The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIC F. KILGORE, II, ) Case No. 1:25-CV-01988-BYP
)
Petitioner, ) JUDGE BENITA Y. PEARSON
)
v. ) MAGISTRATE JUDGE
JENNIFER DOWDELL
)
WARDEN, BELMONT ARMSTRONG
)
CORRECTIONAL INSTITUTION,
)
Respondent. ) REPORT & RECOMMENDATION
I. INTRODUCTION
Petitioner, Eric F. Kilgore, II (“Mr. Kilgore”), seeks a writ of habeas corpus under 28
U.S.C. § 2254. (ECF No. 1). Mr. Kilgore is serving a sentence of three years in prison, along
with a reserved indefinite prison term of 11 to 16 and a half years, after being convicted of
aggravated robbery, felonious assault, and several firearm specifications.
Mr. Kilgore asserts six grounds for relief. Respondent Shelbie Smith, the Warden of
Belmont Correctional Institution (“Warden”), filed an answer/return of writ on January 16,
2026. (ECF No. 7). Mr. Kilgore filed a traverse on April 13, 2026, which included a request
for an evidentiary hearing. (ECF No. 10).
This matter was referred to me on October 28, 2025 under Local Rule 72.2 to prepare
a report and recommendation on Mr. Kilgore’s petition. (See ECF non-document entry dated
October 28, 2025). For the reasons set forth below, I recommend that Mr. Kilgore’s petition
be DISMISSED and/or DENIED. I also recommend that the Court not grant Mr. Kilgore a
certificate of appealability. Finally, I Mr. Kilgore’s request for an evidentiary hearing is
DENIED.
II. RELEVANT FACTUAL BACKGROUND
For purposes of habeas corpus review of state court decisions, a state court's findings
of fact are presumed correct and can be contravened only if the habeas petitioner shows, by
clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.
§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d
524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by
a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio
Court of Appeals for the Ninth Appellate District summarized the facts as follows:
This appeal arises from an incident on September 13, 2020, where Mr. Kilgore, and
co-defendant Iyaisha Palos-Grantham, robbed and assaulted the victim with a firearm
at Ms. Palos-Grantham's residence. Mr. Kilgore was indicted on one count of
aggravated robbery, in violation of R.C. 2911.01, a felony of the first degree, with one
and three year firearm specifications; one count of kidnapping, in violation of R.C.
2905.01, a felony of the first degree, with one and three year firearm specifications;
one count of felonious assault, in violation of R.C. 2903.11, a felony of the second
degree, with one and three year firearm specifications; and one count of intimidation,
in violation of R.C. 2921.04, a felony of the third degree, with one and three year
firearm specifications. Ms. Palos-Grantham was also indicted for the offenses of
aggravated robbery, kidnapping, and felonious assault with firearm specifications.
Ms. Palos-Grantham, however, was not indicted for intimidation.
(ECF No. 7-1, Exhibit 12); State v. Kilgore, No. 21CA011826, 2023 WL 3698454, ¶
2, 2023-Ohio-1786 (9th Dist. May 30, 2023).
III. PROCEDURAL HISTORY
A. State Court Conviction
On February 4, 2021, Mr. Kilgore was indicted in the Lorain County Court of
Common Pleas on: (1) one first-degree felony count of aggravated robbery in violation of
O.R.C. §§ 2911.01(A) and (C); (2) one first-degree felony count of kidnapping in violation
of O.R.C. §§ 2905.01(B)(2) and (C)(1); (3) one second-degree felony count of felonious
assault in violation of O.R.C. §§ 2903.11(A) and (D)(1)(a); and (4) one third-degree felony
count of intimidating a victim in violation of O.R.C. §§ 2921.04(B)(1) and (D). (ECF No. 7-
1, Exhibit 1). Each count also carried one-year and three-year firearm specifications. Id. On
March 5, 2021, Mr. Kilgore pled not guilty to all charges. (ECF No. 7-1, Exhibit 2).
On August 31, 2021, Mr. Kilgore executed a written waiver of his right to a trial by
jury. (ECF No. 7-1, Exhibit 5). The waiver was not filed on the public docket until September
1, 2021, after the bench trial commenced. Id. On September 1, 2021, the trial court found Mr.
Kilgore guilty on the aggravated robbery and felonious assault counts, along with the
accompanying firearm specifications, but acquitted him of kidnapping and intimidating a
victim. (ECF No. 7-1, Exhibit 6). On December 9, 2021, the trial court merged the firearm
specifications and sentenced Mr. Kilgore to a term of three years in prison on them. (ECF No.
7-1, Exhibit 9). The court also merged the aggravated robbery and felonious assault counts
and sentenced Mr. Kilgore to an indefinite term of 11 to 16 and a half years on the aggravated
robbery charge, but reserved that sentence. Id.
B. Direct Appeal
On December 29, 2021, Mr. Kilgore, through counsel, timely filed a notice of appeal
to the Ninth Appellate District. (ECF No. 7-1, Exhibit 9). In his appellate brief, Mr. Kilgore
raised the following assignments of error:
1. The verdict as to the gun specification is against the sufficiency of the evidence
and should be reversed because it violates the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution, and Article I, Section 10 of the
Constitution of the State of Ohio.
2. The trial court’s verdict should be set aside as an impermissible inconsistent
bench trial verdict.
