Ayers

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KAYLA JEAN AYERS, ) CASE NO. 5:20-cv-1654

)

)

Petitioner, ) CHIEF JUDGE SARA LIOI

)

vs. )

) MEMORANDUM OPINION

) AND ORDER

OHIO DEPARTMENT OF )

REHABILITATION AND CORRECTIONS, )

DIRECTOR, )

)

)

Respondent. )

By means of a federal habeas petition (Doc. No. 1), as amended (Doc. No. 14), filed

pursuant to 28 U.S.C. § 2254, Petitioner Kayla Jean Ayers (“Petitioner” or “Ayers”) challenges

her 2013 state court convictions for aggravated arson and child endangerment. Following remand

from the Sixth Circuit, this Court directed Magistrate Judge Carmen E. Henderson to prepare a

Report and Recommendation (“R&R”) addressing Petitioner’s ineffective assistance of counsel

claim. The R&R was issued on August 22, 2025.

Now before the Court is the R&R recommending the denial and dismissal of the amended

petition. (Doc. No. 35.) Petitioner has filed objections (Doc. No. 36), and Respondent Director of

the Ohio Department of Rehabilitation and Corrections (“Respondent”) has filed a response. (Doc.

No. 37.) For the reasons stated below, the objections are overruled, and the petition is denied.

I. BACKGROUND

The background surrounding the 2012 fire that gave rise to the state court criminal

proceedings and the eventual filing of the federal habeas petition, have been discussed in numerous

opinions—including a thorough recitation in the present R&R. (See, e.g., Doc. Nos. 18, 21, 24.)

Familiarity with these prior filings is assumed. For context, Ayers was convicted of crimes

associated with a fire that started in the basement of her father’s house in Massillon, Ohio. At the

time of the fire, Ayers and the youngest of her three children, a three-year-old boy, were the only

persons in the house and both managed to escape. The defense proceeded under alternative theories

that the fire was accidently started by Ayers when she fell asleep smoking a cigarette or by Ayers’s

young son while he was playing with a cigarette lighter.

The jury heard from several non-expert witnesses, including Ayers’s father, who testified

that his relationship with his daughter soured when he asked Ayers to move herself and her children

out of his house because she was not contributing to the household’s finances. Ayers told her father

that she was not leaving and that she would burn down the house if he ever moved out. See State

v. Ayers, 2021CA00134, 2022 WL 1946586, at *1 (Ohio Ct. App. June 6, 2022). The fire started

the day the father moved his own family out of the house. A neighbor at the scene testified that

Ayers repeatedly expressed concern that she was going to lose her children as a result of the fire.

Id.

The prosecution called Inspector Reginald Winters (“Winters”) of the Massillon Fire

Department, who had investigated the fire at the scene and provided expert testimony on the origins

of the fire. He determined that the fire was intentionally set, and he opined that if Ayers’s son had

started the fire, he would have had to light the fire at one end of the mattress and then crawl across

the burning mattress to light it at the second ignition point. He further testified that there were no

visible signs of soot on the boy, but that he observed soot on Ayers. See Ayers, 2022 WL 1946586,

at *1–4. There is no dispute that the “two-points-of-origin” theory espoused by Winters at trial

was not disclosed in his expert report and defense counsel did not object to its introduction. As

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explained below, however, this issue was not properly preserved for federal habeas review.

Following the jury trial, Ayers was sentenced to an aggregate custody term of seven years.1

She worked her way through the state appellate process and ultimately filed her federal habeas

petition on August 27, 2020. She raised a variety of grounds for relief, including ineffective

assistance of counsel. Her petition relied heavily on the July 29, 2019 expert report of John J.

Lentini (the “Lentini Report”) habeas counsel procured years after the trial that challenged several

of the conclusions reached by Winters, including Winters’s “two-points-of-origin” theory. (Doc.

No. 15-1 (State Court Record).) Because Ayers was still pursuing relief in state court, this Court

temporarily stayed these habeas proceedings to afford Ayers an opportunity to exhaust her state

remedies. (Order [non-document], 12/3/2020.) On June 6, 2022, the state court of appeals issued

an opinion affirming the trial court’s decision overruling Ayers motion for leave to file a motion

for a new trial and petition for post-conviction relief. See Ayers, 2022 WL 1946586.

