# Rydarowicz v. Mackey

> District Court, N.D. Ohio · April 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10864232

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** April 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10864232. Public record. Not legal advice.