3. The trial court was without jurisdiction to conduct a bench trial, because the jury
waiver in the case at bar was not executed in strict compliance with statutory
requirements.
4. Mr. Kilgore was deprived of his rights to effective assistance of counsel by trial
counsel’s and the court’s failure to fairly and adequately protect his interest due
to counsel’s conflicts in representation of multiple co-defendants in
contravention of the Sixth and Fourteenth Amendments to the United States
Constitution, and Article One, Section Ten of the Ohio Constitution.
(ECF No. 7-1, Exhibit 10).
On May 30, 2023, the Fifth Appellate District affirmed. (ECF No. 7-1, Exhibit 12).
Mr. Kilgore, through counsel, timely appealed to the Ohio Supreme Court. (ECF No. 7-1,
Exhibit 13). In his memorandum in support of jurisdiction, Mr. Kilgore raised a single
proposition of law:
1. Does strict compliance with R.C. 2945.05 include the filing of the jury waiver
prior to the commencement of a bench trial in a felony matter?
(ECF No. 7-1, Exhibit 13).
On September 6, 2023, the Ohio Supreme Court declined to accept jurisdiction over
the appeal, with three justices dissenting. ECF No. 7-1, Exhibit 16; State v. Kilgore, 171 Ohio
St. 3d 1420, 216 NE.3d 685 (Table), 2023-Ohio-3100 (Sept. 6, 2023).
C. Motion for New Trial
On October 27, 2023, Mr. Kilgore, through counsel, filed a motion in the trial court
for leave to file a motion for a new trial pursuant to Ohio Criminal Rule 33(A)(6). (ECF No.
7-1, Exhibit 17). In the motion, Mr. Kilgore argued that new evidence undermined his
conviction on the firearm specification because the victim had recanted his testimony
regarding whether Mr. Kilgore had a gun during the robbery. (ECF No. 7-1, Exhibit 18). Mr.
Kilgore supported his motion with an affidavit from the victim stating that he did not actually
see a firearm and instead only presumed that Mr. Kilgore had one. Id.
On the same day, the trial court granted Mr. Kilgore’s motion for leave to file a motion
for a new trial. (ECF No. 7-1, Exhibit 20). However, on December 4, 2023, Mr. Kilgore,
through counsel, withdrew his motion. (ECF No. 7-1, Exhibit 24).
D. Renewed Motion for New Trial
On May 14, 2024, Mr. Kilgore, now acting pro se, refiled his motion for leave to file
a motion for a new trial, again arguing that the victim’s affidavit recanting his testimony
regarding the presence of a firearm constituted new evidence that undermined Mr. Kilgore’s
conviction. (ECF No. 7-1, Exhibit 26). On June 11, 2024, the trial court granted Mr. Kilgore’s
motion for leave to file a motion for a new trial. (ECF No. 7-1, Exhibit 29). On July 8, 2024,
the trial court denied Mr. Kilgore’s motion for a new trial, holding that the affidavit from the
victim was not credible and was not a direct recantation of his earlier trial testimony. (ECF
No. 7-1, Exhibit 32).
Mr. Kilgore timely appealed to the Ninth Appellate District. (ECF No. 7-1, Exhibit
33). In his appellate brief, Mr. Kilgore raised the following assignments of error:
1. The trial court abused its discretion when it did not hold an evidentiary on
appellant’s pro se motion for a new trial pursuant to Ohio Crim. Rule 33(A)(6).
2. The trial court erred when it refused to grant appellant’s pro se motion for a new
trial pursuant to Ohio Criminal Rule 33(A)(6).
(ECF No. 7-1, Exhibit 34).
On February 24, 2025, the Ninth Appellate District affirmed. (ECF No. 7-1, Exhibit
36). Mr. Kilgore appealed to the Ohio Supreme Court, raising the following proposition of
law:
1. The trial court abused its discretion when it did not hold an evidentiary hearing
on Appellant’s po se motion for a new trial pursuant to Ohio Crim. Rule 33(A)(6)
violating appellant’s due process rights under the Fifth and Fourteenth
Amendments to the U.S. Constitution and Article I, § 10 of the Ohio
Constitution.
2. The trial court erred when it refused to grant Appellant’s pro se motion for a new
trial pursuant to Ohio Crim. Rule 33(A)(6) violating appellant’s due process
rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and
Article I, § 10 of the Ohio Constitution.
(ECF No. 7-1, Exhibits 37-38). On June 24, 2025, the Ohio Supreme Court declined
to accept jurisdiction of the appeal. (ECF No. 7-1, Exhibit 39).
E. Federal Habeas Action
On August 27, 2025, Mr. Kilgore, acting pro se, filed his 28 U.S.C. § 2254 habeas
petition in the United States District Court for the Southern District of Ohio. (ECF No. 1).
Mr. Kilgore’s habeas petition raises six grounds for relief:
1. The verdict as to the gun specification is against the sufficiency of the evidence
and should be reversed because it violates the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10 of the
Constitution of the State of Ohio.
2. The trial court’s verdict should be set aside as an impermissible inconsistent
bench trial verdict.
3. The trial court was without jurisdiction to conduct a bench trial, because the jury
waiver in the case at bar was not executed in strict compliance with statutory
requirements.
