Baker

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

TRISTANEY BAKER,

Petitioner, : Case No. 2:25-cv-00604

- vs - District Judge James L. Graham

Magistrate Judge Michael R. Merz

WARDEN, Dayton Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action under 28 U.S.C. § 2254 is before the Court for decision on the

merits. Relevant pleadings are the Petition (ECF No. 1), the State Court Record (ECF No. 12), the

Return of Writ (ECF No. 13), the Supplemental State Court Record (ECF No. 14), Petitioner’s

Reply (ECF No. 28), and Respondent’s Sur-Reply (ECF No. 32).

Litigation History

On May 13, 2021, Petitioner was indicted by a Muskingum County grand jury on two

counts of aggravated murder with a firearm specification in violation of Ohio Revised Code §

2903.01(A)(Count 1) and Ohio Revised Code § 2903.01(B)(Count 2), one count of aggravated

burglary in violation of Ohio Revised Code § 2911.11(A)(2), also with a firearm specification, one

count of tampering with evidence in violation of Ohio Revised Code § 2921.12(A)(1), and one

count of possession of criminal tools in violation of Ohio Revised Code §2923.24(A)(Indictment,

State Court Record ECF No. 12, Ex. 1). Petitioner pleaded guilty after negotiations to avoid the

death penalty and was sentenced to life imprisonment without parole plus six years. Id. at Ex. 5.

Baker appealed to the Ohio Fifth District Court of Appeals claiming she had received

ineffective assistance of trial counsel and that her sentence was unconstitutional. The Fifth District

affirmed, State v. Baker, 2022-Ohio-1853 (Ohio App. 5th Dist. Jun. 1, 2022). Baker failed to timely

appeal to the Ohio Supreme Court, but with the assistance of new counsel she later filed a petition

for post-conviction relief under Ohio Revised Code § 2953.21 which she several times moved to

amend (State Court Record, ECF No. 12, Exs. 11, 13, 15, and 16). After an evidentiary hearing,

the trial judge requested the parties to file proposed findings of fact and conclusions of law which

they did. Id. at Exs. 17, 18. The Common Pleas Court then denied relief. Id. at Ex. 19.

Petitioner appealed to the Ohio Fifth District Court of Appeals which affirmed the trial

court. Id. at Ex. 24. The Ohio Supreme Court declined to exercise jurisdiction over a subsequent

appeal. Id. at Ex. 28. Represented by counsel from the Ohio Public Defender’s Office, Petitioner

filed her Petition in this Court on May 30, 2025. She pleads the following ground for relief:

Ground One: By failing to secure and present mitigation evidence

at sentencing, including a psychological assessment and

psychological/medical records, trial counsel failed to provide

effective assistance of counsel, as required by the 6th and 14th

Amendments.

Supporting Facts: Although psychological/medical records

available to defense counsel at the time of sentencing demonstrated

substantial mental-illness and trauma-history mitigation, trial

counsel failed to secure and present a psychological expert to prove

his mitigation claims instead relying on his own subjective

arguments for mercy at sentencing. In post-conviction litigation, a

psychological expert presented compelling mitigation evidence, of

the type that reasonably competent counsel would have put forth, in

contrast to the subjective plea for mercy that was actually made at

Ms. Baker's sentencing. The court of appeals unreasonably applied

U.S. Supreme Court precedent when it upheld the trial courts denial

of Ms. Baker's IAC claim.

(Petition, ECF 1, PageID 5).

Analysis

Statute of Limitations

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

1214)(the "AEDPA") adopted for the first time a statute of limitations for habeas corpus cases

running for one year from the latest of

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was prevented

from filing by such State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of

due diligence.

The standard form for habeas corpus petition under 28 U.S.C. § 2254 asks the petitioner

“TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago,

you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does

not bar your petition.” The question is included because District Courts are required to perform a

preliminary review of habeas petitions when they are filed and before the State is ordered to

answer. A district court may dismiss a habeas petition sua sponte on limitations grounds when

conducting an initial review under Rule 4 of the Rules Governing § 2254 Cases. Day v.

McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense even after answer

which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). A large majority of habeas

petitions are filed pro se and Item 18 assists the courts in conducting their initial review.

Petitioner here, however, is not proceeding pro se, but has representation from the Ohio

Public Defender through attorneys Mallorie Thomas and Craig Jaquith (Petition, ECF No. 1,

PageID 15). The same office in the person of attorney Peter Galyardt represented Petitioner

throughout her direct appeal (See Notice of Appeal, State Court Record, ECF No. 12, Ex. 6) and

in proceedings on her Petition to Vacate under Ohio Revised Code § 2953.21, Id. at Exs. 11, 13,

20.

Assistant Ohio Public Defenders Thomas and Jaquith drafted the Petition and responded

“N/A,” to Item 18, meaning “not applicable.” (ECF No. 1, PageID 13). The conviction in this

case became final on direct review forty-five days after the Fifth District’s affirmance of the

conviction, or on July 16, 2022, when Petitioner’s time to appeal to the Ohio Supreme Court

expired and no appeal had been filed. The Petition here was not filed until May 30, 2025, almost

three years after the conviction became final. Item 18 was obviously not inapplicable, but

Petitioner’s counsel missed this opportunity to explain in the Petition why her filing was timely.

Respondent, however, did not ignore the limitations question but raises the affirmative

defense that the Petition was untimely filed. The Warden correctly notes the statute began to run

on July 18, 2022, the next court day after July 16, 2022.

Petitioner defends the timeliness of her Petition by calculating it from the date on which

she claims she learned of the “factual predicate” of her claim:

[B]ecause Ms. Baker’s postconviction ineffective-assistance claim

was based entirely on an expert report that she obtained in August

2022, because her state-court filings were timely pursued after that

date, and because less than one year of AEDPA statute-of-

limitations time accrued before she filed her federal habeas corpus

petition herein, her habeas petition is in fact timely.

(Reply, ECF No. 28, PageID 817). Petitioner thus asserts the running of the statute should be

calculated under § 2244(d)(1)(D), relying on Ayers v. Ohio Department of Rehabilitation and

Correction, 113 F.4th 665 (2024), cert. den. 145 S.Ct. 1632 (2025).

Because counsel had not answered Item 18 and Respondent had not had an opportunity to

discuss Petitioner’s argument under § 2244(d)(1)(D), the Magistrate Judge sua sponte granted

Respondent an opportunity to argue the point (ECF No. 31). Respondent accepted that invitation

and filed her Sur-reply (ECF No. 32).

In Ayers, the case on which Petitioner relies, the petitioner had been convicted of

aggravated arson and child endangerment. After she lost on her petition for post-conviction relief,

she filed for habeas relief1. The Sixth Circuit held:

1 The report from fire-inspection expert obtained while defendant

was in prison established factual predicate for defendant's

ineffective-assistance claim;

2 Defendant satisfied requirement of proving that she exercised due

diligence to discover factual predicate of habeas claim; and

3 The one-year statute of limitations for bringing habeas claim

began to run no earlier than day fire-inspection expert produced

report.

1 At the time of her filing, she had completed her prison sentence, but the Sixth Circuit concluded she suffered

sufficient collateral consequences to support jurisdiction.

The Ayers Court acknowledged Congress had not defined “factual predicate,” but noted

But courts generally agree that “a factual predicate consists only of

the ‘vital facts’ underlying the claim.” (citations omitted). A fact is

“vital” if it is required for the habeas petition to overcome sua sponte

dismissal. Rivas, 687 F.3d at 535; see Rule 4, Rules Governing

Section 2254 Cases (requiring district courts to dismiss habeas

petitions “[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief”).

