Rydarowicz v. Mackey

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

FRANCIS RYDAROWICZ, CASE NO. 4:24-cv-1691

Petitioner, DISTRICT JUDGE

BENITA Y. PEARSON

vs.

MAGISTRATE JUDGE

WARDEN MISTY MACKEY, JAMES E. GRIMES JR.

Respondent.

REPORT &

RECOMMENDATION

Pro se Petitioner Francis Rydarowicz filed a Petition for a Writ of

Habeas Corpus under 28 U.S.C. § 2254. Doc. 1. Rydarowicz is in custody at the

Lake Erie Correctional Institution due to a journal entry of sentence in the

case State v. Rydarowicz, Mahoning County Court of Common Pleas, Case No.

19-CR-704. The Court referred this matter to a Magistrate Judge under Local

Rule 72.2 for the preparation of a Report and Recommendation. For the

following reasons, I recommend that the Court dismiss the Petition.

Summary of facts

In habeas corpus proceedings brought by a person under 28 U.S.C. §

2254, factual determinations made by state courts are presumed correct. 28

U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that

presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d

439, 447 (6th Cir. 2012).

The Ohio Court of Appeals for the Seventh Appellate District

summarized the facts underlying Rydarowicz’s conviction as follows:

{¶2} On June 22, 2019, Appellant stabbed his wife

Katherine in the back while they were at a motel

where he lived in Coitsville. The police were called

after the victim collapsed in the parking lot area.

After securing the victim’s body, the police saw

Appellant in the doorway of his motel room. He was

bleeding from the neck and wrist. Before being

transported to the hospital, Appellant claimed he

stabbed his wife in self-defense. Appellant was

indicted for five alternate counts: aggravated

murder (prior calculation and design); murder

(death caused purposely); murder (death

proximately resulted from felonious assault);

felonious assault (with a deadly weapon); and

domestic violence (a third-degree felony due to prior

convictions, with three priors listed). (8/22/19 Ind.)

{¶3} The case was tried to a jury in August 2021. The

victim’s daughter testified her mother and Appellant

were married and lived in the motel together. She

said Appellant was known by the name Jerry; she

provided the names of his two sisters and his ex-wife

(who were mentioned in recovered phone messages).

(Tr. 326-328).

{¶4} Before the stabbing, a neighbor who lived near

the motel saw Appellant and the victim talking near

a tree where their dogs were tied. She then watched

the victim make two trips from the motel room

carrying different baskets. Minutes later, the

neighbor saw the victim running across the grass in

front of the motel; she thereafter noticed the police

at the scene. (Tr. 355-357).

{¶5} The victim’s friend testified he provided the

victim with a ride to do errands on the day of her

death (as her vehicle was not running). (Tr. 333).

While they were out, Appellant called the victim,

prompting a trip to the motel so the victim could

retrieve some belongings. (Tr. 334). The victim drove

her friend’s truck to the motel parking lot after

dropping him off at the convenience store across the

street from the motel to wait for her. (Tr. 336). The

friend saw the victim bring a basket of items to his

truck. He texted her a few times after worrying

because she took longer than expected; she did not

respond. (Tr. 338-339). When the friend exited the

store, he saw a police officer approach a body in the

drive of the motel’s parking lot. (Tr. 339, 349).

{¶6} The first responding police officer testified he

received a report at 6:30 p.m. that a woman had been

shot at the motel. When he arrived, the victim had

no pulse. He thus attempted chest compressions (but

a large amount of blood was expelled from her nose

and mouth). (Tr. 369-370). Bystanders pointed the

police to a motel room. A second officer approached

the room and found Appellant about to exit the room.

This officer observed blood running from Appellant’s

neck to his chest and from his wrists; she instructed

Appellant to step back into the room and lay on the

bed. (Tr. 399-400). When asked about the location of

the weapon, Appellant pointed to a knife on a table

and said he had to use it to protect himself because

the victim was coming after him. (Tr. 401-402, 420).

{¶7} Appellant was taken by ambulance to Mercy

Health in Youngstown, where he underwent surgery

on his neck and wrist. A nurse assisted with

Appellant’s post-surgical care. She heard Appellant

tell his sisters the victim came looking for money

and he had a car part under the bed but no money.

(Tr. 500). Thereafter, the nurse supported

Appellant’s grieving mother as she entered his room.

When the mother asked what happened, Appellant

replied, “I stabbed her.” (Tr. 490). He provided no

further explanation to his mother. (Tr. 492). The

nurse reported Appellant’s statement to the hospital

police. (Tr. 496). The nurse additionally testified

Appellant’s wrist wounds ran parallel on the inside

of his left wrist. (Tr. 493-494). When she was asked

if the wrist wounds appeared to be defensive

wounds, she said defensive wounds are generally not

located on the inside of one’s arms. (Tr. 495).

{¶8} Testimony was also presented by the trauma

surgeon who operated on Appellant’s neck and wrist

after he arrived at the hospital. The surgeon

described bilateral neck stab wounds, which

measured 3 and 8 centimeters. (Tr. 731, 745). He

also described three lacerations to Appellant’s left

wrist. One measured 3 centimeters and caused

significant damage to arteries, tendons, and nerves;

the other two wrist wounds were more superficial.

(Tr. 732, 747). The surgeon believed Appellant’s

wounds were consistent with self-inflicted wounds

and inconsistent with defensive wounds. (Tr. 734-

735). He also said Appellant was right-handed and

weighed 225 pounds. (Tr. 737, 739).

{¶9} In searching the motel room, the police did not

find additional weapons. (Tr. 391). The referenced

car part was not found in the room or in the truck

the victim was loading. (Tr. 375-377, 434). Some

blood in the parking lot matched Appellant’s DNA.

(Tr. 437, 716). The blood under the victim’s

fingernails and on various locations on her shirt only

matched her own DNA. (Tr. 716-717).

{¶10} The sample of blood from the tip of the knife

matched Appellant’s DNA (with a statistic of one in

one trillion). (Tr. 714). The sample of blood from the

base of the knife blade contained a mixture of DNA

from Appellant and the victim on one side of the

blade and only Appellant’s DNA on the other side of

the blade. Only Appellant’s DNA was recovered from

the top and middle of the knife handle. (Tr. 714-715).

