) Application “was a
clear misapplication of law and contrary to law.” (Doc. No. 23 at 13.)
The Sixth Circuit has held that cause to excuse the procedural default of a habeas claim may exist if
a petitioner’s appellate counsel was ineffective in failing to raise the issue. See Moore v. Mitchell, 708 F.3d
760, 776 (6th Cir. 2013); McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004); Smith v. Ohio, Dept. of
Rehab. and Corr., 463 F.3d 426, 432 (6th Cir. 2006); Berry v. Warden, Southern Ohio Corr. Facility,

6 Respondent argues that while Monaco did not use the word “coercion” in his PCR Petition, he attached an
exhibit to his PCR Petition informing the court in part that his “attorney never went over the discovery
documents with [him] prior to convincing [him] to pleading guilty.” (Doc. No. 19 at 17 n.8.) Respondent
then concedes that Monaco fairly presented his coercion claim. In light of Respondent’s argument and
concession, the Court shall consider this argument fairly presented.
3:14CV2518, 2016 WL 4177174, at *3 (N.D. Ohio Aug. 8, 2016). However, the underlying claim of
ineffective assistance of counsel must in and of itself not be in default. See Edwards v. Carpenter, 529 U.S.
446, 453 (2000) (finding unless the state prisoner can satisfy the cause and prejudice standard for the
procedurally defaulted ineffective assistance of counsel claim, that claim cannot serve as cause for another
procedurally defaulted claim). As set forth above, in his 26(B) Application, Monaco argued appellate

counsel was ineffective for failing to raise five assignments of error based on trial court error. All of
Monaco’s claims of ineffective assistance of appellate counsel based on anything beyond the five
assignments of trial court error in his 26(B) Application are themselves procedurally defaulted and cannot
serve as cause to excuse the procedural default.
Even assuming arguendo that Monaco’s five assignments of trial court error could be read to
encompass claims of ineffective assistance of appellate counsel for failure to argue ineffective assistance of
trial counsel, a petitioner cannot show that appellate counsel was ineffective for failing to raise a claim on
appeal if the underlying claim itself lacks merit. See Moore, 708 F.3d at 776; Davie, 547 F.3d at 312; Berry,
2016 WL 4177174, at *3. Thus, if a state court rejects an ineffective assistance of appellate counsel claim

on the merits, a petitioner’s default may not be excused on the basis of appellate counsel’s failure to raise
the underlying claim on direct appeal. See Moore, 708 F.3d at 776–777 (“Moore cannot show ineffective
assistance of his appellate counsel for failing to raise the issue on appeal because the underlying claim lacks
merit. Davie, 547 F.3d at 312. The state court did not unreasonably apply Strickland in so holding. The
claim is procedurally defaulted and that default is unexcused.”); Berry, 2016 WL 4177174, at *3.
The state appellate court considered Monaco’s claims of ineffective assistance of appellate counsel
regarding appellate counsel’s failure to argue trial court error based on ineffective assistance of trial counsel
on the merits as set forth in his App. R. 26(B) Application and rejected them as follows:
In Appellant’s Third Assignment of Error, Appellant argues his attorney should
have argued the trial court [sic] was ineffective for not requesting an evidentiary
hearing to subpoena Appellant’s medical records. We disagree.
A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio
St.3d 153, 524 N.E.2d 476 (1988). Our standard of review is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio
St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in
reviewing a claim for ineffective assistance of counsel. First, we must determine
whether counsel’s assistance was ineffective; whether counsel’s performance
fell below an objective standard of reasonable representation and was violative
of any of his essential duties to the client. If we find ineffective assistance of
counsel, we must then determine whether or not the defense was actually
prejudiced by counsel’s ineffectiveness such that the reliability of the outcome
of the trial is suspect. This requires a showing there is a reasonable probability
that, but for counsel’s unprofessional error, the outcome of the trial would have
been different. Id.
Trial counsel is entitled to a strong presumption that all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio
St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court
and the Ohio Supreme Court have held a reviewing court “need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Bradley at
143, 538 N. E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052. Even
debatable trial tactics and strategies do not constitute ineffective assistance of
counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
Appellant argues in his Application to Reopen that his medical records would
have shown he was depressed, suicidal, and having hallucinations. However,
Appellant has failed to properly introduce any corroborating evidence
supporting his self-serving claim that he was mentally incompetent to enter a
plea of guilty.
Based on the foregoing, we do not find that “there is a reasonable probability
that, but for [trial] counsel’s errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. As Appellant has not demonstrated
ineffective assistance of trial counsel, he has not demonstrated appellate
counsel was ineffective in failing to raise this assignment of error on direct
appeal.
IV
In Appellant’s Fourth Assignment of Error, Appellant argues the trial court
abused its discretion when it allowed prior defense counsel to continue to
represent Appellant. We disagree.
Appellant cites no legal authority to support his position. Appellant also fails to
cite any specific instances in the transcript of how the trial court shifted the
burden of proof or compelled Appellant to take the stand. As such, Appellant
has not demonstrated ineffective assistance of counsel for failing to raising this
assignment of error on direct appeal.
(Doc. No. 19-1, Ex. 32, at PageID# 424-26.)
In order to determine whether a claim of ineffective assistance of appellate counsel may serve to
excuse the procedural default of the underlying claim, a district court may look to the strength of the
underlying claim. See Davie, 547 F.3d at 312; Moore, 708 F.3d at 778; Manoku v. Lafler, 2015 WL 4715768
at * 17 (E.D. Mich. Aug. 7, 2015). Because the state appellate court in the instant case ruled on the merits,
its decision is entitled to AEDPA deference. See Moore, 708 F.3d at 778; § 2254(d)(1).
In assessing claims of ineffective assistance of counsel, courts apply the familiar standard of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1998), which requires a petitioner
to demonstrate both that his counsel’s performance was deficient, and that the allegedly ineffective
assistance caused him prejudice:
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 made errors so serious 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.
Strickland, 466 U.S. at 687. This standard applies “regardless of whether a [p]etitioner is claiming
ineffective assistance of trial counsel or ineffective assistance of appellate counsel.” Whiting v. Burt, 395
F.3d 602, 617 (6th Cir. 2005).
Where, as here, a state court correctly identifies Strickland as the standard for assessing a petitioner’s
ineffective assistance claim, in order for the petitioner to receive habeas relief, the state court’s ruling must
be an unreasonable application of the Strickland standard. Knowles v. Mirzayance, 556 U.S. 111, 123, 129
S.Ct. 1411, 173 L.Ed.2d 251 (2009) (“The question is not whether a federal court believes the state court’s
determination under Strickland was incorrect but whether that determination was unreasonable—a
substantially higher threshold.”) (internal quotation marks omitted). When reviewing a state court’s ruling
on an ineffective assistance of counsel claim, federal habeas courts must employ “a ‘doubly deferential’

standard of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v.
Titlow, ––– U.S. ––––, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013); see also Cullen v. Pinholster, 563 U.S.
170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (“Our review of the [state court’s] decision is thus
doubly deferential. We take a highly deferential look at counsel’s performance through the deferential lens
of § 2254(d).”) (internal citations and quotation marks omitted).
The Court finds the state appellate court reasonably rejected Monaco’s claim that appellate counsel
was ineffective for failing to argue trial court error based on ineffective assistance of trial counsel. As the
state appellate court found, Monaco “failed to properly introduce any corroborating evidence supporting his
self-serving claim that he was mentally incompetent to enter a plea of guilty.” (Doc. No. 19-1, Ex. 32, at

