# Lloyd v. Mackey

> District Court, N.D. Ohio · September 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11141495

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 19, 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

CRONIE LLOYD, ) CASE NO. 1:24-CV-00622-JJH
)
Plaintiff, )
) JUDGE JEFFREY J. HELMICK
vs. ) UNITED STATES DISTRICT JUDGE
)
ACTING WARDEN MISTY MACKEY, ) MAGISTRATE JUDGE
) JONATHAN D. GREENBERG
Defendant. )
) REPORT & RECOMMENDATION
)

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the
Petition of Cronie Lloyd (“Lloyd” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C.
§ 2254. Lloyd is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal
entry of sentence in the case State v. Lloyd, Cuyahoga County Court of Common Pleas, Case No. 19-CR-
637149. For the following reasons, the undersigned recommends that the Petition be DENIED.
I. SUMMARY OF FACTS
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state
court, factual determinations made by state courts are presumed correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir.
2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the
facts underlying Lloyd’s conviction as follows:
{¶ 4} On February 3, 2019, Lloyd and Power were involved in a minor
traffic accident while leaving a bar located in Independence, Ohio. The men
pulled their vehicles into a nearby gas station, where they proceeded to
engage in a verbal argument. During the verbal dispute, the men made
gestures towards their vehicles and assessed the damage caused by the
accident. The men were standing several feet apart when Power began
walking towards the rear of his vehicle. As Power walked past Lloyd, Lloyd
suddenly threw a single punch, without warning, that connected with
Power’s jaw. Power immediately lost consciousness and fell to the ground,
striking his head on the concrete. Lloyd unsuccessfully attempted to throw
a second punch as Power was falling to the ground. The incident, which
lasted less than two minutes, was captured by nearby surveillance cameras.

{¶ 5} Lloyd quickly fled the scene without rendering aid or calling 911.
Officer Everett Haworth (“Officer Everett”) of the Independence Police
Department testified that he was patrolling the area when he observed
Lloyd's vehicle pull out of the gas station at a high rate of speed. Upon
observing Lloyd drive through a red light, Officer Haworth activated his
overhead lights and attempted to initiate a traffic stop of Lloyd’s vehicle.
Lloyd, however, ignored Officer Haworth’s siren and “continued to
accelerate.” (Tr. 170.) Officer Haworth explained that he decided to
terminate his pursuit of Lloyd’s vehicle because he received a radio
broadcast to respond to an altercation that was taking place in the parking
lot of a nearby Denny’s restaurant. Officer Haworth stated that he
prioritized the “40-person brawl” over Lloyd’s traffic violations.

{¶ 6} After resolving the purported conflict in the Denny’s parking lot,
Officer Haworth noticed that there was a vehicle parked at the gas station
where his pursuit of Lloyd’s vehicle had begun. Upon further investigation,
Officer Haworth observed “an older white male,” later identified as Power,
“laying on the pavement.” (Tr. 171.) Power was unconscious and had a large
laceration on the back of his head. Officer Haworth immediately called for
an ambulance, and Power was transported to a nearby hospital. Power was
pronounced dead two days after sustaining his injuries.

{¶ 7} Officer Haworth testified that he then made contact with the gas
station attendant and obtained permission to review the gas station’s
security video footage. Based on his review of the video footage, Officer
Haworth determined that a crime had occurred and that it was necessary to
secure the scene and Power’s vehicle. Relevant to this appeal, Officer
Haworth testified that he collected a cigarette that was found near Power's
body. Officer Haworth explained that he “believe[d] that the cigarette may
have fallen from either the suspect or the victim.” (Tr. 178.)

{¶ 8} Sergeant Michael Murphy (“Sgt. Murphy”) of the Independence
Police Department testified that he was assigned to investigate the incident.
In the course of his investigation, Sgt. Murphy photographed Power in the
hospital, spoke with Power’s relatives, and reviewed surveillance footage
recovered from the gas station and the bar where Lloyd and Power had been
prior to the traffic accident. Following Power’s death, the investigating
officers submitted physical evidence to the crime laboratory for forensic
testing, including the cigarette recovered from the scene and swabs taken
from areas of Power’s vehicle that Lloyd had touched to regain his balance
after punching Power.

{¶ 9} Andrea Davis (“Davis”), a forensic scientist with the Ohio Bureau of
Criminal Investigation, testified that the cigarette and a swab taken from the
passenger’s side door of Power’s vehicle contained a profile that was
consistent with Lloyd’s DNA. In addition, the investigating officers
confirmed that Lloyd was the owner of a vehicle that was the same color,
make, and model as the vehicle depicted on the surveillance video footage.