{¶11} The medical examiner testified the victim was

stabbed in the left middle back. The wound was four

to six inches deep and entered her lung. (Tr. 787,

790). She had three fresh bruises, located on her

inside arm near her elbow, her right leg, and her

right shin. (Tr. 784). Although there were cocaine

metabolites in her blood, she had no active drug in

her system and was thus not under the influence of

cocaine at the time of her death. (Tr. 795, 798, 800).

A painkiller in her system was at therapeutic levels.

(Tr. 796-797, 800).

{¶12} A BCI forensic computer scientist extracted

data from the phone Appellant possessed when he

arrived at the hospital and from the victim’s phone

found in the truck she was loading. First, the

witness recited texts between Appellant and one of

his sisters. (Tr. 535-571); (St.Ex. 117a). On June 9,

2019, Appellant texted, “Hey I’m outta jail!! I am

ready to bash the shit outta her!!!!” In the next few

days, Appellant asked this sister for money,

requested his dad’s phone number, and inquired

why his mother would not speak to him. On June 13,

he disclosed he needed items from the pharmacy,

and the next day, he said he needed help. On the day

before the June 22 stabbing, he told this sister, “It

just keeps getting worse and there’s no help. Mom

still won’t answer me. Have you talked to them? * *

* I just don’t know what to do.”

{¶13} Appellant also communicated with his other

sister, by text and instant message. (Tr. 572-594);

(St.Ex. 115a, 116a). On June 9, 2019, he declared,

“I’m outta jail let’s get her” (with seven exclamation

points). Two days later, he said, “I thought you knew

what my plan was from [the other sister].” In

seeming to speak about the victim, Appellant said he

“had to kiss her ass for 2 months to save 3 years in

prison [and] could not fight with her for any reason”

and asked his sister if they could talk on the phone

so he could explain. He added, “I just got home from

jail and she’s been gone. I fucking hate her!!!” He

also disclosed the following issues: he was starving;

his truck had a blown transmission; his bank

account was frozen; he was “stuck” on house arrest;

and he was not permitted to travel to renew his

expired driver’s license.

{¶14} On June 12, he told this sister he was up all

night worried “about what you said. If something

happens. I need to get someone on my bank account

asap.” He then spoke of his children, said the only

person he trusted was his ex-wife (as opposed to the

victim, who was his current wife), and asked his

sister to help him communicate with them. Later

messages indicate his ex-wife refused to

communicate with him and was concerned with his

expression of urgency. On June 14, he told his sister

he was broke, going crazy, and trying to sell the

dogs. On June 18, he observed, “I am homeless and

she is gone!!!! I need my family. It’s all I have to live

for.” On the day of the stabbing, Appellant told this

sister, “my phone is going to be shut off any day now.

They stopped my Social Security check. I’m jobless,

and homeless. I have no reason to go on except for

my kids and family. I need help immediately.” An

hour later, he said, “I can’t keep texting like this.

There is no time to waste. I need help immediately.

If there’s no chance. I need to know that.”

{¶15} Conversations between Appellant and the

victim were also admitted into evidence. (Tr. 595-

643); (St.Ex. 114a). On June 7, 2019, Appellant

expressed anger about the victim returning clothing

to a man. Appellant told the victim he loved her and

then instructed, “get home, no more meaningless

bullshit.” Appellant also observed, “I can’t believe I

have to beg you to stay away from other men. You

are torchering me to death!!!! I'm done talking about

it. Just please come home. I love you.” (Text spellings

are original.) He then noted he did not want her to

stay away because she thought he was mad. He

texted he needed her to stop somewhere for him and

later declared, “I’m throwing up. Please hurry.”

Minutes later, he said, “I was throwing up and I’m

starving.” The next day he said she was lying and

pleaded with her to answer him. She eventually

replied angrily with a screenshot of a social media

post wherein he denigrated her in various aspects of

life.

{¶16} On June 9, Appellant said, “Enjoy your knife

and camo snot rag.” He accused her of being

unfaithful while he was away and said, “you went

through 5,000 and partied your ass off. I hope you

had fun. But I’m not taking your dumb

unpredictable bullshit any longer. I can’t. You’ll end

up putting me in prison. Your not worth it.” The next

text stated, “You had many chances to get away.”

Later, he texted, “Get your ass here right now!!!!! I

have your things. I love you” (with 13 exclamation

points). When he begged her to answer him, she

replied, “Fuck you. Please never talk to me again.”

He responded, “You will be in my arms tonight safe

and sound if it’s the last thing I do!!”

{¶17} On June 14, the victim sent a captioned

photograph of herself to Appellant. He deduced it

was intended for someone else and replied, “Wrong

man slut.” After noting he viewed a post stating she

was in a relationship, he said, “You’re a whore and

god knows it.” The next day she asked for a car part

he had, which she needed to fix her car. Among other

insults, he said, “I wouldn’t piss on you if you were

on fire!!”

{¶18} On the day of the stabbing (after a week

without communication), Appellant sent the victim

a text asking if she still needed “this strut” and said

he would put it on the car for her. When she asked

the price, Appellant said, “I don’t care. I just wanna

do the right thing. I found some more clothes and

you have mail here also.” After they spoke on the

phone, he told her to come alone, explaining he did

not want to see her with another man. He also said

she had some of his belongings, including a ring that

“means more to me than it ever will you I want to be

buried with that ring on my finger someday.” In a

subsequent text, Appellant observed, “You just

called me. I heard a man’s voice.” (St.Ex. 114a).

{¶19} A stipulation was entered regarding

Appellant’s DNA profile and three prior domestic

violence convictions. (Tr. 500). Appellant’s parole

officer testified he began supervising Appellant on

June 5, 2019, based on a felony conviction of

domestic violence where his wife was the victim. (Tr.

511). Upon questioning by defense counsel, the

parole officer said he found no contraband or

weapons at the motel when he visited Appellant. (Tr.

513). Appellant was on electronic monitoring house

arrest (EMHA), and the records showed he did not

leave his allowed area on the day of the stabbing

(except when transported to the hospital). (Tr. 515,

855).

{¶20} Appellant testified in his own defense. He said

the victim picked him up when he was released from

incarceration on June 5, 2019, but she soon moved

out of the motel; he said she returned three times to

retrieve belongings with a police escort. (Tr. 865,

868, 870). He claimed the victim stole money from

his wallet during one of the escorted visits. (Tr. 873).

He confirmed sending the text messages to his

sisters and acknowledged he was speaking about the

victim in the initial texts but said “bash” merely

referred to actions against a person on social media.

