Ivery

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KENAN IVERY, Pro Se, ) Case No.: 5:22 CV 1586

)

Petitioner ) JUDGE SOLOMON OLIVER, JR.

)

v. )

)

TIM McCONAHAY, WARDEN, )

)

Respondent ) ORDER

Currently pending before the court in the above-captioned case is Pro Se Petitioner Kenan

Ivery’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.)

Under Local Rule 72.2(b)(2), the case was referred to Magistrate Judge Amanda M. Knapp (“Judge

Knapp”) for the preparation of a Report and Recommendation (“R&R”). (ECF No. 3.) For the

reasons discussed below, the court adopts Judge Knapp’s recommendations, dismissing the Petition

with prejudice, and declining to issue a Certificate of Appealability.

I. BACKGROUND

A. State Court Convictions and Sentencing

Kenan Ivery is currently incarcerated at the Mansfield Correctional Institution for aggravated

murder with a firearm, and related offenses. (ECF No. 7 Ex. 1, State Ct. J. at PageID 161-67.)

Following a jury trial in the Summit County Court of Common Pleas, Ivery was sentenced to life

imprisonment without the possibility of parole, plus 65 years. (/d. at PageID 166.) The factual

findings of his crimes at trial were explained at length by the state appellate court, and recounted in

the Report and Recommendation. (R. & R. at PageID 6283–85.) Based on these facts, as determined

by the state court, a cursory summary of the events is provided here.1

On November 15, 2014, Ivery was a patron at Papa Don’s Pub in Akron, Ohio. (Id. at PageID

6283.) The bar manager testified that Ivery made a female patron uncomfortable with his advances,

and then became angry and refused to calm down. (Id.) Ivery was asked to leave, and one bar

employee overheard Ivery state that he would “smack that bitch,” before he exited the premises. (Id.)

Roughly eight minutes after leaving, Ivery returned to the bar with his firearm. (Id.) He told the bar

manager that he was “not alone anymore,” and revealed his gun in his waistband. (Id. at PageID

6284.) The bar manager then sought assistance from Justin Winebrenner (“Officer Winebrenner”),

who was an off-duty Akron police officer. (Id.) When Ivery began to pull the gun out of his

waistband, Officer Winebrenner and two other bar patrons surrounded Ivery and attempted to take

his gun from him. (Id.) Ivery and the men attempting to subdue him fell into a “big dog pile” near

the door. (Id.) At this point, Ivery fired several shots, and then fled the scene. (Id.) Multiple patrons,

including Officer Winebrenner, were shot and injured. (Id.) The majority ultimately recovered from

the injuries. (Id.) However, Officer Winebrenner succumbed to his gunshot wounds. (Id.)

At the close of his jury trial on October 23, 2015, the jury found Ivery guilty of: one count

of aggravated murder with firearm and death penalty specifications; two counts of murder with

firearm specifications, two counts of first-degree felonious assault with firearm specifications, four

counts of second-degree felonious assault with firearm specifications, two counts of attempted

1 “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).

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murder with firearm specifications, one count of having weapons while under disability, one count

of carrying a concealed weapon, and one count of illegal possession of firearm in a liquor permit

premises. (State Ct. J. at PageID 154–60.) The jury also returned a verdict of life imprisonment

without the possibility of parole for the aggravated murder conviction, upon its finding that

aggravating circumstances did not outweigh mitigating factors beyond a reasonable doubt. (Id. at

PageID 163.) Following his sentencing hearing, Ivery was sentenced to life imprisonment without

the possibility of parole for aggravated murder, and an additional 65 years to be served consecutively

for the remainder of his convictions. (Id. at PageID 164–66.)

B. Appealing Convictions in State Court System

This case involves an extensive procedural history, on account of Ivery’s numerous appeals

and requests for collateral review of his conviction and sentence. In the end, his convictions have

been repeatedly affirmed by the state courts.

