McGee

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

WILLIAM McGEE,

Petitioner, : Case No. 2:25-cv-00446

- vs - District Judge James L. Graham

Magistrate Judge Michael R. Merz

WARDEN, Belmont Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case was brought pro se by Petitioner William McGee to obtain relief

from his 2021 convictions in the Franklin County Court of Common Pleas. The case is pending

on the Petition (ECF No. 1), the Amended State Court Record (ECF No. 17 as supplemented by

ECF No. 24), and Respondent’s Amended Return of Writ (ECF No. 19). Petitioner was notified

that his reply or traverse was due on October 27, 2025 (Notice, ECF No. 20), but no reply has been

filed.

Litigation History

On April 4, 2019, the Franklin County Grand Jury returned an indictment charging McGee

with felonious assault in violation of Ohio Revised Code § 2903.11, two counts of improperly

discharging a firearm at or into a habitation or a school safety zone in violation of Ohio Revised

Code § 2923.161, and having weapons while under a disability, in violation of Ohio Revised Code

§ 2923.13. The first three counts had firearm specifications. (Indictment, Amended State Court

Record, ECF No. 17, Ex. 1). After several changes of counsel and waivers of speedy trial, a jury

found McGee guilty on the first three counts and specifications and the trial judge found him guilty

on the weapons under disability count. He was sentenced to an aggregate of seventeen years

imprisonment.

McGee took a direct appeal to the Ohio Tenth District Court of Appeals which overruled

all of his assignments of error and affirmed the convictions. State v. McGee, 2023-Ohio-2935

(Ohio App. 10th Dist. Aug. 22, 2023). Petitioner’s motion for reconsideration was overruled and

he appealed to the Supreme Court of Ohio which declined to exercise jurisdiction. State v. McGee,

173 Ohio St. 3d 1457 (Apr. 16, 2024).

On March 26, 2024, Petitioner filed a delayed application to reopen his direct appeal to

litigate claims of ineffective assistance of appellate counsel (Application, Amended State Court

Record, ECF No. 17, Ex. 39). The Tenth District dismissed the Application as untimely. Id. at Ex.

40.

Petitioner filed in the trial court a motion for re-sentencing based on recent Ohio Supreme

Court jurisprudence. Id. at Ex. 41. The trial court denied the motions as untimely and barred by

res judicata. Id. at Ex. 45. The Tenth District later granted a motion for delayed appeal which

remained pending at the time the Respondent filed the Amended Return of Writ (October 3, 2025).

Petitioner avers that he deposited his Petition in the prison mailing system on April 6, 2025

(Petition, ECF No. 1, PageID 39). The Petition pleads fifteen grounds for relief as follows:

Ground One: The trial court erred in overruling the motion to

suppress the evidence: (a) the court of appeals abused its discretion

when it failed to review the trial court’s judgment entry, and also

made misapprehensions of the record of what the trial court made in

its ruling under. and the appellate courts misapplication of the law:

Supporting Facts: The Trial Court Erred By Failing To Suppress

The Evidence Of Firearm Shells Collected During The Warrantless

Sweep Of Smith's Apartment, And Of The Facebook Messages

Between “William Cruse” And McGowan. The Court of Appeals

ruled that the evidence had been deemed credible by the trial court,

even where the trial court's ruling was flawed and contrary to the

suppression hearing testimony of Officer Hicks testimony which

clearly reflects the trial court’s reason for denial and clearly states

appellant had standing and also trial court’s rulings was contrary to

states testimony.

Ground Two: Petitioner was denied the effective assistance of trial

counsel as guaranteed by the United States and Ohio constitution:

(a) the court of appeals abused its discretion when it found that trial

counsel's performance was not deficient as to deny him effective

assistance of counsel when he failed to timely introduce vital alibi

evidence that corroborated testimony and also failure to investigate

or review alibi witness statements that appellant was denied

effective assistance of trial when counsel failed to conduct proper

pretrial investigation and discovery, and also failure to proffer

excluded evidence for appellate review.

Supporting Facts: Trial Counsel Was Ineffective For Not Securing

Or Attempting To Seek An Continuance In Order To Obtain Vital

Alibi Testimony. Counsel Also Failed To Subpoena Necessary

Business Record To Support Appellants Alibi Defense.

