Trigg

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JOHNNY LEE TRIGG, JR.,

Petitioner, : Case No. 3:25-cv-00119

- vs - District Judge Michael J. Newman

Magistrate Judge Michael R. Merz

WARDEN,

London Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Johnny Trigg to obtain relief from his

convictions in the Montgomery County Court of Common Pleas for murder and having weapons

under disability, is before the Court for decision on the merits. Relevant pleadings are the

Amended Petition (ECF No. 6), the State Court Record (ECF No. 12), the Respondent’s Return of

Writ (ECF No. 13) and Petitioner’s Traverse (ECF No. 34).

Litigation History

On June 3, 2022, the Montgomery County Grand Jury indicted Trigg on one count of murder

in violation of Ohio Revised Code § 2903.02(B) (Count 1), one count of felonious assault in

violation of Ohio Revised Code § 2903.11(A)(1) (Count 2), one count of murder in violation of

Ohio Revised Code § 2903.02(B) (Count 3), one count of felonious assault in violation of Ohio

Revised Code § 2903.11(A)(2) (Count 4), and two counts of having weapons under disability in

violation of Ohio Revised Code § 2923.13(A)(2) (Counts 5-6). (Indictment, State Court Record,

ECF No. 12, Ex. 1).

Counts 1 through 4 were tried to a jury which returned a guilty verdict. The weapons under

disability counts were tried to the bench and the trial judge also found Trigg guilty. He was

sentenced to eighteen years to life in the murder case plus 1,220 days for violation of parole in

another case.

With new counsel, Trigg appealed to the Ohio Court of Appeals for the Second District,

pleading the following assignments of error:

1. The trial court erred in overruling the appellant’s motion to

suppress.

2. The trial court erred in limiting the appellant’s attempt to establish

self-defense.

3. Appellant was denied effective assistance of counsel as

guaranteed by Article 1, Section 10 of the Ohio Constitution and the

Sixth and Fourteenth amendments.

(Appellant’s Brief, State Court Record, ECF No. 12, Ex. 19, PageID 224). The Second District

struck Trigg’s proffered pro se brief and affirmed. State v. Trigg, 2023-Ohio-3660 (Ohio App. 2d

Dist. Oct. 6, 2023). The Ohio Supreme Court granted Trigg’s motion to file a delayed notice of

appeal, but then declined to exercise jurisdiction. State v. Trigg, 174 Ohio St.3d 1506 (2024).

On September 18, 2023, Trigg filed an Amended Petition for Post-Conviction Relief under

Ohio Revised Code § 2953.21 (Petition, State Court Record, ECF No. 12, Ex. 43). On the same

day, he filed a motion for leave to file a delayed motion for new trial. Id. at Ex. 46. The trial court

overruled the Petition and denied the motion in the same order on May 14, 2025. Id. at Ex. 45.

Trigg appealed to the Second District which affirmed. State v. Trigg, 2026-Ohio-585 (Ohio App.

2d Dist. Feb. 20, 2026). On March 25, 2026, Trigg appealed to the Ohio Supreme Court. State v.

Trigg, Case No. 2026-0354. That case remains open as of the date of this Report.

On October 20, 2023, Trigg, pro se, filed an application to reopen in the court of appeals

under Ohio Rule of Appellate Procedure 26(B), raising the following assignments of error:

1. Whether the trial court’s failure to give a jury instruction on the

“Castle Doctrine” was an abuse of discretion which resulted in a

decision that was an “unreasonable application” of federal law when

the court identifies the correct governing legal principle from the

decisions of the [Supreme] Court, but unreasonably applies that

principle to the facts of the case?

2. Whether the trial court’s actions in allowing the State to use

knowingly false testimony, and cross examining Trigg on the

illegality of the gun was an abuse of discretion which resulted in a

decision that was an “unreasonable application” of federal law when

the court identifies the correct governing legal principle from the

decisions of the [Supreme] Court, but unreasonably applies that

principle to the facts of the case?

3. Whether the jury lost its way after being poisoned by knowingly

false testimony given by Dareona and Dareon Acker, on top of the

State’s cross examining of Trigg on illegality of the gun, and

allowing the false testimony given about “Dareon” removel [sic] of

a gun from the homicide victim’s body at the crime scene going

uncorrected, created such a manifest miscarriage of justice that

resulted in a decision that was an “unreasonable application” of

federal law when the court identifies the correct governing legal

principle from the decisions of the [Supreme] Court, but

unreasonably applies that principle to the facts of the case?