PageID# 425.) A review of the transcript of the October 21, 2020 change of plea hearing reveals Monaco
was capable of answering questions posed by the trial court both during the plea colloquy and throughout
the remainder of the change of plea hearing. (Doc. No. 19-2.) A review of the transcript of the November
30, 2020 hearing on the motion to withdraw the guilty plea reveals that Monaco testified as to his mental
state and his medications preceding the guilty plea and his mental state during the October 21, 2020 hearing.
(Doc. No. 19-2 at PageID# 695-98.) Monaco admitted he told the doctor at the jail on September 21, 2020
that he was no longer having suicidal thoughts. (Id. at PageID# 695.) Monaco further admitted he had not
been seen by a doctor at the jail since September 21, 2020, although Monaco testified there should have
been additional mental health requests as he had told trial counsel he needed help on several occasions. (Id.
at PageID# 696.) Monaco further admitted he had no medical records showing he was of unsound mind on
October 21, 2020, although he testified that he had asked to be evaluated several times. (Id. at PageID#
707.)
Monaco also admitted to an hour-long record telephone call with his daughter, although Monaco
testified that he had “had a few drinks” and there were “two sides to that conversation” and it was not as it

seemed. (Id. at PageID# 688-89.) Monaco also admitted to secretly recording his teenage daughter in the
shower, although Monaco testified that he had done so to catch his daughter using his wife’s toiletries, which
his daughter had lied about doing. (Id. at PageID# 693.) When given an opportunity to make a statement
on his behalf at the sentencing hearing, Monaco stated, “I need help. That’s all I can say. I’m sorry for
harming anybody, especially my daughter. I’m sorry. God help me. There’s nothing further your honor.”
(Id. at PageID# 671.)
Under the double deferential standard, the Court finds that the state appellate court’s rejection of
Monaco’s ineffective assistance of appellate counsel claim based on appellate counsel’s failure to argue trial
court error based on ineffective assistance of trial counsel was reasonable. Accordingly, and because the

state court reasonably determined Monaco’s appellate counsel was not ineffective, the Court finds Monaco
has not satisfied the cause requirement to overcome the procedural default of these Ground Two subclaims.
See e.g., Moore, 708 F.3d at 778 (“That procedural default is not excused because even if his appellate
counsel had raised the issue, the underlying claim was meritless.”); Warren v. Smith, Case No. 1:09CV1064,
2010 WL 2837001, at *9 (N.D. Ohio Apr. 29, 2010) (finding petitioner did not establish cause to excuse the
default of habeas claim because state appellate court considered petitioner’s 26(B) Application on the merits
and determined appellate counsel was not deficient for failing to raise issue on direct appeal).
In the absence of cause, a court need not reach the issue of prejudice. See Simpson v. Jones, 238 F.3d
399, 409 (6th Cir. 2000); Sandridge v. Buchanan, 1:16CV2299, 2017 WL 2255378, at *11 (N.D. Ohio April
27, 2017).
Accordingly, and for all the reasons set forth above, the Court finds Monaco has failed to establish
cause and prejudice to excuse the default of these Ground Two subclaims.

As set forth above, in the absence of cause, a court need not reach the issue of prejudice.
d. Actual Innocence
Here, Monaco does not identify any new, reliable evidence of his actual innocence.7 The Court finds
Monaco has not demonstrated he is entitled to the actual innocence exception.
3. Ground Three
In Ground Three, Monaco argues “direct denial of Due Process through coercion of a plea in
violation of the 5th and 14th Amendments of the United States Constitution.” (Doc. No. 1 at 8.) Monaco
asserts the following as supporting facts: (1) fear and intimidation used to coerce plea; (2) the plea was
coerced while Monaco was in a mentally unstable position; (3) the plea was coerced while Monaco was

under the influence of a mind-altering substance impairing his cognitive abilities; and (4) the plea was
coerced with the use of fabricated evidence. (Id.)
Respondent argues that the portion of Ground Three relating to fabricated evidence is procedurally
defaulted, as Monaco failed to present this argument in support of his coercion claim to the state courts.
(Doc. No. 19 at 18.) However, Respondent asserts that in his Petition, Monaco argues, “as he did before
the Ohio courts, that his plea was coerced due to his mental health problems and his attorney’s failure to

7 See n.3, supra.
review the discovery with him.” (Id.) Therefore, Respondent maintains that the rest of Ground Three “was
fairly presented to the state courts in his post-conviction petition and the subsequent appeals.” (Id.)
Monaco argues that “Ground three is not procedurally defaulted, as it and its sub claims were also
‘fairly presented’ in their entirety and were either ruled on contrary to law or not ruled upon on the merits,
or the ‘existence of a common core of operative facts uniting the original and newly asserted claims.’” (Doc.

