# Gutierrez

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

URL: https://www.frixlaw.com/law-library/cases/11214624

## Case

- **Full name:** Victor Gutierrez v. Kenneth Black, Warden
- **Court:** District Court, N.D. Ohio
- **Decided:** December 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11214624

## How later opinions describe it (automated extraction)

- finding a motion for new trial filed before a direct appeal is part of that appeal, while a later-filed motion for new trial is a collateral proceeding

## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

VICTOR GUTIERREZ, CASE NO. 5:22-cv-02264

Petitioner, DISTRICT JUDGE BENITA Y. PEARSON

vs.
MAGISTRATE JUDGE AMANDA M. KNAPP
KENNETH BLACK, WARDEN,

Respondent. REPORT & RECOMMENDATION

Petitioner Victor Gutierrez (“Petitioner” or “Mr. Gutierrez”) brings this habeas corpus
action pursuant to 28 U.S.C. § 2254 based on his conviction for complicity to trafficking in
cocaine in Wayne County Court of Common Pleas, Case No. 2018-CRC-1-000069. (ECF Doc.
1 (“Petition”).) He filed his Petition pro se on November 15, 2022.1 (Id.) This matter was
assigned to the undersigned Magistrate Judge pursuant to Local Rule 72.2. The case is fully
briefed and ripe for decision. (ECF Docs. 5, 7, 9, 10.)2
For the reasons set forth herein, the undersigned recommends that the Court DISMISS
Mr. Gutierrez’s Petition because Grounds One and Two were procedurally defaulted.

1 “Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials
for filing in the federal courts.” Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S.
266, 273 (1988)). Mr. Gutierrez’s Petition was docketed on December 16, 2022 (ECF Doc. 1) and placed in the
prison mailing system on November 15, 2022 (id. at p. 24).

2 On August 23, 2023, Petitioner filed a “Reply to Respondent’s Response to Traverse,” asking for leave to file the
reply. (ECF Doc. 10.) The undersigned deems this filing a motion for leave to file a sur-reply, grants the motion for
leave, and will consider Petitioner’s sur-reply in this decision.
I. Factual Background
“In a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the

burden of rebutting that presumption by clear and convincing evidence. Id.; Railey v. Webb, 540
F.3d 393, 397 (6th Cir. 2008).
The Ninth District Ohio Court of Appeals summarized the facts underlying Mr.
Gutierrez’s conviction and sentence as follows:
[¶2] A convicted drug trafficker (“A.P.”) was caught by his probation officer with
5 grams of cocaine and $4,000.00 in cash while on community control. He soon
struck a deal to be paid $550.00 and avoid prosecution by cooperating with the
Medway Drug Enforcement Agency (“Medway”) in an investigation into the
alleged source of his cocaine: Mr. Gutierrez. Through recorded phone calls and
texting, A.P. arranged to purchase cocaine from Mr. Gutierrez, which soon led to a
controlled buy where A.P. made a partial payment of $600.00 cash to Mr.
Gutierrez’s associate (“K.O.”) and received a “brick” of cocaine weighing 140.45
grams. On two separate occasions, and while under surveillance, A.P. met Mr.
Gutierrez and paid him another $3,900.00 cash and $1,500.00 cash, respectively.
The money used by A.P. to pay for the drugs was all documented and supplied by
Medway.

[¶3] Mr. Gutierrez was charged with two first-degree felonies⸺trafficking in
cocaine and possession of cocaine⸺both of which were accompanied by major
drug offender (“MDO”) specifications. After a bench trial, the trial court granted
Mr. Gutierrez’s Crim.R. 29 motion for acquittal as to the possession charge, but
then found him complicit in, and therefore guilty of, the trafficking charge and its
attendant MDO specification. The court sentenced him to a mandatory prison term
of 11 years and imposed a mandatory fine of $10,000.00.

State v. Gutierrez, 2019-Ohio-4626, ¶¶ 2-4, 2019 WL 5894215, at *1 (Ohio Ct. App. Nov. 12,
2019); (ECF Doc. 5-1, pp. 61-62).
II. Procedural Background
A. State Court Conviction
On January 19, 2018, a Wayne County Grand Jury indicted Mr. Gutierrez on one count of
trafficking in cocaine with a major drug offender specification (O.R.C. §§ 2925.03(A)(1),

2941.1410(A)) (Count 1) and one count of possession of cocaine with a major drug offender
specification (O.R.C. §§ 2925.11(A), 2941.1410(A)) (Count 2). (ECF Doc. 5-1, pp. 6-7.) Mr.
Gutierrez pleaded not guilty to all counts. (Id. at p. 9.)
Prior to trial, Mr. Gutierrez waived his right to a jury trial. (Id. at p. 11.) After a bench
trial held on August 13, 2018, the court found Mr. Gutierrez guilty of Count 1 and not guilty of
Count 2. (Id. at p. 13.) The trial court sentenced him to a mandatory prison term of 11 years, a
mandatory fine of $10,000.00, and five years mandatory post-release control. (Id. at pp. 13, 16.)
B. Direct Appeal
On August 14, 2018, Mr. Gutierrez, through counsel, filed a timely notice of appeal with
the Ninth District Court of Appeals in Wayne County, Ohio. (ECF Doc. 5-1, p. 18.) In his

appellate brief, Mr. Gutierrez raised the following assignments of error:
1. THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO SUPPORT
THE APPELLANT’S CONVICTION.

2. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN HIS TRIAL ATTORNEYS DID NOT OBJECT TO THE
INTRODUCTION OF “OTHER ACTS” EVIDENCE DURING THE
APPELLANT’S TRIAL.

(Id. at p. 23.) The State filed its brief in opposition on May 6, 2019. (Id. at pp. 37-59.) On
November 12, 2019, the Court of Appeals overruled both assignments of error and affirmed the
trial court’s judgment. (Id. at pp. 61-68.)
Mr. Gutierrez, through counsel, filed a timely Notice of Appeal to the Ohio Supreme
Court (id. at pp. 71-72) and a memorandum in support of jurisdiction (id. at pp. 75-86). He
raised the following propositions of law:
1. A CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILING TO OBJECT MAY BE SUSTAINED IF THE FAILURE TO
OBJECT IS NOT A REASONABLE, VALID TRIAL STRATEGY OR
TACTIC.

2. TRIAL STRATEGIES OR TACTICS ARE NOT PER SE EFFECTIVE
ASSISTANCE OF COUNSEL.

(Id. at p. 76.) The State waived filing a memorandum in response (id. at p. 89), and the Ohio
Supreme Court declined to accept jurisdiction of the appeal on March 3, 2020 (id. at p. 91).
C. Motion for a New Trial
Mr. Gutierrez filed a pro se motion for leave to file a delayed motion for a new trial
pursuant to Ohio Crim. R. 33(B) in the trial court on January 22, 2021. (ECF Doc. 5-1, pp. 93-
111.) He asserted that he was unavoidably delayed in filing a motion for a new trial because he
had only recently learned that the officers who testified against him at trial had conducted a
warrantless search of his home and lied about it on the stand. (Id. at pp. 101-02.) On that same
date, he filed a motion for a new trial pursuant to Ohio Crim. R. 33(A). (Id. at pp. 113-36.) He
raised the following claims to support his motion:
1. Defendant was denied the effective assistance of trial counsel in violation
of the Sixth and Fourteenth Amendment[s] to the United States Constitution
when counsel failed to conduct a reasonable investigation of the case.

2. Defendant was denied the effective assistance of appellate counsel, in
violation of the Sixth and Fourteenth Amendment[s] to the United States
Constitution, when counsel failed to inform Defendant of the potential post-
conviction issues in this case or the mandatory procedures involved with
such pleadings.
(Id. at pp. 117, 129.) The State filed a brief in opposition to the motion for leave to file a delayed
motion for a new trial (id. at pp. 138-44), and Mr. Gutierrez filed a response (id. at pp. 146-54).
After holding a hearing, the trial court denied the motion for leave on July 29, 2021, finding that
Mr. Gutierrez failed to show by clear and convincing evidence that he was unavoidably delayed

from filing a timely motion for a new trial. (Id. at pp. 156-57.)
On August 26, 2021, Mr. Gutierrez filed a pro se notice of appeal with the Ninth District
Court of Appeals. (Id. at p. 159.) He filed his appellate brief on January 11, 2022 (id. at pp.
163-80), raising the following two assignments of error:
1. THE TRIAL COURT ABUSED ITS DISCRETION IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS WHEN IT DETERMINED THAT
APPELLANT FAILED TO EXERCISE REASONABLE DILIGENCE.

2. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL ON HIS DIRECT APPEAL OF RIGHT, WHEN
COUNSEL FAILED TO INFORM HIM OF POTENTIAL POST-
CONVICTION ISSUES AND THE MANDATORY PROCEDURES
INVOLVED WITH SUCH PROCEEDINGS.

(Id. at p. 164.) The State filed a brief in response (id. at pp. 182-99), and the court of appeals
affirmed the trial court’s decision denying Mr. Gutierrez’s motion for leave on June 30, 2022 (id.
at pp. 217-24).
On July 22, 2022, Mr. Gutierrez filed a notice of appeal with the Supreme Court of Ohio
(id. at p. 227) and memorandum in support of jurisdiction (id. at pp. 231-43). He raised the
following two propositions of law:
1. WHEN AN APPELLATE COURT AFFIRMS A TRIAL COURT’S
DENIAL OF A COLLATERAL PROCEEDINGS FOR FAILING TO
ESTABLISH UNAVOIDABLE PREVENTION, ON THE BASIS OF AN
ERRONEOUS FACTUAL DETERMINATION, APPELLANT IS
DENIED DUE PROCESS UNDER THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTIONAL [sic], AND ARTICLE
1, SEC. 10 and 16 OF THE OHIO CONSTITUTION.
2. WHEN TRIAL AND APPELLATE COUNSEL FAIL TO INFORM
THEIR CLIENT OF POTENTIAL COLLATERAL ISSUES AND THE
MANDATORY PROCEDURES REQUIRED IN THOSE
PROCEEDINGS THAT CLIENT IS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE SIXTH AND
FOURTEENTH AMENDMENT[s] TO THE UNITED STATES
CONSTITUTION.