On August 2, 2023, this Court issued a decision adopting the magistrate judge’s

recommendation that the federal habeas petition be dismissed as time-barred. (Doc. No. 21.) The

Sixth Circuit reversed as to Ayers’ ineffective assistance of counsel claim and remanded with

instructions to consider whether Ayers received ineffective assistance from her trial counsel for:

(1) his failure to consult an independent arson expert and adequately challenge the State’s expert’s

testimony, and (2) his failure to object to the introduction of a previously undisclosed expert

opinion. Ayers v. Ohio Dep’t of Rehab. & Corr., 113 F.4th 665, 667, 669, 674 (6th Cir. 2024), cert

denied sub nom. Chambers-Smith v. Ayers, 145 S. Ct. 1632 (2025).

1 Ayers was released from prison on August 22, 2019.

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II. The R&R2

In her R&R, the magistrate judge recommended finding that the first basis for ineffective

assistance of counsel—failure to consult an arson expert and failure to challenge false and

unsupported expert testimony—was neither unexhausted nor procedurally defaulted. With respect

to exhaustion, the magistrate judge relied on the Sixth Circuit’s determination that the Lentini

Report—which supplied the factual predicate for this ineffective assistance of counsel claim—was

not available until years after Ayers’s convictions were final, thus excusing her failure to raise the

factual predicate on direct appeal or on state post-conviction review. (Doc. No. 35, at 22–23 (citing

Ayers, 113 F.4th at 670–71).) As to procedural default, the magistrate judge found that the “Ohio

appellate court conducted a merits analysis of Petitioner’s ineffective assistance of counsel claim

to hold that it would be futile to grant a hearing on a motion for leave to file a motion for a new

trial.” (Id. at 25 (citing Ayers, 2022 WL 1946586, at *18–19).)

The second basis for ineffectiveness—trial counsel’s failure to object to the introduction

of the new expert theory—the magistrate determined, was procedurally defaulted, and Ayers failed

to demonstrate cause and prejudice to excuse the default. Because the failure to disclose this new

theory was a clear violation of Ohio R. Crim. P. 16(K), it was not “virtually impossible” for Ayers

to meaningfully raise this ineffective assistance of counsel claim in a timely fashion on direct

appeal or state post-conviction review. (Id. at 25 n.5 (citing Ohio Crim. R. 16(K)).)

Additionally, the magistrate judge found that the state appellate court’s 2022 decision was

2 Because the Sixth Circuit’s grant of a certificate of appealability was limited to Ayers’s ineffective assistance of

counsel claim, the magistrate judge limited her analysis to the viability of that claim, “finding Petitioner’s three

remaining claims dismissed as time-barred.” (Doc. No. 35, at 19 (citing Ayers, 113 F.4th at 669 (All page number

references are to the consecutive page numbers applied to each individual document by the Court’s electronic filing

system)).) Petitioner does not object to this determination, and the Court agrees that her claims of prosecutorial

misconduct, fundamentally unreliable evidence, and actual innocence are time-barred.

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entitled to deference under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). In reaching this conclusion,

the magistrate judge rejected Ayers’s argument that the state appellate court lacked jurisdiction,

under its own procedural holdings, to consider the merits of her claims. (Id. at 26–30.) And

applying AEDPA deference to the remaining ineffectiveness claim, the magistrate judge

concluded that “[t]his is not the case where there is no possibility that fair-minded jurists could

disagree that the state court’s decision was an unreasonable application of Strickland [v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], or other Supreme Court

precedent.” (Id. at 34.) The magistrate judge also rejected Ayers’s suggestion that the state

appellate court reverted to a sufficiency analysis when it considered the other evidence produced

by the State at trial and held that the introduction of a competing expert report—namely, the

Lentini Report—would not have changed the outcome. (Id.)

The R&R, however, did not conclude with the AEDPA deference analysis. Because much

of Ayers’s briefing was devoted to her belief that the state appellate court’s decision was not

entitled to deference, the magistrate judge proceeded to conduct a de novo review of the remaining

ineffectiveness claim. (See id. at 35–44.) The magistrate judge found that trial counsel’s decision

to forego an independent expert and exploit the errors that were contained in Winters’s report on

cross-examination was reasonable, given the information available to counsel at trial. (Id. at 35.)

In reaching this conclusion, the magistrate judge acknowledged Ayers’s heavy reliance on Richey

v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), which found defense counsel ineffective for failing to

consult with the independent expert he hired for his client. See id. at 362–63 (“A lawyer cannot be

deemed effective where he hires an expert consultant and then either willfully or negligently keeps

himself in the dark about what that expert is doing, and what the basis for the expert’s opinion

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is.”). The magistrate judge distinguished Richey on the grounds that, based on the information

known to counsel at the time of trial, including the anticipated testimony of Inspector Winters that

did not include the undiscovered “two-points-of-origin” theory, there was no reason to investigate

the cause of the fire further or necessarily consult an expert. (Id. at 43 (citing Kendrick v. Parris,

989 F.3d 459, 476 (6th Cir. 2021) (distinguishing Richey on similar grounds and finding no

ineffective assistance of counsel for failing to hire an expert)).)