Immediately following his conviction and sentencing, Ivery made a direct appeal to the Ninth

District Court of Appeals. (ECF No. 7 Ex. 1, Notice of Appeal at PageID 212–13.) His first two

attempts to appeal were dismissed for lack of jurisdiction pending the trial court’s entry of final

judgment. (Id., Direct Appeal Ct. Docs. at PageID 222–72, 307–08.) Ivery filed, through counsel,

his third notice of appeal from the final judgment on February 28, 2017. (Id. at PageID 325–26.) In

his direct appeal, Ivery raised the following assignments of error, stated here verbatim:

1. The trial court erred in refusing the instruct the jury on voluntary

manslaughter and reckless homicide.

2. Appellant’s conviction for aggravated murder, murder, attempted

murder and felonious assault were based on insufficient evidence as

a matter of law and was against the manifest weight of the evidence.

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3. The trial court erred in denying a Batson challenge when it

improperly applied the three step process established by the U.S.

Supreme Court.

4. The trial court committed reversible error when it permitted the

state of Ohio to elicit expert testimony from lay witnesses.

(Id. at PageID 338–61.) These assignments of error were overruled, and the judgment of the trial

court was affirmed. (Id. at PageID 431–41.)

After the Ninth District Court of Appeals affirmed his convictions, Ivery filed, pro se, a

notice of appeal in the Supreme Court of Ohio, seeking to appeal the Court of Appeals’ judgment.

(Id., Ohio Supreme Ct. Docs. at PageID 444–53.) Ivery was granted leave to file a delayed appeal.

(Id. at PageID 470–71.) On November 5, 2018, Ivery filed a memorandum in support of his appeal.

(Id. at PageID 472–83.) In it, he argued only one proposition of law, as follows:

The trial court erred in refusing to instruct the jury on voluntary

manslaughter as a lesser included offense, in violation of Ivery’s

rights to Due Process and Equal Protection under the Fourteenth

Amendment to the U.S. Constitution and Article I, Section § 10 of the

Ohio Constitution.

(Id. at PageID 478–83.) The Supreme Court of Ohio declined to accept jurisdiction of his appeal on

January 23, 2019. (Id. at PageID 504.)

After the Ohio Supreme Court declined jurisdiction, Ivery once again sought further review

of his conviction and sentence at the appellate level. He filed pro se two motions in the Ninth

Appellate District Court of Appeals, requesting review pursuant to Rule 26 of the Ohio Rules of

Appellate Procedure.2 First, Ivery filed an application for reconsideration under Rule 26(A)(1). (ECF

2 Rule 26 governs applications for reconsideration and reopening. App. R. 26(A)(1),

(B). Rule 26(A)(1) permits parties to file a written “application for reconsideration

of any cause or motion submitted on appeal,” which will then be “considered by the

panel that issued the original decision.” Rule 26(B) governs applications for

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No. 7 Ex. 1, First Appl. for Recons. Ct. Docs. at PageID 506–12.) The Ninth District Court of

Appeals denied the application for reconsideration, explaining that it “neither call[ed] attention to

an obvious error nor raise[d] an issue that we did not consider properly,” as required. (Id. at PageID

518–20.) Subsequently, Ivery filed an application for reopening appeal under Rule 26(B). (ECF No.

7 Ex. 1, First Appl. for Reopening Ct. Docs. at PageID 522–31.) In his application for reopening,

Ivery claimed that he “received ineffective assistance of counsel when his court-appointed appellate

attorney failed to raise winnable issues in the direct appeal . . . [and] failed to properly raise and/or

support three of the four assignments of error that were raised in the direct appeal.” (Id.) Ivery

represented that he would raise the following claims on reopened appeal:

1. Sufficiency of evidence: On a reopened appeal, Ivery will raise as

individual claims that there was insufficient evidence to find him

guilty of aggravated murder, [...] first degree felony felonious assault

of a peace officer [...] along with the firearm specifications . . .

2. Manifest weight of evidence: Ivery will also raise as a separate

claim that his conviction for aggravated murder in Count I was

against the manifest weight of evidence [...] [because] he was acting

in the spur of the moment [...] and/or in self defense.