113 F.4th at 670. The relevant vital facts in Ayers were the expert opinion of John Lentini, a

nationally recognized arson expert, whose report undermined scientifically the theory on which

the case was prosecuted. The Ayers court agreed that receipt by Ayers of the Lentini report

constituted the date for her discovery of the required vital facts and therefore the date on which

the statute of limitations began to run.

The expert report at issue here is that of Bob Stinson, Psy.D., J.D2., which is attached to

Baker’s Petition for Post-Conviction Relief (State Court Record, ECF No. 10, PageID 96 ff.). In

contrast to the scientific report by Lentini of the causes of the fire in the Ayers case, Stinson’s

report was prepared after an extensive review of record pertaining to Ms. Baker and a two and

three-quarters hour interview with her. The first thirty pages of the Report consist of his summary

of the records and of his conversation with Ms. Baker (PageID 96-145). He then reported the

results of his mental health evaluation and the results of administering two psychological tests, the

Adverse Childhood Experiences (ACE) tests and the Trauma- Symptom Inventory-2 (TSI-2) tests

(PageID 125-39). He reached the following conclusions “to a reasonable degree of psychological

certainty”:

(1) Ms. Baker is-and was at the time of her offending-a significantly traumatized individual.

2 Stinson is not a member of the bar of this Court although his office is in Columbus; his registration with the Ohio

Supreme Court is active. Dr. Stinson offers only psychological opinions and does not opine that trial counsel’s failure

to offer an evaluation such as his at sentencing was deficient performance.

PageID 139.

(2) Ms. Baker-not surprisingly-developed significant mental health problems. PageID 141.

(3) In a maladaptive attempt to cope, Ms. Baker turned to drugs and alcohol, resulting in

her developing significant substance use disorders. Id.

(4) Ms. Baker is in need of treatment, has shown evidence of benefiting from treatment,

and has the ability to benefit from continued treatment. PageID 142.

(5) Ms. Baker is a young offender who will benefit from the natural processes of

neuromaturation. Id.

Dr. Stinson also concluded “Through the natural process of neuromaturation, Ms. Baker

will necessarily become a changed person; a different person than she was at the time of the

offenses.” PageID 142. “Thus, the irresponsible conduct of an individual whose brain is not fully

developed is not as morally reprehensible as that of a mature adult and even a heinous crime

committed by such an individual is not evidence of irretrievably depraved character.” PageID 144-

45.

Thus the “vital facts” of the Ayers case contrast markedly with the facts in the Stinson

Report. As a first scientist, Lentini could infer from the physical evidence that the fire was not set

intentionally, undercutting the key mens rea for arson. In contrast, most of the historical facts on

which Dr. Stinson based his Report were learned by him from Ms. Baker herself, particularly when

and how she was traumatized as a child and the course of her substance abuse history. What Dr.

Stinson added were the results of the psychological testing he performed and his professional

evaluation of what Ms. Baker and those tests told him.

Given these differences between the two Reports, the Magistrate Judge is reluctant to

conclude the Stinson Report constitutes the “vital facts” of Ms. Baker’s ineffective assistance of

trial counsel claim. Nonetheless, Ayers is a published (and therefore precedential) decision of the

Sixth Circuit. Giving Petitioner the benefit of the doubt in interpreting Ayers, the Magistrate Judge

will treat the date her counsel3 received Stinson’s Report as the date she discovered the factual

predicate of her claim.

To take advantage of the start date in § 2244(d)(1)(D), a habeas petitioner must show she

acted with due diligence in discovering the “vital facts”. In Ayers the Sixth Circuit found sufficient

evidence in petitioner’s indigence and lack of legal representation during the relevant time period.

Judge Mathis wrote:

During all relevant times, Ayers was an indigent prisoner. For such

individuals, courts must account for the “reality of the prison

system” when deciding whether due diligence would have unveiled

the factual predicate of a habeas petition. Easterwood v. Champion,

213 F.3d 1321, 1323 (10th Cir. 2000); DiCenzi, 452 F.3d at 470–

71; cf. Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013).