4. Whether the trial court’s failure to give a jury instruction on “self-

defense” under Ohio’s Stand Your Ground Law was an abuse of

discretion that resulted in a decision that was an “unreasonable

application” of federal law when the court identifies the correct

governing legal principle from the decision of the [Supreme] Court,

but unreasonably applies that principle to the facts of the case?

5. Whether trial counsel was not performing as effective counsel

Appellant was constitutionally guaranteed, by failing to call critical

defense witnesses “Leslie Owens” and “Chris Billingsley” resulted

in his counsel’s performance being so deficient, that Appellant was

prejudiced and resulted from a breakdown in the adversarial process

that render the result unreliable?

(Application, State Court Record, ECF No. 12, Ex. 37). The Second District denied the

Application on December 6, 2023. Id. at Ex. 39. Trigg then filed a second application under Rule

26(B). Id. at Ex. 40. The Second District denied this Application on the grounds that Ohio allows

only one 26(B) application in a case and because res judicata bars claims which were made or

could have been made in the prior 26(B) Application. Id. at Ex. 41.

Trigg filed his Amended Petition in this Court May 14, 2025, pleading the following

grounds for relief:

Ground One: Petitioner was denied effective assistance of counsel

in violation of amendments VI, and XIV, United States

Constitution; and Article I, Section 10, Ohio Constitution.

Supporting Facts: Counsel for petitioner was not prepared to

represent the petitioner at trial. The retained defense attorney filed a

Delayed Notice of Self-Defense within the 30 days of murder trial,

and failed to include all of the arguments that should have been

included in the Crim. R. 12.2 Notice.

Ground Two: That the trial court erred in limiting the appellant’s

attempt to establish self-defense.

Supporting Facts: The trial court abused its discretion by not

allowing the defense/petitioner to introduce a self-defense claim and

apply fairness into the trial.

Ground Three: The trial court erred by not instructing the jury on

the “Castle Doctrine.”

Supporting Facts: The trial court did not give instructions on the

Castle Doctrine because the trial court believed that the crime

happened in a public place when in fact The Desoto Bass apartment

complex is a private place.

Ground Four: The trial court erred in not applying Ohio’s “stand

your ground law.”

Supporting Facts: Trial court did not allow an instruction as to any

recognized defense for which there existed evidence sufficient for a

reasonable jury to find in his favor.

(Amended Petition, ECF No. 6, PageID 105-108).

Analysis

Ground One: Ineffective Assistance Of Trial Counsel: Failure to Properly Present the

Defense of Self-defense

In his First Ground for Relief, Petitioner claims he received ineffective assistance of trial

counsel when his trial attorney filed a notice of intent to rely on self-defense later than required by

the Ohio Rules of Criminal Procedure and did not include all the arguments which should have

been included.

Trigg presented this claim as his third assignment of error on direct appeal and the Second

District decided it as follows:

{¶ 37} Under his third assignment of error, Trigg claims that his trial

counsel provided ineffective assistance by failing to include all

necessary facts regarding his self-defense claim in the written notice

required by Crim.R. 12.2. We again disagree.

{¶ 38} This court reviews alleged instances of ineffective assistance

of trial counsel under the two-prong analysis set forth in Strickland

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

(1984), which was adopted by the Supreme Court of Ohio in State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to

those cases, in order to prevail on an ineffective assistance claim, a

defendant must show that his trial counsel rendered deficient

performance and that his counsel's deficient performance prejudiced

the defense. Strickland at paragraph two of the syllabus; Bradley at

paragraph two of the syllabus. The failure to make a showing of

either deficient performance or prejudice defeats a claim of

ineffective assistance of counsel. Strickland at 697.

{¶ 39} To establish deficient performance, a defendant must show

that his trial counsel's performance fell below an objective standard

of reasonable representation. Id. at 688. In evaluating counsel's

performance, a reviewing court “must indulge in a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.

{¶ 40} To establish prejudice, a defendant must show that there is

“a reasonable probability that, but for counsel's errors, the

proceeding's result would have been different.” State v. Hale, 119

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland at 687-688 and Bradley at paragraph two of the

syllabus. “ ‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’ ” Bradley at 142,

quoting Strickland at 694.