(Tr. 872). He also acknowledged he was upset the

victim was with other men. (Tr. 898, 903).

{¶21} Appellant revealed he had owned the subject

knife since he was nine years old but claimed he did

not have it at the motel before the victim arrived.

(Tr. 874). He said the victim had his knife and his

ring, about which they argued. (Tr. 881-882). He

denied luring the victim to the motel by offering a

car part and claimed the part was in his truck bed.

(Tr. 873).

{¶22} Appellant alleged the following events

occurred: after the victim made trips to a truck with

her belongings, she followed him to the room and

asked to look under the bed; he held up the box

spring and mattress for her to look underneath the

bed; he felt a sharp pain on the left side of his neck;

he turned to see her coming at him with a knife; he

raised his arm to protect himself and disarmed her;

she turned to an open utensil drawer containing

steak and paring knives; and he stabbed her in the

back in self-defense because he saw his bleeding

reflection in a mirror and feared for his life. (Tr. 884-

887). He said he also sustained a smaller wound to

the right side of his neck and wounds to his left

wrists during the altercation. (Tr. 888-889). He

denied his wounds were self-inflicted. Instead of

calling an ambulance, he said he paced around the

motel room trying to stop his bleeding. (Tr. 936-937).

Appellant confirmed he was right-handed and

disclosed he was 6’2” (while the victim was 5’6” or

less). (Tr. 914-915, 935).

{¶23} The jury found Appellant not guilty of

aggravated murder but guilty of murder and the

other alternate charges. The court sentenced

Appellant to 15 years to life for the murder in count

two, merging the remaining charges. (8/23/21 J.E.).

State v. Rydarowicz, 210 N.E.3d 1133, 1137−41 (Ohio Ct. App. 2023).

Procedural background

Trial court proceedings

In August 2019, a Mahoning County Grand Jury indicted Rydarowicz

on one count of aggravated murder, in violation of Ohio Revised Code 2903.02,

(A), (F) (count one), two counts of murder, in violation of Ohio Revised Code

2903.02 (A), (D) (counts two and three), one count of felonious assault, in

violation of Ohio Revised Code 2903.11(A)(2) (count four), and one count of

domestic violence, in violation of Ohio Revised Code 2919.25(A), (D) (count

five). Doc. 6-1, at 5−7 (Exhibit 1).1 Count five included a “furthermore” finding

that Rydarowicz had previously pleaded guilty to or was convicted of three

domestic violence offenses. Id. at 7. Rydarowicz, through counsel, pleaded not

guilty to the charges. Id. at (Exhibit 2).

1 In this report and recommendation, all of the citations to the docket refer

to the ECF document and page number shown at the top of the page.

Rydarowicz filed a motion to suppress statements that he made to law

enforcement and cheek-swab evidence officers obtained from him. Doc. 6-1, at

9−39 (Exhibit 4). After a hearing, the trial court sustained in part and

overruled in part Rydarowicz’s motion. Id. at 50−57. (Exhibit 5). The court

suppressed the statements that Rydarowicz made to law enforcement, but

found that the cheek-swab evidence was lawfully obtained. Id. at 54−57.

Rydarowicz filed a motion to dismiss counts one, two, and three of the

indictment. Doc. 6-1, at 58−140, 151−52 (Exhibits 6, 8). The trial court

overruled Rydarowicz’s motion. Id. at 159 (Exhibit 11). Rydarowicz filed a

motion to sever the aggravated murder count from the other counts; hold two

separate trials; and to try the aggravated murder count first. Id. at 160−80

(Exhibit 12). The trial court held a hearing and overruled Rydarowicz’s motion.

Id. at 188−90 (Exhibit 14).

Meanwhile, the State moved to amend the indictment to correct a

typographical error, Doc. 6-1, at 154 (Exhibit 9), which the trial court granted,

id. at 158 (Exhibit 10).

Before trial, the parties filed motions in limine. The State sought to

exclude the introduction of exculpatory statements that Rydarowicz made at

the hospital to his mother and police officers unless the statements were

introduced through Rydarowicz’s testimony. Doc. 6-1, at 191−94 (Exhibit 15).

After oral argument, the court granted the State’s motion. Id. at 200 (Exhibit

17). Rydarowicz filed three motions in limine. First, he sought to prohibit the

State from using evidence of his prior criminal convictions to impeach him if

he testified. Id. at 202 (Exhibit 18). Second, Rydarowicz asked the court to

exclude the use of other-acts evidence, including his prior convictions, and any

character testimony offered by his parole officer, Don Jones. Id. at 239 (Exhibit

19). The trial court sustained in part and overruled in part these issues raised

in Rydarowicz’s motions. Id. at 266−68 (Exhibit 20). Finally, Rydarowicz

sought to exclude Police Captain Keith Brown from testifying that in his lay

opinion, Rydarowicz’s wounds were self-inflicted. Id. at 271 (Exhibit 21). The

trial court granted this motion. Id. at 273 (Exhibit 22).

The case proceeded to trial. The jury found Rydarowicz not guilty of

aggravated murder but guilty on the remaining counts. Doc. 6-1, at 274−75. At

sentencing, the trial court merged all of the counts; sentenced Rydarowicz on

count two, murder; and ordered him to serve an aggregate sentence of fifteen

years to life in prison. Id. at 282−83 (Exhibit 25).

Direct appeal

Rydarowicz, through new counsel, appealed to the Ohio court of appeals.

Doc. 6-1, at 288 (Exhibit 27). In his brief, he raised the following assignments

of error:2

1. The trial court erred in permitting testimony

concerning Appellant’s medical treatment and his

medical records as the admission of said evidence

violated the patient-physician privilege.

2 In this report and recommendation, Rydarowicz’s grounds for relief are

reproduced as written.

2. The trial court erred by permitting the State to

introduce expert testimony when the State and the

experts failed to produce a written expert’s report

within 21 days of trial as required by Crim. R. 16(K).

3. The jury’s verdicts of Guilty were not supported

by sufficient evidence and were against the manifest

weight of the evidence.

Id. at 289−91. Thereafter, Rydarowicz filed a pro se motion asking the Ohio

court of appeals to order the State to produce to Rydarowicz all of the evidence

in his case. Id. at 337−38 (Exhibit 29). The State responded to Rydarowicz’s

motion and stated that the motion was improper and that, in any event, before

trial it had produced to Rydarowicz’s trial counsel all discovery. Id. at 340

(Exhibit 30). On March 16, 2023, the Ohio court of appeals affirmed

Rydarowicz’s conviction. Id. at 342−68 (Exhibit 31). The next day, the court

denied Rydarowicz’s pro se motion for evidence. Id. at 369 (Exhibit 32).