(Id. at p. 232.) The State waived its response (id. at p. 254), and on September 13, 2022, the
Supreme Court of Ohio declined to accept jurisdiction of Mr. Gutierrez’s appeal (id. at p. 256).
D. Federal Habeas Corpus Petition
Mr. Gutierrez raises two grounds for relief in his Petition:
GROUND ONE: PETITIONER WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS FIFTH, SIXTH,
AND FOURTENTH AMENDMENT RIGHTS RESULTING IN THE STATE
COURT’S REFUSAL TO ADDRESS THE MERITS OF HIS NEW TRIAL
MOTION.

GROUND TWO: PETITIONER WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL ON HIS DIRECT APPEAL WHEN APPELLATE
COUNSEL FAILED TO INFORM HIM OF POTENTIAL POST-CONVICTION
ISSUES AND THE MANDATORY PROCEDURES REQUIRED IN SUCH
COLLATERAL PROCEEDINGS.

(ECF Doc. 1, pp. 14, 21.)

III. Law & Analysis
Respondent argues the Petition should be dismissed or denied because: (1) Mr.
Gutierrez’s claims for relief are barred by the statute of limitations (ECF Doc. 5, pp. 6-10); (2)
Mr. Gutierrez procedurally defaulted his claims by failing to properly present them to the state
courts (id. at pp. 13-15); and (3) the grounds for relief asserted in the Petition are without merit
(id. at pp. 15-21). (See also ECF Doc. 9.) Mr. Gutierrez argues in response that his claims are
timely filed, not procedurally defaulted, and meritorious. (ECF Docs. 1, 7, 10.)
For the reasons set forth in further detail below, the undersigned concludes that Mr.
Gutierrez’s claims are procedurally defaulted, and therefore does not address Respondent’s
alternative arguments that the Petition is untimely or should be denied on the merits.3
A. Standard of Review Under AEDPA

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, PL 104–
132, April 24, 1996, 110 Stat 1214, 110 Stat. 1214 (“AEDPA”), apply to petitions filed after the
effective date of the AEDPA. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). “As
amended by AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to
grant an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). Under 28 U.S.C. § 2254, federal courts may “entertain
only those applications alleging that a person is in state custody ‘in violation of the Constitution
or laws or treaties of the United States’” and in most instances, federal courts may not grant
habeas relief “unless . . . the applicant has exhausted state remedies.” Id. (citing 28 U.S.C. §§
2254(a), (b), (c)). Further, if an application for writ of habeas corpus involves a claim that was

“adjudicated on the merits in State court proceedings,” the application “shall not be granted
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.

3 Because the statute of limitations does not present a jurisdictional bar to habeas review, this Court is not required
to address the statute of limitations before considering questions of procedural default or the merits of the Petition.
See Moss v. Miniard, 62 F.4th 1002, 1010 (6th Cir. 2023), cert. denied, 144 S. Ct. 1004 (2024).
28 U.S.C. §§ 2254(d)(1)-(2); Cullen, 563 U.S. at 181; Harrington v. Richter, 562 U.S. 86, 100
(2011); Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007). The burden of proof rests with the
petitioner. Cullen, 563 U.S. at 181.
B. Legal Standard for Procedural Default

A federal court may not grant a writ of habeas corpus unless the petitioner has exhausted
all available remedies in state court. See 28 U.S.C. § 2254(b)(1)(A). A state defendant with
federal constitutional claims must fairly present those claims to the state courts before raising
them in a federal habeas corpus action. See 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”).
To satisfy the fair presentation requirement, a habeas petitioner must present both the
facts and legal theories underpinning his claims to the state courts. See McMeans v. Brigano,
228 F.3d 674, 681 (6th Cir. 2000). This means that the petitioner must present his claims to the

state courts as federal constitutional issues and not merely as issues arising under state law. See,
e.g., Baldwin v. Reese, 541 U.S. 27, 33-34 (2004); Franklin v. Rose, 811 F.2d 322, 324-25 (6th
Cir. 1987). A constitutional claim for relief must also 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).
A petitioner must also meet certain procedural requirements to have his claims reviewed
in federal court. See Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006).
“Procedural barriers, such as . . . 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, the two are distinct concepts. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006). Failure to exhaust applies where state remedies are “still available at the time of the
federal petition,” while procedural default applies where state court remedies are no longer

available. Id. at 806 (quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)).
Procedural default may occur in two ways. First, a petitioner may procedurally default a
claim if he fails “to comply with state procedural rules in presenting his claim to the appropriate
state court.” Id. In Maupin v. Smith, the Sixth Circuit articulated a four-prong analysis to use
when determining whether a claim is procedurally barred due to failure to comply with a state
procedural rule: (1) whether the state procedural rule is applicable to petitioner’s claim, and
petitioner failed to comply with the rule; (2) whether the state court enforced the procedural rule;
(3) whether the procedural rule is an adequate and independent ground on which the state can
foreclose review of the federal constitutional claim; and (4) whether the petitioner can show
cause for his failure to follow the rule and that he was actually prejudiced 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.’” See
Williams, 460 F.3d at 806 (quoting O'Sullivan, 526 U.S. at 848); see also Baston v. Bagley, 282
F. Supp. 2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and every level [of the
state courts] cannot be considered in a federal habeas corpus petition.”); State v. Moreland, 50
Ohio St. 3d 58, 62 (1990) (finding failure to present a claim to a state court of appeals constituted
a waiver). “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.” Williams, 460 F.3d at 806. Thus, even if
the exhaustion requirement is technically satisfied because no state remedies remain available to