4. Petitioner was deprived of his rights to effective assistance of counsel by trial
counsel’s and the court’s failure to fairly and adequately protect his interest due
to counsel’s conflicts in representation of multiple co-defendants in
contravention of the Sixth and Fourteenth Amendments to the United States
Constitution and Article One, Section Ten of the Ohio Constitution.
5. The trial court abused its discretion when it did not hold an evidentiary hearing
on petitioner’s pro se motion for a new trial.
6. The trial court erred when it refused to grant petitioner’s pro se motion for a new
trial.
Id.
On September 18, 2025, the petition was transferred to this Court. (ECF No. 2). On
January 16, 2026, the Warden filed an answer/return of writ. (ECF No. 7). Mr. Kilgore filed
a traverse on April 13, 2026, in which he included a request for an evidentiary hearing. (ECF
No. 10).
IV. STANDARDS OF REVIEW AND GOVERNING LAW
A. Jurisdiction
28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of
habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.” A state prisoner may file a § 2254 petition in the “district court for the
district wherein such person is in custody or in the district court for the district within which
the State court was held which convicted and sentenced him[.]” 28 U.S.C. § 2241(d). The
Lorain County Court of Common Pleas sentenced Mr. Kilgore, and the Court takes judicial
notice that Lorain County is within this Court’s geographic jurisdiction. Accordingly, this
Court has jurisdiction over Mr. Kilgore’s § 2254 petition.
B. Cognizable Federal Claim
Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody “only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A petitioner's claim is not cognizable on habeas review if it “presents no federal issue
at all.” Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18,
2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in
application of state law . . . are usually not cognizable in federal habeas corpus.” Bey v.
Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th
Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province
of a federal habeas court to reexamine state court determinations on state law questions.”).
A federal habeas court does not function as an additional state appellate court; it does
not review state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610,
614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead,
“federal courts must defer to a state court's interpretation of its own rules of evidence and
procedure” in considering a habeas petition. Id. (quotation omitted).
C. AEDPA Standard of Review
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of the claim
–
(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 on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
(Id.)
To determine whether relief should be granted, the Court must use the “look-through”
methodology and look to the “last explained state-court judgment” on the petitioner's federal
claim. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (“The essence of unexplained orders is
that they say nothing. We think that a presumption which gives them no effect—which simply
‘looks through’ them to the last reasoned decision—most nearly reflects the role they are
ordinarily intended to play.”); Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018) (“We conclude
that federal habeas law employs a ‘look through’ presumption.”).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or
decides a case differently than the Supreme Court has on a set of materially indistinguishable
facts.’” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.
362, 412-13 (2000)). “Clearly established Federal law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v.
Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). “[U]nder the
unreasonable application clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003). “The unreasonable application clause requires the state court decision to be more than
incorrect or erroneous”—it must be “objectively unreasonable.” Id.
Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for
a prior state court decision rejecting a claim, the federal court may overturn the state court's
decision only if it was ‘based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Burt v. Titlow, 571 U.S. 12, 18 (2013)
(quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination
of the facts” under § 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins
v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing
the record might disagree” about the finding in question, “on habeas review that does not
suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-
42 (2006). The prisoner bears the burden of rebutting the state court's factual findings “by
clear and convincing evidence.” Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).
For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant
to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by
AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings.” Id. at 103. “It preserves authority
to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree
that the state court’s decision conflicts with this Court's precedents” and “goes no further.”
Id. Thus, in order to obtain federal habeas corpus relief, “a state prisoner must show that the
state court's ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
V. ANALYSIS
A. Cognizability
The Warden first argues that the Court should dismiss Mr. Kilgore’s Third, Fifth, and
Sixth grounds for relief because they are not cognizable in habeas. The Warden’s argument
is well-taken.
In his third ground for relief, Mr. Kilgore argues that the trial court lacked jurisdiction
to conduct a bench trial because his jury trial waiver was not executed in strict compliance
with the requirements of the relevant Ohio statute, O.R.C. § 2945.05. Mr. Kilgore does not
dispute that he executed the waiver or that he was advised of his right to a trial by jury. Instead,
he argues that the waiver was not filed on the public docket until after the bench trial began,
even though he asserts that § 2945.05 requires that it be filed before the trial.
As noted above, “errors in application of state law . . . are usually not cognizable in
federal habeas corpus.” Bey, 500 F.3d at 519; see also Estelle, 502 U.S. at 67-68. Mr.
Kilgore’s argument relates solely to the statutory requirements of O.R.C. § 2945.05, which is
purely a question of state law. As a result, his third ground for relief is not cognizable . See
Brown v. Smith, No. 3:11CV01750, 2014 WL 1493123, at *26 (N.D. Ohio Apr. 11, 2014)
(Pearson, J.) (holding that question of whether jury waiver strictly complied with O.R.C. §
2945.05 was “a matter of state law, which is not cognizable in habeas”); Richmond v. LaRose,
No. 1:16CV472, 2018 WL 7140090, at *10 (N.D. Ohio Dec. 11, 2018), report and
recommendation adopted, 2019 WL 358641 (N.D. Ohio Jan. 29, 2019) (holding that
challenge to application of O.R.C. § 2945.05 was not cognizable); Mason v. Stuff, No. 5:25-
CV-00636-DCN, 2025 WL 3687407, at *5 (N.D. Ohio Dec. 19, 2025), report and
recommendation adopted, 2026 WL 447702 (N.D. Ohio Feb. 17, 2026) (same).