No. 23 at 16) (quoting Mayle v. Felix, 545 U.S. 644) (2005) (additional internal quotation marks omitted).
A careful review of the record reveals that Monaco failed to properly raise any independent due
process claim based on the 5th and 14th Amendments to the state courts on direct appeal or in his PCR
Petition. (Doc. No. 19-1, Ex. 11, 22.) In Monaco’s direct appeal, the assignment of error was framed as
an abuse of trial court discretion based on Ohio Crim. R. 32.1. (Doc. No. 19-1, Ex. 11, at PageID# 191-94.)
While Monaco raised a due process argument based on the 5th and 14th Amendments in his Memorandum
in Support of Jurisdiction before the Supreme Court of Ohio, “under Ohio law, a constitutional question
cannot ordinarily be raised before the Ohio Supreme Court unless it was first presented to the intermediate
appellate court.” Reed, 2016 WL 6311235, at *6. As the Sixth Circuit has explained, “‘The Ohio Supreme

Court has stated that it will not consider constitutional claims not raised and preserved in the Ohio Court of
Appeals.’” Leroy, 757 F.2d at 99.
While Monaco raised an ineffective assistance of appellate counsel claim for failure to argue on
direct appeal that the trial court “abused its discretion when it denied the Defendant his 5th Amendment
Right to Due Process when it failed to appoint new counsel upon request,” Monaco did not raise an
independent due process claim to the state courts and the ineffective assistance claim cannot preserve the
underlying claim. See Davie, 547 F.3d at 312. In addition, the Sixth Circuit has held “‘that the doctrine of
exhaustion requires that a claim be presented to the state courts under the same theory in which it is later
presented in federal court.’” Williams, 380 F.3d at 969. Relatedness of the issues between a claim presented
to the state courts and one not presented to the state courts will not save the unpresented claim. Lott, 261
F.3d at 607.
The Court finds Monaco’s failure to raise his due process claim to the state courts resulted in a
procedural default. Therefore, Ground Three is procedurally barred unless Monaco “can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at
750. A habeas petitioner must “show that some objective factor external to the defense” caused his failure
to comply with the state’s procedural rule, Murray, 477 U.S. at 488, and if the petitioner fails to do so, the
Court need not consider the prejudice prong. Smith, 477 U.S. at 533–34.
a. Cause and Prejudice
The Sixth Circuit has held that cause to excuse the procedural default of a habeas claim may exist if
a petitioner’s appellate counsel was ineffective in failing to raise the issue. See Moore, 708 F.3d at 776;
McFarland, 356 F.3d at 699; Smith v. Ohio Dept. of Rehab. and Corr., 463 F.3d at 432; Berry, 2016 WL
4177174, at *3. However, the underlying claim of ineffective assistance of counsel must in and of itself not

be in default. See Edwards, 529 U.S. at 453. As set forth above, in his 26(B) Application, Monaco argued
appellate counsel was ineffective for failing to raise five assignments of error based on trial court error.
All of Monaco’s claims of ineffective assistance of appellate counsel based on anything beyond the five
assignments of trial court error in his 26(B) Application are themselves procedurally defaulted and cannot
serve as cause to excuse the procedural default.
Even assuming arguendo that Monaco’s five assignments of trial court error could be read to
encompass a claim of ineffective assistance of appellate counsel for failure to argue a direct denial of due
process through the coercion of a plea in violation of the Fifth and Fourteenth Amendments, the state
appellate court considered Monaco’s claims of ineffective assistance of appellate counsel on the merits as
set forth in his App. R. 26(B) Application and rejected them. As it relates to Monaco’s claim that appellate
counsel should have argued that the trial court “abused its discretion when it denied the Defendant his 5th
Amendment Right to Due Process when it failed to appoint new counsel upon request,” the state appellate
court found as follows:
Appellant first argues appellate counsel was ineffective for failing to argue that
the trial court abused its discretion by failing to appoint new counsel upon
request. We disagree.
Substitution of counsel is within the sound discretion of the trial court. Wheat
v. U.S. (1988), 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140; State v. Jones,
91 Ohio St.3d 335, 343-44, 2001-Ohio-57, 744 N.E.2d 1163. Thus, we review
the trial court’s decision under the abuse of discretion standard. State v. Murphy,
91 Ohio St.3d 516, 523, 2001-Ohio-112, 747 N.E.2d 765. An abuse of
discretion is more than a mere error in judgment; it suggests that a decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217,219,450 N.E.2d 1140.
An indigent criminal defendant has a Sixth Amendment right to competent
counsel; however, this constitutional right does not extend to a right to counsel
of the defendant’s choosing. Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93,
209 N.E.2d 204. Likewise, the right to counsel does not include a right to a
meaningful or peaceful relationship between counsel and the defendant. State
v. Blankenship (1995), 102 Ohio App.3d 534, 558, 657 N.E.2d 559, citing
Morris v. Slappy (1983), 461 U.S. 1, 13, 103 S.Ct. 1610, 75 L.Ed. 610.
A showing of good cause for substitution may include, a conflict of interest, a
complete breakdown in the attorney-client relationship or an irreconcilable
conflict which leads to an apparently unjust result.” Blankenship, 102 Ohio
App.3d at 558. Once a defendant makes the requisite showing, the trial court’s
failure to appoint new counsel “amounts to a denial of effective assistance of
counsel.” State v. Pruitt (1984), 18 Ohio App.3d 50, 57, 480 N.E.2d 499.
Disagreement between the attorney and the client over trial tactics and strategy
does not warrant a substitution of counsel. State v. Aden, 5th Dist. Delaware
No. 2006CAA- 09-0066, 2008-Ohio-117, 1 ¶11.
In Appellant’s Application for Reopening, Appellant fails to allege any reason
for the substitution of trial counsel. Appellant has failed to demonstrate
appellate counsel’s performance fell below an objective standard of reasonable
representation. Moreover, Appellant did not demonstrate he was prejudiced by
appellate counsel’s representation as required by Strickland and Bradley.
(Doc. No. 19-1, Ex. 32, at PageID# 422-23.)
Again, where, as here, a state court correctly identifies Strickland as the standard for assessing a
petitioner’s ineffective assistance claim, in order for the petitioner to receive habeas relief, the state court’s
ruling must be an unreasonable application of the Strickland standard. Knowles, 556 U.S. at 123, 129.
The Court finds the state appellate court reasonably rejected Monaco’s claim that appellate counsel
was ineffective for failing to argue that the trial court erred when it failed to appoint new counsel upon