Ground Three: The trial court abused its discretion in permitting

the state to use appellant’s prior conviction to impeach him: (a) the

court of appeals abused its discretion when admitting evidence of

prior convictions for marijuana charged trial court reasoning was

without such impeachment it would give appellant a false aura of

veracity during his testimony.

Supporting Facts: The trial court’s decision to impeach appellant

on behalf of a marijuana trafficking case which was over 10-years

old was an abuse of discretion. The trial court used incorrect

standard of review in determining the admissibility of the

conviction.

Ground Four: The trial court erred and deprived appellant of due

process of law as guaranteed by the Fourteenth Amendment to the

United States Constitution and Article One Section Ten of the Ohio

Constitution by finding him guilty of felonious assault and

discharging a firearm at or near a habitation, as those verdicts were

not supported by sufficient and were also against the manifest

weight of evidence and against sufficiency of the evidence to

support the conviction.

Supporting Facts: The evidence used to support the convictions are

insufficient and against the manifest weight of the evidence.

Ground Five: The court of appeals erred in their findings of fact in

relation to the suppression hearing as those findings are not

supported by the record.

Supporting Facts: The Court of Appeals Findings of Fact As They

Relate To The Suppression Hearing Determination Are Incorrect

And Not Supported By The Record. The State Argued That No

Exigency Existed, However, The Court Of Appeals Found That The

Trial Courts Decision Deemed Credible And Cannot Disturb The

Trial Court's Judgment There Was No Indication That Officers

Conducted A Search Of The Residence As They Recovered The

Spent Shell Casings That Were In Plain Review When They Arrived

And Found The Door Ajar Which Totally Contradicted The Court

Of Appeals Ruling That A Protective Sweep Was Reasonable Due

To Exigent Circumstance. There Is Also Other Incorrect Findings

Made By The Court Of Appeals Based On The Record Relating To

the suppression hearing as cited in the Supreme Court memorandum

in support of jurisdiction. (See page 12).

Ground Six: Appellate counsel was ineffective when it failed to

raise appellant was denied a complete defense, right fair trial and

due process when the trial court denied his vital alibi evidence in

support of an alibi defense which violated his rights under U.S..

Constitution Amendment V, VI, and XIV and Ohio Const. art. i, §1,

§10 and 16.

Ground Seven: Appellate counsel was ineffective when it failed to

raise trial counsel to be ineffective for failing to file motion to

dismiss via speedy trial in violation of his rights under U.S.

Constitution Amendment VI, AND XIV, and Ohio Const. ART. I,

§1, §10 AND 16.

Ground Eight: appellate counsel was ineffective when it failed to

raise the confrontation clause over reserved objection violated his

rights under U.S. Constitution Amendment V, VI, AND XIV, AND

Ohio Const. ART. I, 10 AND 16.

Ground Nine: Appellate counsel was ineffective when it failed to

raise cumulative error argument.

Ground Ten: Appellant counsel was ineffective for not raising

reversible error pursuant due to the due process clause of fourteenth

amendment evidence obtained by a search and seizure and violation

of fourth amendment was inadmissible in state prosecution of

appellant criminal trial.

Supporting Facts: Appellate Counsel was ineffective for not

raising colorable error on behalf of shell casings and also Facebook

pictures and also messages being introduced into trial and

admissible which clearly violated appellant due process and equal

protection of Law.

Ground Eleven: Appellate counsel was ineffective by not raising

Crim.R.16 (i), (d) and also discovery violation.

Supporting Facts: Appellate Counsel was ineffective for not

raising trial counsel being ineffective for not objecting to rebuttal

witness not being in discovery violating Crim.R. 16(D) violation in

regard to Dana Crooks rebuttal testimony that was not disclosed and

discovery trial counsel should have objected or club continuance or

held void dear regarding investigator testimony that prejudiced

appellant trial and confused jurors and was a last minute scramble

by the state to try and discredit appellant defense which defendant

was not prepared for it's an established rule that all witnesses

including rebuttal witness whom state reasonably anticipates the

need to calls should be disclosed to defense pursuant to a valid

discovery request….

Ground Twelve: appellate counsel was ineffective for not raising

prosecutor misconduct on various occasions of misleading jurors,

bolstering victim’s testimony, speculating threats without evidence,

leading of state witness, improperly advising jurors of doctrines that

was inapplicable to a permissible theory for R.C. 2923.161 (8)(1),

misstating evidence that was introduced to manipulate jurors and

confuse evidence, vouching and bolstering victim testimony which

violate criminal trial error and misconduct § 5-1, (b) (2) 2-4 (d) (2)

and violates due process and a right to a fair trial.