{¶ 10} Dr. David Dolinak, M.D. (“Dr. Dolinak”), provided extensive
testimony regarding Power’s medical history and the scope and nature of
his injuries. Based on his review of the relevant medical records, Dr.
Dolinak testified that Power sustained extensive head injuries, including
fractures of his skull and bleeding and bruising in his brain. Dr. Dolinak
explained that the initial impact to the left side of Power’s jaw cause him to
“fall to the ground hard enough to hit his head fairly hard on the ground.”
(Tr. 428.) Based on the nature and extent of his injuries, Dr. Dolinak opined,
to a reasonable degree of medical certainty, that Power’s cause of death was
a blunt force head injury and that the manner of death was a homicide.

{¶ 11} At the conclusion of trial, Lloyd was found guilty of murder and
felonious assault as charged in the indictment. He was sentenced to life in
prison with the possibility of parole after 15 years.

State v. Lloyd, 2021-Ohio-1808, ¶¶ 4-11.
II. PROCEDURAL HISTORY
A. Trial Court Proceedings
On February 26, 2019, a Cuyahoga County Grand Jury indicted Lloyd on the following charges:
murder B pursuant to O.R.C. § 2903.02 and felonious assault with a notice of prior conviction and a repeat
violent offender specification. (Doc. No. 7-1, Ex. 1.) Lloyd entered pleas of not guilty to all charges. (Id. at
Ex. 2.)
On September 11, 2019, Lloyd filed waivers of jury trial on the notice of prior conviction and the
repeat violent offender specifications. (Id., Ex. 3-4.)
The case proceeded to jury trial. On September 17, 2019, the jury returned its verdict, finding Lloyd
guilty of all charges. (Doc. No. 7, Ex. 5.) The trial court merged the counts for sentencing, and sentenced
Lloyd to life in prison with parole eligibility after 15 years. (Id.)
B. Direct Appeal

Lloyd, through counsel, filed a timely notice of appeal to the Eighth District Court of Appeals. (Doc.
No. 7-1, Ex. 6.) On July 20, 2020, counsel filed a Motion to Accept Appellant’s Merit Brief Out of Rule
because the brief was filed late due to technological issues. (Id., Ex. 7.) The Court granted the motion, and
deemed it filed on July 20, 2020. (Id., Ex. 9.) In his appellate brief, Lloyd raised the following assignments
of error:
I. MR. LLOYD WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT
TO A FAIR AND IMPARTIAL JURY WHEN THE STATE WAS
PERMITTED TO REMOVE A JUROR FOR CAUSE WHEN THAT
JUROR TESTIFIED THAT SHE [sic]

II. MR. LLOYD WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL WHERE TRIAL COUNSEL FAILED TO REQUEST A JURY
INSTRUCTION ON THE LESSER INCLUDED OFFENSES OF
ASSAULT AND INVOLUNTARY MANSLAUGHTER.

III. MR. LLOYD WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL WHERE TRIAL COUNSEL FAILED TO REQUEST A JURY
INSTRUCTION ON THE INFERIOR OFFENSE OF AGGRAVATED
ASSAULT AND VOLUNTARY MANSLAUGHTER

IV. MR. LLOYD WAS DENIED DUE PROCESS OF LAW AND THE
TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO
INSTRUCT THE JURY ON THE OFFENSES RAISED BY THE
EVIDENCE.

V. MR. LLOYD'S CONVICTION FOR FELONIOUS ASSAULT AND
FELONY-MURDER ARE NOT SUPPORTED BY SUFFICIENT
EVIDENCE

(Id., Ex. 8.) The State filed a brief in response. (Id., Ex. 10.) On March 16, 2021, Lloyd filed a Notice of
Intention to Cite Additional Authority at Oral Argument. (Id., Ex. 11.)
On May 27, 2021, the state appellate court affirmed Lloyd’s convictions. (Id., Ex. 12.)
On July 12, 2021, Lloyd, through counsel, filed a Notice of Appeal with the Supreme Court of Ohio.
(Id., Ex. 13.) In his Memorandum in Support of Jurisdiction, Lloyd raised the following Propositions of
Law:

I. The throwing of a single punch to the head, without more, may be the
reckless – not knowing – causing of serious physical harm.

II. For purposes of a claim of ineffective assistance of counsel, the presumption
of reasonable trial strategy can be rebutted by evidence of trial counsel’s
persistent misunderstanding of the elements of the offense charged.