The same is true of Mr. Kilgore’s fifth ground for relief, in which he asserts that the
trial court abused its discretion when it failed to hold an evidentiary hearing on his motion for
a new trial. “There is no free-standing federal constitutional right to a new trial nor to any
particular procedure for deciding motions for new trial.” Young v. Wainwright, No.
3:18CV2933, 2019 WL 13400363, at *2 (N.D. Ohio June 13, 2019). Courts have thus rejected
a petitioner’s argument that the Ohio courts should have conducted a hearing on the
petitioner’s motion for a new trial, holding that such a claim is not cognizable. See, e.g.,
Walker v. Schweitzer, No. 5:17cv2361, 2020 WL 981431 at *14-15 (N.D. Ohio Feb. 7, 2020),
report and recommendation adopted, 2020 WL 977965 (N.D. Ohio Feb. 28, 2020)
(petitioner’s argument that trial court violated his Fifth, Sixth, and Fourteenth Amendment
rights by failing to hold hearing on motion for new trial was not cognizable); Cannon v.
Potter, No. 1:16-cv-01849, 2018 WL 10038848, at *23 (N.D. Ohio Feb. 20, 2018), report
and recommendation adopted, 2019 WL 4315931 (N.D. Ohio Sept. 12, 2019) (claim that
state court violated petitioner’s due process rights by denying motion for leave to file motion
for new trial without a hearing was not cognizable).
Finally, in his sixth ground for relief, Mr. Kilgore argues that the trial court erred in
denying his motion for a new trial. As with his jury waiver claim, Mr. Kilgore’s argument
that the trial court misapplied Ohio Criminal Rule 33(A)(6) is not cognizable. See Woodson
v. Ohio, No. 1:19 CV 0339, 2022 WL 854329, at *2 (N.D. Ohio Mar. 22, 2022) (“a claim that
an Ohio court misapplied Ohio law when deciding a motion for a new trial is not cognizable
on habeas review”); Mock v. Bracy, No. 4:22-cv-00937, 2024 WL 2347279, at *21 (N.D.
Ohio May 22, 2024) (petitioner’s argument that state courts misapplied Ohio law in denying
motion for leave to file motion for new trial was not cognizable).
Even if Mr. Kilgore were not alleging that the Ohio courts misapplied Ohio law,
however, his claim would not be cognizable. Where a petitioner alleges that the state courts
improperly denied his motion for a new trial, a federal habeas court can review the denial
“only for constitutional error.” Pudelski v. Wilson, 576 F.3d 595, 611 (6th Cir. 2009). “To
establish a constitutional due process claim, [a petitioner] must demonstrate that the trial
court’s denial of his motion for new trial was ‘so egregious’ that it violated his right to a
fundamentally fair trial.” Id. (citing Fleming v. Metrish, 556 F.3d 520, 535 (6th Cir. 2009);
Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004)). Mr. Kilgore has not shown that the trial
court’s rejection of the victim’s alleged recantation was so egregious as to violate his right to
a fundamentally fair trial. I therefore recommend that the Court dismiss Mr. Kilgore’s third,
fifth, and sixth grounds for relief as noncognizable.
B. Procedural Default
The Warden next argues that Mr. Kilgore procedurally defaulted on his first, second,
and fourth grounds for relief because he did not present them at all levels of the state court
review process. I agree.
“[F]ederal courts ordinarily may not ‘consider a claim in a habeas petition that was
not fairly presented to the state courts’ absent cause and prejudice to excuse the procedural
default.” Nian v. Warden, N. Cent. Corr. Inst., 994 F.3d 746, 751 (6th Cir. 2021) (quoting
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (cleaned up)). “[I]t does not suffice
to only present the claim to a state trial court; rather, the petitioner must raise the claim in
state court and ‘pursue [it] through the state’s ordinary appellate review procedures.” Id. at
751-52 (quoting Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009)).
Mr. Kilgore raised each of his first four grounds for relief in his direct appeal to the
Ninth Appellate District. (ECF No. 7-1, Exhibit 10). In his subsequent appeal to the Ohio
Supreme Court, however, Mr. Kilgore argued only that his jury waiver was invalid because
it was not filed on the public docket before the start of the bench trial. (ECF No. 7-1, Exhibit
14). He did not raise any argument regarding the sufficiency of the evidence, the
inconsistency of the trial court’s verdict, or his trial counsel’s alleged ineffectiveness, and
thus did not fairly present his first, third, or fourth assignments of error at all levels of the
state court review process. As a result, Mr. Kilgore procedurally defaulted on those claims.
See Allen v. Mitchell, 953 F.3d 858, 866 (6th Cir. 2020) (holding that petitioner procedurally
defaulted on claim by failing to raise it to Ohio Supreme Court); Battiste v. Miller, No. 1:17-
cv-128, 2019 WL 6221477, at *12 (N.D. Ohio July 8, 2019), report and recommendation
adopted, 2019 WL 4385735 (N.D. Ohio Sept. 13, 2019) (“because Battiste failed to fairly
present his manifest-weight claim to the Ohio Supreme Court, and because state law no longer
allows him to raise that claim, it is procedurally defaulted”).