Ground Thirteen Appellate counsel deficient performance

prejudiced appellant by not raising confrontation clause and an

admissible hearsay testimony over reserved objection violated his

rights under U.S. Constitution Amendment V, VI and Ohio Const.

Art. i, § 1 § 10 and 16

Ground Fourteen: Appellate counsel was ineffective for failing to

raise on direct appeal that the trial court abused its discretion and

made flawed ruling on behalf of denial of self-authenticating

business records that were made in the ordinary course of day.

Ground Fifteen: Appellate counsel was ineffective for failing to

raise sufficient error that the state never properly proved

unavailability of witness, not satisfying Ohio Evid R. 803-804 rules

of unavailability.

Supporting Facts: The State presented the testimony of Sabrina

Martin. The State’s claim of unavailability was insufficient and

failed to meet the burden of unavailability.

(ECF No. 1, PageID: 9-35).

Analysis

Claims Under the Ohio Constitution

In Grounds for Relief Two, Four, Six, Seven, Eight and Thirteen, Petitioner makes claims

that his rights under the Ohio Constitution were violated in obtaining his conviction.

Federal habeas corpus is available only to correct federal constitutional violations. 28

U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is

not the province of a federal habeas court to reexamine state court determinations on state law

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,

67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);

Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring).

Claims made under the Ohio Constitution, therefore, are not cognizable in federal habeas

corpus. No further analysis is offered of those claims which should be dismissed for failure to

state a claim upon which habeas corpus relief can be granted.

Ground One: Conviction Based on Unconstitutionally Seized Evidence

In his First Ground for Relief, Petitioner asserts he was convicted on the basis of

unconstitutionally seized evidence which should have been suppressed by the Ohio courts under

the Fourth Amendment.

The Fourth Amendment to the United States Constitution prohibits searches without

probable cause to believe the search will yield evidence of a crime. Evidence seized without

probable cause must be suppressed and not admitted into evidence. Mapp v. Ohio, 367 U.S. 643

(1961). The Ohio Rules of Criminal Procedure provide a mechanism by way of a motion to

suppress to enforce the so-called exclusionary rule adopted in Mapp.

Federal habeas corpus relief is not available to state prisoners who allege they were

convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that

question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court

to determine whether state procedure in the abstract provides full and fair opportunity to litigate,

and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim

was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an

unanticipated and unforeseeable application of a procedural rule prevents state court consideration

of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept

of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of

Fourth Amendment claims is, in the abstract, clearly adequate. Ohio

R. Crim. P. 12 provides an adequate opportunity to raise Fourth

Amendment claims in the context of a pretrial motion to suppress,

as is evident in the petitioner’s use of that procedure. Further, a

criminal defendant, who has unsuccessfully sought to suppress

evidence, may take a direct appeal of that order, as of right, by filing

a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.

5(A). These rules provide an adequate procedural mechanism for the

litigation of Fourth Amendment claims because the state affords a

litigant an opportunity to raise his claims in a fact-finding hearing

and on direct appeal of an unfavorable decision.

Id. at 526.

In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary

hearing was not required by due process and followed its prior conclusion that “opportunity means

opportunity . . . the state court need do no more than ‘take cognizance of the constitutional claim

and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d 1298, 1302

(6th Cir. 1977).

Consistent with Moore and with two of the three votes in Bradley,

we make clear that the Powell "opportunity for full and fair

consideration" means an available avenue for the prisoner to present

his claim to the state courts, not an inquiry into the adequacy of the

procedure actually used to resolve that particular claim.

Id. at 639-40.

In his First Ground for Relief, Petitioner does not claim he did not receive a full and fair

opportunity to litigate his Fourth Amendment claims, but rather that the outcome was wrong.

Under Stone this claim is not cognizable in habeas corpus and should therefore be dismissed.

Ground Two: Ineffective Assistance Of Trial Counsel

In his second ground for relief, Petitioner claims he received ineffective assistance of trial

counsel when his trial attorney failed to seek a continuance to obtain needed alibi evidence, failed

to properly investigate Petitioner’s alibi, and failed to proffer excluded evidence for appeal.