3. Consecutive sentences: Here Ivery will challenge that [...] not all

of the findings [required to impose consecutive sentences] were

supported by the facts and circumstances of his case. . . .

4. Errors in sentencing for firearm specifications: Ivery contends that

the trial court committed multiple errors in the imposition of

sentencing on the firearm specifications in his conviction. . . .

5. Ineffective assistance of counsel for not raising during trial Ivery’s

reopening, which are specific to criminal cases: “[a] defendant in a criminal case or

a delinquent child in a juvenile 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 . . . filed in the court

of appeals where the appeal was decided.”

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having been diagnosed with PTSD. . . .

6. Failure of the trial court to adequately respond to the jury's request

for further instruction on what constitutes “spur of the moment” . . .

7. Trial court’s refusal to instruct jury on lesser included offenses of

reckless homicide and negligent homicide . . .

Additional claims to be raised: Upon granting of this application,

Ivery would also resubmit the third and fourth assignments of error

from his direct appeal, as touched on earlier in this application.

(Id. at PageID 525–31.) The Ninth District Court of Appeals granted Ivery’s first application to

reopen his appeal, finding “a genuine issue that counsel was ineffective in representing [Ivery] on

appeal.” (Id. at PageID 541–42.) Ivery was appointed new counsel and instructed to file a brief

addressing his claim of deficient counsel, and how he was prejudiced as a result. (Id.) Accordingly,

on March 23, 2023, Ivery filed, through counsel, his reopened appeal brief in the Ninth District Court

of Appeals. (ECF No. 7 Ex 1, Reopened Appeal Ct. Docs. at PageID 544–70.) Ivery argued the

following assignments of error on Reopened Appeal:

1. The evidence in this case was insufficient as a matter of law to

support the convictions . . .

2. The verdicts in this case [...] were against the manifest weight of

the evidence.

3. Pursuant to the Defendant’s right to due process and equal

protection, the trial court employed the wrong legal standard for

examining the suitability of a juror, thereby entitling the Defendant

to a new trial.

4. Trial court erred in refusing to instruct the jury on reckless

homicide.

(Id.) On June 17, 2020, the Ninth District Court of Appeals overruled these assignments of error, and

affirmed its prior decision upholding his convictions. (Id. at PageID 636–52.)

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Ivery then repeated the process of seeking appellate review of his convictions. For the second

time, he filed applications for reconsideration and reopening in the Ninth District Court of Appeals.

On July 28, 2020, Ivery filed pro se a second Rule 26(A)(1) application for reconsideration. (Second

Appl. for Recons. Ct. Docs. at PageID 604–27.) The appellate court again denied Ivery’s application

for reconsideration, finding that, “[h]aving reviewed [Ivery]’s application for reconsideration and

this [c]ourt’s June 17, 2020, decision . . . [Ivery]’s application neither calls attention to an obvious

error nor raises an issue that we did not consider properly.” (Id. at PageID 637–38.) The court also

emphasized that, “[Ivery] attempts to reargue the same issues in his reopened appeal, which this

Court has already addressed. . . . this [c]ourt reviewed the entire record, including the parts of the

record Appellant points to in his application for reconsideration.” (Id. at PageID 637.)

On September 17, 2020, Ivery filed pro se a second Rule 26(B) application to reopen his

appeal. (Second Appl. to Reopen Ct. Docs. at PageID 742–53.) In it, Ivery once again asserted

ineffective assistance of counsel–-but this time pertaining to his appointed counsel on reopened

appeal. (Id.) On January 28, 2021, the Ninth District Court of Appeals denied Ivery’s application to

reopen his previously reopened appeal. (Id. at PageID 766–67.) The court made clear that Ivery, “has

no right to file successive applications for reopening, and such applications are barred by res

judicata. . . . precedent supports this conclusion even when, like here, an appellant’s first application

for reopening is granted.” (Id. at PageID 766.)