the petitioner, the petitioner’s prior failure to present those claims for consideration in state court
may cause a procedural default that bars federal court review of the claims. See id. (citing
Coleman v. Thompson, 501 U.S. 722, 732 (1991)).
To overcome procedural default, a petitioner must: (1) show cause for the default and
demonstrate that actual prejudice resulted from the alleged violation of federal law; or (2) show
that there will be a fundamental miscarriage of justice if the claims are not considered. See
Coleman, 501 U.S. at 750. “A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006)
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
C. The Petition Should be Dismissed Based on Procedural Default

Respondent argues that both of Petitioner’s grounds for relief were procedurally
defaulted. (ECF Doc. 5, pp. 13-15.) While Petitioner responds generally that his claims were
not procedurally defaulted (ECF Doc. 7, p. 1), he does not offer substantive arguments as to
why his claims were not procedurally defaulted, nor does he argue that cause and prejudice
excuse the default; instead, he argues that the state court decisions applying a procedural bar to
his claims were contrary to or an unreasonable application of federal law or an unreasonable
determination of the facts in light of the evidence presented. (ECF Doc. 7, pp. 1, 12, 14-17;
ECF Doc. 10, pp. 2-4.) For the reasons set forth below, the undersigned concludes that Grounds
One and Two were procedurally defaulted and should be dismissed with prejudice.
1. Ground One was Procedurally Defaulted
Respondent asserts that Ground One was procedurally defaulted because: Petitioner
raised the claim in his motion for leave to file a delayed motion for a new trial; that motion was
denied because Petitioner did not make the required showing under Ohio Rule of Criminal

Procedure 33(B) (“Crim. R. 33(B)”); and “Crim R. 33(B) ‘is an adequate and independent state
ground for denying habeas relief.’” (ECF Doc. 5, p. 13 (quoting Guy v. Warden, Ross Corr.
Inst., No. 21-4164, 2022 WL 17547542, at *4 (6th Cir. July 27, 2022)).) Petitioner does not
directly respond to this argument. (See ECF Docs. 7, 10.) Instead, he argues that the state court
erred by finding he had not shown he was unavoidably prevented from filing a timely motion for
a new trial under Crim. R. 33(B). (ECF Doc. 7, p. 14; ECF Doc. 10, pp. 2-3.)
A petitioner may procedurally default a claim if he fails “to comply with state procedural
rules in presenting his claim to the appropriate state court.” Williams, 460 F.3d at 806. To
assess procedural default based on this standard, courts in the Sixth Circuit apply the four-prong
Maupin analysis. See id. at 807 (citing Maupin, 785 F.2d at 138).

Under the first prong of the Maupin analysis, this Court must determine whether Mr.
Gutierrez failed to comply with a state procedural rule. See 785 F.2d at 138. Here, the state
court found that Mr. Gutierrez did not file a timely motion for a new trial. (ECF Doc. 5-1, pp.
156-57.) Under Crim. R. 33(B), “[a] motion for a new trial based on newly discovered evidence
must be filed within 120 days of the verdict unless the defendant was ‘unavoidably prevented
from discovering the evidence’ within that time period.” Mammone v. Jenkins, 49 F.4th 1026,
1047 (6th Cir. 2022) (quoting Crim. R. 33(B)).
Mr. Gutierrez does not deny he failed to comply with the 120-day deadline in Crim. R.
33(B) when he requested leave to file a motion for a new trial in January 2021, over two years
after receiving a verdict in August 2018. However, he argues that the state court erred in finding
that he did not meet the exception to the deadline by showing he was “unavoidably prevented”
from filing a timely motion for a new trial.4 (ECF Doc. 10, pp. 2-3.) In support of this
argument, Petitioner asserts that his case is comparable to another Ohio case where the state

appellate court found a defendant was unavoidably prevented from filing a timely motion for a
new trial based on new witness testimony when the evidence showed on its face that no one
other than the witness previously knew about his observations. (Id. (citing State v. Walker,
2023-Ohio-2689).) However, “a federal court may not second-guess a state court’s interpretation
of its own procedural rules.” Thompson v. Williams, 685 F. Supp. 2d 712, 721 (N.D. Ohio 2010)
(citing Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Furthermore, even if a state court
errs in applying its own procedural rule, the error is not cognizable in federal habeas review. Id.
(citing Simpson v. Jones, 238 F.3d 399, 406-07 (6th Cir. 2000)). As Mr. Gutierrez has not
meaningfully argued that he complied with Crim. R. 33(B), and the Court may not review the
state court’s determination that he did not meet the exception to that rule, the undersigned finds