request. A review of the transcript of the November 30, 2020 hearing on the motion to withdraw the guilty
plea reveals the following exchange between trial counsel and the trial court:
MR. COX: Your honor, thank you. I’m in an interesting position here today, as
I am still counsel of record for Mr. Monaco. I had the opportunity to speak with
Mr. Monaco outside the Court’s presence as his counsel. Based on those
discussions, it is my understanding that Mr. Monaco is going to continue to
request to withdrawal his guilty plea and wishes to have a trial on the merits of
this matter, which obviously is in contravention to the acknowledgment of
guilty plea that I had provided to Mr. Monaco, gone over with Mr. Monaco, and
Mr. Monaco had signed in open Court. I wanted to state for the record that I am
happy to provide information for the Court and Mr. Monaco, although I wanted
to just indicate my hesitancy as well that I don't want to put myself or Mr.
Monaco in a position to unnecessarily violate attorney-client privilege as to
some of the comments and things that he had said to me, which obviously
developed and helped shape the legal strategy to which ultimately Mr. Monaco
pled guilty in open Court. So for, for that your honor, I will, I’ll just be done for
the moment.
THE COURT: Well, based on my review of the case law and what would
constitute a manifest injustice, I don’t think that we need to get into a privileged
communication. A lot of it is, it really rests on the knowing, intelligent, and
voluntary waiver of rights and the plea that was entered, the acknowledgment
form, the written plea, those kind of things.
MR. COX: Certainly.
THE COURT: Unless there’s something about that day or, you know, I, I guess
I, I don’t really know what this - -
MR. COX: Right.
THE COURT: - - manifest injustice is, in light of the pro se writing. It seemed
more an indignant response to Mr. Styer’s characterization of things for
purposes of sentencing, but nothing that was, you know, based on my read of
the pro se filing I didn’t get a sense of what this claimed injustice is. So - -
MR. COX: I didn’t either your honor.
THE COURT: - - I think at this point, Mr. Monaco would need to present
testimony if you want to direct him. Mr. Styer will have the opportunity to
cross-examine him and we would start with that.
MR. COX: Certainly.
THE COURT: Which is typically what I get. Okay. So - -
MR. COX: I just wanted to state that for the record, that’s all your honor. I have
no other knowledge than the pro se motion that was filed. I obviously didn’t
take part in that. Mr. Monaco had acknowledged to me that it had been filed
and what his thoughts were, but I’ll have him testify to that before the Court so
that the questioning can continue.
THE COURT: Okay. So Mr. Monaco, I’m going to go ahead and place you
under oath and then your attorney will be able to inquire. Just to be clear, the
burden of proof is on you to prove that there was a manifest injustice, manifest
injustice in the plea that you entered.
(Doc. No. 19-2 at PageID# 683-84.)
The hearing transcript also reveals that Monaco was able to testify extensively to the basis for his
motion to withdraw the guilty plea and for new counsel. Trial counsel inquired of Monaco as to the basis
for his motion to withdraw the guilty plea, and Monaco testified as follows:
Q. Okay. Just to begin. On the date of the final hearing and the change of plea,
do you recall signing the acknowledgment of guilty plea?
A. Vaguely yes.
Q. Okay.
A. I was very, I was very shaken that morning.
Q. Okay. And would you agree that you and I had had previous discussions
about the acknowledgment of guilty plea, about the process of changing a plea,
and my specific recommendations to you at the jail, at the Tuscarawas County
Jail prior to that? Would you agree with that statement?
A. That you discussed things with me, yes.
Q. Okay. And it is my understanding, and I want to give you Mr. Monaco an
opportunity to explain to the Court, it’s my understanding that you wish to
withdraw the acknowledgment of guilty plea at this time. Is that correct?
A. That is correct.
Q. Okay. And what is the basis for your belief that the Court should withdraw
the acknowledgment of guilty plea that you signed before the Court?
A. I was not aware of all of the things that were being accused to me, or of me.
I, I, know, know of conversations that we did have that touched base on certain
items but not all of them. That I, I know that we discussed you coming in to talk
to me about the, the discovery items and, and that never transpired as, as a sit
down and go through.
Q. And- -
A. You did go through them with my wife.
Q. And do you, do you recall Mr. Monaco the conversations that you and I had
which went over each of the fifteen counts on the indictment as to what they
alleged and what the charges were? Do you recall those conversations?
A. I don’t, I don’t recall going over all the indict, all the charges, no.
Q. Okay. Do you recall when the Court asked you about going over all those
charges with your counsel?
A. No I do not.
Q. Okay. And is it your belief then that the Court should withdraw the guilty
plea and allow you to enter a plea of not guilty so that you can have a trial on
the merits of this matter?
A. Yes.
MR. COX: Okay. Your honor at this time I would have nothing further.
(Id. at PageID# 685-86.)
Monaco testified to additional information regarding trial counsel’s meetings with him before the
guilty plea (id. at PageID# 687-88, 699-700) and his mental state on the day he pled guilty (id. at PageID#
696-97) on cross-examination.
Trial counsel conducted redirect examination, in which Monaco testified as follows:
Q. Mr. Monaco, the last couple times that you and I spoke at the jail, do you
recall me bringing to your attention additional evidence that was presented to
me regarding what was found on computer items and electronic equipment that
was taken from your home pursuant to a search warrant?
A. I do recall us talking about that, yes.
Q. So you would agree that, at the time we had those discussions prior to your
plea, you were made aware of those, that I had a meeting with the Prosecutor
and the Sheriff, Detective Moore, regarding certain items that I viewed. Would
you agree with that statement?
A. I, I couldn’t hear you in the last part.
Q. Do you recall me telling, our discussions that Mr. Styer the Prosecutor and
Detective Moore and myself met at the Tuscarawas County Jail, the Sheriffs
Division, to view certain materials that were found on your electronic
equipment? Do you recall that?
A. I remember a discussion about that, yes.
Q. Do you remember me explaining to you my concerns about those, that
evidence as it related to your home and the bathroom in your house?
A. I don’t, I don’t remember that part of the conversation.
Q. On the day you signed the plea agreement in open Court, you acknowledged
that there was a break in, in the Judge’s, the Judge going over the documents
with you. Do you remember that?
A. Yes.
Q. Do you remember me telling you what the delay was caused by?
A. No.
Q. Do you recall us going over specific statutory provisions as it related to
possible sentencing and the need to make sure that the plea indicated the
specific subsections and possible penalties so that you were aware of them and
that they were correct? Do you remember that?
A. I remember something to the nature of a change, that’s all I remember.
Q. Do you recall signing a version of the plea agreement prior to the Court’s
break? Do you remember that?
A. I, I think so, yes.
Q. And then when the Court went back on the, when we took that break do you
recall that I came back to you with a revised version of the acknowledgment of
guilty plea, which I called the colloquy, to go over with you to show you the
changes that had been made by the State and Prosecutor Styer and the Judge so
that we were all on the same page. Do you recall that?
A. Vaguely, it was, it’s kind of cloudy, but yeah.
Q. Okay. And you subsequently signed a second acknowledgment of guilty plea
after that change was made. Is that correct?
A. Yeah, if I recall correctly, you wouldn't be able to tell it was my signature
because I was shaking so bad.
Q. Do you recall being questioned by the Judge about your understanding of
the specific changes that were made, as well as the entirety of the document?
A. No I don't recall that part.
9 Q. Okay. Do you recall the Judge asking you about your faith in, that your
faith and your confidence in your legal counsel at the time prior to her imposing
sentence? Do you recall that?
A. I don’t, I don’t recall that.
MR. COX: Okay. Your honor, I have nothing further.
(Id. at PageID# 702-04.) Trial counsel asked Monaco whether he had any evidence to present to the trial
court. (Id. at PageID# 706.)
At no point did Monaco object to trial counsel representing him during the hearing on the motion to
withdraw the guilty plea.
Monaco is correct that the state appellate court’s statement that “An indigent criminal defendant has
a Sixth Amendment right to competent counsel; however, this constitutional right does not extend to a right
to counsel of the defendant’s choosing” did not apply to him as he had retained counsel. However, the state
appellate court correctly recognized that “the right to counsel does not include a right to a meaningful or
peaceful relationship between counsel and the defendant.” See Morris v. Slappy, 461 U.S. 1, 13 (1983). As
the Supreme Court later stated:
We have further recognized that the purpose of providing assistance of counsel
“is simply to ensure that criminal defendants receive a fair trial,” Strickland v.
Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984),
and that in evaluating Sixth Amendment claims, “the appropriate inquiry
focuses on the adversarial process, not on the accused's relationship with his
lawyer as such.” United States v. Cronic, 466 U.S. 648, 657, n. 21, 104 S.Ct.
2039, 2046 n. 21, 80 L.Ed.2d 657 (1984). Thus, while the right to select and be
represented by one’s preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he prefers. See Morris v.
Slappy, 461 U.S. 1, 13–14, 103 S.Ct. 1610, 1617–1618, 75 L.Ed.2d 610
(1983); Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
The Sixth Amendment right to choose one’s own counsel is circumscribed in
several important respects.
Wheat v. U.S., 486 U.S. 153, 159 (1988). See also Jones v. Bradshaw, 46 F.4th 459, 475 (6th Cir. 2022)
(“The central teaching of Wheat is that a criminal defendant’s right to counsel of his choosing is not
unlimited.”)
Under the doubly deferential standard, the Court finds that the state appellate court reasonably
rejected Monaco’s ineffective assistance of appellate counsel claim based on appellate counsel’s failure to
argue that the trial court “abused its discretion when it denied the Defendant his 5th Amendment Right to
Due Process when it failed to appoint new counsel upon request.” Accordingly, the Court finds Monaco
has not satisfied the cause requirement to overcome the procedural default of Ground Three. See e.g.,
Moore, 708 F.3d at 778 (“That procedural default is not excused because even if his appellate counsel had
raised the issue, the underlying claim was meritless.”); Warren, 2010 WL 2837001, at *9 (finding petitioner
did not establish cause to excuse the default of habeas claim because state appellate court considered
petitioner’s 26(B) Application on the merits and determined appellate counsel was not deficient for failing
to raise issue on direct appeal).
In the absence of cause, a court need not reach the issue of prejudice. See Simpson, 238 F.3d at 409;
Sandridge, 2017 WL 2255378, at *11.
Accordingly, and for all the reasons set forth above, the Court finds Monaco has failed to establish
cause and prejudice to excuse the default of Ground Three.
b. Actual Innocence
Here, Monaco does not identify any new, reliable evidence of his actual innocence.8 The Court finds
Monaco has not demonstrated he is entitled to the actual innocence exception.
4. Ground Four
In Ground Four, Monaco argues “constructive denial of counsel in violation of the 6th Amendment
of the United States Constitution.” (Doc. No. 1 at 10.)