After the Ninth District Court of Appeals again affirmed his convictions, Ivery filed pro se

two notices of appeal in the Supreme Court of Ohio, both of which were denied. (Ohio Supreme Ct.

Docs. at PageID 655–73.) In the first notice of appeal, filed February 2, 2021, Ivery argued the

following propositions of law:

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1. [I]nsufficient evidence to support Ivery’s convictions [...] and the

convictions were against the manifest weight of evidence...

2. The trial court abused its discretion and violated Ivery’s Due

Process protections under the Fifth and Fourteenth Amendments to

the U.S. Constitution and Article I, Section § 10 of the Ohio

Constitution when it improperly removed petit juror Ron Barnes.

(/d.) On April 13, 2021, the Supreme Court of Ohio declined to accept jurisdiction of Ivery’s appeal

for the second time, having already denied his direct appeal in January 2019. (/d. at PageID 704.)

In addition, he filed another notice of appeal in the Supreme Court of Ohio on March 10, 2021,

arguing the following propositions of law:

1. Ivery’s constitutional rights to due process and equal protection

were violated when the Ninth District Court of Appeals denied his

App. R. 26(B) Application for Reopening.

2. Ninth District abused its discretion by denying Ivery leave to

proceed prose on his reopened appeal, in violation of his Due Process

protections under the Fifth and Fourteenth Amendments to the U.S.

Constitution and Article I, Section § 10 of the Ohio Constitution.

3. The trial court’s erroneous jury instruction denied his Sixth

Amendment right to a fair trial and his Due Process protections under

the Fifth and Fourteenth Amendments to the U.S. Constitution and

Article I, Section § 10 of the Ohio Constitution.

4. There was insufficient evidence presented at trial to find Ivery

guilty of first degree felonious assault, as charged in Counts 4 and 10,

and the peace officer specifications under R.C. 2941.1412, as charged

in Counts 1, 2, 3, 4 and 10, and his convictions violate his Due

Process protections under the Fifth and Fourteenth Amendments to

the U.S. Constitution and Article I, Section § 10 of the Ohio

Constitution.

5. Ivery was denied effective assistance of counsel, as guaranteed

under the Sixth and Fourteenth Amendments to the U.S. Constitution

and Article I, Section § 10 of the Ohio Constitution.

6. The preponderance of evidence supports Ivery’s affirmative

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defense of self-defense, and his convictions in Counts 1-11, as

charged in his indictment, violate his Due Process protections under

the Fifth and Fourteenth Amendments to the U.S. Constitution and

Article I, Section § 10 of the Ohio Constitution

(Id. at PageID 769–88.) The Supreme Court of Ohio declined to accept Ivery’s appeal, for the third

and last time, on May 25, 2021. (Id. at PageID 801.)

Finally, while involved in these extensive state court proceedings, Ivery also filed three

petitions for writ of certiorari to the United States Supreme Court. (ECF No. 7 Ex. 1 at PageID 833;

Ans. at PageID 14–15.) All were denied.

C. Federal Petition for Writ of Habeas Corpus

Ivery filed this Petition on August 25, 2022, challenging his convictions for aggravated

murder and related offenses, and his related sentence of life imprisonment without the possibility of

parole, plus sixty-five years. (ECF No. 1, Pet.)

In his Petition for Writ of Habeas Corpus, Ivery raises eight Grounds for Relief, claiming the

following: (1) the trial court erred in refusing to instruct the jury on voluntary manslaughter; (2) the

evidence was insufficient to support his convictions; (3) the trial court violated his due process and

equal protection rights when prospective African-American jurors were improperly dismissed; (4)

the trial court erred by refusing to instruct the jury on the lesser included offenses of reckless

homicide and negligent homicide; (5) he was denied his constitutional right to effective trial counsel;

(6) the preponderance of the evidence supports his claim that he was acting in self-defense, (7) the

trial court erred in its jury instruction regarding self-defense; (8) the trial court erred in failing to

adequately respond to the jury’s request for further instruction regarding “spur of the moment”

consideration for his aggravated murder charge. (Pet. at PageID 9–30.)