Mr. Kilgore’s procedural default can be excused if he demonstrates either cause and
prejudice or that failure to consider his claims on the merits would result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750. Mr. Kilgore has not responded to the
Warden’s procedural default argument and does not argue that he has cause to excuse his
procedural default. Accordingly, I recommend that the Court dismiss Mr. Kilgore’s first,
second, and fourth grounds for relief as procedurally defaulted. Out of an abundance of
caution, however, I will analyze the merits of those claims as well.
C. Merits
1. Ground One: Sufficiency of the Evidence
In his first ground for relief, Mr. Kilgore argues that there was insufficient evidence
to support his conviction on the firearm specification. Challenges to a state court conviction
based on the sufficiency of the evidence are properly cognizable in a federal habeas corpus
petition. Jackson v. Virginia, 443 U.S. 307, 321 (1979). In reviewing the sufficiency of the
evidence, “the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. at 319. The reviewing court may not “reweigh
the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of
the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
Review of sufficiency of the evidence challenges involves “a double layer of
deference[.]” White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). “First, [a court] must view
the evidence in the light most favorable to the prosecution, and determine whether ‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Mathis v. Colson, 528 F. App’x 470, 476 (6th Cir. 2013) (quoting Jackson, 443 U.S.
at 319). “Second, ‘even were [a court] to conclude that a rational trier of fact could not have
found a petitioner guilty beyond a reasonable doubt, on habeas review, [a court] must still
defer to the state appellate court’s sufficiency determination as long as it is not
unreasonable.’” Id. (quoting Brown, 567 F.3d at 205). Under the Jackson standard,
a habeas petitioner “who challenges the sufficiency of the evidence to sustain his conviction
faces a nearly insurmountable hurdle.” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir.
2011) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Mr. Kilgore argues that there was insufficient evidence to support his conviction
because there was no physical evidence that he had a firearm and because witnesses were not
qualified to determine whether the alleged firearm was a real gun or a toy. Mr. Kilgore argues
that Ohio law required the State to prove that the gun was operable and that the State failed
to meet its burden.
The Ninth Appellate District considered and rejected Mr. Kilgore’s argument on the
merits during his direct appeal, holding as follows:
{¶7} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-
Ohio-6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The
relevant inquiry is whether the prosecution has met its burden of production by
presenting sufficient evidence to sustain a conviction. Thompkins at 390 (Cook, J.,
concurring). For purposes of a sufficiency analysis, this Court must view the evidence
in the light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We do not evaluate credibility, and we make all reasonable inferences in favor of the
State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime
were proven beyond a reasonable doubt. Id.
{¶8} Mr. Kilgore was convicted of aggravated robbery pursuant to R.C.
2911.01(A)(1), which states, in part, that “[n]o person, in attempting or committing a
theft offense * * *, or in fleeing immediately after the attempt or offense, shall * * *
[h]ave a deadly weapon on or about the offender's person or under the offender's
control and either display the weapon, brandish it, indicate that the offender possesses
it, or use it * * *.” Mr. Kilgore was also convicted of two firearm specifications
pursuant R.C. 2941.145 for “[having] a firearm on or about [his] person or under [his]
control while committing the offense and display[ing] the firearm, brandish[ing] the
firearm, indicat[ing] that [he] possessed the firearm, or us[ing] it to facilitate the
offense.” Because Mr. Kilgore only challenges whether the State presented sufficient
evidence to prove the operability of the firearm, we will limit our analysis accordingly.
{¶9} “In determining whether a firearm is operable, the trier of fact examines the
totality of the circumstances.” State v. Johnson, 9th Dist. Lorain No. 14CA010688,
2016-Ohio-872, ¶ 8. “Proof of the operability of a firearm can be established by
circumstantial evidence, which can consist of the brandishing of a firearm by the
defendant and an implicit threat to shoot it.” State v. Clayton, 9th Dist. Summit No.
26910, 2014-Ohio-2165, ¶ 8; see also R.C. 2923.11(B)(2). “[W]itness testimony that
the defendant was holding a gun while committing a robbery create[s] an implicit
threat to shoot and [is] sufficient proof of operability.” Id. at ¶ 13.
{¶10} Here, even though the firearm was never recovered, the evidence provided by
the State, if believed, sufficiently established Mr. Kilgore brandished and used a
firearm in the commission of aggravated robbery and the firearm was operable. At
trial, the victim testified:
* * *
I seen somebody with a gun. That's when I first got pistol whipped. I went down.
I was held at gunpoint.
* * *
Additionally, the victim testified Mr. Kilgore hit him with a black gun two or three
times on the side of his face, temple area. The victim further testified he was laying
on his stomach with his forehead on the carpet and Mr. Kilgore pressed the gun to the
back of his head while Ms. Palos-Grantham obtained the passwords for his cellphone
and Chase banking mobile app. According to the victim, after Ms. Palos-Grantham
transferred the money to her own account, Ms. Palos-Grantham and Mr. Kilgore
“talked about possibly killing [him],” but decided instead to take him downstairs and
have him lie face down in the grass behind the apartment. Mr. Kilgore also took the
victim's driver's license and told him if he tries to “retaliate or do anything, he'll come
to Toledo and kill [him].”
{¶11} Deputy Matt Schilke testified the victim had some swelling and a “knot” from
his eye bone going toward his ear along his temple. The victim's injuries were
photographed and Deputy Schilke testified the injuries are consistent with being
struck in the head with a firearm.