The Tenth District Court of Appeals considered this claim on appeal as Petitioner’s second

assignment of error and decided it as follows:

¶ 15} McGee next contends that his trial counsel was

constitutionally ineffective. In order to obtain a reversal on appeal

for ineffective assistance of counsel, a defendant must demonstrate

both that defense counsel's performance was deficient, and that

counsel's deficient performance prejudiced the defense. See

generally Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). A properly licensed attorney is

presumed competent, and a defendant bears the burden of showing

ineffective assistance of counsel. State v. Hamblin, 37 Ohio St.3d

153, 155-56, 524 N.E.2d 476 (1988). In assessing claims of

counsel's deficiency, “a court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.” Strickland at 689, 104

S.Ct. 2052, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76

S.Ct. 158, 100 L.Ed. 83 (1955). And in evaluating whether the

challenged action caused prejudice, the court must find that

counsel's error was so serious that there is a reasonable probability

it affected the outcome of the trial. See, e.g., State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶ 16} McGee argues that his counsel failed to properly investigate

his alibi defense, and specifically that his counsel failed to ensure

that the Lima invoices were admitted into evidence to support his

alibi. He contends that his trial counsel failed to subpoena the

business that issued the invoices, failed to timely disclose the

invoices to the state, and failed to proffer the invoices for appellate

purposes. Appellant argues that counsel's failures forced him to

testify in his own defense, revealing his prior felony conviction to

the jury and subjecting him to cross-examination on his prior

statement to detectives.

{¶ 17} But as the state correctly argues in response, the existing

record fails to demonstrate that McGee was prejudiced by counsel's

allegedly defective performance. Specifically, the record is unclear

regarding what the invoices would prove, and how and whether they

are admissible. McGee's argument is an “off-the-record” claim that

can only be brought in postconviction where McGee can offer

evidence specifying how the invoices would have proven his alibi

defense, and is accordingly able to establish both prongs of

the Strickland standard. We must similarly observe that trial

counsel's failure to proffer the invoices cannot be viewed as

deficient performance in this context, since McGee has not

established on appeal that the invoices were admissible on the

current record. Finally, we observe that it is equally likely that

counsel made a strategic decision at trial that McGee's alibi defense

could be shown exclusively through Smith's testimony. As a result,

McGee's decision—against the advice of counsel—to testify was

not compelled by issues with the admission of the invoices. For

these reasons, McGee has met neither prong of the Strickland test,

and his second assignment of error is overruled.

State v. McGee, supra.

The governing standard for ineffective assistance of counsel claims is found in Strickland

v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)

counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that

there is a reasonable probability that, but for counsel’s error, the result of the proceeding would

have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made 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. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

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. A reasonable probability is a probability

sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,

supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.

Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of

a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,

379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

As the Tenth District correctly held, this claim of ineffective assistance of trial counsel

depended on proof outside the appellate record, to wit, the invoices which supposedly would show

Petitioner was in Lima, Ohio, at the time of the crime. Ohio has a procedure for raising

constitutional claims that depend on evidence outside (dehors) the record: a petition for post-

conviction relief under Ohio Revised Code § 2953.21. That remedy has a one-year statute of

limitations which runs from the time the record is complete on direct appeal. Because that time

has clearly passed and Petitioner did not file under Ohio Revised Code § 2953.21, he has

procedurally defaulted on this claim of ineffective assistance of trial counsel. Ground Two should

therefore be dismissed.

Ground Three: Abuse of Discretion in Admitting Evidence of Prior Conviction

In his Third Ground for Relief, Petitioner asserts the trial court abused its discretion in

allowing the State to impeach him with evidence of a prior conviction and the Tenth District abused

its discretion in affirming that ruling. A claim that a state court has abused its discretion does not

state a claim for relief under the United States Constitution. Sinistaj v. Burt, 66 F.3d 804 (6th Cir.

1995). However, pro se pleadings are to be construed liberally. Haines v. Kerner, 404 U.S. 519

(1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Therefore the Magistrate Judge will

treat the “abuse of discretion” language as surplusage and read this Third Ground for Relief as

asserting it was a denial of due process to allow the impeachment.

