Petition for Writ of Certiorari — Claudia C. Hoerig, Petitioner v. Shannon Olds, Warden
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APPENDIX-A
Hoerig v. Olds, 2025 U.S. App. LEXIS 1296 (Decision: Jan. 21,2025)
APPENDIX (A)
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No. 24-3382
FILED
united states court of appeals
Jan 21,2025
KELLY L. STEPHENS, Clerk
FOR THE SIXTH CIRCUIT
CLAUDIA C. HOERIG,
Petitioner-Appellant,
v.
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)
)
)
)
WARDEN SHANNON OLDS,
Respondent-Appellee.
____
order
)
)
)
)
Before: BOGGS, Circuit Judge.
Claudia C. Hoerig, a pro se Ohio prisoner, appeals the district court’s judgment denying
her petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 and moves this court for a
certificate of appealability (COA). For the reasons discussed below, the motion is denied.
In 2019, an Ohio jury found Hoerig guilty of the 2007 aggravated murder of her husband,
Karl Hoerig, with a firearm specification. Hoerig admitted that she shot Karl three times but
maintained that she did so after the two had a heated argument and that she was attempting to
commit suicide. Hoerig was not arrested until 2018, after she was apprehended in and extradited
from Brazil. She was sentenced to life in prison. The Ohio Court of Appeals affirmed State v.
Hoerig, No. 2019-T-0012, 2020 WL 1685624, at *10 (Ohio Ct. App. Apr. 6, 2020), and the Ohio
Supreme Court denied leave to appeal, State v. Hoerig, 163 N.E.3d 593 (Ohio 2021) (table).
Hoerig then filed an application to reopen her direct appeal under Ohio Rule of Appellate
Procedure 26(B). The Ohio Court of Appeals denied the application, and the Ohio Supreme: Court
denied leave to appeal. State v. Hoerig, 166 N.E.3d 17 (Ohio 2021) (table).
In her § 2254 petition, Hoerig raises 12 claims. Over Hoerig’s objections, the district court
agreed with the magistrate judge that her claims are either not cognizable, are procedurally -..
J
No. 24-3382
-2-
defaulted, were reasonably adjudicated on the merits by the state courts, or lack merit. The district
court therefore denied Hoerig’s petition and declined to issue a COA.
A COA may be granted “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 327,
336 (2003). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), when a state
court adjudicates the petitioner’s claims on the merits, the district court may not grant habeas relief
unless the state court’s adjudication 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 “a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see
Harrington v. Richter, 562 U.S. 86, 100 (2011). When AEDPA deference applies, a reviewing
court, in the COA context, must evaluate the district court’s application of § 2254(d) and determine
“whether that resolution was debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.
When the district court’s denial is based on a procedural ruling, the movant must demonstrate that
“jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,484 (2000).
Claim One — Sufficiency of the Evidence
Hoerig claims that the evidence was insufficient to sustain her conviction for aggravated
murder.
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.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). A reviewing court considers this question “with explicit reference to
the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. In a
federal habeas proceeding, review of an insufficiency claim is doubly deferential: “First, deference
should be given to the trier-of-fact’s verdict, as contemplated by Jackson', second, deference should
No. 24-3382
-3be given to the [state appellate court’s] consideration of the trier-of-fact’s verdict, as dictated by
AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).
The only element of aggravated murder at issue here is whether Hoerig caused the death
of her husband with “prior calculation and design.” Ohio Rev. Code § 2903.01(A). ‘“Prior
calculation and design’ indicate[s] an act of studied care in planning or analyzing the means of the
crime, as well as a scheme compassing the death of the victim.” State v. Walker, 82 N.E.3d 1124,
1128 (Ohio 2016) (cleaned up). The Ohio Supreme Court typically considers three factors in
determining whether a defendant has acted with prior calculation and design: “(1) Did the accused
and victim know each other, and if so, was that relationship strained? (2) Did the accused give
thought dr preparation to choosing the murder weapon or murder site? and (3) Was the act drawn
out or an almost instantaneous eruption of events?” State v. Taylor, 676 N.E.2d 82,89 (Ohio 1997)
(cleaned up). Importantly, “circumstantial evidence alone” can establish that the defendant killed
the victim with “prior calculation and design.” State v. Bowman, No. 2021-CA-14, 2022
WL 3134359, at *14 (Ohio Ct. App. Aug. 5, 2022) (quoting State v. Franklin, 580 N.E.2d 1, 7
(Ohio 1991)).