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Respondent filed an Opposition/Return of Writ on March 23, 2023. (ECF No. 7, Opp’n.)

Petitioner filed his Traverse on August 1, 2023. (ECF No. 16, Traverse.) On June 2, 2025, Judge

Knapp issued her R&R, recommending the Petition be denied. (ECF No. 19, R. & R.) Petitioner filed

a timely Objection to the R&R. (ECF No. 23, Obj.) The matter is now ripe for adjudication.

II. LAW AND ANALYSIS

A. Habeas Petition Under AEDPA

Petitions for Writ of Habeas Corpus are governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a person in custody as a result of a state court

decision cannot be granted a writ of habeas corpus unless the adjudication, “(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

upon an unreasonable determination of the facts in light of the evidence presented in the State court

proceedings.” 28 U.S.C. §§ 2254(d)(1)–(2). The state court’s application of the law must be

“objectively unreasonable,” not just incorrect or erroneous. Id. Therefore, a habeas petitioner must

demonstrate objective unreasonableness that meets the intentionally “difficult” standard that the

Supreme Court has set, which “stops short of imposing a complete bar.” Harrington v. Richter, 562

U.S. 86, 102–03 (2011). The Supreme Court has explained the high burden for state court prisoners

to receive federal habeas relief as follows:

[E]ven a strong case for relief does not mean that the state court’s

contrary conclusion was unreasonable. . . . If this [AEDPA] standard

is difficult to meet, that is because it was meant to be. As amended by

AEDPA, § 2254(d) stops short of imposing a complete bar on

federal-court relitigation of claims already rejected in state

proceedings. . . . It preserves authority to issue the writ in cases where

there is no possibility fairminded jurists could disagree that the state

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court’s decision conflicts with this Court’s precedents. It goes no

further. Section 2254(d) reflects the view that habeas corpus is a

“guard against extreme malfunctions in the state criminal justice

systems,” not a substitute for ordinary error correction through

appeal.

Id. (internal citations omitted).

B. Review of Objections to R&R

In her Report and Recommendation, Judge Knapp recommended Ivery’s Petition be

dismissed with prejudice; as to Ground One for lack of a cognizable claim, and as to Grounds Two

through Eight for procedural default. (R. & R. at PageID 6328.) Ivery takes issue with these

conclusions. (Obj. at PageID 6342.)

When a court receives timely written objections to a magistrate judge’s R&R, it “shall make

a de novo determination of those portions of the report or specified findings or recommendations to

which objection is made.” 28 U.S.C. § 636(b)(1). However, de novo review is limited only to those

issues that a petitioner specifically identifies. Howard v. Secretary of Health and Human Servs., 932

F.2d 505, 509 (6th Cir. 1991). Crucially, a “general objection, or one that merely restates the

arguments previously presented is not sufficient.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D.

Mich. 2004). An objection that summarizes what has already been presented, or states general

disagreement with the R&R, is not considered an “objection” for purposes of de novo review. Id.

This is because, in the absence of specific objections, “[t]he district court’s attention is not focused

on any specific issues for review, thereby making the initial reference to the magistrate useless. The

functions of the district court are effectively duplicated as both the magistrate and the district court

perform identical tasks . . . wast[ing] judicial resources rather than saving them, and run[ning]

contrary to the purposes of the Magistrates Act.” Id. at 748 (citing Howard, 932 F.2d at 509).

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Instead of entitling a prisoner-petitioner to full de novo review, a non-specific objection “has

the same effect as a failure to object.” Aldrich, 327 F. Supp. 2d at 747–48. In other words, a court

that receives only general objections to the R&R—like a court that receives no objections—“need

only satisfy itself that there is no clear error on the face of the record in order to accept the

recommendation.” Fed. R. Civ. P. 72, Advisory Committee Notes (detailing lessened standard for

adopting R&R when no objection is filed). See also, e.g., Overholt v. Green, No. 1:17-CV-00186,

2018 WL 3018175, at *2 (W.D. Ky. June 15, 2018) (citing Howard, 932 F. 2d at 509) (explaining

courts should not have to do “[a] reexamination of the exact same argument that was presented to

the Magistrate Judge” absent specific objections); Brown v. Hamilton Cnty., No. 1:19-CV-00969,

2022 WL 2816266, at *2 (S.D. Ohio July 19, 2022) (citation omitted) (“disregard[ing]” plaintiff’s

objections because they were too general); Health Care Facility Mgmt. LLC v. Malabanan, No.