Petitioner raised a claim that the prior conviction should not have been admitted as his third

assignment of error on direct appeal and the Tenth District decided it as follows:

{¶ 18} McGee next argued that the trial court erred to his prejudice

by permitting the state to confront him with evidence of his prior

conviction. Under Evid.R. 609(A)(2), when the accused testifies in

his own defense, the state is permitted to impeach the accused's

credibility with evidence that the accused was convicted of an

offense punishable by death or imprisonment in excess of one year,

only if the probative value of the evidence outweighs the dangers of

unfair prejudice, confusion of the issues, and misleading the

jury. See, e.g., State v. Canada, 10th Dist. No. 14AP-523, 2015-

Ohio-2167, ¶ 65, citing State v. Bryan, 101 Ohio St. 3d 272, 2004-

Ohio-971, ¶ 132, 804 N.E.2d 433. The trial court's decision to permit

such impeachment is reviewed for an abuse of discretion. Canada at

¶ 63, citing State v. Williams, 2d Dist. No. 24149, 2011-Ohio-4726,

¶ 60.

{¶ 19} Here, the trial court permitted the state to impeach McGee

with evidence of his November 30, 2010 conviction for conspiracy

to transport marijuana into West Virginia. (Tr. Vol. 4 at 784-85.)

Because he was not released from supervision until November 2011

and his trial occurred in July of 2021, this conviction was not

excludable under Evid.R. 609(B). But McGee argues that the trial

court misapplied the test for admission, because it

referenced Evid.R. 403 in its ruling. Citing State v. Goney, 87

Ohio App.3d 497, 622 N.E.2d 688 (2d Dist.1993), McGee

contends that “Evid.R. 403 is biased in favor of admissibility, but

this is not the case where the accused is impeached by a prior

conviction under Evid.R. 609(A)(2); the unfair prejudice need only

outweigh probative value, rather than ‘substantially’ outweigh

it.” Id. at 502-03, 622 N.E.2d 688.

{¶ 20} But as this court has observed, the plain language of Evid.R.

609 references both Evid.R. 403(A) and 403(B), and the two rules

must be read in conjunction—“[n]otwithstanding Evid.R. 403(A),

but subject to Evid.R. 403(B), evidence that the accused has been

convicted of a crime is * * * if the court determines that the

probative value of the evidence outweighs the danger of unfair

prejudice, of confusion of the issues, or of misleading the

jury.” Evid.R. 609(A)(2). See, e.g., State v. Staten, 10th Dist. No.

98AP-263, 1999 WL 52381 *2, 1999 Ohio App. LEXIS 349 *6

(Feb. 4, 1999), citing State v. Wright, 48 Ohio St.3d 5, 7, 548

N.E.2d 923 (1990). At the point McGee decided to testify, his

credibility became central to the question of his alibi defense and his

identification by McGowan. McGee cannot establish that the trial

court's decision to allow evidence of his prior conviction was

prejudicial to him, and given the fact that Evd.R. 609 itself refers

to Evid.R. 403, the trial court's statements that it had “done the 403

balancing test in [its] head” and that its ruling allowing

impeachment on the offense “does a good job of spreading the

equities out” cannot establish an abuse of the trial court's discretion.

McGee's third assignment of error consequently lacks merit and is

overruled.

State v. McGee, supra.

As can be seen from this portion of the appellate decision, the Tenth District did not read

the appeal as presenting a constitutional claim in this assignment of error. Nor should it have read

the assignment that way; Petitioner’s appellate brief did not present the issue as a constitutional

one.

Because Petitioner did not fairly present his prior conviction claim to the Ohio courts as a

constitutional claim, he has procedurally defaulted on the claim. Because he has also presented

no excusing cause and prejudice for that default, his Third Ground for Relief should be dismissed.

Ground Four: The Evidence Does Not Support Conviction

In his fourth ground for relief, Petitioner asserts his conviction is against the manifest

weight of the evidence and is not supported by sufficient evidence.

The manifest weight claim does not state a claim for relief under the United States

Constitution. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).

However, the second part of this ground for relief – insufficiency of the evidence – does

state a federal constitutional claim. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397

U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d

792, 794 (6th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every

element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is 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 . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson).

Petitioner argued his manifest weight and sufficiency claims together as his first

assignment of error on direct appeal and the Tenth District decided it as follows:

We address each issue in turn, beginning with McGee's sufficiency

and manifest weight arguments.