Respondent argues this claim is procedurally defaulted, as Monaco failed to present this theory and
constitutional argument to the state courts. (Doc. No. 19 at 18.)
Monaco denies that this claim is procedurally defaulted. (Doc. No. 23 at 16.)
A careful review of the record reveals that Monaco did not raise a claim of constructive denial of
trial counsel on direct appeal or in his PCR Petition. (Doc. No. 19-1, Ex. 11, 22.) While Monaco raised a
“constructive denial” of trial counsel claim in his 26(B) Application, he did so in arguing that appellate
counsel was ineffective for failing to argue that “[t]he Trial Court erred when it failed to prove that the
defendants [sic] Ohio Constitutional Rights in Art. I, § 10, Part 1 of 3 were not violated.” (Doc. No. 19-1,
Ex. 31, PageID# 414-15.) Even assuming Monaco properly raised an ineffective assistance of appellate

counsel claim based on the “constructive denial” of trial counsel in violation of the Sixth Amendment, the
ineffective assistance claim cannot preserve the underlying claim. See Davie, 547 F.3d at 312. In addition,
the Sixth Circuit has held “‘that the doctrine of exhaustion requires that a claim be presented to the state
courts under the same theory in which it is later presented in federal court.’” Williams, 380 F.3d at 969.
Relatedness of the issues between a claim presented to the state courts and one not presented to the state
courts will not save the unpresented claim. Lott, 261 F.3d at 607.

8 See n.3, supra.
The Court finds Ground Four is procedurally barred unless Monaco “can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
a. Cause and Prejudice
The Sixth Circuit has held that cause to excuse the procedural default of a habeas claim may exist if

a petitioner’s appellate counsel was ineffective in failing to raise the issue. See Moore, 708 F.3d at 776;
McFarland, 356 F.3d at 699; Smith, 463 F.3d at 432; Berry, 2016 WL 4177174, at *3. However, the
underlying claim of ineffective assistance of counsel must in and of itself not be in default. See Edwards,
529 U.S. at 453.
Again, in his 26(B) application, Monaco argued constructive denial of trial counsel in the context
that appellate counsel was ineffective for failing to argue that “[t]he Trial Court erred when it failed to prove
that the defendants [sic] Ohio Constitutional Rights in Art. I, § 10, Part 1 of 3 were not violated.” (Doc.
No. 19-1, Ex. 31, PageID# 414-15.) Reading his briefing broadly, Monaco argued for the first time in his
Memorandum in Support of Jurisdiction to the Supreme Court of Ohio on appeal of the state appellate

court’s denial of his 26(B) Application that his constructive denial of trial counsel constituted a Sixth
Amendment violation. (Doc. No. 19-1, Ex. 32-B, PageID# 443-45.)
“[U]nder Ohio law, a constitutional question cannot ordinarily be raised before the Ohio Supreme
Court unless it was first presented to the intermediate appellate court.” Reed, 2016 WL 6311235, at *6. As
the Sixth Circuit has explained, “‘The Ohio Supreme Court has stated that it will not consider constitutional
claims not raised and preserved in the Ohio Court of Appeals.’” Leroy, 757 F.2d at 99. As a result, any
claim of ineffective assistance of appellate counsel based on failure to argue constructive denial of trial
counsel in violation of the Sixth Amendment on direct appeal is itself procedurally defaulted, see Coleman,
501 U.S. at 735 n.1, and cannot serve as cause to excuse the original procedural default. See Carpenter,
529 U.S. at 453.
In the absence of cause, a court need not reach the issue of prejudice. See Simpson, 238 F.3d at
409; Sandridge, 2017 WL 2255378, at *11.
Accordingly, and for all the reasons set forth above, the Court finds Monaco has failed to establish