That reality reveals that the expert report Ayers needed to make her

claim was not in the prison library. No amount of diligent research

through publicly available sources would have shown her that

Winters was unqualified. She, a layperson, could not have known

that Winters's analysis was not scientifically sound simply by

hearing his testimony.

Further, Ayers was not entitled to counsel for her post-conviction

proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct.

1990, 95 L.Ed.2d 539 (1987); United States v. Augustin, 16 F.4th

227, 233 (6th Cir. 2021); State v. Crowder, 60 Ohio St.3d 151, 573

N.E.2d 652, 653–54 (1991). So she, as an indigent prisoner, had no

means to acquire an expert witness and pay the associated fees. She

could not have obtained Lentini's report without OIP's assistance.

Uncovering the factual predicate of her claim before she had

representation was infeasible.

113 F.4th at 672. Like Ms. Ayers, Ms. Baker is indigent and has not been entitled to appointed

counsel since the Fifth District affirmed her conviction on direct appeal. Pennsylvania v. Finley,

3 Stinson was commissioned to prepare the report by Ms. Baker’s counsel who were acting in her behalf. Under those

circumstances, receipt by counsel as Ms. Baker’s agent for this case counts as receipt by her.

481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974). Unlike Ms. Ayers, however, Ms.

Baker has had representation from the Ohio Public Defender’s Office from the time her notice of

direct appeal was filed4. Petitioner’s counsel has offered no argument as to how his office

exercised due diligence on Petitioner‘s behalf in obtaining the Stinson report. Dr. Stinson advises

he was retained by post-conviction counsel sometime before he evaluated Ms. Baker on July 22,

2022, and signed his report August 15, 2022. PageID 94. Petitioner’s counsel filed the report as

an attachment to the Post-Conviction Petition on September 7, 2022 (State Court Record, ECF No.

10, Ex. PageID 73). Petitioner’s counsel had certainly known he would need evidence dehors the

record for post-conviction, because the ineffective assistance of trial counsel claim made here was

the first assignment of error on direct appeal. Without evidence dehors the record, the claim would

have been barred by res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). Petitioner’s counsel

apparently acted with dispatch in retaining Dr. Stinson.

Assuming that discovery of Stinson’s Report counts as discovery of the factual predicate

and the statute runs from the date of his Report, then the statute ran from August 15, 2022, until

September 7, 2022, when it was tolled under § 2244(d)(2) by filing the post-conviction petition, a

total of twenty-two days. It remained tolled until the post-conviction denial was affirmed March

11, 2024 (Opinion, State Court Record ECF No. 12, Ex. 24). It remained tolled thereafter until

the Ohio Supreme Court declined review on July 9, 2024. Id. at Ex. 28. The Petition was filed

within one year of that date.

Respondent urges this Court not to follow Ayers, but instead to heed the opinion of Justice

Alito (joined by Justice Thomas) concurring in the denial of certiorari in Ayers; review had been

sought by the State. Whether or not this Court agrees with Justice Alito’s reasoning, it is not

4 Ms. Ayers was represented in the Sixth Circuit by the Ohio Innocence Project.

authorized to disregard Ayers. Ayers is a published decision of the Sixth Circuit, binding on

lower courts in this circuit unless overruled by the Sixth Circuit sitting en banc5.

Conversely, the Supreme Court’s refusal to exercise jurisdiction is not precedential.

Teague v. Lane, 489 U.S. 288, 296 (1989)(“the ‘denial of a writ of certiorari imports no expression

of opinion upon the merits of the case’”(quoting United States v. Carver, 260 U.S. 482, 490

(1923)). Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912, 919 (1950) (Frankfurter, J.,

respecting denial of certiorari) (“[T]his Court has rigorously insisted that . . . a denial [of a petition

for a writ of certiorari] carries with it no implication whatever regarding the Court’s views on the

merits of a case which it has declined to review”). If the denial of certiorari has no precedential

value, surely an opinion on why certiorari was denied carries no precedential weight, regardless of

its persuasive reasoning.