1:23-CV-00236, 2024 WL 1192919, at *7 (S.D. Ohio Mar. 20, 2024) (explaining multiple R&R

objections were “overruled,” in part because they, “repackage[d] arguments” previously made, did

not address authority relied upon in the R&R, and offered “nothing more than a blanket disagreement

with the Magistrate Judge”).

Therefore, the court must first determine whether Ivery advances specific objections–-i.e.,

offers “new argument or facts,” that are “not a reiteration of prior arguments in this case.” Aldrich,

327 F. Supp. 2d at 749; Feathers v. Foley, No. 5:22-CV-540, 2024 WL 1990886, at *1 (N.D. Ohio

May 6, 2024), certificate of appealability denied sub nom. Feathers v. Reynolds, No. 24-3466, 2024

WL 5707887 (6th Cir. Dec. 2, 2024). Insofar as Ivery’s arguments are “nothing more than mere

disagreements with the R&R,” he has failed to present specific objections, as required. Brown, 2022

WL 2816266, at *2.

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1. Judge Knapp’s Findings and Recommendations

Ground One of Ivery’s Petition asserts he is entitled to habeas relief because the trial court

should have instructed the jury on voluntary manslaughter. (R. & R. at PageID 6296.) The R&R

concludes Ground One should be denied for lack of a cognizable claim under applicable state and

federal law. (/d. at PageID 6296-6304.) The R&R explains the state law claims fail, because “it has

long been established that ‘it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.’” (/d. at PageID 6296-98 (citing Estelle v. McGuire, 502 US.

62, 68 (1991)).) The R&R further explains that Ivery’s federal law claims fail, because he has not

met his burden, under the AEDPA, of demonstrating the state court’s decision was contrary to or an

unreasonable application of clearly established federal law, or was based on an unreasonable

determination of facts in light of the evidence. (/d. at PageID 6299-6304.)

As to the remaining Grounds Two through Eight, the R&R concludes they have been

procedurally defaulted, and must be dismissed on that basis. As to Grounds Two and Three alleging

insufficient evidence and improper juror removal, Judge Knapp explains they are procedurally

defaulted because Ivery “did not seek review of the appellate court’s rulings on those assignments

of error in his appeal to the Supreme Court of Ohio.” Ud. at PageID 6308.) She further finds the

default inexcusable, because Ivery has not shown “actual prejudice,” given the claims were fully

“heard, considered, and ultimately rejected by the state court of appeals on the merits,” (7d. at PageID

63 10—20), and also has not shown “fundamental miscarriage of Justice” will occur if the court does

not take up the claims, given he has not shown he is “actually innocent.” (/d. at PageID 6319.)

Similarly, Judge Knapp finds Ground Four must be dismissed with prejudice for procedural

default. With regard to Ivery’s challenge to the trial court’s reckless homicide instruction, the R&R

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explains this claim is procedurally defaulted because, “the appellate court rejected the argument after

considering it on the merits . . . but Mr. Ivery did not seek review of the appellate court’s ruling to

the Supreme Court of Ohio.” (Id. at PageID 6320.) Likewise, regarding his challenge to the negligent

homicide instruction, the R&R explains “Mr. Ivery did not challenge the trial court’s refusal to give

a negligent homicide instruction in the direct appeal, let alone pursue that claim through ordinary

appellate review procedures.” (Id. at PageID 6320–21). Moreover, the same occurred on reopened

appeal: the appellate court found the challenge to the reckless homicide instruction was meritless,

which Ivery again did not appeal, and Ivery did not raise any challenge regarding the negligent

homicide instruction. (Id. at PageID 6321.) The R&R finds no cause or manifest injustice to excuse

procedural default, and no prejudice given the appellate court’s ruling on the merits. (Id. at PageID

6321–22.)