III. OBJECTIONS

Petitioner raises three objections to the R&R. Specifically, Petitioner indicates that she is

challenging various recommended analyses and conclusions in the R&R, including: “(1) the

finding that this Court owes deference to the purported merits analyses in the 2002 Ohio appellate

court opinion, (2) the R&R’s analysis of Ms. Ayers’s IAC claim under the standard set forth by 28

U.S.C. [§] 2254(d), and (3) [] the R&R’s de novo analysis of the merits of her IAC claim, and the

recommended denial of her petition without a hearing.” (Doc. No. 36, at 1.3) She supports these

general objections by repeating many of the same arguments offered in her traverse. (See Doc. No.

16.)

A. Standard of Review

Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination

of those portions of the report or specified proposed findings or recommendations to which

objection is made.” See also Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at

*1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is

3 The Court does not understand Ayers to be objecting to the R&R’s conclusion that her second ineffective assistance

of counsel claim—based on counsel’s failure to object to the introduction of a new expert theory—was procedurally

defaulted. Moreover, the Court finds that the magistrate judge applied the governing law to the facts of the case to

determine that the claim was defaulted. (See Doc. No. 35, at 25 n.5.)

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dispositive of a claim or defense of a party shall be subject to de novo review by the district court

in light of specific objections filed by any party.” (citations omitted)); Fed. R. Civ. P. 72(b)(3)

(“The district judge must determine de novo any part of the magistrate judge’s disposition that has

been properly objected to.”) After review, “[t]he district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate judge

with instructions.” Fed. R. Civ. P. 72(b)(3). “An ‘objection’ that does nothing more than state a

disagreement with a magistrate’s suggested resolution, or simply summarizes what has been

presented before, is not an ‘objection’ as that term is used in this context.” Aldrich v. Bock, 327 F.

Supp. 2d 743, 747 (E.D. Mich. 2004).

The United States Supreme Court has observed that absent such requirements, the district

court would be forced to review “every issue in every case, no matter how thorough the

magistrate’s analysis[.]” Thomas v. Arn, 474 U.S. 140, 147–48, 106 S. Ct. 466, 88 L. Ed. 2d 435

(1985). The Sixth Circuit has similarly observed that where a party files an objection that is not

sufficiently specific, “[t]he functions of the district court are effectively duplicated as both the

magistrate [judge] and the district court perform identical tasks.” Howard v. Sec’y of Health &

Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (“[O]bjections [must] be specific in order to

focus the busy district court’s attention on only those issues that were dispositive and

contentious.”).

For the most part, Ayers does little more than register her general disagreement with the

magistrate judge’s resolution of the disputed issues. Such “objections” are not properly before the

Court. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (objections that dispute only the

general correctness of the R&R are insufficient to trigger de novo review by the district court

(citing Howard, 932 F.2d at 509)). To the extent her dissatisfaction with the R&R’s conclusions

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is supported by a rehashing of the arguments she presented to the magistrate judge in the hopes

that they will receive a more favorable reception in the district court, they are also improper.

Coleman-Bey v. Bouchard, 287 F. App’x 420, 422 (6th Cir. 2008) (objections that simply restate

arguments already presented to the magistrate judge are generally improper (citing Brumley v.

Wingard, 269 F.3d 629, 647 (6th Cir. 2001)). Accordingly, the Court will limit its review to any

specific portions of the R&R to which Ayers claims the magistrate judge failed to identify or apply

governing habeas, constitutional, or state law.

B. Discussion

1. Appropriateness of Applying AEDPA Deference

Ayers first objects to the deference the R&R gave to the state appellate court’s 2022

decision affirming the denial of her motion for leave to file a motion for a new trial and petition

for post-conviction relief. Ayers argues that the state court (and now the magistrate judge) erred

in relying on State v. Bethel, 192 N.E.3d 470 (Ohio 2022) to find that the merits analysis in the

state appellate court opinion was not void, and, therefore, entitled to AEDPA deference under

Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014). (Doc. No. 36, at 5–7); cf. Gumm, 775 F.3d at 362

(finding that because the state appellate court determined that it lacked jurisdiction to consider

petitioner’s Brady claim, any ruling on the merits was not entitled to AEDPA deference).