(Id., Ex. 14.) The State filed a response opposing Lloyd’s discretionary appeal. (Id., Ex. 15.)
On September 28, 2021, the Supreme Court of Ohio accepted the appeal on Proposition of Law No.
II only. (Id., Ex. 16.) On December 23, 2021, Lloyd filed his merit brief, raising the following Proposition
of Law: “For the purposes of a claim of ineffective assistance of counsel, the presumption of reasonable trial
strategy can be rebutted by evidence of trial counsel’s persistent misunderstanding of the elements of the
offense charged.” (Id., Ex. 17.) On February 14, 2022, the State filed its merit brief. (Id., Ex. 18.) On March
7, 2022, Lloyd filed his reply brief. (Id., Ex. 19.) On March 7, 2022, Lloyd both an amended reply brief and
a second amended reply brief. (Id., Ex. 20-21.) On December 1, 2022, the Supreme Court of Ohio affirmed
the judgment of the appellate court. (Id., Ex. 22-23.)
C. United States Supreme Court
On April 26, 2023, Lloyd, through counsel, filed a Petition for Writ of Certiorari in the Supreme
Court of the United States. (Id., Ex. 24.) He posed the following reasons for granting the petition:
I. When counsel pursues a legally and factually irrelevant theory, it rebuts the
presumption of competence and reasonable trial strategy.

a. Arguing a legally and factually irrelevant theory should prove to a
reviewing court that counsel misunderstood the law.
b. A reviewing court must address the impact of counsel’s
misapprehension of the law on the presumption of competence and
reasonable trial strategy.

II. There is no coherence in how State and Federal Courts determine what
constitutes reasonable trial strategy in the ineffective assistance of counsel.

(Id.) On May 16, 2023, the State filed its Brief in Opposition. (Id., Ex. 26.) On June 2, 2023,
Lloyd filed his reply brief. (Id., Ex. 27.)
On June 20, 2023, the Supreme Court of the United States denied Lloyd’s Petition for Writ of
Certiorari. (Id., Ex. 28.)
D. Federal Habeas Petition
On April 5, 2024, Lloyd, through counsel, filed a Petition for Writ of Habeas Corpus in this Court.
On April 6, 2024, Lloyd filed an Amended Petition and asserted the following grounds for relief:
GROUND ONE: The Petitioner, Cronie Lloyd, was denied his right to
effective assistance of counsel in violation of the protections guaranteed to
him by the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and pursuant to the holding of Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
(Doc. No. 2.)
On July 2, 2024, Warden Misty Mackey (“Respondent”) filed her Return of Writ. (Doc. No. 7.)
Lloyd filed a Traverse on September 26, 2024. (Doc. No. 10.)
III. REVIEW ON THE MERITS
A. Legal Standard
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997). The relevant provisions of AEDPA
state:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d) (1996).
Clearly established federal law is to be determined by the holdings (as opposed to the dicta) of the
United States Supreme Court. See Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012);
Renico v Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865-1866 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000); Shimel v.Warren, 838 F.3d 685, 695 (6th Cir. 2016); Ruimveld v.
Birkett, 404 F.3d 1006, 1010 (6th Cir.2005). Indeed, the Supreme Court has indicated that circuit precedent
does not constitute “clearly established Federal law, as determined by the Supreme Court.” Parker, 567
U.S. at 48-49; Howes v. Walker, 567 U.S. 901, 132 S.Ct. 2741, 183 L.Ed.2d 612 (2012). See also Lopez
v.Smith, ––– U.S. ––––, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (“Circuit precedent cannot ‘refine
or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has
not announced.’” (quoting Marshall v. Rodgers, 569 U.S. 58, 133 S.Ct.
1446, 1450, 185 L.Ed.2d 540 (2013))).
A state court’s decision is contrary to clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. at 413. By contrast, a state court’s decision involves an unreasonable application of clearly
established federal law “if the state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. See also
Shimel, 838 F.3d at 695. However, a federal district court may not find a state court’s decision unreasonable
“simply because that court concludes in its independent judgment that the relevant state court decision
applied clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. at 411.
Rather, a federal district court must determine whether the state court’s decision constituted an objectively
unreasonable application of federal law. Id. at 410-12. “This standard generally requires that federal courts

defer to state-court decisions.” Strickland v. Pitcher, 162 Fed. Appx. 511, 516 (6th Cir. 2006) (citing
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)).
In Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court
held that as long as “fairminded jurists could disagree on the correctness of the state court’s decision,” relief
is precluded under the AEDPA. Id. at 786 (internal quotation marks omitted). The Court admonished that
a reviewing court may not “treat[ ] the reasonableness question as a test of its confidence in the result it
would reach under de novo review,” and that “even a strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id. at 785. The Court noted that Section 2254(d) “reflects the view
that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems” and does

not function as a “substitute for ordinary error correction through appeal.” Id. (internal quotation marks
omitted). Therefore, a petitioner “must show that the state court’s ruling . . . was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786–87. This is a very high standard, which the Supreme Court readily
acknowledged. See id. at 786 (“If this standard is difficult to meet, that is because it is meant to be.”)
B. Analysis