In rejecting Hoerig’s insufficiency claim, the Ohio Court of Appeals described the relevant
evidence as follows: a friend of Karl’s testified that, in August 2006, Hoerig told her that, “if
[Karl] ever leaves me, I’d kill him.” Hoerig, 2020 WL 1685624, at *1. Another friend of Karl’s
testified that, in February 2007, Karl told him that he and Hoerig were going to divorce. Id. Other
evidence showed that Karl rented a house in February 2007 and intended to live there after he and
Hoerig separated. Id. One month later, Hoerig purchased a revolver—with a laser grip that was
installed for her—and ammunition. Id. That same day, Hoerig practiced firing the revolver at a
shooting range. Id. at*l, *3. Five days later, Karl was found dead in his and Hoerig’s home. Id.
at *1. He was found at the bottom of the stairs, covered with a comforter and tarp, and having
been shot three times by the revolver that Hoerig purchased. Id. at * 1-2. After her extradition and
arrest, Hoerig admitted that she shot and killed Karl two days after purchasing the firearm. Id.
at *2. She maintained, though, that she had purchased the firearm to kill herself and that she ended
No. 24-3382
-4up killing Karl while intoxicated and after a heated argument with him. Id. at *3. According to
Hoerig, when talking with Karl about an hour after their argument, he “grabbed her and threw her
to the floor” and told her to “do it” (commit suicide) in the basement so that she would not splatter
blood on his paintings. Id. She then shot Karl three times and allegedly attempted to shoot herself,
but failed. Id.
When viewing this and all other evidence most favorably to the prosecution, see Jackson,
443 U.S. at 319, the Ohio Court of Appeals determined that a rational trier of fact could have found
Hoerig guilty of purposefully causing the death of Karl with prior calculation and design. Id. at *5.
It explained that the fact that Hoerig “purchased a firearm with a laser sight, learned how to use it,
and then used it to kill her husband at the next opportunity is evidence which, if believed, would
convince the average mind, beyond a reasonable doubt, that she acted with prior calculation and
design.” Id. The district court found this ruling reasonable, reiterating that evidence supporting
Hoerig’s conviction “included the marriage troubles,” which was evidenced by “Karl’s intent to
divorce her and move out to a rental house[] and [Hoerig’s] admitted knowledge that her marriage
was failing and that Karl was going to divorce her.” Evidence supporting her conviction also
included her “pregnancy—unwanted by her husband, [her] purchase of a firearm with a laser sight,
her trip to the firing range to learn how to fire it, and her admission that she purchased the gun
with the intent to end a life [(albeit her own)].”
In her motion for a COA, Hoerig does not dispute these findings and instead maintains that
the State was required and failed to disprove that she acted with “sudden provocation.” However,
as the district court aptly stated, in Ohio, “the defendant has the burden of demonstrating that [s]he
had the requisite passion or rage at the time of the murder to be convicted of manslaughter rather
than aggravated murder.” (emphasis added). See State v. Rhodes, 590 N.E.2d 261, 265-66 (Ohio
1992). Moreover, because the lack of sudden provocation or “sudden fit of rage” is not an element
of aggravated murder—contrary to what Hoerig suggests—the State was not required to prove it
at trial. See Rhodes v. Brigano, 91 F.3d 803, 804, 809 n.2, 810-11 (6th Cir. 1996).
No. 24-3382
-5Hoerig s other challenges to the jury’s assessment of the evidence, such as her attempts to
explain why she purchased a firearm (to kill herself), are unavailing, as a federal habeas court does
not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for
that of the jury.” Smith v. Nagy, 962 F.3d 192,205 (6th Cir. 2020) (quoting Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009)). No reasonable jurist therefore could debate the district court’s
conclusion that the Ohio Court of Appeals did not unreasonably apply Jackson in rejecting
Hoerig’s insufficiency-of-the-evidence claim.
Claim Two - Manifest Weight of the Evidence
Hoerig claims that her conviction is against the manifest weight of the evidence.