In Bethel, the Ohio Supreme Court reviewed the trial court’s denial of a motion for leave

to file a motion for a new trial and motion for post-conviction relief. The court determined that the

trial court lacked jurisdiction to consider the merits of the petitioner’s untimely post-conviction

motion unless the petitioner demonstrated he was unavoidably prevented from discovering the

facts for his Brady claim, and that no reasonable trier of fact would have found him eligible for

the death sentence but-for the constitutional error at trial. Bethel, 192 N.E.3d at 476. The court

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found the petitioner had failed to establish either. In so ruling, the court considered the merits of

the underlying Brady claim to determine whether the petitioner could demonstrate by clear and

convincing evidence that no reasonable fact-finder would have imposed the death penalty. See id.

at 478–80. The court also found that the trial court lacked jurisdiction to consider the motion for

leave to file a motion for a new trial because “until a trial court grants leave to file a motion for a

new trial, the motion for a new trial is not properly before the court.” Id. at 480 (citation omitted).

It concluded, however, that it could borrow from the trial court’s merits analysis from the post-

conviction motion to determine whether it would be futile to remand the matter to the trial court

for a hearing on the motion for a new trial. Id. at 484.

The state appellate court followed Bethel’s approach. The court found that the trial court

concluded that it lacked jurisdiction to consider the untimely post-conviction motion, but in

making that determination it properly considered the merits of Ayers’s ineffective assistance of

counsel claim. Ayers, 2022 WL 1946586, at *13. It then relied on this merits analysis to determine

that Ayers’s “motion for a new trial would be without merit, therefore rendering moot a hearing

on her motion for leave to file a motion for a new trial” and upholding the trial court’s denial of

her motion for leave to file a motion for a new trial. Id. at *19 (citing Bethel). In deciding to give

AEDPA deference to the Ohio appellate court’s decision, the magistrate judge concluded that the

merits review it conducted in determining that it lacked jurisdiction to consider Ayers’s untimely

post-conviction motion was appropriate, and that the court could use that analysis to consider

whether to remand for the purposes of having the trial court conduct a hearing on the motion for

leave to file a motion for a new trial. (Doc. No. 35, at 27.)

Ayers takes the magistrate judge to task for relying on Bethel. She argues that, “[i]n the

years since Bethel . . . the Ohio Supreme Court appears to have firmly and squarely concluded that

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Ohio courts do not have authority to analyze the merits of a claim without first reaching the

threshold determinations under” Ohio R. Crim. P. 33(B). (Doc. No. 36, at 5–6 (citing State v.

Hatton, 205 N.E.3d 513 (Ohio 2022); State v. Grad, 254 N.E.3d 51 (Ohio 2024).) It is true that

Hatton, Grad, and indeed Bethel hold that “[w]hen a defendant seeks leave to file a motion for a

new trial under [Ohio R. Crim. P. 33(B)], the trial court may not consider the merits of the proposed

motion for a new trial until after it grants the motion for leave.” Hatton, 205 N.E.3d at 521 (citing

Bethel, 192 N.E.3d at 372 (further citation omitted)); see Grad, 254 N.E.3d at 68 (citing Bethel,

192 N.E.3d at 372; Hatton, 205 N.E.3d at 521). But beyond correctly stating this general

proposition, Ayers’s objection goes no further.

First, as the magistrate judge observed and Petitioner continues to overlook, neither Hatton

nor Grad involved the consideration of both a post-conviction motion and a motion for leave to

file a motion for a new trial. (See Doc. No. 35, at 29.) Here, as in Bethel, the state appellate court

was permitted to consider the merits review from the post-conviction motion to determine whether

it would be futile to remand to the trial court to comply with the technical requirements of Ohio

R. Crim. P. 33(B). The state appellate court did not, as Petitioner suggests, issue a merits

determination after concluding that it lacked jurisdiction to do so.

Second, neither Hatton nor Grad—which both cited Bethel and had the opportunity but did

not qualify their reliance on it—overruled Bethel. Moreover, the state appellate court’s decision

was authored after Bethel but before Hatton and Grad. But even after Hatton, courts have

continued to rely on Bethel. See, e.g., State v. Miller, 227 N.E.3d 1189, 1193 (Ohio 2023) (“Even

assuming that a defendant’s motion for leave should have been granted, we will nonetheless uphold

the denial of a motion for leave if the defendant’s underlying new-trial motion would be without

merit.” (citing Bethel, 192 N.E.3d at 484) (Kennedy, J. concurring)). To the extent that Petitioner

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believes Bethel is in conflict with Hatton and Grad (which this Court does not believe to be the

case), the magistrate judge correctly concluded that it is not for this federal habeas court to wade

into the controversy. See Brown v. Rapelje, No. 1:09-cv-639, 2012 WL 4490774, at *10 (W.D.