cause and prejudice to excuse the default of Ground Four.
b. Actual Innocence
Here, Monaco does not identify any new, reliable evidence of his actual innocence.9 The Court finds
Monaco has not demonstrated he is entitled to the actual innocence exception.
5. Ground Five
In Ground Five, Monaco argues “direct denial of counsel by the trial court in violation of the 6th
Amendment of the United States Constitution.” (Doc. No. 1 at 12.)
Respondent argues that this claim is procedurally defaulted “for failure to present to all state courts
at the first opportunity,” as Monaco did not raise this claim until he filed his 26(B) Application, which the

state appellate court denied on the merits. (Doc. No. 19 at 19.)
Monaco denies that this claim is procedurally defaulted. (Doc. No. 23 at 16.)
A careful review of the record reveals that Monaco did not raise a claim of “direct denial of trial
counsel” on direct appeal or in his PCR Petition. (Doc. No. 19-1, Ex. 11, 22.) While Monaco raised an
ineffective assistance of appellate counsel claim based on appellate counsel’s failure to argue that the trial
court “erred when it deprived [Monaco] of his 6th Amendment Right to effective assistance of counsel” and
that the “Trial Court abused its discretion when it allowed prior defense counsel Kevin Cox to continue to

9 See n.3, supra.
represent the defendant and committed overreach in doing so” in his 26(B) Application (Doc. No. 19-1, Ex.
31, PageID# 410), the ineffective assistance claim cannot preserve the underlying claim. See Davie, 547
F.3d at 312.
The Court finds Ground Five is procedurally barred unless Monaco “can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
a. Cause and Prejudice
Again, the Sixth Circuit has held that cause to excuse the procedural default of a habeas claim may
exist if a petitioner’s appellate counsel was ineffective in failing to raise the issue. See Moore, 708 F.3d at
776; McFarland, 356 F.3d at 699; Smith, 463 F.3d at 432; Berry, 2016 WL 4177174, at *3. The state
appellate court considered Monaco’s claim of ineffective assistance of appellate counsel for failing to argue
that the trial court erred in denying Monaco the effective assistance of trial counsel on the merits and rejected
it, as set forth in detail in the discussion of Ground Two, supra. For all the reasons set forth in the discussion
of Grounds Two and Three, supra, the Court finds Monaco has not satisfied the cause requirement to

overcome the procedural default of Ground Five.
In the absence of cause, a court need not reach the issue of prejudice. See Simpson, 238 F.3d at 409;
Sandridge, 2017 WL 2255378, at *11.
Accordingly, and for all the reasons set forth above, the Court finds Monaco has failed to establish
cause and prejudice to excuse the default of Ground Five.
b. Actual Innocence
Here, Monaco does not identify any new, reliable evidence of his actual innocence.10 The Court
finds Monaco has not demonstrated he is entitled to the actual innocence exception.

10 See n.3, supra.
6. Ground Six
In Ground Six, Monaco argues he was denied his Sixth Amendment right to a fair trial based on
judicial bias. (Doc. No. 1 at 14.)
Respondent argues that “[t]his is a de hors the record claim” that Monaco could have raised in his
PCR Petition but did not, and therefore Monaco failed to fairly present this claim to the state courts. (Doc.

No. 19 at 19.)
Monaco denies that this claim is procedurally defaulted. (Doc. No. 23 at 16.)
A careful review of the record reveals that Monaco did not raise a claim of judicial bias on direct
appeal or in his PCR Petition. (Doc. No. 19-1, Ex. 11, 22.) Therefore, Ground Six is procedurally barred
unless Monaco shows cause and prejudice to excuse the default.
a. Cause and Prejudice
While the ineffective assistance of counsel can normally provide cause to excuse procedural default,
“attorney error cannot constitute cause where the error caused a petitioner to default in a proceeding in
which the petitioner was not constitutionally entitled to counsel, including a discretionary appeal.” Barkley

v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio Dec. 13, 2002) (citing Coleman v. Thompson, 501 U.S.
722, 751-53 (1991)). Here, Monaco had no constitutional right to counsel in post-conviction proceedings.
Tanner v. Jeffreys, 516 F. Supp. 2d 909, 916-17 (N.D. Ohio Oct. 19, 2007) (citing Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600, 609–10) (1974)). Thus, any purported failure of
Monaco’s attorney in failing to raise certain issues in his PCR Petition cannot serve as cause to excuse the
procedural default.
As Monaco fails to show cause, the Court need not consider the prejudice prong. Smith, 477 U.S. at
533–34.
b. Actual Innocence
Here, Monaco does not identify any new, reliable evidence of his actual innocence.11 The Court
finds Monaco has not demonstrated he is entitled to the actual innocence exception.
IV. Review on the Merits

A. Legal Standard
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997). The relevant provisions of AEDPA
state:
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.
28 U.S.C. § 2254(d) (1996).
Clearly established federal law is to be determined by the holdings (as opposed to the dicta) of the
United States Supreme Court. See Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012);
Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865-1866 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000); Shimel v. Warren, 838 F.3d 685, 695 (6th Cir. 2016); Ruimveld v.
Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Indeed, the Supreme Court has indicated that circuit precedent
does not constitute “clearly established Federal law, as determined by the Supreme Court.” Parker, 567

11 See n.3, supra.
U.S. at 48-49; Howes v. Walker, 567 U.S. 901, 132 S.Ct. 2741, 183 L.Ed.2d 612 (2012). See also Lopez v.
Smith, ––– U.S. ––––, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (“Circuit precedent cannot ‘refine
or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has
not announced.’” (quoting Marshall v. Rodgers, 569 U.S. 58, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540