{¶12} Upon viewing the evidence in a light most favorable to the State, we conclude
a rational trier of fact could have found beyond a reasonable doubt Mr. Kilgore used
and brandished a firearm in the commission of aggravated robbery and the firearm
was operable.
(ECF No. 7-1, Exhibit 12).
Applying the first layer of the “double layer of deference,” White, 602 F.3d at 710, I
agree that a rational trier of fact could have found beyond a reasonable doubt that Mr. Kilgore
used an operable firearm during the robbery based on the victim’s testimony and the
testimony of Deputy Schilke that the victim’s injuries were consistent with being struck by a
firearm.
And even if I had concluded (which I do not) that a rational trier of fact could not have
found Mr. Kilgore guilty beyond a reasonable doubt, on habeas review I must still defer to
the state appellate court's sufficiency determination as long as it is not unreasonable. White,
602 F.3d at 710. Applying the second layer of the “double layer of deference,” I do not find
the state appellate court’s sufficiency determination unreasonable. I alternatively recommend
that the Court deny Mr. Kilgore’s first ground for relief on the merits.
2. Ground Two: Inconsistent Verdict
In his second ground for relief, Mr. Kilgore argues that the verdict against him should
be set aside because the trial court convicted him of the firearm specifications while
convicting his co-defendant, Ms. Palos-Grantham of aggravated robbery without a firearm
specification.
“The problem for [Mr. Kilgore] is that there is no authority to support the legal
proposition that underlies his claim” that his constitutional rights were violated because the
verdict against him is allegedly inconsistent with the verdict against Ms. Palos-Grantham.
Tackett v. Trierweiler, 956 F.3d 358, 372 (6th Cir. 2020). “Rather, the Supreme Court has
held that inconsistent verdicts do not present a constitutional problem.” Id. (citing Harris v.
Rivera, 454 U.S. 330, 345 (1981)); see also Hollins v. Smith, No. 24:3023, 2024 WL 5316651,
at *3 (6th Cir. Sept. 5, 2024) (unpub.) (holding that Ohio appellate court’s rejection of
inconsistent verdict argument was not contrary to or an unreasonable application of clearly
established federal law).
Moreover, while Mr. Kilgore relies on the Second Circuit’s decision in United States
v. Maybury, 274 F.2d 899 (2d Cir. 1960), which held that judges in bench trials are held to a
higher standard than juries with respect to the need to issue consistent verdicts, only the
holdings of the Supreme Court constitute clearly established law for purposes of AEDPA.
White, 572 U.S. at 419. Mr. Kilgore does not cite any Supreme Court decisions adopting
Maybury’s reasoning, and he therefore cannot show that the Ninth Appellate District’s
decision was contrary to or an unreasonable application of clearly established law.
3. Ground Four: Ineffective Assistance of Trial Counsel
Finally, in his fourth ground for relief, Mr. Kilgore argues that he received the
ineffective assistance of trial counsel because his counsel represented both Mr. Kilgore and
his co-defendant, Ms. Palos-Grantham, and thus operated under an impermissible conflict of
interest.
“Where a constitutional right to counsel exists, [the Supreme Court’s] Sixth
Amendment cases hold that there is a correlative right to representation that is free from
conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981) (citing Cuyler v. Sullivan,
466 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978)). If a defendant’s counsel
is operating under a conflict of interest, the attorney’s actions may constitute ineffective
assistance of counsel under the Sixth Amendment in violation of Strickland v. Washington,
466 U.S. 668 (1984). Mickens v. Taylor, 535 U.S. 162, 166 (2002); Gillard v. Mitchell, 445
F.3d 883, 890 (6th Cir. 2006).
Under Strickland, a petitioner must make two showings. First, the petitioner “must
show that counsel’s performance was deficient,” which ‘requires showing that counsel made
errors so serious that counsel was not functioning as the counsel guaranteed [him] by the
Sixth Amendment.” Wickline v. Mitchell, 319 F.3d 813, 819 (6th Cir. 2003) (quoting
Strickland, 466 U.S. at 687). Second, the petitioner “must show that the deficient performance
prejudiced the defense[,] . . . [which] requires showing that counsel’s errors were so serious
as to deprive [him] of a fair trial, a trial whose result is reliable.” Gillard, 445 F.3d at 890
(quoting Strickland, 466 U.S. at 687) (alterations in original).
“[P]rejudice is presumed when counsel is burdened by an actual conflict of interest.”
Strickland, 466 U.S. at 692. To demonstrate an actual conflict of interest, the petitioner must
show “that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of
interest adversely affected his lawyer’s performance.’” Id. (quoting Sullivan, 446 U.S. at
350).“An ‘actual conflict,’ for purposes of the Sixth Amendment is ‘a conflict of interest that
adversely affects counsel’s performance.’” Leonard v. Warden, Ohio State Penitentiary, 846
F.3d 832, 844 (6th Cir. 2017) (quoting Mickens, 535 U.S. at 172 n.5 (1981)). “[T]he
possibility of conflict is insufficient to impugn a criminal conviction.” Sullivan, 446 U.S. at
350.
The Ninth Appellate District rejected Mr. Kilgore’s ineffective assistance claim on
the merits as follows:
{¶25} “The Sixth Amendment right to assistance of counsel embraces the correlative
right to representation that is free from conflicts of interest.” State v. Worrell, 9th Dist.