Mich. Aug. 3, 2002) (“Federal habeas courts do not act as ‘super-appellate state courts’ in

determining issues of state law.” (quoting Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.

2002))), report and recommendation adopted, 2012 WL 4490769 (W.D. Mich. Sept. 28, 2012).

Because the state appellate court’s merits review did not follow a determination that it lacked

jurisdiction, the decision to afford the state opinion AEDPA deference does not run afoul of Gumm,

supra.

Ayers also criticizes the R&R for its treatment of the state appellate court’s review as a

“straightforward analysis on the merits of Ms. Ayers’s IAC claim.” (Doc. No. 36, at 8.) According

to Ayers, this was error because the state appellate court, while acknowledging the Strickland

standard, imposed on Ayers a higher burden under Ohio Rev. Code § 2953.23(A)(1)(B). (Id. at 8–

9.) Ayers is mistaken.

After citing Strickland, supra—as amplified by Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 178 L. Ed. 2d 624 (2011)—the state appellate court reviewed the non-expert evidence

offered at trial and concluded that “[i]n light of the evidence produced that did not depend on

expert testimony and the entire record in this case, we hold that Ayers has not shown a reasonable

probability that but for counsel’s unprofessional errors, the result of her trial would have been

different.” Ayers, 2022 WL 1946586, at *16 (citing, among authority, Strickland, supra.) Based

on this conclusion under Strickland’s second prong, the state appellate court turned to the

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requirements of Ohio Rev. Code § 2953.23(A)(1)(b)4 and found that Ayers had “not shown by

clear and convincing evidence that a constitutional error occurred during her jury trial, and that no

reasonable fact-finder would have found her guilty but for the constitutional error at trial.” Ayers,

2022 WL 1946586, at *17 (citing Ohio Rev. Code § 2953.23(A)(1)(b)). Because the state appellate

court found that Ayers failed to meet her burden under Strickland, her ineffective assistance of

counsel claim could not support her petition for post-conviction relief. The state appellate court’s

analysis of the motion for post-conviction relief was thus, at bottom, based on a Strickland analysis.

The state appellate court’s incorporation of this Strickland analysis into its determination of the

motion for new trial did not, as Ayers argues, apply the incorrect standard. The Strickland standard

was the proper standard, and that was the standard the state appellate court applied.

Ayers’s first objection is overruled.

2. AEDPA Deference Analysis

Ayers indicates that her second objection addresses her concerns regarding the “R&R’s

analysis of Ms. Ayers’s IAC claim under the standard set forth by 28 U.S.C. § 2254(d).” (Doc.

No. 36, at 1.) Yet, much of her discussion of this objection is limited to a repeat of her attack upon

the underlying state appellate court decision. (See, e.g. at 11 (“If the state appellate court did reach

a non-void determination of the merits of the IAC claim, and if [§] 2254(d) does apply, relief is

nevertheless appropriate because the state appellate court’s decision unreasonably applied clearly

established Federal law and was based on an unreasonable determination of the facts in light of

4 Ohio Rev. Code § 2953.23(A)(1)(b) provides that a court may not entertain an untimely petition for post-conviction

relief unless certain requirements are met, including that “the petitioner [has shown] by clear and convincing evidence

that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense

of which the petitioner was convicted[.]” Because the state appellate court determined that Petitioner had not

demonstrated that she received ineffective assistance from trial counsel, Ayers could not meet the requirement of

establishing that but-for a constitutional error, she would not have been convicted.

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the evidence presented in the State court proceedings.”)); id. at 18 (“The state court’s analysis

considered only a one-sided presentation of state favorable facts, and it misconstrued or

misunderstood the impact of the Lentini Report and the defense’s failure to conduct any

independent research on the scientific plausibility of its theory.”) To the extent that this “objection”

merely rehashes the arguments Ayers raised in her traverse (see Doc. No. 16, at 36–37 & n.8), the

objection is not properly before the Court. See Aldrich, 327 F. Supp. 2d at 747.