Mr. Gutierrez failed to comply with a state procedural rule and the first Maupin prong is met.
Under the second prong of the Maupin analysis, the Court must determine whether the
state enforced its procedural rule. See 785 F.2d at 138. Here, the state appellate court enforced
Crim. R. 33(B) when it upheld the trial court’s finding that Petitioner failed to show by clear and
convincing evidence that he was unavoidably prevented from discovering the new evidence that

4 Mr. Gutierrez also asserts in his statute of limitations argument that the state appellate court’s decision upholding
the denial of his Rule 33(B) motion was contrary to Ohio law in light of State v. Bethel, 167 Ohio St. 3d 362 (2022),
because the appellate court cited the judicially created requirement that a defendant file a motion for leave to file a
delayed motion for a new trial within a reasonable time after discovering the new evidence upon which he would
rely—a requirement Bethel overruled. (ECF Doc. 7, p. 8 (citing 167 Ohio St. 3d 361); see ECF Doc. 5-1, pp. 221-
22.) While the state appellate court did mention the reasonable time requirement, it also upheld the trial court’s
finding that Mr. Gutierrez was not unavoidably prevented from filing a timely motion for a new trial, noting that he
“admitted he always knew the police searched his home.” (ECF Doc. 5-1, pp. 221-22.)
would support his delayed motion for a new trial in a timely manner. (ECF Doc. 5-1, p. 222.)
The Ohio Supreme Court declined jurisdiction. (Id. at p. 256.) Since the state court of appeals
applied Crim. R. 33(B) when it declined to allow Mr. Gutierrez to file a delayed motion for a
new trial, the undersigned finds the second Maupin prong is met.

Under the third prong of the Maupin analysis, this Court must determine whether the
procedural rule establishes an adequate and independent state law ground under which the claim
may be procedurally defaulted. See 785 F.2d at 138. The undersigned concludes, consistent
with other courts in this district, that the denial of a Crim. R. 33 motion on the ground that it is
untimely under state law is an adequate and independent state ground foreclosing federal habeas
relief. See, e.g., Mock v. Bracy, No. 4:22-CV-00937, 2024 WL 2347279, at *19 (N.D. Ohio May
22, 2024) (collecting cases), certificate of appealability denied sub nom. Mock v. Palmer, 2024
WL 5278796 (6th Cir. Nov. 7, 2024), and motion for relief from judgment denied sub nom. Mock
v. Palmer, 2024 WL 4839363 (N.D. Ohio Nov. 20, 2024); Davis v. Bradshaw, No. 1:14CV2854,
2016 WL 8257676, at *39 (N.D. Ohio June 16, 2016), report and recommendation adopted,

2017 WL 626138 (N.D. Ohio Feb. 15, 2017), aff’d, 900 F.3d 315 (6th Cir. 2018). Thus, the third
prong of the Maupin analysis has also been met, and Ground One was procedurally defaulted
unless Petitioner can show cause and prejudice to excuse the default.
If the first three prongs of the Maupin analysis are met, the fourth prong asks whether the
procedural default should be excused. See 785 F.2d at 138. To excuse his procedural default,
Petitioner must: (1) show cause for the default and demonstrate that actual prejudice resulted
from the alleged violation of federal law; or (2) show that there will be a fundamental
miscarriage of justice if the claims are not considered. See Coleman, 501 U.S. at 750.
Mr. Gutierrez does not directly argue that cause and prejudice support excusing the
procedural default of Ground One. However, his second ground for relief is premised on an
assertion that his appellate counsel was ineffective for failing to advise him regarding state post-
conviction relief procedures, leading to the untimely filing of his motion for a new trial. (ECF

Doc. 1, pp. 21-22.) Thus, Mr. Gutierrez has argued that the procedural default of Ground One
was caused by ineffective assistance of appellate counsel. Accordingly, and considering
Petitioner’s pro se status, the undersigned will consider whether ineffective assistance of
appellate counsel may serve as cause to excuse the procedural default of Ground One.
To establish “cause” to excuse a procedural default, a petitioner must point to “something
external . . . that cannot be fairly attributed to him” and “show that some objective factor external
to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Coleman,
501 U.S. at 753 (quoting Murray, 477 U.S. at 488). “Attorney error that constitutes ineffective
assistance of counsel” may show “cause” to overcome default. Id. at 754. But a “constitutional
claim of ineffective assistance of counsel” may only be asserted “at a stage of the proceedings

when there is a right to counsel under the Sixth Amendment.” Smith, 463 F.3d at 433 (citing
Coleman, 501 U.S. at 752). Additionally, “the exhaustion doctrine . . . generally requires that a
claim of ineffective assistance be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default.” Murray, 477 U.S. at 488-89.
Here, Mr. Gutierrez claims his appellate counsel was ineffective because he failed to
adequately advise Mr. Gutierrez regarding post-conviction relief procedures—specifically the
steps necessary to properly file a motion for a new trial. (ECF Doc. 1, pp. 21-22; ECF Doc. 7,
pp. 14-17; ECF Doc. 10, pp. 3-4.) To the extent Mr. Gutierrez is arguing that he had ineffective
assistance of counsel in seeking leave to file his motion for a new trial, that claim must fail
because there is no right to counsel for collateral or post-conviction proceedings such as motions
for a new trial. See Smith, 463 F.3d at 433 (citing Coleman, 501 U.S. at 752 (“There is no
constitutional right to an attorney in state post-conviction proceedings”) (citing Pennsylvania v.
Finley, 481 U.S. 551 (1987) and Murray v. Giarratano, 492 U.S. 1 (1989))); see also Pudelski v.