In his sole ground for relief, Lloyd argues that he received ineffective assistance of counsel in
violation of the protections guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and pursuant to Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052 (1984). (Doc.
No. 2-2 at 12.) Lloyd argues his counsel “did not understand the limited nature of what the State of Ohio
had to prove to convict Lloyd.” (Id. at 13.) He argues his counsel repeatedly stated in her closing argument
that Lloyd did not intend to kill Powers, and that that argument was factually and legally irrelevant to his
felony murder charge. (Id. at 13-14.) Lloyd asserts that her mistake of law “pervaded all aspects of her
representation at trial.” (Id. at 15.) Lloyd states his counsel’s “misunderstanding of the law means that the

presumption of competence should be stripped from the ineffective assistance of counsel analysis.” (Id.)
Lloyd asserts the reviewing state courts “engaged in an unreasonable reading of the record and unreasonable
application of Strickland . . . excusing all mistakes as strategy.” (Id.)
Lloyd argues the Supreme Court of Ohio failed to take in the totality of the record. (Id. at 16.) Lloyd
claims not only did his counsel misstate the law during closing argument, but missed opportunities to present
a real defense by waiving her opening statement, and her attempts to “sow doubt” during testimony “were
doomed to fail.” (Id.) He claims counsel “failed to develop the only defense that mattered – Lloyd’s mindset
as it related to the underlying felony.” (Id.) Lloyd contends counsel’s “failure to appreciate the elements of
the offense in this case also caused counsel to fail to ask for lesser included offense and inferior degree

offense instructions.” (Id.) Lloyd states that counsel failed to develop the record that would have supported
a request for those instructions. (Id.) Lloyd states the “misunderstanding of the elements of the offense” is
“woven throughout the record” and the “state courts’ failure to find that was an unreasonable
determination.” (Id. at 17.)
Lloyd argues the Supreme Court of Ohio found the record did not prove Lloyd’s counsel
misunderstood the law, but even when the court assumed she had misunderstood the law, it failed to say
what impact it would have had. (Id.) Lloyd claims that decisions made by an attorney under a
misunderstanding should not enjoy the presumption of competence. (Id. at 18-21.)
Respondent argues the Supreme Court of Ohio’s decision was not an unreasonable determination of
the facts. (Doc. No. 7 at 17.) Respondent states the Supreme Court of Ohio found that, after reviewing the
record as a whole, Lloyd’s counsel’s argument that he didn’t know one punch would have killed the victim
specified the serious harm that occurred – not that Lloyd lacked intent to kill the victim. (Id.) Respondent
contends counsel chose to focus on the lack of proof of the element “knowingly” and argued Lloyd was not

aware his conduct would probably cause the serious physical harm that it did. (Id. at 18-19.) Respondent
contends that counsel raised a viable defense, challenging the state’s proof that Lloyd knowingly caused
serious physical harm. (Id. at 19.)
Respondent argues Lloyd was not entitled to alternate jury instructions, and as the Supreme Court
of Ohio found, a request for them would have been futile. (Id.) Respondent states the altercation was on
video, there was no evidence of provocation on the part of the victim, and there was no way a jury could
have found Lloyd did not knowingly cause serious physical harm given the hard punch thrown at the senior
citizen victim. (Id.)
Respondent argues counsel’s decision to waive opening statement does not show she misunderstood

the law. (Id. at 20.) Counsel chose to waive opening statements to the close of the state’s evidence, and then
later waived the opening statement entirely after discussion with Lloyd and his consent. (Id.)
Respondent maintains the Supreme Court of Ohio’s decision was not contrary to or an unreasonable
application of Strickland. (Id.) In response to Lloyd’s argument that the Supreme Court of Ohio’s decision
was contrary to Strickland because the court “failed to say what impact [counsel’s misunderstanding] would
have had on the presumption of competence”, Respondent states the court held Lloyd failed to show that
counsel misunderstood the law, thus the court did not need to state what impact a misunderstanding would
have had. (Id.) Respondent argues the Supreme Court of Ohio “held that Lloyd did not satisfy his burden
under Strickland, finding that Lloyd’s counsel ‘had good reason to focus the jury on the specific serious
physical harm that occurred here, rather than serious physical harm in the abstract.’” (Id. at 21, citing Lloyd,
2022-Ohio-4259, ¶23.) Respondent asserts that even if counsel “misunderstood the law, counsel’s failure to
request alternative jury instructions was not objectively unreasonable because Lloyd was not entitled to the
instructions at all. (Id., citing Lloyd, 2022-Ohio-4259, ¶30.) Respondent notes the Supreme Court of Ohio
declined to address Lloyd’s argument concerning plea negotiations because it was not included in the