For example, Ayers argues once again that the state appellate court failed to “evaluate or

even acknowledge facts in Ms. Ayers’s favor or inconsistencies in the State’s case, but instead

simply recited a laundry list of evidence and testimony favorable to the State.” (Doc. No. 36, at

13.) Because Ayers merely revisits an argument raised in her initial briefing and does not pinpoint

where she believes the R&R erred in addressing it, the objection is not appropriate. Bouchard, 287

F. App’x at 422. But even if this “objection” were properly before the Court, it would be overruled.

After citing the proper standard under Strickland, the state appellate court engaged in a thorough

review of the trial evidence before ultimately concluding that but for the failure to call an arson

expert, the result would not have been different. See generally Ayers, 2022 WL 1946586. Much of

the evidence identified by Petitioner—including the fact that Winters determined that Ayers’s son

could manipulate a lighter, that Ayers did not flee after the fire but remained at the scene, and the

location of the fire on a mattress where her child played—was discussed in the opinion. See id.

Her argument appears to be that this evidence should have been presented in the opinion in a light

more favorable to her. But the fact remains that the state appellate court’s conclusion that the

introduction of a competing expert arson report, such as the Lentini Report, would not have

exonerated Ayers or reduced her culpability was not unreasonable or contrary to the law. See id.

at *12–13.

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Ayers’s second objection is overruled.

3. De Novo Analysis

Before delving into Ayers’s objection to the magistrate judge’s de novo analysis of her

remaining ineffective assistance of counsel claim, it is important to emphasize that even without

AEDPA deference, a review under Strickland requires counsel’s performance be afforded

considerable deference. Harrington, 562 U.S. at 105; see Strickland, 466 U.S. at 689 (“Judicial

scrutiny of counsel’s performance must be highly deferential.”).5 “Surmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L. Ed. 2d

284 (2010) (citation omitted). A court considering a claim of ineffective assistance must “indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance[.]” Strickland, 466 U.S. at 689. Counsel’s performance must be evaluated from the

perspective existing at the time of the representation, not from the perspective of hindsight. Id. To

prevail, a petitioner must show that counsel made errors so serious that he was not functioning as

the counsel guaranteed by the Sixth Amendment, and that counsel’s errors were so serious as to

deprive him of a fair trial. Id. at 687–88; United States v. Hanley, 906 F.2d 1116, 1120–21 (6th

Cir. 1990); Flippins v. United States, 808 F.2d 16, 18 (6th Cir. 1987); see also United States v.

Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (“Counsel is constitutionally ineffective only if

5 “To prevail on an ineffective-assistance-of-counsel claim, [a petitioner] must satisfy the two-pronged test announced

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” Wingate v. United States, 969

F.3d 251, 255 (6th Cir. 2020). Specifically, the petitioner must demonstrate: (1) that counsel’s performance fell below

an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant,

resulting in an unreliable or fundamentally unfair outcome. Strickland, 466 U.S. at 687–88; see Williams v. Taylor,

529 U.S. 362, 390–91, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The Court may address the Strickland prongs in

any order and need not address both prongs if the petitioner “makes an insufficient showing on one.” See Wingate,

969 F.3d at 255 (quotation marks and citation omitted).

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performance below professional standards caused the defendant to lose what he otherwise would

probably have won.” (citing Strickland, supra)).

In her attempt to clear Strickland’s “high bar,” Ayers once again leans heavily upon the

Sixth Circuit’s decision in Richey, which found that trial counsel “did not function as counsel

guaranteed by the Sixth and Fourteenth Amendments[]” when he “hire[d] an expert consultant and

then either willfully or negligently [kept] himself in the dark about what that expert [was] doing,

and what the basis for the expert’s opinion [was].” Richey, 498 F.3d at 346, 362–63. She also takes

issue with the magistrate judge’s attempt to distinguish Richey on the grounds that the defense

counsel in Richey knew of the State’s arson theory and recognized the need to hire an expert well

in advance of trial. (Doc. No. 36, at 19 (citing Doc. No. 35, at 38–43).) In contrast, here, the

magistrate judge noted that the State’s expert witness gave unforeseen testimony regarding the

“two-points-of-origin” theory. (Doc. No. 35, at 42.) “Based on the information known to counsel

at the time, and the anticipated testimony of Inspector Winters, [the magistrate judge saw] no

reason that reasonable counsel would have felt the need to investigate the cause of the fire further

or necessarily consult an expert.”6 (Id. at 43 (citing Kendrick, 989 F.3d at 476 (distinguishing

Richey by finding that it was reasonable for counsel to build his case around the State’s witness’s

anticipated testimony, and that “a fair minded jurist could conclude that counsel had reasonably

decided that no expert was necessary given [the witness’s] anticipated testimony”)).)