On May 8, 2023, Rydarowicz filed in the Ohio Supreme Court a pro se

notice of appeal and a motion for leave to file a delayed appeal. Doc. 6-1, at

370−72 (Exhibits 33, 34). On July 5, the Ohio Supreme Court granted

Rydarowicz’s motion for leave to file a delayed appeal and ordered him to file

his brief within 30 days. Id. at 403 (Exhibit 35). On August 8, the Ohio

Supreme Court dismissed Rydarowicz’s case because he “failed to prosecute

this cause with the requisite diligence.” Id. at 404 (Exhibit 36). On August 11,

Rydarowicz filed a document he called an “Entry Response”—a letter to the

Ohio Supreme Court Clerk of Court responding to the Ohio Supreme Court’s

dismissal. Id. at 405 (Exhibit 37). Rydarowicz asserted that he believed he had

timely submitted to the prison his brief to be mailed and “ask[ed] the court to

reconsider leaving [his] appeal pending until [he] find[s] out where [his] mail

is.” Id. On September 13, Rydarowicz filed an “Affidavit in Support of Motion

for Leave to File Delayed Appeal,” id. at 408 (Exhibit 38), and on September

25, he sent another letter to the clerk of courts discussing the timeliness of his

documents, id. at 410 (Exhibit 39).

On October 10, 2023, the Ohio Supreme Court denied Rydarowicz’s

“entry response.” Doc. 6-1, at 414 (Exhibit 40).

Federal habeas corpus petition

Rydarowicz states that on September 23, 2024, he placed in the prison

mailbox his federal habeas corpus petition under 28 U.S.C. § 2254.3 Doc. 1, at

15. He raised the following grounds for relief:

Ground one: Petitioner’s constitutional right to due

process was violated when the trial court permitted

testimony concerning petitioner’s medical treatment

to be admitted during trial.

Ground two: Petitioner’s constitutional right to

due process was violated when the trial court

permitted the state to introduce testimony in

violation of criminal rule 16(K).

Ground three: Petitioner’s constitutional right to

due process was violated where the convictions are

not supported by sufficient evidence.

3 A petition is deemed filed when a petitioner places it the prison mailing

system. Houston v. Lack, 487 U.S. 266, 270 (1988).

Doc. 1, at 5–8. The Warden filed a Return of Writ, Doc. 6, and Rydarowicz filed

a traverse, Doc. 8-3.4

Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain

procedural requirements to have their claims reviewed in federal court. Smith

v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural

barriers, such as statutes of limitations and rules concerning procedural

default and exhaustion of remedies, operate to limit access to review on the

merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381

(2001). Although procedural default is sometimes confused with exhaustion,

exhaustion and procedural default are distinct concepts. Williams v. Anderson,

460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state

remedies are “still available at the time of the federal petition.” Id. (quoting

Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies

are no longer available, procedural default rather than exhaustion applies. Id.

Exhaustion

A federal court may not grant a writ of habeas corpus unless the

petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A). A state defendant with federal constitutional claims must fairly

4 The Warden filed Rydarowicz’s Traverse on the docket after Rydarowicz

sent it to the wrong court. See Doc. 8.

present those claims to the state courts before raising them in a federal habeas

corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher

v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have

jurisdiction to consider a claim in a habeas petition that was not ‘fairly

presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877

(6th Cir. 2003)). A constitutional claim for relief must be presented to the

state’s highest court to satisfy the fair presentation requirement. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Hafley v. Sowders, 902

F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the

factual and legal underpinnings of the claims to the state courts. McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “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).

Procedural default

Procedural default may occur in two ways. Williams, 460 F.3d at 806.

First, a petitioner procedurally defaults a claim by failing “to comply with state

procedural rules in presenting [the] claim to the appropriate state court.” Id.

In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors

when determining whether a claim is barred on habeas corpus review due to a

petitioner’s failure to comply with a state procedural rule: whether (1) there is

a state procedural rule applicable to the petitioner’s claim and whether the

petitioner failed to comply with that rule; (2) the state court enforced the

procedural rule; (3) the state procedural rule is an adequate and independent

state ground on which the state can foreclose review of the federal

constitutional claim; and (4) the petitioner can demonstrate cause for failing to

follow the rule and actual prejudice by the alleged constitutional error. 785

F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the

petitioner’s failure to comply with the procedural rule, the state court declines

to reach the merits of the issue, and the state procedural rule is an independent

and adequate grounds for precluding relief, the claim is procedurally

defaulted.”) (citing Maupin, 785 F.2d at 138).

Second, “a petitioner may procedurally default a claim by failing to raise

a claim in state court, and pursue that claim through the state’s ‘ordinary

appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,

526 U.S. at 848). “If, at the time of the federal habeas petition, state law no

longer allows the petitioner to raise the claim, the claim is procedurally

defaulted.” Id. While the exhaustion requirement is satisfied because there are

no longer any state remedies available to the petitioner, see Coleman v.

Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal

claims considered in the state courts constitutes a procedural default of those

claims that bars federal court review, Williams, 460 F.3d at 806.

To overcome a procedural bar, petitioners must show cause for the

default and actual prejudice that resulted from the alleged violation of federal

law that forms the basis of their challenge, or that there will be a fundamental

miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at

750.

Merits review

If a state’s courts adjudicated the merits of a claim, a habeas petitioner

may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish

one of two predicates. To establish the first predicate, the petitioner “must

identify a ‘clearly established’ principle of ‘Federal law’ that” has been

established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,

231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must

then show that state’s court’s adjudication “was contrary to,” or “involved an

unreasonable application of” that “clearly established” precedent. 28 U.S.C. §

2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232.

To establish the second predicate, the petitioner must show that the

state’s court’s adjudication “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)(2).

“Under the ‘contrary to’ clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by the

[United States Supreme] Court on a question of law or” based on “a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13

(2000). “Under the ‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct governing legal

principle from th[e] Court’s decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application

of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely

wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419

(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).

“[A] ‘clearly established’ principle of ‘Federal law’ refers to the

“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at

231 (quoting White, 572 U.S. at 419). A state court is not required to cite

Supreme Court precedent or reflect an “awareness” of Supreme Court cases,

“so long as neither the reasoning nor the result of the state-court decision

contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v.

Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not

addressed the petitioner’s specific claims, a reviewing district court cannot find

that a state court acted contrary to, or unreasonably applied, Supreme Court

precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70,

77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for

instances in which a state court unreasonably applies this Court’s precedent;

it does not require state courts to extend that precedent or license federal

courts to treat the failure to do so as error.”).

In determining whether the state court’s decision involved an

unreasonable application of law, the Court uses an objective standard.

Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks

merit precludes federal habeas review so long as ‘fair-minded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state

prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Harrington, 562 U.S. at 103.

Discussion

Grounds one and two are procedurally defaulted

1. Rydarowicz didn’t present to the state court grounds one and two as

federal constitutional violations.

In ground one, Rydarowicz argues that the trial court violated his due

process rights and Ohio Revised Code 2317.02(B)(l)5 when it permitted at trial

the testimony of the surgeon who treated Rydarowicz after the stabbing. Doc.

1 at 5. Rydarowicz claims that the following portions of the surgeon’s testimony

prejudiced him: Rydarowicz is right-hand dominant; his wounds appeared to

5 Ohio Rev. Code Ann. § 2317.02(B)(1) provides, in relevant part, that a

physician may not testify “concerning a communication made to the physician

… by a patient in that relation or the advice of a physician … given to a patient”

unless certain exceptions apply.

be self-inflicted, rather than defensive; and the surgeon referred Rydarowicz

for a psychiatric consult. Id. In ground two, Rydarowicz argues that his due

process rights were violated when the court permitted the surgeon’s testimony

“in violation of criminal rule 16(K).” Id. at 7. Rydarowicz explains that Ohio

Criminal Rule 16(K) requires the state to provide expert opinions to the

defense before trial, and submits that a portion of the surgeon’s testimony

constituted opinion evidence that the State had not produced before trial. Id.

“Before seeking a federal writ of habeas corpus, a state prisoner must …

giv[e] the State the opportunity to pass upon and correct alleged violations of

its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal

quotation marks and citations omitted). To do so, the prisoner must “fairly

present” the claim to the state court, “thereby alerting that court to the federal

nature of the claim.” Id.; Koontz, 731 F.2d at 368 (a habeas petitioner “must

present his claim to the state courts as a federal constitutional issue—not

merely as an issue arising under state law”).

Rydarowicz in his direct-appeal brief argued that the trial court violated

Ohio statutes and rules and he cited Ohio cases in support. See Doc. 6-1 at 289,

299–303 (ground one); 290, 303–07 (ground two). Rydarowicz’s brief did not

allege a federal constitutional violation. See id. Because Rydarowicz only

presented grounds one and two to the Ohio court of appeals as state-law

violations, rather than federal constitutional violations, grounds one and two

are procedurally defaulted. See Baldwin, 541 U.S. at 29; Koontz, 731 F.2d at

368.

2. Rydarowicz hasn’t shown cause, prejudice, or actual innocence to

excuse his procedural default.

Rydarowicz has not asserted cause or prejudice to excuse his procedural

default.6 He hasn’t filed in state court an Ohio Appellate Rule 26(B) application

to reopen to allege ineffective assistance of appellate counsel for failing to raise

grounds one and two as federal constitutional violations.7 And he has not

alleged any reason indicating good cause for filing a late application to reopen

now, about two years after it would have been due. See, e.g., Prieto v.

Schweitzer, No. 4:18-cv-222, 2019 WL 2605639, at *8, n.5 (N.D. Ohio May 31,

2019) (the petitioner’s failure to file an Ohio Appellate Rule 26(B) application

to reopen or provide any reason why he had not filed one procedurally defaulted

any ineffective-assistance-of-appellate-counsel claims), report and

6 For cause, Rydarowicz explains why he failed to perfect an appeal to the

Ohio Supreme Court. Doc. 8-3, at 2–7. But Rydarowicz’s explanation does not

address Rydarowicz’s failure to raise to the Ohio court of appeals grounds one

and two as federal constitutional violations.

7 Ohio Appellate Rule 26(B) provides:

A defendant in a criminal case may apply for

reopening of the appeal from the judgment of

conviction and sentence, based on a claim of

ineffective assistance of appellate counsel. An

application for reopening shall be filed in the court

of appeals where the appeal was decided within

ninety days from journalization of the appellate

judgment unless the applicant shows good cause for

filing at a later time.

recommendation adopted, 2021 WL 147049 (N.D. Ohio Jan. 15, 2021); Rice v.

Welch, No. 3:10-cv-1916, 2014 WL 4794585, at *26 (N.D. Ohio Sept. 23, 2014).

Additionally, Rydarowicz hasn’t alleged cause to excuse the procedural default

of any ineffective-assistance-of-appellate-counsel claim. See Edwards v.

Carpenter, 529 U.S. 446, 451–53 (2000) (ineffective assistance of appellate

counsel can serve as cause to excuse a procedural default, but only if the

ineffective assistance of appellate counsel claim is not itself procedurally

defaulted).

Finally, Rydarowicz claims that he “has maintained his innocence,” Doc.

8-3, at 4, but he has not shown that his is “an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986); see Schlup v.

Delo, 513 U.S. 298, 324 (1995) (a claim of actual innocence “requires the

petitioner to 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.”).

I recommend that the Court find that grounds one and two are

procedurally defaulted.

Ground three is not cognizable and fails on the merits

In ground three, Rydarowicz argues that his due process rights were

violated because his convictions were not supported by sufficient evidence. Doc.

1 at 8. He “admitted he stabbed his wife, and does not contest the sufficiency

of the evidence on the statutory elements of the offenses. However, [he]

contends the state failed to present sufficient evidence to show he did not act

in self-defense.” Id.

The Warden argues that this claim is procedurally defaulted because

Rydarowicz failed to pursue it to the Ohio Supreme Court. Doc. 6 at 14.

Because the merits of this claim “presents a more straightforward ground for

decision” than procedural default, I evaluate this claim on the merits.8 See

Wade v. Timmerman-Cooper, 785 F.3d 1059, 1077 (6th Cir. 2015); Lambrix v.

Singletary, 520 U.S. 518, 525 (1997).

When reviewing a claim that a petitioner’s conviction is not supported

by sufficient evidence, the court asks “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979); see Cavazos v. Smith, 565 U.S. 1, 7 (2011).