The Magistrate Judge recommends Respondent’s statute of limitations defense be

overruled.

The Merits

Ms. Baker presents a single ground for relief: that she received ineffective assistance of

trial counsel when her trial attorney did not present a psychological expert in mitigation at

sentencing.

5 Trial courts are obliged to follow precedent set by the Supreme Court and Courts of Appeals. "Unless we wish

anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal

courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375

(1982); Litman v. Massachusetts Mut. Life Ins. Co., 825 F.2d 1506 (11th Cir. 1987). See Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U. S. 477, 484, (1989), cited for this proposition by Justice Kavanaugh in his

concurrence in Ramos v. Louisiana, 590 U.S. 83 (2020).

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

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

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

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

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

performance was deficient. This requires showing that counsel was

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

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

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

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

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

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

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

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

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

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

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

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

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

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

Judicial scrutiny of counsel's performance must be highly

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

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

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

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

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

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to overcome confidence in the outcome.

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

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

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

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

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

In assessing prejudice under Strickland, the question is not whether

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

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

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

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

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

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

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

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

difference between Strickland's prejudice standard and a more-

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

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

likelihood of a different result must be substantial, not just

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

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

Petitioner presented her ineffective assistance of trial counsel claim to the Fifth District

Court of Appeals as he first assignment of error on appeal from denial of her petition for post-

conviction relief. The Fifth District overruled that assignment of error on both the deficient

performance and prejudice prongs of Strickland. In doing so it recited at length the mitigating

factors argued by Ms. Baker’s trial counsel at sentencing. State v. Baker, 2024-Ohio-906, ¶ 56,

pp. 8-11(Ohio App. 5th Dist. Mar. 11, 2024). It followed with reciting the aggravating evidence

pointed out by the prosecutor, including post-plea behavior. Id. at ¶ 57, pp. 11-12. It noted that in

reaching his decision in post-conviction, the trial judge had considered Dr. Stinson’s report and

how the report paralleled mitigating evidence the trial attorney had argued. It summarized its

conclusions as follows:

{¶58} We do not find that trial counsel's act in forgoing the hiring

and presentation of a mitigation expert under the particular facts of

this case amounted to a substantial violation of an essential duty by

that counsel. Although Dr. Stinson's testimony and report is more

detailed and nuanced, the information that he presented to the trial

court is fundamentally the same as the oral evidence provided by

trial counsel to the trial judge during the sentencing hearing, and the

evidence contained in the pre-sentence investigation report. The

main difference is that Dr. Stinson diagnosed Baker with several

mental illnesses. Dr. Stinson's testimony and report present the same

evidence of Baker's dysfunctional family and upbringing, alleged

abuse, and traumatic events in her life. Dr. Stinson agrees that Baker

was responsible for her conduct and capable of distinguishing right

from wrong. He presented nothing of a compelling nature

concerning a little understood psychological condition that would

serve to mitigate Baker's actions not as premeditated, but as those of

desperation and panic. He urged the trial judge to consider, as did

trial counsel at sentencing, Baker's age, that she could benefit from

treatment and possibly at some time in the future become less violent

and less of a threat.

State v. Baker, supra.

As to prejudice, the Fifth District concluded

{¶60} However, even if we were to find that trial counsel was under

a duty to hire a mitigation expert in this noncapital felony sentencing

case, we would find that Baker has failed to demonstrate prejudice

because the trial judge did consider the evidence during the

proceedings on her petition for postrelease control and was not

persuaded to change his sentence.

{¶69} Accordingly, even if counsel's failure to present a

mitigation expert at sentencing reflected deficient performance,

which we do not find under the specific facts of this case, Baker

has failed to establish prejudice under Strickland.

Id.