Reasonable jurists would agree that this claim presents an issue of state law that is not cognizable
on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Nash v. Eberlin,
258 F. App’x 761, 764 n.4 (6th Cir. 2007).
Claims Three, Four, and Five - Procedurally Defaulted
Hoerig claims that her rights to due process and a fair trial were violated when the trial
court allowed the prosecutor to make prejudicial statements during opening arguments (claim
three), when the trial court made several prejudicial evidentiary rulings (claim four), and through
the cumulative effect of the trial court s errors (claim five). The district court denied these claims
as procedurally defaulted because they were not fairly presented to the Ohio courts. See Pudelski
v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009). To obtain relief under § 2254, a prisoner must first
exhaust his state remedies by “giv[ing] the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see 28U.S.C.§ 2254(b)(1). When a
petitioner has failed to exhaust her state remedies and can no longer do so under state law, her
habeas claim is procedurally defaulted. O’Sullivan, 526 U.S. at 848.
Hoerig does not dispute that she did not raise her third, fourth, and fifth claims on direct
appeal. She therefore failed to invoke one complete round of Ohio’s appellate review process.
See id. at 845. Because Hoerig can no longer present these claims to the Ohio courts under Ohio’s
No. 24-3382
-fr
ies judicata rule, see Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hanna v. Ishee, 694 F.3d
596, 614 (6th Cir. 2012), reasonable jurists could not disagree with the district court’s conclusion
that these claims are procedurally defaulted. And although a petitioner can overcome a procedural
default by showing either (1) cause for the default and prejudice arising therefrom or (2) that she
is actually innocent, Rust v. Zent, 17 F.3d 155, 160, 162 (6th Cir. 1994), reasonable jurists could
not debate the district court’s conclusion that Hoerig failed to argue or show that either option
excuses her procedural default.1
Claims Six through Twelve - Ineffective Assistance of Appellate Counsel
Preliminary Matter - Liberal Construction
Except for a portion of claim six, claims six through twelve raise substantive claims rather
than ineffective-assistance-of-appellate-counsel (IAAC) claims. Hoerig, though, raised these
claims as IAAC claims in her Rule 26(B) application, and the Ohio Court of Appeals reviewed
them on the merits. The district court acknowledged that a Rule 26(B) application preserves only
the IAAC claims and not the underlying substantive claims (i.e., those that Hoerig now raises in
her habeas petition), see Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), but reasoned
that claims six through twelve “can reasonably be interpreted to assert sub-grounds for ineffective
assistance of appellate counsel.”
Because pro se habeas petitions are entitled to liberal
construction, see MacUoyd v. United States, 684 F. App’x 555, 558 (6th Cir. 2017), it was
reasonable for the district court to construe claims six through twelve as raising IAAC claims, see
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (stating that a federal habeas corpus may
bypass a procedural-default analysis and proceed to the merits of a petitioner’s claims). Thus,
below, the court analyzes claims six through twelve as if Hoerig had raised them as IAAC claims
in her petition.
1 Reasonable jurists would also agree with the district court’s conclusions that claims three and
four are not cognizable to the extent that Hoerig challenges only the state courts’ application of
state evidentiary rules, see Estelle, 502 U.S. at 67-68, and that claim five does not state a cognizable
habeas claim, see Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011).
No. 24-3382
' -7-
AEDPA Standard — IAAC Claims
To establish ineffective assistance of counsel, a defendant must show deficient
performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); see
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (“[IAAC] claims are governed by the
same Strickland standard as claims of ineffective assistance of trial counsel.”). To show prejudice
in the IAAC context, “the petitioner must demonstrate that the issue not presented ‘was clearly
stronger than issues that counsel did present. ’” Caver v. Straub, 349 F.3d 340,348 (6th Cir. 2003)
(quoting Smith v. Robbins, 528 U.S. 259, 289 (2000)). “The standards created by Strickland and
§ 2254(d) ate both ‘highly deferential’ and when the two apply in tandem, review is ‘doubly’ so.”
Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 689, and Knowles v. Mirzayance, 556
U.S. Ill, 123 (2009)). Thus, on habeas review, “[w]hen § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
Claim Six - Ineffective Assistance of Counsel
Tn claim six, Hoerig raises a number of ineffective-assistance-of-trial-counsel and IAAC
claims.
The magistrate judge construed claim six as primarily “revolv[ing] around Hoerig’s
contention that Latinos were underrepresented in her jury venire.”2 But the claim was meritless,
the magistrate judge reasoned, because Hoerig failed to rebut the presumption that Ohio’s method
of selecting jury venires—through voter-registration lists—is constitutional.
See Jones v.