arguments raised to the state court of appeals. (Id.)
In his Traverse, Lloyd claims his counsel “believed she could secure Lloyd’s acquittal if the jury
found that he did not knowingly or intentionally cause Power’s death with a single punch”, which was a
misunderstanding of the law. (Doc. No. 10 at 2.) (Emphasis original.) Lloyd asserts the dissenting justices
of the Ohio Supreme Court “got it right” when they wrote that they would have reversed and remanded to
determine “whether Lloyd was prejudiced by the deficient performance of his trial counsel.” (Id. at 3-4.)
Lloyd reiterates that the Supreme Court of Ohio’s decision was based on an unreasonable determination of
the facts because “the only conclusion that could be fairly drawn” from the record is that counsel
misunderstood the law of felony murder. (Id. at 10.) Lloyd states counsel’s arguments to the jury were a

misstatement of the state’s burden because the state need only prove Lloyd intended to cause any type of
serious physical harm, not death. (Id. at 13-14.) Lloyd again claims counsel’s misunderstanding of the law
resulted in her failing to provide a viable defense, arguing that she should have claimed he lacked the mens
rea required for the underlying felony. (Id. at 14.) Lloyd contends the Supreme Court of Ohio failed to
follow Strickland, clearly established federal law, when it failed to find that the presumption of competence
was rebutted by counsel’s misunderstanding of the law. (Id. at 15.) Lloyd argues that if counsel
misunderstood the law, the presumption of competence must be rebutted, which the Supreme Court of Ohio
did not properly consider. (Id. at 20.)
Lloyd raised an ineffective assistance of counsel claim through the state courts. (Doc. No. 7-1, Ex.
8, 14, 17.) The Supreme Court of Ohio, the last court to decide the issue, made the following findings:
{¶ 14} In all criminal prosecutions, the accused has the right to “the
Assistance of Counsel for his defence.” Sixth Amendment to the U.S.
Constitution. Inherent in the right to counsel is “the right to the effective
assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct.
1441, 25 L.Ed.2d 763 (1970), fn. 14. Attorneys are “strongly presumed to
have rendered adequate assistance.” Strickland v. Washington, 466 U.S.
668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, that
presumption can be overcome.

{¶ 15} The “benchmark” for determining ineffectiveness is “whether
counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”
Id. at 686, 104 S.Ct. 2052. To establish that an attorney’s conduct fell below
the benchmark, the defendant must satisfy a two-part test. The defendant
first must show that “counsel's performance was deficient.” Id. at 687, 104
S.Ct. 2052. The defendant then “must show that the deficient performance
prejudiced the defense.” Id.

{¶ 16} Courts determine deficient performance by asking whether the
attorney’s conduct “fell below an objective standard of reasonableness.” Id.
at 688, 104 S.Ct. 2052. The reasonableness of the attorney’s conduct must
be judged based on “the facts of the particular case, viewed as of the time
of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. Only when the attorney’s
errors were “so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment” has the attorney
engaged in deficient performance. Id. at 687, 104 S.Ct. 2052.

{¶ 17} When the alleged error concerns what could be viewed as trial
strategy, courts must be “highly deferential” to the attorney’s strategic
decisions. Id., 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. After all,
each case is unique and capable of being argued in a variety of ways. See
id. at 689-690, 104 S.Ct. 2052. Nobody can predict the future, and “it is all
too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689, 104 S.Ct. 2052. Hindsight is 20/20 after all.
Accordingly, the defendant “must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id., quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158,
100 L.Ed. 83 (1955).

{¶ 18} To establish prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694, 104 S.Ct.
2052. The error must be so serious as to “undermine confidence in the
outcome.” Id.

A. The Record Does Not Establish that Lloyd's Counsel Was Deficient

{¶ 19} The premise of Lloyd’s argument is that his attorney misunderstood
the law and, as a result, failed to ask for lesser-included- and inferior-
degree-offense instructions. There are two problems with this argument,
both of which are fatal to Lloyd’s appeal. First, the record does not
demonstrate that Lloyd’s counsel misunderstood the law. Second, Lloyd
would not have been entitled to the instructions had his counsel asked for
them.