(2013))).
A state court’s decision is contrary to clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. at 413. By contrast, a state court’s decision involves an unreasonable application of clearly
established federal law “if the state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. See also
Shimel, 838 F.3d at 695. However, a federal district court may not find a state court’s decision unreasonable
“simply because that court concludes in its independent judgment that the relevant state court decision

applied clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. at 411.
Rather, a federal district court must determine whether the state court’s decision constituted an objectively
unreasonable application of federal law. Id. at 410-12. “This standard generally requires that federal courts
defer to state-court decisions.” Strickland v. Pitcher, 162 Fed. Appx. 511, 516 (6th Cir. 2006) (citing
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)).
In Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court
held that as long as “fairminded jurists could disagree on the correctness of the state court’s decision,” relief
is precluded under the AEDPA. Id. at 786 (internal quotation marks omitted). The Court admonished that
a reviewing court may not “treat[ ] the reasonableness question as a test of its confidence in the result it
would reach under de novo review,” and that “even a strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id. at 785. The Court noted that Section 2254(d) “reflects the view
that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems” and does
not function as a “substitute for ordinary error correction through appeal.” Id. (internal quotation marks
omitted). Therefore, a petitioner “must show that the state court’s ruling ... was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 786–87. This is a very high standard, which the Supreme Court readily
acknowledged. See id. at 786 (“If this standard is difficult to meet, that is because it is meant to be.”)
1. Ground One
As set forth above, the portions of Ground One fairly presented to the state courts consist of the
following ineffective assistance of appellate counsel claims: (1) failure to argue a direct denial of counsel
by the court and (2) failure to properly investigate Monaco’s case and act in Monaco’s best interest.
Respondent argues that the state appellate court’s reasonable rejection of these ineffective assistance
of trial counsel claims is entitled to AEDPA deference. (Doc. No. 19 at 36.) Respondent asserts that
Monaco cannot show his right to effective assistance of appellate counsel was violated in any of the

subclaims, and this Court “must defer to the state appellate court’s decision to deny [] relief because he has
not established that the state appellate court’s decision is contrary to or an unreasonable application of
clearly established Supreme Court precedent pertaining to the Sixth Amendment right to trial counsel during
plea negotiations, guilty pleas, and federal constitutional due process.” (Id. at 43.)
The record reflects Monaco raised these ineffective assistance of appellate counsel claims in his
26(B) Application to the state appellate court and on appeal of the denial of his 26(B) Application to the
Supreme Court of Ohio. (Doc. No. 19-1, Ex. 31, 32-B.) The state appellate court considered Monaco’s
claims of ineffective assistance of appellate counsel regarding a failure to argue a denial of the right to
counsel by the court and failure to properly investigate Monaco’s case and act in Monaco’s best interest and
rejected them as follows:
In Appellant’s Third Assignment of Error, Appellant argues his attorney should
have argued the trial court [sic] was ineffective for not requesting an evidentiary
hearing to subpoena Appellant’s medical records. We disagree.
A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio
St.3d 153, 524 N.E.2d 476 (1988). Our standard of review is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio
St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in
reviewing a claim for ineffective assistance of counsel. First, we must determine
whether counsel’s assistance was ineffective; whether counsel’s performance
fell below an objective standard of reasonable representation and was violative
of any of his essential duties to the client. If we find ineffective assistance of
counsel, we must then determine whether or not the defense was actually
prejudiced by counsel’s ineffectiveness such that the reliability of the outcome
of the trial is suspect. This requires a showing there is a reasonable probability
that, but for counsel’s unprofessional error, the outcome of the trial would have
been different. Id.
Trial counsel is entitled to a strong presumption that all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio
St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court
and the Ohio Supreme Court have held a reviewing court “need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Bradley at
143, 538 N. E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052. Even
debatable trial tactics and strategies do not constitute ineffective assistance of
counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
Appellant argues in his Application to Reopen that his medical records would
have shown he was depressed, suicidal, and having hallucinations. However,
Appellant has failed to properly introduce any corroborating evidence
supporting his self-serving claim that he was mentally incompetent to enter a
plea of guilty.
Based on the foregoing, we do not find that “there is a reasonable probability
that, but for [trial] counsel’s errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. As Appellant has not demonstrated
ineffective assistance of trial counsel, he has not demonstrated appellate
counsel was ineffective in failing to raise this assignment of error on direct
appeal.
(Doc. No. 19-1, Ex. 32, at PageID# 424-25.)
In order to establish ineffective assistance of counsel, a petitioner must demonstrate that his
counsel’s conduct was so below acceptable standards of representation that counsel was not functioning as
“counsel” guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner also must demonstrate that
a trial counsel’s performance prejudiced the petitioner’s defense to such an extent that it rendered the

proceeding unfair. Id. To establish prejudice, 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.” Id. at 694. In other words, a counsel’s deficient performance must have “caused the defendant
to lose what he otherwise would probably have won” and it must have been “so manifestly ineffective that
defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th
Cir. 1992).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mere
disagreements by a defendant with tactics or strategies employed by counsel are not enough to support a

claim of ineffective assistance of counsel and there is a presumption that the challenged conduct of a
petitioner’s counsel was a matter of strategy. Id. at 689. See also United States v. Perry, 908 F.2d 56, 59
(6th Cir. 1990).
As explained by the United States Supreme Court:
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” id., at 689, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is
“doubly” so, Knowles, 556 U.S., at ––––, 129 S.Ct. 1411, 173 L.Ed.2d 251.
The Strickland standard is a general one, so the range of reasonable applications
is substantial. 556 U.S., at ––––, 129 S.Ct. 1411, 173 L.Ed.2d 251. Federal
habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland 's deferential standard.
Harrington, 562 U.S. at 105. See also Kennedy v. Warren, 428 F. App’x 517, 520 (6th Cir. 2011); Phillips
v. Sheldon, 2014 WL 185777, at **14-15 (N.D. Ohio Jan. 16, 2014).
The Supreme Court has held a defendant is entitled to effective assistance of counsel in his first
appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Thus,
the two-part test enunciated in Strickland is applicable to claims of ineffective assistance of appellate
counsel. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). An appellant has
no constitutional right, however, to have every non-frivolous issue raised on appeal, Jones v. Barnes, 463
U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and tactical choices regarding issues to raise on
appeal are properly left to the sound professional judgment of counsel. United States v. Perry, 908 F.2d 56,
59 (6th Cir. 1990). “[O]nly when issues are clearly stronger than those presented, will the presumption of
effective assistance of [appellate] counsel be overcome.” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir.
2003) (internal quotation marks and citations omitted).
Here, the Court finds the state appellate court reasonably determined appellate counsel was not