{¶ 41} As previously discussed, Trigg claims that his trial counsel

performed deficiently by failing to include all necessary information

in the notice of self-defense required by Crim.R. 12.2, which

provides as follows:

Whenever a defendant in a criminal case proposes to offer

evidence or argue self-defense, defense of another, or

defense of that person's residence, the defendant shall, not

less than thirty days before trial in a felony case and

fourteen days before trial in a misdemeanor case, give

notice in writing of such intent. The notice shall include

specific information as to any prior incidents or

circumstances upon which defendant intends to offer

evidence related to conduct of the alleged victim, and the

names and addresses of any witnesses defendant may call

at trial to offer testimony related to the defense. If the

defendant fails to file such written notice, the court may

exclude evidence offered by the defendant related to the

defense, unless the court determines that in the interest of

justice such evidence should be admitted.

Crim.R. 12.2.

{¶ 42} In this case, after testifying that Taylor had struck him in the

mouth with a pistol over Mother's Day weekend in 2022, Trigg

attempted to testify about another encounter he had had with Taylor

that allegedly occurred between the Mother's Day weekend assault

and the May 18th shooting. The State, however, objected to Trigg's

testifying regarding that encounter on grounds that it had not been

contained in Trigg's Crim.R. 12.2 notice. The trial court sustained

the State's objection, and Trigg was prohibited from testifying

regarding his additional encounter with Taylor. See Trial Tr. Vol.

IV, p. 501-502. Trigg now suggests that his trial counsel's failure to

include the information regarding his additional encounter with

Taylor in the Crim.R. 12.2 notice prejudiced him because it

prevented him from giving testimony in support of his self-defense

claim.

{¶ 43} Even if we were to determine that Trigg's trial counsel

performed deficiently by failing to include the information at issue

in the Crim.R. 12.2 notice, Trigg cannot establish that he was

prejudiced by counsel's failure; Trigg would not have been entitled

to a self-defense jury instruction even if his trial counsel had

included the information regarding his prior encounter with Taylor

in the Crim.R. 12.2 notice. Regardless of what happened between

Trigg and Taylor during their prior encounters, Trigg testified that,

on the morning of the shooting, he fired multiple shots at Taylor

while Taylor was running away from him. That testimony,

combined with the evidence establishing that Taylor was shot in the

backside of his body, prevented a self-defense claim because it

showed that Trigg had not had a bonafide belief that he was in

imminent danger of bodily harm. It also indicated that Trigg shot

Taylor with the purpose to injure him, not to defend against an

attack. Accordingly, counsel's failure to include the information at

issue in the Crim.R. 12.2 notice had no effect on the outcome of

Trigg's trial, meaning that Trigg was not prejudiced by counsel's

failure to include that information in the notice. Without a showing

of prejudice, Trigg's ineffective assistance of counsel claim

necessarily fails.

{¶ 44} Trigg's third assignment of error is overruled.

State v. Trigg, supra.

To obtain habeas corpus relief, a petitioner must prove that his conviction is contrary to or

results from an unreasonable application of law clearly established by decision of the United States

Supreme Court.

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);

Brown v. Davenport, 596 U. S. 118, 135 (2022); Klein v. Martin, 607 U. S. 213, 220–221 (2026)

(per curiam); 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.

Trigg’s First Ground for Relief raises a constitutional question: did he receive ineffective

assistance of trial counsel? 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).

The Second District recognized Strickland as providing the governing standard. It

reasonably applied Strickland by concluding that even if trial counsel’s failure to include the

second encounter between Trigg and Taylor was deficient performance, Trigg suffered no

prejudice because he admitted shooting Taylor while Taylor was running away.

Whether or not Ohio law would recognize self-defense under those circumstances is a

question of Ohio law on which this Court must defer to the Ohio courts. In applying Strickland, it

is perfectly permissible for a court to decide the prejudice question first. Strickland, supra.

Because the Second District’s decision of Assignment of Error Three is objectively

reasonable, Ground One should be dismissed with prejudice.

Ground Two: Trial court error in limiting the appellant’s attempt to establish self-defense

In his Second Ground for Relief, Petitioner asserts that the trial court erred in not allowing

his attempts to establish that he acted in self-defense.