1. Lloyd has not shown that his attorney misunderstood the law

{¶ 20} There is caselaw to support the notion that an attorney’s failure to
know the law can cause blunders that amount to deficient performance. In
Williams v. Taylor, defense attorneys failed to investigate the defendant’s
background before sentencing, “not because of any strategic calculation but
because they incorrectly thought that state law barred access to such
records.” 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The
United States Supreme Court recognized that this failure to investigate,
which left undiscovered substantial evidence of childhood trauma and other
mitigating evidence, constituted deficient performance. See id. at 395-396,
120 S.Ct. 1495. Other courts have also recognized that an attorney’s failure
to know the law can lead to deficient performance. See, e.g., Smith v.
Dretke, 417 F.3d 438, 442 (5th Cir.2005) (“failing to introduce evidence
because of a misapprehension of the law is a classic example of deficiency
of counsel”); People v. Pugh, 157 Ill.2d 1, 19, 191 Ill.Dec. 10, 623 N.E.2d
255 (1993) (“counsel’s advice, based upon a misapprehension of the law,
fell outside the range of competence demanded of attorneys in criminal
cases”).

{¶ 21} But we are not convinced that Lloyd’s attorney misunderstood the
law. In arguing that his attorney did not understand the elements of the
felonious-assault offense upon which the felony-murder charge was
predicated, Lloyd zeroes in on several statements that she made in closing
argument. Specifically, his attorney said, “[T]here is no way that Mr. Lloyd
could have knowingly been aware that hitting someone with one punch
would cause the death of that individual.” According to Lloyd, this
statement and others like it are proof that his attorney did not know the
elements of the crime charged, because the state needed to prove only that
Lloyd knowingly caused serious physical harm to the victim. The problem
is that this interpretation does not take into account the totality of counsel’s
closing argument.
{¶ 22} In this case, the serious physical harm that occurred was the victim’s
death. One way of looking at counsel’s statement that Lloyd could not have
known that one punch would have killed the victim is that she was simply
specifying the serious physical harm that was alleged to have occurred.

{¶ 23} Imagine that instead of killing the victim, Lloyd’s punch broke his
nose. Rather than use the phrase “serious physical harm,” Lloyd’s attorney
could have said: “My client could not have known that one punch would
break the victim’s nose.” It appears to us that this is what was going on here
– Lloyd’s attorney was simply using a more precise description of the
serious physical harm that occurred. And one can understand why she might
want the jury to focus on the precise harm that occurred here—no
reasonable jury would conclude that Lloyd did not know that a hard-thrown
punch to Power’s face would cause serious physical harm, but a jury could
easily conclude that Lloyd did not know his punch would kill Power. So,
Lloyd’s counsel had good reason to focus the jury on the specific serious
physical harm that occurred here, rather than serious physical harm in the
abstract.

{¶ 24} Indeed, other parts of closing argument demonstrate that Lloyd’s
attorney fully understood the elements of the felonious-assault charge.
During closing, counsel also argued to the jury that Lloyd did not knowingly
cause “serious physical harm.” If we understand defense counsel’s other
statements as referring to death as the specific serious physical harm that
occurred, then the statements work together. In contrast, it would make little
sense for counsel to say that Lloyd did not knowingly cause serious physical
harm, if she believed that the state was required to show that Lloyd
knowingly killed the victim. When counsel’s words are read in context,
then, it is evident that she understood the law and was merely identifying
death as the serious physical harm that happened in this case. We thus reject
Lloyd’s argument that his defense attorney misunderstood the law.

2. Lloyd’s attorney was not deficient for failing to request alternative jury
instructions

{¶ 25} Even if we were to assume that Lloyd’s counsel misunderstood the
law, she was not ineffective for failing to ask for instructions on the lesser-
included and inferior-degree offenses. This is because Lloyd was not
entitled to the alternative instructions and a request for them would have
been futile.

{¶ 26} The court of appeals reviewed the trial court’s failure to sua sponte
provide instructions on the lesser-included offenses and concluded that the
trial court did not err, “plain or otherwise.” 2021-Ohio-1808 at ¶ 44. It also
found that Lloyd “was not entitled to” an instruction on the inferior-degree
offenses and noted that Lloyd’s counsel had conceded as much in closing
argument. Id. at ¶ 45. Lloyd did not advance a proposition of law
challenging these conclusions. Thus, we are bound to accept the court of
appeals’ determination that under any standard, Lloyd was not entitled to
the lesser-included and inferior-degree instructions. See Meyer v. United
Parcel Serv., Inc., 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106,
¶ 8, fn. 3 (explaining that the court of appeals’ determination on an issue
not accepted for review stood as “conclusively established”). But even if
one could somehow read Lloyd’s arguments before this court as challenging
the court of appeals’ conclusion that Lloyd would not have been entitled to
the alternative instructions had he asked for them, we would conclude that
the court of appeals got it right. Recall that a judge is to give instructions on
lesser-included and inferior-degree offenses only when the evidence would
allow a jury to reasonably reject the greater offense and find the defendant
guilty on the lesser-included or inferior-degree offenses. 2021-Ohio-1808
at ¶ 25; accord State v. Thomas, 40 Ohio St.3d 213, 216-217, 533 N.E.2d
286 (1988); Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272.