{¶ 12} Pursuant to State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus, to determine whether a

conviction is supported by sufficient evidence of guilt, “[t]he

relevant inquiry is whether, after viewing the evidence in a light

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

have found the essential elements of the crime proven beyond a

reasonable doubt.” Id., following Jackson v. Virginia, 443 U.S. 307,

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

{¶ 13} But determinations of credibility and weight of the testimony

are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The

jury, or the court in a bench trial, may take note of inconsistencies

at trial and resolve them accordingly, “believ[ing] all, part, or none

of a witness's testimony.” State v. Raver, 10th Dist. No. 02AP-604,

2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964). And therefore, “[w]hen a court of appeals

reverses a judgment of a trial court on the basis that the verdict is

against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder's resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on

other grounds and quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). An appellate court considering

a manifest weight challenge “may not merely substitute its view for

that of the trier of fact, but must 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. Harris, 10th Dist. No. 13AP-770,

2014-Ohio-2501, ¶ 22, citing Thompkins at 387, 678 N.E.2d 541.

Appellate courts should reverse a conviction as being against the

manifest weight of the evidence only in the most “ ‘exceptional case

in which the evidence weighs heavily against the conviction.’

” Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 14} Under these established standards, McGee's sufficiency and

manifest weight arguments cannot prevail. McGowan's testimony

alone provides sufficient evidence upon which a reasonable

factfinder could conclude that all elements of the offenses of

felonious assault, improper discharge into a habitation, discharge

into a habitation, and having weapons under disability, along with

the attached firearm specifications were established. And moving to

his manifest weight challenge, it is worth observing that McGee

does not argue that the shooting did not happen, he simply argues

that he was not involved and not present. The mere fact that McGee

presented a loose and contradicted alibi defense is not enough to

show that his convictions were against the manifest weight of the

evidence at trial—his identification by the eyewitness and target of

the shots, the damage to the victim's truck, his subsequent Facebook

messages to the victim, and the presence of the empty firearm shells

are more than enough to overcome his manifest weight challenge.

McGee's first assignment of error is meritless and is accordingly

overruled.

State v. McGee, supra.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);

Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140

(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379

(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits 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.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “When reviewing a claim for sufficient

evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,

567 U.S. 37, 43 (2012) (per curiam). In a sufficiency of the evidence habeas corpus case, deference

should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate

court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652

(6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.

Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing

more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

Upon review of the Tenth District’s decision of Petitioner’s first assignment of error, the

Magistrate Judge finds it is entitled to deference. It applies the correct federal standard to the

sufficiency of evidence claim and its review of the evidence shows there plainly was sufficient

evidence to support the jury’s verdicts. Because the Tenth District’s decision is a reasonable

application of Jackson, supra, it is entitled to deference under AEDPA. Petitioner’s Fourth Ground

for Relief should be dismissed.

Ground Five: Erroneous Findings of Fact on Appeal on the Motion to Suppress

In his Fifth Ground for Relief, Petitioner asserts the Tenth District made erroneous findings

of fact relating to his motion to suppress. This claim is barred from merits review in federal habeas

under Stone v. Powell, supra., and should therefore be dismissed.

Grounds Six through Fifteen: Ineffective Assistance of Appellate Counsel

In his Sixth through Fifteenth Grounds for Relief, Petitioner raises ten claims of ineffective

assistance of appellate counsel. Under Ohio law, the sole remedy for ineffective assistance of

appellate counsel is by application for reopening under Ohio R. App. P. 26(B). State v. Murnahan,

63 Ohio St. 3d 60 (1992).

Petitioner filed an application to reopen under Rule 26(B) raising his ineffective assistance

of appellate counsel claims (State Court Record, ECF No. 17, Ex. 39). However, the Tenth District

Court of Appeals declined to consider the Application on the merits because it was untimely filed

without adequate excuse. Id. Ex. 40.

The Sixth Circuit has repeatedly held the timeliness rule for filing a 26(B) application is an

adequate and independent state ground of decision. Parker v. Bagley, 543 F.3d 859 (6th Cir.

2008)(noting that Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir.

2007)(distinguishing holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002);

Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th

Cir. 2009). Accordingly, Petitioner’s Grounds Six through Fifteen are barred by his procedural

default in presenting them to the Tenth District Court of Appeals.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the

Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with

this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and

that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should

not be permitted to proceed in forma pauperis.

November 5, 2025.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such

objections shall specify the portions of the Report objected to and shall be accompanied by a

memorandum of law in support of the objections. A party may respond to another party’s

objections within fourteen days after being served with a copy thereof. Failure to make objections

in accordance with this procedure may forfeit rights on appeal.