8 Rydarowicz submitted a receipt to the Ohio Supreme Court showing

that on July 28, 2023, he requested from the prison postage for his court filing,

a request that the prison processed three days later. Doc. 6-1, at 405–06. If

Rydarowicz submitted his brief to the prison a week before it was due to the

Ohio Supreme Court, any delay in processing and mailing it could be attributed

to the prison. This could constitute cause to excuse the procedural default of

claims that Rydarowicz failed to present to the Ohio Supreme Court, since the

Ohio Supreme Court dismissed his appeal for failing to file his brief by the due-

date, Doc. 6-1, at 407; see also Doc. 8-3, at 2–7; see Maples v. Stegall, 340 F.3d

433, 438–39 (6th Cir. 2003) (finding that the petitioner showed cause to excuse

a procedural default when he submitted his brief “to his prison unit manager

five days prior to the [state supreme court] deadline” and his brief arrived at

the court “one day late”).

The court defers to the trier-of-fact’s determination. Brown v. Konteh, 567 F.3d

191, 205 (6th Cir. 2009). The standard is not whether the trier-of-fact made the

correct guilt or innocence determination, but whether it made a rational

decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 402 (1993). The

court does “not reweigh the evidence, re-evaluate the credibility of witnesses,

or substitute [its] judgment for that of the [fact-finder].” Brown, 567 F.3d at

205; see also Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).

“Circumstantial evidence alone is sufficient to support a conviction, and it is

not necessary for the evidence to exclude every reasonable hypothesis except

that of guilt.” Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (internal

quotations and citations omitted); see also Durr v. Mitchell, 487 F.3d 423, 449

(6th Cir. 2007) (“circumstantial evidence is entitled to equal weight as direct

evidence”).

On federal habeas review, an additional layer of deference applies.

Brown, 567 F.3d at 205; see Coleman v. Johnson, 566 U.S. 650, 651 (2012). So

even if this Court were to conclude that a rational trier-of-fact could not have

found Rydarowicz guilty beyond a reasonable doubt, the Court “must still defer

to the state appellate court’s sufficiency determination as long as it is not

unreasonable.” Brown, 567 F.3d at 205; see also White v. Steele, 602 F.3d 707,

710 (6th Cir. 2009).

In his brief to the Ohio court of appeals, Rydarowicz raised his

sufficiency claim along with a manifest-weight claim, Doc. 6-1, at 290, and the

court considered these claims together, Rydarowicz, 210 N.E.3d at 1150; see

State v. Lee, 814 N.E.2d 112, 115 (Ohio 2004) (sufficiency and manifest weight

are “legally distinct issues,” but “a determination that a conviction is supported

by the weight of the evidence will also be dispositive of the issue of

sufficiency.”). The Ohio court of appeals rejected Rydarowicz’s claim as follows:

{¶66} Appellant’s third assignment of error contains

two separate topics, alleging:

“The jury’s verdicts of Guilty were not supported by

sufficient evidence and were against the manifest

weight of the evidence.”

{¶67} Whether the evidence is legally sufficient to

sustain a conviction is a question of law dealing with

adequacy. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). An evaluation of witness

credibility is not involved in a sufficiency review, as

the question is whether the evidence is sufficient if

taken as true. State v. Yarbrough, 95 Ohio St.3d 227,

767 N.E.2d 216, ¶ 79, 82 (2002); State v. Murphy, 91

Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other

words, sufficiency involves the state’s burden of

production rather than its burden of persuasion.

Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541

(Cook, J., concurring).

{¶68} In reviewing the sufficiency of the evidence,

the court views the evidence in the light most

favorable to the prosecution to ascertain whether a

rational juror could have found the elements of the

offense proven beyond a reasonable doubt. State v.

Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998).

See also State v. Filiaggi, 86 Ohio St.3d 230, 247, 714

N.E.2d 867 (1999) (reasonable inferences are also

viewed in favor of the state); Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

(all of the evidence is to be considered in the light

most favorable to the prosecution, including

reasonable inferences). The question is merely

whether “any” rational trier of fact could have found

the contested elements were adequately established.

State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d

866 (1998), quoting Jackson, 443 U.S. at 319, 99

S.Ct. 2781.

{¶69} Appellant admitted he stabbed his wife, and he

does not contest the sufficiency of the evidence on

the statutory elements of the offenses. However,

Appellant contends the state failed to present

sufficient evidence to show he did not act in self-

defense.

{¶70} Self-defense is an affirmative defense with an

atypical burden of proof due to the March 28, 2019

statutory amendments to R.C. 2901.05. “The burden

of going forward with the evidence of an affirmative

defense, and the burden of proof, by a preponderance

of the evidence, for an affirmative defense other than

self-defense, defense of another, or defense of the

accused’s residence presented as described in

division (B)(1) of this section, is upon the accused.”

R.C. 2901.05(A). “If, at the trial of a person who is

accused of an offense that involved the person’s use

of force against another, there is evidence presented

that tends to support that the accused person used

the force in self-defense * * * the prosecution must

prove beyond a reasonable doubt that the accused

person did not use the force in self-defense * * *.”

R.C. 2901.05(B)(1).[]

{¶71} Deadly force can be used in self-defense if the

defendant: (1) was not at fault in creating the

situation giving rise to the confrontation; (2) had a

bona fide belief he was in imminent danger of great

bodily harm and that the only means of escape from

such danger being the use of such force; and (3) did

not violate a duty to retreat or avoid the danger.

State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d

1240 (2002). Appellant acknowledges the state need

only disprove one of the elements of self-defense. See

State v. Sarge, 5th Dist. Knox No. 21CA000014,

2021-Ohio-4379, 2021 WL 5881749, ¶ 30, citing

State v. Carney, 10th Dist. Franklin No. 19AP-402,

2020-Ohio-2691, 2020 WL 2042924, ¶ 31. Applying

a sufficiency of the evidence test, Appellant

concludes no rational fact-finder could have found an

element of self-defense was disproven even when the

evidence is viewed in the light most favorable to the

state.

{¶72} However, as the Supreme Court recently

explained, the statutory amendment to R.C. 2901.05

did not place a burden of production on the state to

be reviewed for sufficiency. State v. Messenger, 171

Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653.