Wilson, 576 F.3d 595, 610 (6th Cir. 2009) (finding a motion for new trial filed before a direct
appeal is part of that appeal, while a later-filed motion for new trial is a collateral proceeding).
Petitioner argues based on the Sixth Circuit’s decision in Gunner v. Welch, 749 F.3d 511
(6th Cir. 2014), that this Court should find appellate counsel was required to advise him of the
procedures for seeking post-conviction relief, and that “this argument is analytically separate
from the issue of whether Gutierrez’s appellate counsel was obligated to file such a petition” and
“is also separate from the issue of whether Gutierrez had a constitutional right to the effective
assistance of counsel in a collateral proceeding.” (ECF Doc. 7, p. 15; see id. at pp. 14-17; ECF
Doc. 10, pp. 3-4.) In Gunner, the Sixth Circuit held that appellate counsel has an obligation to
inform a client of the deadlines for filing a post-conviction motion challenging the effectiveness

of trial counsel, and that failure to do so can constitute ineffective assistance of appellate counsel
sufficient to excuse a procedural default that would bar a habeas claim. 749 F.3d at 516-20. But
the Sixth Circuit later declined to expand Gunner’s holding to advice about filing an application
to reopen a direct appeal under Ohio App. Rule 26(B), which challenges the effectiveness of
appellate counsel rather than trial counsel. See McClain v. Kelly, 631 F. App’x 422 (6th Cir.
2015) (noting Supreme Court precedent supportive of Gunner was “limited by its express terms
to the ineffective-assistance-of-trial-counsel context”) (emphasis in original). Petitioner has not
identified any cases extending Gunner’s holding to Crim. R. 33(B) motions, and McClain
suggests that such an extension would be inappropriate here, where Petitioner sought to
challenge the effectiveness of appellate counsel.
Ultimately, this Court need not decide whether Gunner’s holding may be extended to
Crim R. 33(B) motions. Even if Petitioner’s appellate counsel performed deficiently by failing

to advise him about the procedures for filing a motion for a new trial, Petitioner procedurally
defaulted that claim for the reasons discussed in Section III.C.2, infra. “[A] claim that is itself
procedurally defaulted cannot be used as cause to excuse another procedurally defaulted claim.”
Goldberg v. Maloney, 692 F.3d 534, 537 (6th Cir. 2012) (citing Edwards v. Carpenter, 529 U.S.
446, 451 (2000)). Thus, Mr. Gutierrez has failed to establish cause to excuse the procedural
default of Ground One. Since he has failed to show “cause,” it is not necessary to consider the
issue of “prejudice.” See Engle, 456 U.S. at 134, n. 43. Mr. Gutierrez has therefore failed to
support excusing the procedural default of Ground One based on cause and prejudice.
The Court may also excuse the procedural default of Ground One if Mr. Gutierrez shows
that a failure to consider the claims therein will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750. “A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’” Lundgren, 440 F.3d at 764 (quoting Murray, 477 U.S. at 496).
For an actual innocence claim to be credible, a petitioner must “support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). He must further “show that it is more likely than not
that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327.
This standard is intended to permit petitioners with “truly extraordinary” cases a “meaningful
avenue by which to avoid a manifest injustice.” Id. (internal quotations omitted). Importantly,
“‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998).
Petitioner has not argued that the procedural default of Ground One should be excused
based on his actual innocence (see ECF Docs. 1, 7, 10), but he does refer to certain post-trial

testimony from his sister regarding warrantless searches allegedly performed by federal agents
and police officers at a property where Mr. Gutierrez was staying in 2017. (ECF Doc. 7, p. 3
(citing ECF Doc. 5-3, pp. 15-16).) In the Petition, Mr. Gutierrez asserts that this evidence is
relevant because it undermines the credibility of police officers who testified at trial that no
searches were conducted of Mr. Gutierrez’s homes in this case.5 (ECF Doc. 1, pp. 14, 17, 19-
20.) This challenge to the credibility of the police officers who testified at trial is insufficient to
show factual innocence, i.e., that “it is more likely than not that no reasonable juror would have
convicted [Petitioner] in the light of the new evidence.” Schlup, 513 U.S. at 327. Accordingly,
the undersigned concludes that Mr. Gutierrez has not shown that a fundamental miscarriage of
justice would occur if the claims underlying Ground One were not considered. Lundgren, 440

F.3d at 764 (quoting Murray, 477 U.S. at 496).
For the reasons set forth above, the undersigned concludes that Ground One was
procedurally defaulted and that Mr. Gutierrez has not met his burden to show cause and
prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, the
undersigned recommends that the Court DISMISS Ground One with prejudice.