As Respondent points out, this claim as pleaded does not comply with the Rules Governing

§ 2254 Cases in that it does not specify what the trial court did that was an abuse of discretion.

Furthermore, abuse of discretion in itself is not a constitutional violation. Sinistaj v. Burt, 66 F.3d

804 (6th Cir. 1995). Nevertheless, as a pro se litigant, Trigg is entitled to a liberal construction is

his pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th

Cir. 2001). The Court will construe Trigg’s Amended Petition as raising the same claim as he

made in his Second Assignment of Error on appeal.

On direct appeal, Trigg argued as his Second Assignment of Error that the trial court should

have given a self-defense jury instruction. In overruling that assignment, the Second District

wrote:

{¶ 28} Under his second assignment of error, Trigg contends that

the trial court erred by denying his request for a self-defense jury

instruction. We disagree.

{¶ 29} “After arguments are completed, a trial court must fully and

completely give the jury all instructions which are relevant and

necessary for the jury to weigh the evidence and discharge its duty

as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d

640 (1990), paragraph two of the syllabus. “Requested jury

instructions should ordinarily be given if they are correct statements

of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the

requested instruction.” (Citations omitted.) State v. Adams, 144

Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240.

{¶ 30} “When considering a self-defense instruction, the trial court

must determine whether the evidence presented, if believed,

reasonably would support a self-defense claim.” State v.

Cunningham, 2d Dist. Montgomery No. 29122, 2023-Ohio-157, ¶

13, citing State v. Wilson, 2d Dist. Clark No. 2021-CA-68, 2022-

Ohio-3763, ¶ 40. “To warrant an instruction on self-defense, there

must be evidence presented that supports the conclusion that the

defendant used force to defend himself or herself.” State v. Lovett,

2d Dist. Montgomery No. 29240, 2022-Ohio-1693, ¶ 41, citing R.C.

2901.05(B)(1). Specifically, “a defendant must introduce evidence

showing that: (1) he or she was not at fault in creating the violent

situation; (2) he or she had a bona fide belief that he or she was in

imminent danger of bodily harm; and (3) he or she did not violate

any duty to retreat or avoid the danger.” Id., citing State v. Brown,

2017-Ohio-7424, 96 N.E.3d 1128, ¶ 24 (2d Dist.), citing State v.

Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997).

{¶ 31} As to the first element of self-defense, “[i]t is well established

that a person cannot provoke a fight or voluntarily enter combat and

then claim self-defense.” State v. James, 2d Dist. Montgomery No.

28892, 2021-Ohio-1112, ¶ 21, citing State v. Wallace-Lee, 2d Dist.

Greene No. 2019-CA-19, 2020-Ohio-3681, ¶ 39. “[T]he second

element of self-defense (bona fide belief) ‘ “requires consideration

of the force that was used in relation to the danger the accused

believed he was in.” ’ ” State v. Barker, 2022-Ohio-3756, 199

N.E.3d 626, ¶ 28 (2d Dist.), quoting State v. Rothermel, 2d Dist.

Montgomery No. 26004, 2014-Ohio-3168, ¶ 14, quoting State v.

Bayes, 2d Dist. Clark No. 2000-CA-0032, 2000 WL 1879101, *4

(Dec. 29, 2000). “It is well established that a person may only use

‘that force which is reasonably necessary to repel the attack.’ ” Id.,

quoting State v. Paschal, 2d Dist. Montgomery No. 18262, 2001

WL 395354, *2 (Apr. 20, 2001), quoting State v. Williford, 49 Ohio

St.3d 247, 249, 551 N.E.2d 1279 (1990). “If the force used was so

disproportionate that it shows a purpose to injure, self-defense is

unavailable.” Id., citing Wallace-Lee at ¶ 43.

{¶ 32} As to the third element of self-defense, we note that the law

in Ohio now indicates that “a person has no duty to retreat before

using force in self-defense * * * if that person is in a place in which

the person lawfully has a right to be.” R.C. 2901.09(B).

Accordingly, the law has “remove[d], in most cases, the duty to

retreat before using self-defense.” State v. Degahson, 2d Dist. Clark

No. 2021-CA-35, 2022-Ohio-2972, ¶ 15.