Finding the remainder of Ivery’s claims also procedurally defaulted, Judge Knapp explains:

“it is undisputed that Ivery failed to present Grounds Five Through Eight in his direct appeal, and

accordingly failed to pursue them through Ohio’s appellate review procedures.” (Id. at PageID 6324.)

Finding no cause to excuse the defaults, the R&R breaks down precisely: (1) why Ivery’s arguments

about ineffective assistance of counsel on reopened appeal are inadequate, and (2) that Ivery’s

argument concerning “lack of a state corrective process” to challenge reopened appeal counsel is

“misplaced,” since it confuses procedural default with the separate doctrine of exhaustion. (Id. at

PageID 6324–27.) Finally, the R&R concludes that, absent cause to excuse the defaults, “it is not

necessary for this [c]ourt to consider the issue of prejudice,” and Ivery also has not demonstrated

manifest injustice will result if Grounds Five through Eight are dismissed. (Id. at PageID 6327.)

Having recounted the R&R, the court now turns to Ivery’s Objection. (ECF No. 23.) As

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explained below, Ivery fails to make specific objections, stating only general disagreements and

reiterating prior arguments already considered.

2. Ivery’s Failure to State Specific Objections to R&R

The court first notes that it is difficult to discern whether Ivery intends to object to the R&R

whatsoever. He repeatedly states he is objecting to matters “Respondent argued,” rather than

identifying or addressing portions of the R&R. (See, e.g., Obj. at PageID 6342-43, 6355-57

(emphasis added).) Furthermore, the document is comprised of, nearly exclusively, lengthy quoted

passages from the record in his jury trial and from various other cases. Nonetheless, Ivery is a pro

se litigant, and thus is entitled to more leeway than a litigant with counsel, so the court has taken care

to search the Objection for any assertions that could be construed as specific objections, despite not

referencing or citing to the R&R’s analysis or findings. The court has not found any.

a) Failure to State a Claim in Ground One

Ground One concerns failure to state a claim. Addressing this, Ivery states that he “objects

to respondent to saying [sic] ground one has no constitutional violation and ... has no merit.” (Obj.

at PageID 6342.) This is merely a general objection, and Ivery does not reference the actual R&R.

Rather, he asks the court to consider evidence, facts, and arguments that he has already offered in

this case. (/d. at PageID 6342-43.) For example, he points out cases cited in prior filings, recounts

the trial judge’s instructions, as he has done before, (see Traverse at PageID 6257), and directly tells

the court to simply base its decision on old arguments: “if [this court] look[s] at the totality of ground

5... [it] will determine that Ivery’s ground one has merit.” (/d.) Plainly, Ivery has not made any

specific objections to the R&R’s recommendation that Ground One be dismissed. Thus, because the

court finds no clear error, having thoroughly reviewed the R&R and record, it will adopt Judge

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Knapp’s recommendation that Ground One be dismissed for failure to state a claim. However, the

court further notes that, even if de novo review were triggered, the outcome would be the same. The

court reviewed Ivery’s Petition in its entirety and the associated record, and concluded that Ivery has

not stated a cognizable claim in Ground One, for the same reasons explained at length by the

Magistrate. A federal habeas petition is not a mechanism for challenging state court’s decisions

regarding state law, and Ivery has not stated a claim under the AEDPA.

b) Procedural Default of Grounds Two through Eight

Ivery also objects to any of his claims being procedurally defaulted. He “objects to

respondent saying [he] has not shown prejudice to excuse the procedural default,” in Grounds Two

and Three. (/d. at PageID 6344, 6355.) But these objections are too generalized. Even where Ivery

is relatively more detailed, he still repeats the same core argument presented in his Petition and

