McGee

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

WILLIAM McGEE,

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

- vs - District Judge James L. Graham

Magistrate Judge Michael R. Merz

WARDEN, Belmont Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR

RECONSIDERATION

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

his 2021 convictions in the Franklin County Court of Common Pleas, is before the Court on

Petitioner’s Motion for Reconsideration under Fed.R.Civ.P. 59(e)(ECF No. 38). Post-judgment

motions are deemed referred under 28 U.S. C. § 626(b)(3), requiring a report and recommendations

from the Magistrate Judge receiving the referral.

Standard of Review

For a district court to grant relief under Rule 59(e), “there must be ‘(1) a clear error of law;

(2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to

prevent manifest injustice.’”Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009)

(quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006).

Motions to alter or amend judgment may be granted if there is a clear

error of law, see Sault Ste. Marie Tribe, 146 F.3d at 374, newly

discovered evidence, see id., an intervening change in controlling

constitutional law, Collison v. International Chem. Workers Union,

Local 217, 34 F.3d 233, 236 (4th Cir. 1994); Hayes v. Douglas

Dynamics, Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School District

No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), or to

prevent manifest injustice. Davis, 912 F.2d at 133; Collison, 34 F.3d

at 236; Hayes, 8 F.3d at 90-91 n.3. See also North River Ins. Co. v.

Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

To constitute "newly discovered evidence," the evidence must have

been previously unavailable. See ACandS, 5 F.3d at 1263; Javetz v.

Board of Control, Grand Valley State Univ. 903 F. Supp. 1181, 1191

(W.D. Mich. 1995)(and cases cited therein); Charles A. Wright, 11

Federal Practice and Procedure § 2810.1 at 127-28 (1995).

Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v.

Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United

States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste.

Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted).

Thus, parties should not use them to raise arguments which could and should have been made

before judgment issued. Id.; McBride v. Skipper, 76 F.4th 509 (6th Cir. Aug. 4, 2023). Howard v.

United States, 533 F.3d 472, 475 (6th Cir. 2008) (“[A] petitioner fil[ing] a Rule 59(e) motion . . . may

request only that the district court reconsider matters actually raised before it. This is because, as this

court has repeatedly held, Rule 59(e) motions cannot be used to present new arguments that could have

been raised prior to judgment.”). In ruling on an Fed.R.Civ.P. 59(e) motion, “courts will not address

new arguments or evidence that the moving party could have raised before the decision issued”.

See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163-164

(3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U. S. 471, 485-486, n.

5 (2008) (quoting prior edition).” Banister v. Davis, 590 U.S. 504 (2020).

Courts disfavor motions for reconsideration because they consume a court’s scarce time

for attention to a matter that has already been decided. They are subject to limitations based on

that disfavor.

As a general principle, motions for reconsideration are looked upon

with disfavor unless the moving party demonstrates: (1) a manifest

error of law; (2) newly discovered evidence which was not available

previously to the parties; or (3) intervening authority. Harsco Corp.

v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476 U.S.

1171, 90 L. Ed. 2d 982 (1986).

Meekison v. Ohio Dep't of Rehabilitation & Correction, 181 F.R.D. 571, 572 (S.D. Ohio

1998)(Marbley, J.).

Analysis

McGee begins his Motion by complaining about errors by the Magistrate Judge (ECF No.

38, PageID 2860). However, Petitioner has already used the opportunity provided by Fed.R.Civ.P.

72 to object to the Magistrate Judge’s Substituted Report and Recommendations (ECF No. 35,

objecting to ECF No. 32). To the extent McGee raises here any issues omitted from his prior

Objections, those arguments are waived.

Fourth Amendment

McGee’s first asserted error of law is argued at length and asserts the Court has misapplied

relevant precedent, Riley v. Gray, 674 F.2d 522 (6th Cir. 1982), in finding review of his Fourth

Amendment claims is barred by Stone v. Powell, 428 U.S. 465 (1976), and Townsend v. Sain, 372

U.S. 293, 313 (1963), in denying an evidentiary hearing (ECF No. 38, PageID 2860-72).

In the Substituted Report, the Magistrate Judge recognized McGee’s argument about the

application of Gray v. Riley and noted the later decision of the Sixth Circuit in Good v. Berghuis,

729 F.3d 636 (6th Cir. 2013), interpreting the meaning of “full and fair opportunity” (ECF No. 32,

PageID 2756-58). In his Objections, Petitioner argued at length the issues he presents in his

Motion for Reconsideration (Objections, ECF No. 35, PageID 2815-20). The Court considered

and rejected those arguments in overruling the Objections (Decision and Order, ECF No. 36,

PageID 2851-52). McGee has not shown any clear error of law in that Decision on the motion to

suppress issue.

The standard for granting an evidentiary hearing embedded in Townsend has been replaced

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

1214)(the "AEDPA") and Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster bars a federal

court “from admitting new evidence upon which to assess the reasonableness of a state court's

constitutional analysis.” Upshaw v. Stephenson, 97 F. 4th 365, 372 (6th Cir. 2024), quoting Mitchell

v. Genovese, 974 F.3d 638, 647 (6th Cir. 2020).

Petitioner’s Motion for Reconsideration of the Fourth Amendment issue should therefore

be overruled.

Ineffective Assistance Of Trial Counsel

Petitioner next claims the Magistrate Judge erred in finding his claim of ineffective

assistance of trial counsel was procedurally defaulted (ECF No. 38, PageID 2872-75). The Court

adopted the Magistrate Judge’s Substituted Report on Ground Two (Opinion and Order, ECF No.