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

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

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

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

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

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

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

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

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

District decided her ineffective assistance of trial counsel claim on the merits, Ms. Baker’s burden

in this case is to show that decision was contrary to or an objectively unreasonable application of

supreme court precedent or a decision based on an unreasonable determination of the facts.

Petitioner’s argument focuses on the factual branch of the standard. In summary she argues

“The Fifth District’s determination that the newly developed mitigation evidence was

‘fundamentally the same’ as trial counsel’s prior subjective appeal for mercy is an unreasonable

determination of the facts in the state court record.” (Reply, ECF No. 28, PageID 823, Emphasis

supplied).

Petitioner’s counsel correctly points out that defense counsel’s closing argument is not

evidence. Id. at PageID 823. They then note the obligation of the sentencing judge to consider

mitigation evidence at sentencing. Id. at PageID 824. They argue that trial counsel did not present

any evidence about Ms. Baker’s mental illness. Id. at PageID 824-25. Nor did trial counsel “even

mention, let alone present evidence regarding, the now well-developed scientific understanding of

the process of neuromaturation in young adults,” Id. at PageID 825. Nor did he mentioned Ms.

Baker’s childhood trauma. Id. at PageID 826. Finally, trial counsel asserted Ms. Baker would not

likely receive treatment in prison, whereas Dr. Stinson had opined she was responsive to treatment.

Id. at PageID 826.

As to the deficient performance prong of Strickland, Petitioner’s counsel argues “this is

not a particularly close call.” Id. at PageID 830. That argument depends on drawing sharp

distinctions between what trial counsel summarized from his interviews with Ms. Baker and what

Dr. Stinson learned from his interview. Both largely summarized what they had learned from

Petitioner. Ms. Baker’s attorney’s argument was not a “subjective appeal for mercy,” but a

summary parallel to most of Dr. Stinson’s report. And Petitioner submits no case law or even

excerpts from practice manuals suggesting it is ineffective assistance to fail to submit material on

neuromaturation when defending a young defendant.

Regarding prejudice, Ms. Baker’s counsel argues the Fifth District applied a standard of

review, incorrect under Strickland, requiring her to prove that the result at sentencing would have

been different if the Stinson report had been submitted at that stage. Strickland requires proof of

a reasonable probability of a different result, asking whether it is “reasonably likely” the result

would have been different. 466 U.S. at 696. The likelihood of a different result must be substantial,

not just conceivable. Id., at 693, Harrington v. Richter, 562 U.S. 86, 111-112 (2011). Petitioner

focuses on language in the appellate opinion stating “Accordingly, the only question before us is

whether the trial judge considered Dr. Stinson’s testimony and report before he overruled Baker’s

petition for postconviction relief. If he did, we cannot change the result,” as if this meant it was

sufficient to show the report had been introduced in evidence. That is not what happened. The

trial court held an evidentiary hearing at which Dr. Stinson testified for more than two hours

(Decision, State Court Record, ECF No. 12, Ex. 19, PageID 352).

Judge Mark Fleegle tried this case and sentenced Ms. Baker, then heard the case again in

post-conviction. The Stinson report as well as Dr. Stinson’s testimony did not persuade Judge

Fleegle when he actually considered them which leads readily to the conclusion they would not

have changed his mind had they been presented at sentencing. Petitioner has not proved prejudice

under the applicable Strickland standard. The Fifth District’s decision rejecting Ms. Baker’s

ineffective assistance of trial counsel claim is entitled to deference.

Conclusion

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

Respondent’s statute of limitations defense be overruled but that the Petition be dismissed with

prejudice on the merits.

No recommendation is made here on the issuance of a certificate of appealability. If the

Court dismissed the Petition as recommended, Petitioner must separately move for a certificate.

January 9, 2026.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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

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

and Recommendations. Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. A party may respond

to another party’s objections within fourteen days after being served with a copy thereof. Failure

to make objections in accordance with this procedure may forfeit rights on appeal.