The amendment merely constituted a “change to the

state’s burden of persuasion regarding self-defense”

because requiring the state to disprove an

affirmative defense beyond a reasonable doubt does

not cause the affirmative defense to become an

element of the offense. Id. at ¶ 24. The defendant

still has “the burden of producing legally sufficient

evidence that the defendant’s use of force was in self-

defense.” Id. at ¶ 25 (the defendant satisfies his

burden of production if the evidence and any

reasonable inferences would allow a rational trier of

fact to find all the elements of a self-defense claim

when viewed in the light most favorable to the

defendant). Accordingly, a self-defense claim that is

submitted to the jury is not subject to review for the

sufficiency of the state’s evidence, as a sufficiency

analysis applies only to the elements of an offense

and the affirmative defense of self-defense remains

subject only to a manifest weight of the evidence

review on appeal. Id. at ¶ 27. We thus consider

Appellant’s contentions under his weight of the

evidence argument.

Rydarowicz, 210 N.E.3d at 1150–52.

In short, Rydarowicz’s sufficiency claim, which only challenges self-

defense evidence, is not cognizable. The Sixth Circuit has explained:

the Ohio Supreme Court held that the amendments

to Ohio’s self-defense statute “did not eliminate the

defendant’s burden of production regarding a claim

of self-defense.” State v. Messenger, 216 N.E.3d 653,

660 (Ohio 2022). The court emphasized that the

amended self-defense statute did not change the

elements of any offense: “Self-defense remains an

affirmative defense in Ohio, and an affirmative

defense is not an element of a crime.” Id. at 659. The

court concluded that “the sufficiency-of-the-evidence

standard of review applies to [the defendant’s]

burden of production” regarding a self-defense claim

while the prosecution’s “new burden of disproving

the defendant’s self-defense claim beyond a

reasonable doubt” is subject to review under the

manifest-weight-of-the-evidence standard. Id. at

660.

“[T]he Due Process Clause requires the prosecution

to prove beyond a reasonable doubt all of the

elements included in the definition of the offense of

which the defendant is charged,” but “[p]roof of the

nonexistence of all affirmative defenses has never

been constitutionally required.” Patterson v. New

York, 432 U.S. 197, 210 (1977). “[T]he due process

‘sufficient evidence’ guarantee does not implicate

affirmative defenses, because proof supportive of an

affirmative defense cannot detract from proof

beyond a reasonable doubt that the accused had

committed the requisite elements of the crime.”

Caldwell v. Russell, 181 F.3d 731, 741 (6th Cir.

1999), abrogated on other grounds as recognized by

Mackey v. Dutton, 217 F.3d 399, 406 (6th Cir. 2000).

Because self-defense remains an affirmative defense

under Ohio law, the prosecution’s alleged failure to

present sufficient evidence to disprove that Smith

acted in self-defense or in defense of another did not

raise a constitutional concern. Smith’s manifest-

weight-of-the-evidence argument likewise presented

a state-law issue that is not cognizable on federal

habeas review. See Estelle v. McGuire, 502 U.S. 62,

67-68 (1991); Nash v. Eberlin, 258 F. App’x 761, 764

n.4 (6th Cir. 2007). Given that Smith’s arguments

about her affirmative defenses did not raise a

constitutional issue, reasonable jurists could not

debate the district court’s rejection of her first three

grounds for relief.

Smith v. Smith, No. 24-3251, 2024 WL 4287901, at *3 (6th Cir. July 2, 2024),

cert. denied sub nom. Smith v. Olds, No. 24-5652, 2024 WL 4874711 (Nov. 25,

2024); see also Smith v. United States, 568 U.S. 106, 110 (2013) (“While the

Government must prove beyond a reasonable doubt ‘every fact necessary to

constitute the crime with which [the defendant] is charged,’ ‘[p]roof of the

nonexistence of all affirmative defenses has never been constitutionally

required.’”)) (internal citations omitted). Rydarowicz’s sufficiency claim is

therefore not cognizable.

Moreover, even if it were cognizable, Rydarowicz’s claim would fail on

the merits. The Ohio court of appeals continued:

{¶73} Weight of the evidence concerns “the

inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the

issue rather than the other.” Thompkins, 78 Ohio

St.3d at 387, 678 N.E.2d 541. The court evaluates

the effect of the evidence in inducing belief, but

weight of the evidence is not a question of

mathematics. Id. A weight of the evidence review

considers whether the state met its burden of

persuasion. Id. at 390, 678 N.E.2d 541 (Cook, J.,

concurring) (as opposed to the burden of production

involved in a sufficiency review). When a defendant

claims the conviction is contrary to the manifest

weight of the evidence, the appellate court is to

review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of

witnesses, and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost

its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a

new trial ordered. State v. Lang, 129 Ohio St.3d 512,

2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.

{¶74} “[T]he weight to be given the evidence and the

credibility of the witnesses are primarily for the trier

of the facts.” State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of

fact occupies the best position from which to weigh

the evidence and judge the witnesses’ credibility by

observing their gestures, voice inflections, and

demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶75} Where a case is tried by a jury, only a

unanimous appellate panel can reverse on manifest

weight of the evidence grounds. Ohio Constitution,

Article IV, Section 3(B)(3). The power of the court of

appeals to sit as the “thirteenth juror” is limited in

order to preserve the jury’s primary function of

weighing the evidence. Thompkins, 78 Ohio St.3d at

389, 678 N.E.2d 541.

{¶76} As mentioned above, Appellant acknowledges

a negative finding on one of the three self-defense

elements would support the rejection of the defense.

First, Appellant claims there was no evidence he

was at fault in creating the situation because the

victim came to the motel, she previously came with

police escorts, no one said he started an argument,

and he testified she stabbed him from behind with a

knife she previously stole from him. Second, he says

being stabbed in the neck would give rise to his bona

fide belief of imminent danger of great bodily harm

and stabbing her in the back was his only means of

escape because she was heading toward a utensil

drawer after he wrested the knife from her hand.

Third, he points out there is no duty to retreat from

one’s home. State v. Williford, 49 Ohio St.3d 247,

250, 551 N.E.2d 1279 (1990).

{¶77} However, Appellant’s first two arguments rely

on his version of events. The state presented

persuasive evidence contradicting Appellant’s story.

To recap, Appellant sent concerning texts about the

victim and about his life to his sisters. His texts

showed he was having a hard time finding a reason

for hope in life. He was upset his wife was seeing

other men and no longer wished to be in a

relationship. He previously mentioned a plan to

“bash the shit out of her.” He argued with the victim

in texts in the weeks preceding her death while she

refused to return to the motel. After a week of

silence, he texted to say he would give her a car part

she needed, encouraging her to come to the motel

alone for the part and some of her belongings. The

police did not recover a car part. The victim came to

the motel that day and began retrieving her

belongings from the room. After a few trips to the

vehicle with baskets, the victim ran from the motel

with a deep stab wound to the middle of her back.