6 As the R&R observes, from Winters’s report, counsel knew that the fire was deliberately started, was ignited by an

open flame, occurred on a mattress, and was the result of arson. (Id. at 41 (citing record).) Counsel also knew that the

draft report disclosed during discovery contained numerous errors, including identification of the first floor as the

location of the origin of the fire and the suggestion that ignitable liquid vapors or gasoline were used, as well as various

typographical errors. (Id. at 41 & n.7 (citing record).) Moreover, counsel knew that Winters had determined at the

scene that Ayers’s son knew how to manipulate a cigarette lighter. (Id. at 41 (citing record).) Based on all this

information, the R&R concluded that it was reasonable trial strategy to focus on the alternative defense theories and

attempt to cast doubt on the State’s expert on cross-examination. (Id. at 41–42.)

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To this, Ayers suggests that her trial counsel knew that the State’s expert would offer some

opinion on the origin of the fire, and that he, himself, planned to offer alternative defense theories.

While she concedes that defense counsel was not required to consult with Mr. Lentini, she suggests

that he should have consulted with some expert. (Doc. No. 36, at 17–18.) She also disagrees with

the magistrate judge’s conclusion that consulting with an arson expert would not necessarily have

led to the discovery of the two-points-of-origin theory. Quoting from the Lentini Report, she notes

that the fire damage on the mattress was “contiguous” and that “the damage is indistinguishable

from damage caused by a normal fire spread from a single point of origin.” (Id. at 21 (citing Doc.

No. 15-1 ¶ 11).) She argues that, had counsel been armed with this information, he would have

had “ammunition to cross-examine Winters’ ‘surprise’ conclusions, especially since those

conclusions directly attacked the plausibility of the defense’s theory of the fire.” (Id. at 21–22.)

Ayers’s position is steeped in speculation and hindsight and highlights the pitfalls of

relying on pre-Harrington case law like Richey.7 In Harrington, the Supreme Court reversed the

Eleventh Circuit’s determination that trial counsel was ineffective for failing to “consult blood

evidence experts in developing the basic strategy for Richter’s defense or offer their testimony as

part of the principal case for the defense.” Harrington, 562 U.S. at 106. The Court explained that

7 Subsequent Sixth Circuit decisions have recognized the limitations of the decision in Richey because it predates

Harrington. See, e.g., Kendrick, 989 F.3d at 476 (noting that “Richey predates the Supreme Court’s guidance in

Harrington”). And while Harrington distinguished between the de novo standard of review and the double deference

afforded under AEDPA review, it underscored the deference that is inherent in any Strickland analysis:

Even under de novo review, the standard for judging counsel’s representation is a most deferential

one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of

materials outside the record, and interacted with the client, with opposing counsel, and with the

judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse

sentence. [] The question is whether an attorney’s representation amounted to incompetence under

“prevailing professional norms,” not whether it deviated from best practices or most common

custom.

Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689–90 (further citations omitted)).

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Strickland “permits counsel to ‘make a reasonable decision that makes particular investigations

unnecessary.’” Id. (quoting Strickland, 466 U.S. at 691). It further underscored that “Strickland

does not enact Newton’s third law for the presentation of evidence, requiring for every prosecution

expert an equal and opposite expert from the defense.” Id. at 111.

Like the present case, trial counsel in Harrington had no advance notice of the State’s

theory. Id. at 94. Prior to trial, the State in Harrington did not intend to offer any evidence

involving its analysis of the blood at the scene. It was only after the defense made its opening

statement and offered a self-defense theory that the State decided to “alter its approach.” Id. In

finding counsel effective, despite his failure to consult with blood evidence experts, the Court

found that “[c]ounsel was entitled to formulate a strategy that was reasonable at the time and to

balance limited resources in accord with effective trial tactics and strategies.” Id. at 107 (citations

omitted). The Supreme Court further rejected the Eleventh Circuit’s suggestion that counsel should

have anticipated the importance of the blood evidence, noting that it was not until post-trial

“forensic evidence [had] emerged concerning the source of the blood pool that the issue could with

any plausibility be said to stand apart.” Id. In so ruling, the Court refused to review counsel’s

performance under the “harsh light of hindsight[.]” Id.; see Strickland, 466 U.S. at 689 (Given the

“strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance[,]” “every effort [should] 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.”).

Similarly here, this Court cannot shine the “harsh light of hindsight” on counsel’s pre-trial

strategic decisions. As the Sixth Circuit recently observed: “When reviewing the adequacy of

counsel’s performance, the Supreme Court has ‘often explained that strategic decisions—

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including whether to hire an expert—are entitled to a ‘strong presumption of reasonableness.”