5 Mr. Gutierrez also asserts without further explanation in his Traverse that the searches allowed authorities “to
gather evidence illegally.” (Id. at p. 14.) Not only did he fail to raise this argument in his Petition, he also failed to
specifically identify any evidence that was offered against him at trial which he asserts was illegally gathered.
2. Ground Two was Procedurally Defaulted
In Ground Two, Petitioner claims he was denied his Sixth Amendment right to counsel
on direct appeal because his appellate counsel failed “to inform Petitioner of potential post-
conviction issues,” which led to his filing of an untimely motion for leave to file a delayed

motion for a new trial. (ECF Doc. 1, pp. 21-22.) Respondent argues that this claim was
procedurally defaulted for two reasons: (1) because the appellate court found Petitioner’s
ineffective assistance of appellate counsel claim should have been raised in an application to
reopen a direct appeal under Ohio Rule of Appellate Procedure 26(B) (“App. R. 26(B)) and was
therefore not properly before the court (ECF Doc. 5, pp. 13-14 (citing ECF Doc. 5-1, p. 223));
and (2) because “res judicata, which operates to bar Gutierrez’s ineffective assistance of
appellate counsel claim, has long been recognized as an adequate and independent state rule
which bars federal habeas review” (id. at p. 14 (citing Mason v. Mitchell, 320 F.3d 604, 628 (6th
Cir. 2003))). Petitioner responds by claiming this case is controlled by Gunner v. Welch, 749
F.3d 511 (6th Cir. 2014). (ECF Doc. 7, pp. 14-17.)

As noted above, a petitioner may procedurally default a claim if he fails “to comply with
state procedural rules in presenting his claim to the appropriate state court.” Williams, 460 F.3d
at 806. To assess procedural default based on this standard, the Court must apply the four-prong
Maupin analysis. Id. at 807 (citing Maupin, 785 F.2d at 138).
Under the first prong of the Maupin analysis, this Court must determine whether Mr.
Gutierrez failed to comply with a state procedural rule. See 785 F.2d at 138. The first prong is
met here because, as the state court held, Mr. Gutierrez did not raise his ineffective assistance of
appellate counsel claim via the appropriate proceeding. (See ECF Doc. 5-1, p. 223.) App. R.
26(B) provides that “[a] defendant in a criminal case . . . may apply for reopening of the appeal
from the judgment of conviction and sentence or a judgment of adjudication or disposition based
on a claim of ineffective assistance of appellate counsel.” Ohio App. R. 26(B). Ohio courts
have consistently held that an App. R. 26(B) application is the sole vehicle to bring an ineffective
assistance of appellate counsel claim. See State v. Murnahan, 63 Ohio St. 3d 60, 65 (Ohio

1992); State v. Hale, 2019-Ohio-3466, ¶ 10, 2019 WL 4051956, at *2 (Ohio Ct. Ap. 2019)
(citing State v. Buck, 2017-Ohio-273, ¶ 19 (Ohio Ct. App. 2017) (citing State ex rel. Collins v.
Saffold, 2012-Ohio-278, ¶ 6, 2012 WL 252495, at *1 (Ohio Ct. App. 2012))). Mr. Gutierrez
raised his ineffective assistance of appellate counsel claim via a motion for leave to file a delayed
motion for a new trial (ECF Doc. 5-1, pp. 102-04, 164), rather than an application to reopen the
direct appeal under App. Rule 26(B). Thus, the first prong of the Maupin analysis is met.
Under the second prong of the Maupin analysis, the Court must determine whether the
state enforced its procedural rule. See 785 F.2d at 138. Here, the state appellate court enforced
the procedural rule requiring ineffective assistance of appellate counsel claims to be brought
under App. R. 26(B), explaining: “As this Court has stated, filing an application for reopening

under Appellate Rule 26(B) is the appropriate remedy for asserting a claim for ineffective
assistance of appellate counsel. [Mr. Gutierrez’s] claim for ineffective assistance of appellate
counsel, therefore, is not properly before this Court.” (ECF Doc. 5-1, p. 223 (internal quotations
and citations omitted).) While the court did explain that Mr. Gutierrez’s reliance on Gunner v.
Welch was misplaced, it did not analyze the merits of his ineffective assistance of appellate
counsel claim. (Id. at pp. 223-24.) Since the state court of appeals applied App. R. 26(B) and
related case law to dismiss Mr. Gutierrez’s claim of ineffective assistance of appellate counsel
without reaching the merits, the undersigned finds the second Maupin prong is met.
Under the third prong of the Maupin analysis, this Court must determine whether the
procedural rule establishes an adequate and independent state law ground under which the claim
may be procedurally defaulted. See 785 F.2d at 138. This inquiry requires a determination that
the procedural rule is “independent of the federal question and adequate to support the

judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011). “To qualify as an ‘adequate’
procedural ground, a state rule must be ‘firmly established and regularly followed.’” Id. at 316
(quoting Beard v. Kindler, 558 U.S. 53, 60-61 (2009)).
In Scuba v. Brigano, 527 F.3d 479 (6th Cir. 2007), the Sixth Circuit held that the denial
of an App. R. 26(B) application for failure to timely file the App. R. 26(B) application was an
adequate and independent state ground for denying habeas relief. Id. at 488. While the situation
here is distinct, in that Petitioner’s Crim R. 33(B) motion was denied because he failed to seek
the requested relief through an App. R. 26(B) application, a review of Ohio caselaw reflects that
state courts regularly apply App. R. 26(B)’s procedural requirements when declining to address
the merits of ineffective assistance of appellate counsel claims brought via alternate petitions or