Bradshaw, 46 F.4th 459, 483 (6th Cir. 2022). So she had no viable argument that trial counsel
should have challenged the composition of the jury venire. See Tackett v. Trierweiler, 956 F.3d
358, 375 (6th Cir. 2020) (noting that counsel is not ineffective for failing to raise an issue that
lacks merit). The magistrate judge then determined, and the district court agreed, that the
2 The district court reviewed the magistrate judge’s assessment of this claim for clear error only,
because Hoerig failed to raise any specific objection to the magistrate judge’s recommendation
that the claim be dismissed for lack of merit. No reasonable jurist could disagree with the district
court’s application of clear-error review to this claim.
No. 24-3382
-8-
remainder of claim six “is a rambling, often incoherent, narrative of alleged facts and errors” that
“Hoerig failed to meaningfully develop beyond her own self-serving conclusion that they are
meritorious.” Indeed, most fatal to Hoerig’s ineffective-assistance-of-trial-counsel claims is her
failure to articulate how any of the many alleged attorney errors yielded a reasonable probability
that, but for the error, the result of her trial would have been different. See Strickland, 466 U.S.
at 687-88. For example, Hoerig claims that trial counsel’s failure to authenticate evidence
somehow damaged her credibility, yet she fails to explain how that failure was purportedly
“fatalf]” to her defense “because she was the only witness in her case.” Nor does she explain how
her trial-counsel claims are clearly stronger than other issues that appellate counsel raised on
appeal. Because “conclusory and perfunctory” allegations of ineffective assistance like the ones
presented in claim six “are insufficient to warrant habeas relief,” Wogenstahl, 668 F.3d at 335-36,
reasonable jurists would not debate the district court’s denial of this claim.
Claim Seven - Speedy Trial
Hoerig claims that the trial court violated her constitutional rights by denying her motion
to dismiss on speedy-trial grounds.
The Ohio Court of Appeals rejected this claim, reasoning that a delay in Hoerig’s trial was
attributable to her flight to Brazil and opposition to extradition efforts. The district court agreed
and elaborated that the trial court had reasonably denied Hoerig’s motion to dismiss because the
speedy-trial clock did not begin to run until she was arrested in Ohio and, in the years prior to her
arrest, she had “opposed [her] extradition” to the United States while the State “zealously pursued
each and every opportunity” for her extradition beginning “almost immediately” after the murder.
And even if Hoerig may have “[t]echnically” made a prima facie case of a speedy-trial violation,
the State met its burden to show that the delay was reasonable in light of Hoerig’s efforts to avoid
extradition. See Barker v. Wingo, 407 U.S. 514,533 (1972). The district court added that the Ohio
Court of Appeals appropriately declined to consider evidence (e.g., newspaper articles) that was
not part of the trial court record but that Hoerig proffered in attempt to support her claim that
appellate counsel should have challenged the trial court’s denial of her motion to dismiss. See
A~%
No. 24-3382
-9State v. Moore, 758 N.E.2d 1130, 1132 (Ohio 2001) (stating that “the effectiveness of appellate
counsel [cannot] be judged by adding new matter to the record and then arguing that counsel should
have raised these new issues revealed by this newly added material”). On this record and in light
of the double deference due under Strickland and § 2254(d), no reasonable jurist could debate the
district court’s conclusion that the Ohio Court of Appeals’s rejection of this IAAC claim was not
contrary to or an unreasonable application of Strickland, or based on an unreasonable
determination of the facts.
Claim Eight - Venue Challenge
Hoerig claims that the trial court violated her constitutional rights by denying her motion
for a change of venue, which she argued was warranted in view of the publicity that her case
received. Prejudice, Hoerig argues, is evidenced in part by the fact that the jury took only three
hours to reach a verdict.
A change in venue should be granted if pretrial publicity jeopardizes a defendant’s right to
a fair trial. See Irvin v. Dowd, 366 U.S. 717, 722-24 (1961); Foley v. Parker, 488 F.3d 377, 387
(6th Cir. 2007). “[A] searching voir dire of the prospective jurors is the primary tool to determine
if the impact of the publicity rises to th[e] level” of actual prejudice. Ritchie v. Rogers, 313 F.3d
948, 962 (6th Cir. 2002). “Prejudice from pretrial publicity is rarely presumed,” Foley, 488 F.3d
at 387, and extensive media coverage is insufficient by itself to create a presumption that a
defendant was denied a fair trial, Dobbert v. Florida, 432 U.S. 282, 303 (1977). Rather, a
presumption of prejudice should be applied only in “the extreme case,” Skilling v. United States,
561 U.S. 358, 381 (2010), where a conviction was “obtained in atrial atmosphere that had been
utterly corrupted by press coverage,” Murphy v. Florida, 421 U.S. 794,798 (1975).