Clardy v. Pounds, 126 F.4th 1201, 1209 (6th Cir. 2025) (quoting Dunn v. Reeves, 594 U.S. 731,

739, 141 S. Ct. 2405, 210 L. Ed. 2d 812 (2021)). Counsel properly relied on the information known

to him at the time to determine that it was unnecessary to employ an expert and was more prudent

to rely on vigorous cross-examination of the State’s expert. See Harrington, 562 U.S. at 107.

Counsel’s performance cannot be deemed ineffective because, in hindsight and with the benefit of

an expert report procured years after the trial, Ayers now believes that another approach would

have more effectively countered the State’s undisclosed theory. See Esparza v. Sheldon, 765 F.3d

615, 624 (6th Cir. 2014) (rejecting the petitioner’s argument that his attorney could have

“impeached [an adverse witness] more effectively by calling an expert” because the decision to

rely on cross-examination rather than an expert witness is “precisely the sort of tactical judgment

Strickland counsels against second-guessing” (citing Strickland, 466 U.S. at 689)).

Given the level of deference Strickland demands, the Court finds that Ayers has not

demonstrated that her counsel’s failure to hire an arson expert and rely, instead, on vigorous cross-

examination, was constitutionally ineffective, especially in light of the information known to

counsel prior to trial. See Harrington, 562 U.S. at 111 (“In many instances cross-examination will

be sufficient to expose defects in an expert’s presentation. When defense counsel does not have a

solid case, the best strategy can be to say that there is too much doubt about the State’s theory for

a jury to convict.”); see also id. at 106 (“There are . . . countless ways to provide effective

assistance in any given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.”).

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Ayers’s third objection is overruled.8

8 Petitioner also requests an evidentiary hearing. Despite citing the fact that the R&R did not recommend holding an

evidentiary hearing, however, Ayers offers no argument as to why the magistrate judge erred in concluding that no

hearing was necessary. (See Doc. No. 36, at 22.) Such a bare bones objection is not properly before the Court. See

McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“It is not sufficient for a party to mention a possible

argument in the most skeletal way, leaving the court . . . to put flesh on its bones.” (quotation marks and citations

omitted)). But even if the Court considers the arguments raised in her traverse, it would find that a hearing is

unnecessary. For example, Ayers suggested that if her trial counsel’s strategy was to “remain[] ignorant about what a

competent independent expert would say as to the origin of the fire, Ms. Ayers should be able to inquire of that strategy

at an evidentiary hearing.” (Doc. No. 16, at 38.) But the Court has independently concluded it was reasonable given

the information known by counsel prior to trial, to develop a defense strategy around alternative negligence theories

and through cross-examination of the State’s expert witness. Because the state court record and Petitioner’s pleadings

were sufficient to determine the merits of Ayers’s ineffective assistance of counsel claim, no evidentiary hearing is

necessary. See Sawyer v. Hofbauer, 299 F.3d 605, 609–10 (6th Cir. 2002) (recognizing that a district court has

discretion to determine whether to hold an evidentiary hearing in a habeas case (citation omitted)).

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IV. CONCLUSION

Upon de novo review and for the reasons stated above, all matters raised in Ayers’s

objections (Doc. No. 36) are overruled, the R&R (Doc. No. 35) is adopted, and the Court denies

the amended petition. (Doc. No. 14.) Further, while the R&R recommends finding that reasonable

jurists could debate the decision to afford AEDPA deference to the Ohio appellate court’s decision

(see Doc. No. 35, at 45), the Court concludes that the issuance of a certificate of appealability on

this issue 1s unnecessary, due to the Court’s rejection of Ayers’s ineffective assistance of counsel

claim under a de novo standard. See Moody v. United States, 958 F.3d 485, 488 (6th Cir. 2020)

(dismissing an appeal and expressly cautioning district courts against issuing a certificate of

appealability in cases where alternate grounds for denying relief exist, finding “a claim does not

merit a certificate unless every independent reason to deny the claim is reasonably debatable”

(emphasis in original)). Here, an independent ground exists to dismiss Ayers’s non-defaulted

ineffective assistance of counsel claim, and this Court cannot conclude that reasonable jurists

would find the Court’s resolution to be debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,

484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Accordingly, the Court certifies that an appeal

from this decision could not be taken in good faith and that there is no basis upon which to issue a

certificate of appealability. 28 U.S.C. §§ 1915(a)(3), 2253(a); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

Dated: December 29, 2025 is a

HONORABLE SARA LIOI

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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