Summit Nos. 23378, 23409, 2007-Ohio-7058, ¶ 23. “[W]here a trial court knows or
reasonably should know of an attorney's possible conflict of interest in the
representation of a person charged with a crime, the trial court has an affirmative duty
to inquire whether a conflict of interest actually exists.” Id. at ¶ 25, quoting State v.
Gillard, 64 Ohio St.3d 304, 311 (1992). “Where a trial court breaches its affirmative
duty to inquire, a criminal defendant's rights to counsel and to a fair trial are
impermissibly imperiled and prejudice or adverse effect will be presumed.” (Internal
quotations and citations omitted.) Worrell at ¶ 25.
{¶26} On April 16, 2021, fifteen days prior to the start of the bench trial, the trial court
addressed the parties regarding joint representation. At that time, the trial court
separately inquired of counsel, Mr. Kilgore, and Ms. Palos-Grantham regarding any
potential conflicts and whether the co-defendants’ interests were aligned with each
other. Counsel indicated that, after reviewing discovery, he did not know of any reason
a conflict would arise between the co-defendants’ interests at trial. Further, the trial
court separately asked Mr. Kilgore and Ms. Palos-Grantham a series of questions
regarding their legal rights, as well as the dangers and pitfalls of joint representation.
The co-defendants responded they understood their rights to have separate counsel,
and also understood the dangers and pitfalls of joint representation. As such, the trial
court found Mr. Kilgore and Ms. Palos-Grantham “knowingly and intelligently and
voluntarily enter[ed] into joint representation[.]” The State noted its objection to joint
representation on the record due to the risk of unforeseen conflict and the inability for
the State to negotiate a plea deal with either Mr. Kilgore or Ms. Palos-Grantham. The
trial court also advised Mr. Kilgore and Ms. Palos-Grantham that, at any time in the
future, they could hire their own counsel. Given the foregoing, we cannot say the trial
court failed to adequately investigate any potential conflict. See Worrell at ¶ 26. At no
time at trial did Mr. Kilgore object to joint representation.
{¶27} “ ‘In order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance.’ ” Worrell, 2007-Ohio-7058, at ¶ 23,
quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). “To establish the constitutional
predicate for a claim of ineffective assistance of counsel, a defendant must show that
his counsel actively represented conflicting interests. A defendant who shows that a
conflict of interest actually affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief.” (Internal citation omitted.) Worrell at
¶ 23.
{¶28} As this Court previously stated:
[a]n actual conflict of interest, for purposes of the Sixth Amendment, is a conflict
of interest that adversely affects counsel's performance. Thus, to prove an actual
conflict of interest, the defendant must show that his counsel actively represented
conflicting interests, and that the conflict actually affected the adequacy of his
representation. In order to show such a conflict, a defendant must point to
specific instances in the record to suggest an actual conflict or impairment of
[his] interests. An adverse effect is established where the defendant points to
some plausible alternative defense strategy or tactic [that] could have been
pursued, but was not because of the actual conflict impairing counsel's
performance. While it is not necessary to prove that the defense theory would
have been successful, it is necessary to show that the alternative theory was
viable. Additionally, an appellant must establish that the alternative defense was
inherently in conflict with or not undertaken due to the attorney's other loyalties
or interests.
(Internal quotations and citations omitted.) State v. Jackson, 9th Dist. Summit No.
27478, 2015-Ohio-4356, ¶ 13.
{¶29} Here, Mr. Kilgore generally argued “[c]ounsel's theory of the case [that Ms.
Palos-Grantham was in a relationship with both Mr. Kilgore and victim and a fist fight
broke out between the two men] explicitly [hurt] Mr. Kilgore.” However, Mr. Kilgore
has not pointed to any plausible defense strategy or tactic that could have been pursued
by counsel but was not pursued due to an actual conflict impairing counsel's
performance. See Jackson at ¶ 13. Therefore, Mr. Kilgore failed to show an actual
conflict that adversely affected his counsel's performance.
(ECF No. 7-1, Exhibit 12).
Applying AEDPA deference, the Ninth Appellate District’s decision was not contrary
to or an unreasonable application of clearly established law. The Ninth Appellate District
applied the correct legal standard, noting that the Sixth Amendment guarantees a defendant
the right to representation free from a conflict of interest. However, the Ninth Appellate
District also reasonably held that Mr. Kilgore failed to show that his counsel was under an
actual conflict of interest because he did not identify any strategy or tactic that his counsel
could have pursued had his counsel not also been representing Ms. Palos-Grantham.
Moreover, as the Ninth Appellate District also held, a defendant may waive a conflict
of interest. United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000). Thus, even if the Ninth
Appellate District had erred in concluding that counsel was not operating under a conflict,
fairminded jurists could agree with its conclusion that Mr. Kilgore knowingly and
intelligently waived any conflict. See United States v. Collins, 434 F. App’x 434, 441 (6th
Cir. 2011) (holding that defendant validly waived conflict where she “was informed of the
potential conflict by the government's motion, was further informed of the potential through
a hearing, and—despite these events—still actively fought to keep her counsel”); Brooks v.
Bobby, No. 1:02CV1416, 2006 WL 2456494, at *11-12 (N.D. Ohio Aug. 22, 2006) (holding
that trial judge did not err in accepting petitioner’s conflict waiver where trial judge
“specifically inquired as to the Petitioner and his co-defendant understood the potential for
conflicts, and both answered ‘yes’”).