36, PageID 2852-54). In his Motion for Reconsideration, Petitioner reargues his claim that he

properly exhausted this claim, asserting he has shown cause and prejudice to excuse the procedural

default because of the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), where

the Supreme Court held:

[W]hen a State requires a prisoner to raise an ineffective-assistance-

of-trial-counsel claim in a collateral proceeding, a prisoner may

establish cause for a default of an ineffective-assistance claim in two

circumstances. The first is where the state courts did not appoint

counsel in the initial-review collateral proceeding for a claim of

ineffective assistance at trial. The second is where appointed counsel

in the initial-review collateral proceeding, where the claim should

have been raised, was ineffective under the standards of Strickland

v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). To overcome the default, a prisoner must also demonstrate

that the underlying ineffective-assistance-of-trial-counsel claim is a

substantial one, which is to say that the prisoner must demonstrate

that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U. S.

322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (describing standards

for certificates of appealability to issue).

Id. at 14.

Unlike the Arizona system at issue in Martinez, Ohio does not require that ineffective

assistance of trial counsel claims be brought in collateral proceedings. Instead, Ohio distinguishes

between ineffective assistance of trial counsel claims which can be adjudicated on the direct appeal

record and those that depend on evidence outside (dehors) the record. Those claims which can be

adjudicated on the appellate record (e.g., the trial lawyer failed to object to an improper question)

must be raised on direct appeal or be barred by res judicata from being presented in another

proceeding. State v. Perry, 10 Ohio St. 2d 175 (1967). In contrast, those ineffective assistance of

trial counsel claims which depend on outside evidence must be brought in a post-conviction

proceeding under Ohio Revised Code § 2953.21. Because of that distinction, Martinez does not

apply in Ohio. Here the Tenth District held McGee’s ineffective assistance of trial counsel claim

depended entirely on evidence outside the record and therefore could only be presented in a post-

conviction petition. McGee never filed under Ohio Revised Code § 2953.21 and by the time the

Tenth District decided his appeal, the statute of limitations for a post-conviction petition had

expired.

The Court made no error of law in finding Ground Two was procedurally defaulted.

Petitioner’s Motion for Reconsideration of Ground Two should be denied.

Grounds Six through Thirteen

The Magistrate Judge recommended dismissing Grounds Six through Fifteen as

procedurally defaulted; Petitioner seeks reconsideration only as to Grounds Six through Thirteen,

but does not explain any distinction of the last two claims (ECF No. 38, PageID 2875).

All of these claims are for ineffective assistance of appellate counsel. Ohio’s exclusive

remedy for those claims is an application to reopen the direct appeal.1 Ohio has a strict time limit

for filing such motions – ninety days after the appellate judgment. Petitioner did not file within

that time limit. When he did file, he sought to excuse his late filing by blaming the prison mail

system. The Tenth District accepted that excuse for part of the delay, but not for all of it. The

Magistrate Judge recommended deferring to the Tenth District’s decision and the Court accepted

that position, noting that the Tenth District was applying Ohio law (Opinion and Order, ECF No.

36, PageID 2856). The Court also noted that Petitioner had committed a further procedural default

by failing to appeal from the Tenth District to the Ohio Supreme Court. Id.

1 In State v. Murnahan, 63 Ohio St. 3d 60 (1992), the Ohio Supreme Court held ineffective assistance of appellate

counsel claims could not be brought in post-conviction petitions under Ohio Revised Code § 2953.21 and instructed

its Rules Committee to construct a new procedure for hearing such claims. Ohio R. App. P. 26(B) was the result.

Petitioner seeks reconsideration, but does not point to a manifest error of federal law. He

argues that once an Ohio appellate court finds cause for some delay, it must, somehow, accept any

further delay which has the same cause. The Court refused to accept that argument because the

question of how much delay must be acceptable to a State court is a question of state law. Put

another way, there is no federal rule embodying Petitioner’s asserted principle.

Petitioner also asserts that he did indeed appeal to the Ohio Supreme Court from the Tenth

District’s denial of his 26(B) application and cites to an inmate cash withdrawal slip marked as

Exhibit E-2 and an envelope marked as Exhibit B. The cash slip (Traverse, ECF No. 28, PageID

2739) is separately stamped as received by the Belmont Correctional Institution on January 24,

2025, and paid on the same day. The envelope (PageID 2743) has McGee’s return address at

Belmont Correctional and is addressed to the Supreme Court of Ohio at 65 South Front St. 8th Fl.,

Col., Ohio 43215. However, it does not show any postage applied or postmark. Instead it bears a

marking from the Postal Service “Return to Sender, Not Deliverable as Addressed, Unable to

Forward.” McGee raised this claim and referenced the same two items of evidence in his

Objections to the Substituted Report. The Court did not expressly address this objection in its

Opinion and Order.

The Tenth District Court of Appeals denied Petitioner’s 26(B) Application on December

23, 2024 (Decision, State Court Record, ECF No. 6, Ex. 40). That would have made Petitioner’s

appeal to the Ohio Supreme Court due forty-five days later on February 6, 2025. Mail sent out on

January 24, 2025, should have reached the Ohio Supreme Court by that date but Exhibit B did not.

Why it did not and why the Postal Service was unable to deliver is unknown. The Court should

therefore withdraw that portion of its decision which finds McGee procedurally defaulted his

ineffective assistance of appellate counsel claims by not appealing to the Ohio Supreme Court.

This does not require modification of the principal finding that those claims are procedurally

defaulted by Petitioner’s failure to timely file his 26(B) application in the first place.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the Court’s

Opinion and Order be modified as set forth above, but the Motion for Reconsideration should

otherwise denied.

February 20, 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. Because this document is being served by mail, three days are added under

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