motions. See, e.g., Hale, 2019-Ohio-3466, ¶ 10 (declining to review an ineffective assistance of
appellate counsel claim on appeal from denial of a motion for a new trial because “an application
for reopening under App. R. 26(B) is the appropriate remedy for asserting a claim for ineffective
assistance of appellate counsel.”); Buck, 2017-Ohio-273, ¶ 19 (declining to address an ineffective
assistance of appellate counsel claim on direct appeal because “App. R. 26(B) is the appropriate
remedy for asserting a claim for ineffective assistance of appellate counsel”) (citing Saffold,
2012-Ohio-278, ¶ 6 (declining to address an ineffective assistance of appellate counsel claim in a
writ of mandamus)). Given the foregoing, the undersigned concludes that the procedural rule
requiring ineffective assistance of appellate counsel claims to be brought under App. R. 26(B) is
an independent and adequate state ground precluding habeas review. Thus, the third prong of the
Maupin analysis has also been met, and Ground Two was procedurally defaulted unless
Petitioner can show cause and prejudice to excuse the default.
Although Mr. Gutierrez does not present a direct argument regarding the application of

the first three Maupin prongs (ECF Docs. 7, 10), he does argue that the Ninth District’s decision
declining to address the merits of his ineffective assistance of appellate counsel claim was
contrary to clearly established federal law and that the Ninth District erred in finding Gunner v.
Welch did not apply to his case (ECF Doc. 7, pp. 16-17). For the reasons already discussed in
Section III.C.1., supra, the undersigned finds Mr. Gutierrez has failed to show that the Sixth
Circuit standard under Gunner, or any clearly established federal law, supports a finding that Mr.
Gutierrez’s appellate counsel had an obligation to inform him of the deadlines for filing a post-
conviction motion challenging the effectiveness of his appellate counsel. See McClain, 631 F.
App’x at 437 (6th Cir. 2015) (declining to extend Gunner standard to “the ineffective-assistance-
of-appellate-counsel context relevant under Rule 26(B)”; noting that the parallel Supreme Court

precedent in Martinez v. Ryan, 566 U.S. 1 (2012), was “limited by its express terms to the
ineffective-assistance-of-trial-counsel context”) (emphasis in original).
Moreover, in the procedural default context, the question is not whether the state court’s
application of a procedural rule is contrary to or an unreasonable application of clearly
established federal law, but whether the state enforced a state procedural rule that is independent
of a petitioner’s federal claim and “‘firmly established and regularly followed.’” Walker, 562
U.S. at 316 (quoting Beard, 558 U.S. at 60-61). Thus, Petitioner’s arguments that the state
court’s decision was contrary to federal law are inapposite to the issue before this Court.
The undersigned turns next, under the fourth Maupin prong, to whether Mr. Gutierrez has
established that his procedural default should be excused. To excuse his procedural default of
Ground Two, Petitioner must: (1) show cause for the default and that actual prejudice resulted
from the alleged violation of federal law; or (2) show that there will be a fundamental

miscarriage of justice if the claims are not considered. See Coleman, 501 U.S. at 750.
On the issue of “cause,” Mr. Gutierrez does not argue that “something external . . . that
cannot be fairly attributed to him” prevented him from properly raising his ineffective assistance
of appellate counsel claim via an application under App. R. 26(B). Id. at 753 (quoting Murray,
477 U.S. at 488). Thus, he has failed to show cause to excuse the procedural default, and it is not
necessary to consider the issue of “prejudice.” See Engle, 456 U.S. at 134, n. 43. Mr. Gutierrez
has failed to show cause and prejudice to excuse the procedural default of Ground Two.
Mr. Gutierrez has not argued that the procedural default of Ground Two should be
excused based on his actual innocence. (See ECF Docs. 1, 7, 10.) Further, for the reasons
discussed previously in Section III.C.1., supra, the undersigned concludes that Mr. Gutierrez has

failed to show “it is more likely than not that no reasonable juror would have convicted [him] in
the light of the new evidence” described in the Petition. Schlup, 513 U.S. at 327. The
undersigned therefore concludes that Mr. Gutierrez has not shown a fundamental miscarriage of
justice would occur if the claims underlying Ground Two were not considered. See Lundgren,
440 F.3d at 764 (quoting Murray, 477 U.S. at 496).
For the reasons set forth above, the undersigned concludes that Ground Two was
procedurally defaulted and that Mr. Gutierrez has not met his burden to show cause and
prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, the
undersigned recommends that the Court DISMISS Ground Two with prejudice.
IV. Recommendation
For all of the reasons set forth above, the undersigned recommends that the Court
DISMISS Mr. Gutierrez’s Petition because all of the claims for relief set forth in the Petition
were procedurally defaulted.

DATE: December 4, 2025

/s/ Amanda M. Knapp
AMANDA M. KNAPP
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. See
Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019); see also Thomas v. Arn, 474 U.S. 140
(1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11214624. Public record. Not legal advice.