{¶ 27} For Lloyd to be entitled to the alternative instructions, there needed
to be evidence that could cause a jury to reasonably conclude that he did not
cause “serious physical harm” to Power, or that he did not do so
“knowingly.” R.C. 2903.11(A)(1). “Serious physical harm” includes harm
that requires hospitalization, incapacitates, disfigures, involves acute or
prolonged pain, or carries a substantial risk of death. R.C. 2901.01(A)(5).
A person acts “knowingly,” in turn, when he “is aware that [his] conduct
will probably cause a certain result.” R.C. 2901.22(B).

{¶ 28} Here, Lloyd delivered a hard punch to the face of an 83-year-old
man. There is no way that a reasonable jury would find that someone
throwing this kind of punch to a senior citizen did not knowingly cause
serious physical harm. Lloyd might not have known that his punch would
kill the victim, but he was certainly aware that it would probably cause
serious physical harm. Thus, it would have been error for the trial court to
provide instructions on misdemeanor assault and involuntary manslaughter.

{¶ 29} Similarly, Lloyd would not have been entitled to an instruction on
aggravated assault and voluntary manslaughter. Aggravated assault, the
predicate offense for voluntary manslaughter, requires a serious
provocation. And here, there is simply no evidence of provocation. The
video of the incident shows nothing that would amount to serious
provocation on the part of Power. Nor does any other evidence in the record
suggest serious provocation. As Lloyd’s counsel put it in closing argument:
“Was he provoked in any way? Absolutely not.” Thus, even if Lloyd’s
counsel had asked for these instructions, the trial court would have been
compelled to deny the request.
{¶ 30} So, even if we assume that Lloyd’s counsel misunderstood the law,
counsel was not ineffective for failing to ask for alternative jury
instructions. One cannot be ineffective for failing to make a request that
would have been denied.

B. We Do Not Reach Prejudice

{¶ 31} A defendant’s failure to make a sufficient showing of either prong
of the Strickland inquiry is fatal to his claim of ineffective assistance. 466
U.S. at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674. Because we conclude that
Lloyd has failed to demonstrate that his counsel was deficient, we do not
reach the prejudice prong of the Strickland inquiry.

III. CONCLUSION

{¶ 32} Lloyd has failed to establish that his counsel was deficient in failing
to ask for instructions on lesser-included and inferior-degree offenses. The
judgment of the court of appeals is affirmed.
Judgment affirmed.

State v. Lloyd, 2022-Ohio-4259, 171 Ohio St. 3d 353, 356–60, 218 N.E.3d 737, 741–44.
In order to establish ineffective assistance of counsel, a petitioner must demonstrate that his
counsel’s conduct was so below acceptable standards of representation that counsel was not functioning as
“counsel” guaranteed by the Sixth Amendment to the United States Constitution. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner also must demonstrate that
a trial counsel’s performance prejudiced the petitioner’s defense to such an extent that it rendered the
proceeding unfair. Id. To establish prejudice, the “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In other words, a counsel’s deficient performance must have “caused the defendant
to lose what he otherwise would probably have won” and it must have been “so manifestly ineffective that
defeat was snatched from the hands of probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th
Cir. 1992).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mere
disagreements by a defendant with tactics or strategies employed by counsel are not enough to support a
claim of ineffective assistance of counsel and there is a presumption that the challenged conduct of a
petitioner’s counsel was a matter of strategy. Id. at 689. See also United States v. Perry, 908 F.2d 56, 59

(6th Cir. 1990).
As explained by the United States Supreme Court:
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” id., at 689, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct.
2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is
“doubly” so, Knowles, 556 U.S., at ––––, 129 S.Ct. 1411, 173 L.Ed.2d 251.
The Strickland standard is a general one, so the range of reasonable applications
is substantial. 556 U.S., at ––––, 129 S.Ct. 1411, 173 L.Ed.2d 251. Federal
habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Harrington, 562 U.S. at 105. See also Kennedy v. Warren, 428 F. App’x 517, 520 (6th Cir. 2011); Phillips
v. Sheldon, Case No. 3:12-cv-01609, 2014 WL 185777, at **14-15 (N.D. Ohio Jan. 16, 2014).
Here, the Court finds the Supreme Court of Ohio (hereinafter, the “Supreme Court”) reasonably
determined trial counsel did not misunderstand the law and was not deficient. (Lloyd, 2022-Ohio-4259,
¶¶19, 24.) The Supreme Court considered the totality of counsel’s closing argument and submit that her
statement that Lloyd did not know his punch would cause Power’s death, was maintaining that he did not
know death was the specific serious physical harm that he would cause. (Id., ¶¶22-24.) The Supreme Court
noted counsel argued that Lloyd did not knowingly cause serious physical harm. (Id., ¶24; see Doc. No. 7-
4, p. 124 (“He didn’t do the obvious thing that one would think someone would do with intent to cause
serious physical harm.”)) The Supreme Court reasonably found that, when read in context, counsel was
identifying death as the serious physical harm that occurred, and thus did not misunderstand the law. (Id.,
¶¶22-24.)
Lloyd argues counsel’s decision to waive opening statements was evidence of her misunderstanding
the law. However, “[a]n attorney’s decision not to make an opening statement is ordinarily a mere matter of
trial tactics and . . . will not constitute . . . a claim of ineffective assistance of counsel.” Millender v. Adams,