ineffective for failure to argue a direct denial of counsel by the court. As set forth in detail supra, trial
counsel alerted the trial court to potential issues regarding the attorney-client privilege, and the trial court
found counsel could proceed. As evidenced by the extensive excerpts from the hearing on the motion to
withdraw his guilty plea set forth supra, trial counsel enabled Monaco to present the grounds for his motion
and questioned him extensively. Monaco fails to show that an argument of direct denial of counsel by the
trial court was clearly stronger than the assignment of error appellate counsel pursued on direct appeal;
therefore, Monaco cannot prevail on his claim of ineffective assistance of appellate counsel.
Nor can Monaco show that appellate counsel failed to properly investigate Monaco’s case and act
in Monaco’s best interest. Appellate counsel cannot have been ineffective for not requesting Monaco’s
mental health records or for not requesting an evidentiary hearing to present these documents, as direct
appeals in Ohio are limited to the evidence in the record. See, e.g., State v. Foster, 2024-Ohio-2924, 2024
WL 3621248, at *10 (Ohio Ct. App. Aug. 1, 2024) (“When, as here, a claim of ineffective assistance of
counsel is dependent on facts outside the trial record, the defendant must raise that claim by filing a petition
for postconviction relief, because the appellate court’s review on direct appeal is limited to the matters

contained in the trial record.”).
As the Supreme Court made clear in Harrington, “When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” 562 U.S. at 105. Under this deferential standard, for
all the reasons set forth in this Report and Recommendation, the Court finds the state appellate court
reasonably determined trial counsel was not ineffective. It is therefore recommended that the portion of
Ground One fairly presented to the state courts be DENIED.
2. Ground Two
As set forth above, the portions of Ground Two fairly presented to the state courts consist of the

following ineffective assistance of trial counsel claims: (1) conflict of interest during plea withdrawal
hearing; (2) failure to share discovery with Monaco; (3) failure to act in Monaco’s best interest; and (4)
coercion of a guilty plea.
Respondent argues that the state appellate court’s reasonable rejection of these ineffective assistance
of trial counsel claims is entitled to AEDPA deference. (Doc. No. 19 at 24.) Respondent asserts that
although Monaco is dissatisfied “in hindsight with the outcome of his attorney’s recommendation, said
strategy does not render his trial counsel constitutionally ineffective.” (Id. at 34.) Respondent maintains
that “[u]nder the double deferential standard of Strickland under the lens of AEDPA review, there are ample
reasonable arguments that Monaco’s trial ‘counsel satisfied Strickland’s deferential standard.’ Harrington,
562 U.S. at 105.” (Id.)
The record reflects Monaco raised these ineffective assistance of trial counsel claims on direct appeal
of the denial of his PCR Petition to both the state appellate court and the Supreme Court of Ohio. (Doc. No.
19-1, Ex. 22, 39.) The state appellate court considered these claims on the merits and rejected them as

follows:
In his First Assignment of Error, Monaco argues that the trial court abused its
discretion by finding in part that the petition was barred by the doctrine of res
judicata. In support Monaco argues that his arguments are not barred by the
doctrine of res judicata because he was not represented by counsel in the trial
court on his motion to withdraw his guilty plea and because he had provided
the trial court with new evidence outside the record to support his request for
postconviction relief.
In his Second Assignment of Error, Monaco argues that the trial court erred
when the court denied Monaco's petition without a hearing. Specifically,
Monaco argues he provided the court with an affidavit and other documents that
set forth operative facts to establish substantive grounds for relief to establish
that he was denied the effective assistance of counsel, and was therefore entitled
to a hearing.
Because the assignments of error are inextricably intertwined we shall address
them together.
* * *
In order for an indigent petitioner to be entitled to an evidentiary hearing in a
postconviction relief proceeding on a claim that he was denied effective
assistance of counsel, the two-part analysis set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is to be
applied. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985); State v. Lytte, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). The petitioner must
therefore prove that: 1). Counsel’s performance fell below an objective standard
of reasonable representation; and 2). there exists a reasonable probability that,
were it not for counsel’s errors, the result of the trial would have been different,
or he would not have pled guilty. Id.
Application of res judicata in postconviction-relief proceedings raising
ineffective assistance of counsel claims
With respect to post-conviction petitions asserting grounds for relief based on
ineffective assistance, res judicata does not bar a post-conviction ineffective
assistance- of-counsel claim when either (1) the petitioner had the same attorney
at trial and on appeal or (2) he must rely on evidence outside the trial record to
establish his claim for relief. * * * The converse is that when the petitioner had
a new attorney on appeal and the claim could have been litigated based on the
trial record, res judicata applies and the postconviction claim is barred." State
v. Blanton, 171 Ohio St.3d 19, 2022-Ohio-3985, 215 N.E.3d 467, ¶2, citing
State v. Cole, 2 Ohio St.3d 112, 113-114, 443 N.E.2d 169 (1982). However,
merely providing evidence outside the record is not sufficient to entitle a
petitioner to a hearing. Rather, to secure a hearing, a petitioner “‘must proffer
evidence which, if believed, would establish not only that his trial counsel had
substantially violated at least one of a defense attorney’s essential duties to his
client but also that said violation was prejudicial to the [petitioner].’” Id. at ¶
31, quoting Cole at 114, 443 N.E.2d 169; State v. Johnson, 12th Dist. Warren
No. CA2022-09-063, 2023-Ohio-879, ¶121.
Monaco is not represented by the same attorney that represented him in the trial
court or in Monaco, I; however, the attorney representing Monaco in this appeal
is the same attorney who represented him in Monaco, II. Monaco attached his
affidavit and documents to his PCR petition that were not a part of the trial court
record.
Review of affidavits submitted in support of postconviction relief petition
When reviewing a postconviction petition a trial court “should give due
deference to affidavits sworn to under oath and filed in support of the petition,
but may, in the sound exercise of discretion, judge their credibility in
determining whether to accept the affidavits as “true statements of fact” or
“discard frivolous claims.” State v. Calhoun, 86 Ohio St.3d 279, 282, 714
N.E.2d 905 (1999). In determining the credibility of supporting affidavits in
postconviction relief proceedings, the trial court should consider all relevant
factors, including (1) whether the judge reviewing the post-conviction relief
petition also presided at the trial, (2) whether multiple affidavits contain nearly
identical language, or otherwise appear to have been drafted by the same
person, (3) whether the affidavits contain or rely on hearsay, (4) whether the
affiants are relatives of the petitioner, or otherwise interested in the success of
the petitioner's efforts, and (5) whether the affidavits contradict evidence
proffered by the defense at trial. Id. at 285, 714 N.E.2d 905. “Moreover, a trial
court may find sworn testimony in an affidavit to be contradicted by evidence
in the record by the same witness, or to be internally inconsistent, thereby
weakening the credibility of that testimony.” Id. “Depending on the entire
record, one or more of these or other factors may be sufficient to justify the
c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10793864. Public record. Not legal advice.