It is true that a defendant’s waiver does not necessarily bind the courts. See Wheat v.
United States, 486 U.S. 153, 162 (1988). Instead, “[a] waiver’s validity depends on the
particular facts and circumstances of a case.” Bray v. Cason, 375 F. App’x 466, 472 (6th Cir.
2010) (citing Edwards v. Arizona, 451 U.S. 477, 482 (1981)). But Mr. Kilgore has not
identified any facts or circumstances that would make the waiver invalid under the
circumstances presented here given Mr. Kilgore’s discussion with the trial court. See Collins,
434 F. App’x at 441 (holding that district court did not abuse discretion in permitting
defendant to waive conflict where “[w]hile implicating [spouse] was one possible defense, it
was not required or even necessarily the best defense”); Bray, 375 F. App’x at 472 (holding
that state court did not err in accepting defendant’s waiver of conflict where trial court
informed defendant of possible conflict and confirmed defendant had discussed the matter
with counsel). I alternatively recommend that the Court deny Mr. Kilgore’s fourth ground for
relief on the merits.
D. Evidentiary Hearing
In his traverse, Mr. Kilgore also requests that the Court hold an evidentiary hearing.
Habeas Rule 8(a) provides that a court may, but is not required to, hold an evidentiary hearing
on a petition. Rules Governing § 2254 Cases R. 8(a). Under § 2254(e)(2), if the petitioner has
failed to develop the factual basis for the claim in state court, the court may hold an
evidentiary hearing only in limited circumstances, including where the factual predicate of
the claim could not have been previously discovered with due diligence. See 28 U.S.C. §
2254(e)(2). “When deciding whether to grant an evidentiary hearing, a court must consider
whether such a hearing could enable petitioner to prove the habeas petitioner’s factual
allegations, which, if true, would entitle the petitioner to federal habeas relief on his claim or
claims.” Newton v. Turner, No. 1:20-cv-2799, 2024 WL 1853042, at *4 (N.D. Ohio Apr. 29,
2024) (citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).
Mr. Kilgore has not demonstrated that an evidentiary hearing would enable him to
prove any factual allegations that would entitle him to habeas relief. Instead, he argues only
that an evidentiary hearing “would be meaningful and would have the potential to advance
[his] claims.” (ECF No. 10, PageID # 780). Because Mr. Kilgore has not shown that an
evidentiary hearing is warranted, and because Mr. Kilgore’s claims are procedurally defaulted
or noncognizable, his motion for an evidentiary hearing is denied.
VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY
A. Legal Standard
As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not
appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate
of appealability. The statute further provides that “[a] certificate of appealability may issue .
. . only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
Although the statute does not define what constitutes a “substantial showing” of a
denial of a constitutional right, the burden on the petitioner is obviously less than the burden
for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the
courts that have considered the issue have concluded that “[a] ‘substantial showing’ requires
the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court
could resolve the issues (in a different manner); or that the questions are adequate to deserve
encouragement to proceed further.’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)
(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that
certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),
28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue
or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C.
§ 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which
specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule
11 requirement that the court either grant or deny the certificate of appealability at the time
of its final adverse order, a recommendation regarding the certificate of appealability issue is
included here.
B. Analysis
Mr. Kilgore has not made a substantial showing of a denial of a constitutional right
for the reasons set forth above. Because jurists of reason would not find these conclusions
debatable, I recommend that no certificate of appealability issue in this case.
VII. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Court DISMISS and/or DENY
Mr. Kilgore’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend
that the Court not grant him a certificate of appealability. Finally, Mr. Kilgore’s request for
an evidentiary hearing is DENIED.
Dated: August 14, 2026 Jennifer Dowdell Armstrong
Jennifer Dowdell Armstrong
U.S. Magistrate Judge
NOTICE TO PARTIES REGARDING OBJECTIONS
Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge’s proposed findings,
recommendations or report made pursuant to Fed. R. Civ. P. 72(b)
within fourteen (14) days after being served with a copy thereof, and
failure to file timely objections within the fourteen (14) day period
shall constitute a waiver of subsequent review, absent a showing of
good cause for such failure. Such party shall file with the Clerk of Court,
and serve on the Magistrate Judge and all parties, written objections which
shall specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis for
such objections. Any party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. The
District Judge to whom the case was assigned shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. The District Judge need conduct a new hearing only in
such District Judge’s discretion or where required by law, and may
consider the record developed before the Magistrate Judge, making a
determination on the basis of the record. The District Judge may also
receive further evidence, recall witnesses or recommit the matter to the
Magistrate Judge with instructions.
Id. (emphasis added).
Failure to file objections within the specified time may result in the forfeiture or
waiver of the right to raise the issue on appeal either to the district judge or in a subsequent
appeal to the United States Court of Appeals, depending on how or whether the party responds
to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).
Objections must be specific and not merely indicate a general objection to the entirety of the
report and recommendation; a general objection has the same effect as would a failure to
object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate
the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same
argument that was presented to the Magistrate Judge without specific objections ‘wastes
judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates
Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15,
2018) (quoting Howard). The failure to assert specific objections may in rare cases be
excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79
(6th Cir. 2019).