376 F.3d 520, 525 (6th Cir. 2004) (internal quotation marks omitted); see also Moss v. Hofbauer, 286 F.3d
851, 863 (6th Cir. 2002) (“A counsel’s failure to make an opening statement . . . does not automatically
establish the ineffective assistance of counsel.”) White v. United States, No. 2:05-CR-174, 2012 WL
3878768, at *2 (S.D. Ohio Sept. 6, 2012) (“defense counsel’s decision to waive opening statement was a
trial tactic that did not deprive Petitioner of constitutionally effective assistance of counsel.”).
Lloyd argues counsel “failed to develop the only defense that mattered – Lloyd’s mindset as it related
to the underlying felony.” (Doc. No. 2-2, p. 16.) But the Sixth Circuit holds that courts cannot evaluate
counsel’s actions through the benefit of hindsight. Lewis v. Brown, No. 21-1681, 2023 WL 3151075, at *2
(6th Cir. Jan. 30, 2023) (“Under Strickland’s ‘highly deferential’ standard, we must presume that Lewis’s

counsel’s actions ‘fall[ ] within the wide range of reasonable professional assistance.’ 466 U.S. at 689. So
we must make ‘every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.’ Id. And we consider “the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). In doing so, we find that Lewis’s counsel’s actions were reasonable.”) Here, it appears
counsel chose a defense strategy to focus on the element of “knowingly”. (See Doc. No. 7-4, pp. 114-15,
119-20, 123-24.) The fact that counsel’s strategy was ultimately unsuccessful does not mean that counsel
was ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002); see also Harrington, 562 U.S. at
111 (“ . . . it is difficult to establish ineffective assistance where counsel’s overall performance reflects active
and capable advocacy.”)
Lloyd’s contention that the Supreme Court’s decision was contrary to or an unreasonable application
of Strickland because the court failed to state what impact misunderstanding the law would have on a
presumption of competence is not well-taken specious. (Doc. No. 2-2 at 17.) The Supreme Court held Lloyd

failed to show that counsel misunderstood the law. Thus, it is unclear why the Supreme Court would then
state what impact a misunderstanding would have had on the presumption of competence. The Supreme
Court cited Strickland and also recognized that an attorney’s failure to know the law can cause mistakes that
amount to deficient performance – which is in accord with the cases cited by Lloyd. (Lloyd, 2022-Ohio-
4259, ¶¶14, 17, 20.)
The Supreme Court went on to reason that even if counsel had misunderstood the law, there was no
basis for requesting jury instructions on lesser-included offenses. (Id., ¶25.) The Supreme Court reasoned
that to be entitled to alternative jury instructions, the evidence would have to be such that a jury could
reasonably reject the greater offense and find the defendant guilty of the lesser-included offense, which was

not possible here. (Id., ¶26.) The Supreme Court found counsel was not ineffective for failing to ask for
alternative jury instructions because the request would have been denied given the hard punch thrown to the
face of an 83-year old man. (Id., ¶28-29.)
Because both prongs of Strickland must be met, and the Supreme Court found Lloyd failed to
establish that his counsel was deficient, the Supreme Court reasonably declined to reach the prejudice prong.
As the Supreme Court made clear in Harrington, “When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” 562 U.S. at 105. Under this deferential standard, for
all the reasons set forth in this Report and Recommendation, the Court finds the Supreme Court of Ohio
reasonably determined trial counsel was not deficient. It is therefore recommended that Ground One be
DENIED.
IV. CONCLUSION
For all the reasons set forth above, it is recommended that the Petition be DENIED.

Date: September 19, 2025 s/ Jonathan Greenberg
Jonathan D. Greenberg
United States Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts
within fourteen (14) days after being served with a copy of this document. Failure to file objections
within the specified time may forfeit the right to appeal the District Court’s order. 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/11141495. Public record. Not legal advice.