{¶78} Appellant owned the switchblade knife that

killed the victim (stating he received it as a ninth

birthday present). The fact that a parole officer did

not find “contraband or weapons” when he first

visited the motel room did not mean the knife was

brought to the motel thereafter. Appellant was 6’2”

while the victim was 5’6” or less. Appellant did not

call 911 to report the alleged attack or seek an

ambulance for the victim or himself even though he

said he was worried about the blood running from

his deep wounds.

{¶79} Only the victim’s own DNA was found in the

blood recovered from her body and clothes. The

location of Appellant’s blood on the knife in

comparison to the location of the victim’s blood was

telling as to the sequence of events. Appellant’s DNA

was recovered from the tip of the knife and the

handle while the victim’s DNA was only recovered

from the bottom of the blade, suggesting she was

stabbed first. Circumstantial evidence and direct

evidence inherently possess the same probative

value. State v. Treesh, 90 Ohio St.3d 460, 485, 739

N.E.2d 749 (2001).

{¶80} Appellant admitted he stabbed the victim to

his mother in front of a nurse but did not

contemporaneously mention his self-defense story to

his mother, even though he previously told a police

officer he used the knife to protect himself because

the victim was coming after him. Appellant testified

in his own defense. We note the jury did not believe

the state’s theory that Appellant killed his wife with

prior calculation and design, as the jury found him

not guilty of aggravated murder. However, they

believed he purposely killed her without falling

under a self-defense scenario. The jury saw

Appellant’s demeanor and gestures as he claimed

the victim stabbed him in the left side of his neck

and then caused cuts to the inside of his left wrist

and a stab wound to the other side of his neck as he

was disarming her. They heard his voice and

watched for any signs of deceit as he said his wounds

were not self-inflicted. The jury was not required to

believe the victim attacked Appellant. It was

reasonable for the jury to conclude Appellant’s

wounds were self-inflicted in a suicide attempt or in

an attempt to create the appearance of a legal

justification for stabbing his wife.

{¶81} The jury was in the best position to judge

Appellant’s credibility and weigh the evidence.

When there is more than one believable

interpretation of the evidence, we do not choose

which theory we believe is more credible and

substitute it for the theory chosen by the jury. State

v. Baker, 7th Dist. Mahoning, 2020-Ohio-7023, 166

N.E.3d 601, ¶ 148, citing State v. Gore, 131 Ohio

App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

The jury did not clearly lose its way and create a

manifest miscarriage of justice, and this is not the

“exceptional case where the evidence weighs

heavily” against the jury verdict and requires this

court to step in as the “thirteenth juror.” See Lang,

129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596

at ¶ 220. This assignment of error is overruled.

Rydarowicz, 210 N.E.3d at 1152–54.

Rydarowicz hasn’t shown that the Ohio court of appeals’ sufficiency

determination was unreasonable. See Brown, 567 F.3d at 205. He reiterates

some of the evidence that was presented at trial and argues that his version of

events was more credible.9 Doc. 8-3, at 20–21. But a reviewing court does “not

reweigh the evidence, re-evaluate the credibility of witnesses, or substitute

[its] judgment for that of the [fact-finder].” Brown, 567 F.3d at 205.

“Circumstantial evidence alone is sufficient to support a conviction, and it is

not necessary for the evidence to exclude every reasonable hypothesis except

that of guilt.” Johnson, 200 F.3d at 992.

Moreover, Rydarowicz’s transcript citations do not support his

argument. Rydarowicz claims that a witness corroborated his testimony that

there “were no problems between [Rydarowicz and the victim] that day.” Doc.

9 In his traverse, Rydarowicz also claims that the trial court erred when

it denied his “[Ohio] Crim. R. 29 motion for acquittal.” Doc. 8-3, at 16–17, 21.

Rydarowicz has not asserted such a claim in his petition, see Doc. 1, and he

cannot raise it for the first time in his traverse. See Tyler v. Mitchell, 416 F.3d

500, 504 (6th Cir. 2000) (claims raised for the first time in a traverse are

improper); see Rice v. Warden, Warren Corr. Inst., 786 F. App’x 32, 38 (6th Cir.

2019). Even if Rydarowicz had raised such a claim in his petition, it would be

not cognizable. See Sanders v. Warden, Se. Corr. Inst., No. 3:22-cv-291, 2023

WL 7926448, at *7 (S.D. Ohio Nov. 16, 2023) (stating that whether an Ohio

Criminal Rule 29 motion for acquittal was properly decided is a state-law issue

not cognizable on federal habeas review and collecting cases), report and

recommendation adopted sub nom. Sanders v. Warden, London Corr. Inst.,

2024 WL 1463406 (S.D. Ohio Apr. 4, 2024).

8-3, at 20 (citing transcript pages 355–60). But the witness did not see anything

that happened in the motel room, where the violence took place. The witness

only saw Rydarowicz and the victim standing in the parking lot speaking to

each other, the victim making two trips carrying items away from the motel

room across the parking lot, and then the victim running away from the motel

through the field. Doc. 6-4, at 138–40; 143–44. Rydarowicz argues that the

evidence at trial “was clear that [the victim] ha[d] stolen [Rydarowicz’s] knife

at some point prior to June 22, 2019.” Doc. 8-3, at 20–21 (citing transcript pages

513, 659, 874, 881, 884–87). The transcript pages Rydarowicz cites do not show

that the victim stole his knife. See Doc. 6-5, at 48–49; 194; Doc. 11-2, at 165,

172, 175–78. Rydarowicz submits that the State’s theory of the case—that

Rydarowicz attacked his wife in the motel room “out of the blue”—was “simply

incredible.” Doc. 8-3, at 21. But Rydarowicz doesn’t explain why this version of

events is less credible than his version—that the victim just as unexpectedly

attacked Rydarowicz in the motel room. In other words, the jury was free to

believe the State’s version of events over Rydarowicz’s version of events. See

Brown, 567 F.3d at 205. So even if a sufficiency-of-evidence claim on self-

defense were cognizable, it would fail.

Conclusion

For the reasons set forth above, I recommend that Rydarowicz’s Petition

be dismissed.

Dated: April 28, 2025

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).