{¶ 33} “[T]he trial judge is in the best position to gauge the evidence

before the jury and is provided the discretion to determine whether

the evidence adduced at trial was sufficient to require an

instruction.” State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936,

883 N.E.2d 1052, ¶ 72, citing State v. Wolons, 44 Ohio St.3d 64, 541

N.E.2d 443 (1989), paragraph two of the syllabus. Accordingly, we

review a trial court's refusal to submit a requested jury instruction

for an abuse of discretion. Wolons at 68; State v Barker, 2022-Ohio-

3756, 199 N.E.3d 626, ¶ 18 (2d Dist.). Most instances of abuse of

discretion occur when a trial court makes a decision that is

unreasonable. AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). “A decision is unreasonable if there is no sound reasoning

process that would support that decision.” Id.

{¶ 34} Upon review, we find that the trial court reasonably

concluded that the testimony and evidence presented at trial did not

entitle Trigg to a self-defense jury instruction. Even crediting Trigg's

testimony that he feared Taylor due to Taylor's previously having

assaulted him, and even crediting Trigg's testimony that Taylor had

tried to fire a gun at him during the encounter at issue, the fact

remained that Trigg testified that Taylor had run away after his gun

failed to fire. Trigg then specifically admitted to firing multiple

shots at Taylor as Taylor was running away from him. See Trial Tr.

Vol. IV, p. 530. It is also significant that the evidence established

that both of Taylor's gunshot wounds were inflicted on the backside

of his body.

{¶ 35} Once Taylor ran away, Trigg could no longer have had a

bonafide belief that he was in imminent danger of bodily harm.

Despite this, Trigg fired multiple shots at Taylor as he was running

away. As previously discussed, a defendant can only use force that

is reasonably necessary to repel the attack. Barker, 2022-Ohio-

3756, 199 N.E.3d 626, at ¶ 28. Here, Trigg's testimony established

that Trigg used force while Taylor was retreating, not attacking,

which meant Trigg's force was disproportionate and showed a

purpose to injure Taylor. Therefore, the trial court did not abuse its

discretion by finding that the evidence did not warrant a jury

instruction on self-defense.

{¶ 36} Trigg's second assignment of error is overruled.

State v. Trigg, supra. Trigg has not shown that the Second District’s decision misstates Ohio law

or that the Second District made an unreasonable determination of the facts based on the evidence:

Trigg himself admitted shooting Taylor as Taylor was running away.

Ground Two should therefore be dismissed on the merits.

Ground Three: The trial court erred by not instructing the jury on the “Castle Doctrine”

Ground Four: The trial court erred by not instructing the jury on Ohio “stand your ground”

law

In his Third and Fourth Grounds for Relief, Petitioner claims the trial court erred by not

instructing the jury on the “Castle Doctrine” or Ohio’s “stand your ground” law. Both of these

claims would have been apparent on the face of the trial court record, yet Trigg did not raise them

on direct appeal. They were therefore barred from later presentation to the Ohio courts by the

doctrine of res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). Res judicata as enunciated in

Perry is an adequate and independent state ground of decision. Therefore these two grounds for

relief are procedurally defaulted.

Ineffective assistance of appellate counsel can be excusing cause for a failure to present a

claim on direct appeal, but only if the ineffective assistance of appellate counsel claim has been

properly adjudicated in state court. Edwards v. Carpenter, 529 U.S. 446 (2000); Chase v.

MaCauley, 971 F.3d 582, 592 (6th Cir. 2020); Scuba v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007).

The only method for presenting an ineffective assistance of appellate counsel claim in Ohio is by

an Application for Reopening under Rule 26(B). When Trigg filed a 26(B) application, he did not

include these claims, so he has not shown excusing cause.

Grounds Three and Four should therefore be dismissed as procedurally defaulted.

Issues Raised in the Traverse

In his Traverse, Petitioner argues a number of additional claims including that the State

presented perjured testimony and that his trial attorney provided ineffective assistance of trial

counsel by not calling certain witnesses. The Court does not reach the merits of those claims

because new claims cannot be presented in habeas in the traverse. Jalowiec v. Bradshaw, 657 F.3d

293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).

Conclusion

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

Amended Petition be dismissed with prejudice. Because reasonable jurists would not disagree

with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability

and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and

should not be permitted to proceed in forma pauperis.

June 2, 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 received. 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.