Traverse: that ineffective assistance of counsel on his appeals caused all procedural defaults, so they

should be excused. (/d. at PageID 6344-46.) However, the R&R already considered and resolved

all of his ineffective assistance of counsel arguments. For one, Ivery argues his jury instruction

challenges are not procedurally defaulted because his counsel’s alleged failure to present evidence

of PTSD excuses the default, and he was thereby prejudiced. (/d. at PageID 6357-69.) He also argues

that he was prejudiced by the lack of a voluntary manslaughter jury instruction, and by counsel’s

failure to object or challenge allegedly erroneous jury instructions. (/d.) But he has made all of these

same arguments twice before, and they were fully considered as part of the record in Judge Knapp’s

preparation of the R&R. (Pet. at PageID 21; Traverse at PageID 6265-70.) Ivery also suggests the

Supreme Court of Ohio denying his request to proceed pro se is cause excusing procedural default,

but the R&R foreclosed this argument as well. (Obj. at PageID 6358; R. & R. at PageID 6324 n. 13.)

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Notably, Ivery does not object to Judge Knapp’s conclusion that, “even if the failure of Mr.

Ivery’s attorney to properly brief the issue on direct appeal did amount to ‘cause’ to support excusing

any procedural default, those actions did not result in ‘actual prejudice’ because the appellate court

ultimately considered and decided the issue on the merits.” (R. & R. at PageID 6310-18.) At best,

Ivery argues prejudice is shown merely by virtue of his allegedly having ineffective counsel, (see

Obj. at PageID 6369), but this is not sufficient. Moreover, Ivery does not object to the R&R’s

reasoning that, for his ineffective assistance of counsel claims, he either: (1) cannot show prejudice,

because “the appellate court ultimately considered and decided the issue on the merits,” (R. & R. at

PageID 6310-18), as discussed previously, or (2) cannot show cause to excuse default, because the

state court on reopened appeal found Grounds Five through Eight barred by res judicata, which is

“an independent and adequate ground for precluding relief.” (See id. at PageID 6320-22.) Moreover,

the R&R explains an appellate counsel’s conduct cannot “cause” a procedural defect which occurred

before the appeal, and attorney error on reopened appeal cannot excuse procedural default because

there is no constitutional right to representation in reopened appeals. (/d. at PageID 6325.) Ivery does

not respond with any new arguments or evidence, or otherwise challenge these conclusions.

Given the lack of specific objections to the R&R’s recommendation to dismiss Grounds Two

through Eight for procedural default, the court, again, “need only satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72,

Advisory Committee Notes. Having thoroughly reviewed and finding no clear error, the court will

adopt Judge Knapp’s recommendation to dismiss Grounds Two through Eight. However, the court

further emphasizes that the outcome would be the same even if its de novo review were required. The

court has reviewed Ivery’s Petition and the record in its entirety, despite his lack of specific

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objections to the R&R. In so doing, the court found Grounds Two through Eight are procedurally

defaulted as a matter of law. Thus, for the reasons correctly explained in the R&R and recounted

above, Grounds Two through Eight must be dismissed. Ivery cannot use this federal habeas petition

to repeat arguments either already fully heard and decided on their merits by state courts, or that he

failed to first raise in the appropriate forum when he had the opportunity to do so. Moreover, the

record does not show cause, manifest injustice, or prejudice to excuse the procedural default.

I. CONCLUSION

For the reasons stated above, and after careful review of the R&R and associated record, the

court finds no clear error on the face of the R&R (ECF No. 3), and adopts it as its own. Further, the

court finds that, even upon de novo review, the Petition should be denied for the reasons stated by

the Magistrate Judge. Therefore, the court hereby denies Ivery’s Petition for Writ of Habeas Corpus

(ECF No. 1), and enters final judgment in favor of Respondent. The court further certifies that there

is no basis upon which to issue a certificate of appealability under 28 U.S.C. § 2253(c)(1)(A).

IT IS SO ORDERED.

/s| SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

January 7, 2026

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