In rejecting this claim, the Ohio Court of Appeals reasoned that, although Hoerig submitted
darnments showing that her case garnered pretrial publicity, she “presented no evidence that any
juror was actually biased against her.” Rather, the evidence showed that most potential jurors
“knew little about the case,” having recalled reading only “tidbits of headlines.” The district court
agreed, emphasizing that Hoerig failed to demonstrate that the trial court erred in conducting the
A-1
No. 24-3382
- 10individual voir dire and concluding that the media coverage did not prejudice the jurors. At best,
Hoerig showed only that “the murder, investigation, and charges related thereto were publicized”
and that the jurors were “already aware of the general allegations against her.” Despite this
publicity, Hoerig did not demonstrate either that “an inflammatory, circus-like atmosphere
pervaded both the courthouse and the surrounding community” or that any seated juror “indicated
an inability to set aside any prior knowledge about the case or to judge the case fairly and
impartially.” Campbell v. Bradshaw, 674 F.3d 578, 593, 594 (6th Cir. 2012) (cleaned up). Thus,
reasonable jurists would agree that the Ohio Court of Appeals reasonably rejected Hoerig’s IAAC
Claim related to the denial of her motion for a change of venue.
Claims Nine and Ten — Prosecutorial Misconduct
Hoerig claims that her constitutional rights were violated because the prosecutor “failed to
correct knowingly false testimony” (claim nine) and “failed to disclose exculpatory evidence” in
violation of his obligations under Brady v. Maryland, 373 U.S. 83 (1963) (claim ten).
The Ohio Court of Appeals rejected these claims. As to Hoerig’s false-testimony claim,
the court explained that the allegedly false statements were the prosecutor’s arguments—not
testimony—and were immaterial to the issue of her guilt in any event. The district court agreed,
rejecting Hoerig’s argument that the prosecutor violated Napue v. Illinois, 360 U.S. 264, 269
(1959), which held that the prosecution “may not knowingly use false evidence, including false
testimony, to obtain a tainted conviction.” In doing so, the district court reviewed Hoerig’s Rule
26(B) application and accurately confirmed that Hoerig identified only the prosecutor’s statements
and arguments—not any evidence or witness testimony—to support her false-testimony claim. Cf.
id.
And although Hoerig argued in her objections to the magistrate judge’s report and
recommendation that the testimony of four witnesses was false, she' did not explain how the
testimony was false, or show that the prosecutor knew that the testimony was false—two
requirements to sustain a false-testimony claim. See McNeill v. Bagley, 10 F.4th 588, 604 (6th
Cir. 2021). On this record and in light of the double deference due under Strickland and § 2254(d),
no reasonable jurist could debate the district court’s conclusion that the Ohio Court of Appeals’s
No. 24-3382
-Il
rejection of claim nine was not contrary to or an unreasonable application of Smcklan , or ase
on an unreasonable determination of the facts.3
As for Hoerig’s Brady claim, the district court concluded that Hoerig could not show that
appellate counsel was ineffective, because the purportedly undisclosed evidence-’’audro
recordings,” computer records, a ’’shoe,” and a ’’portion of [a] DVD”-was not pari of the
court record. Because counsel cannot be ineffective by failing to raise a Brady clatm has
evidence not included in the record, see Moore, 758 N.E.2d at 1132; State v. Wilburn,
392, 410 (Ohio Ct. App. 2023), no reasonable jurist could debate the district court’s coneluston
d* the Ohio Court of Appeals’s rejection of claim ten was not contrary
an unreasonable
application of Strictiand or based on an unreasonable determination of the facts.
Claim Eleven - Excessive Bail
Hoerig claims that the trial court violated her due-process rights and the Eighth
bail at $10,000,000. Reasonable jurists
Amendment’s Excessive Bail Clause when it set pre-■trial
’
could not debate the district court’s rejection of this clabn, because it is moot m Ugh of
conviction. See Ma^y v. Hun., 455 U.S. 478,481 (1982)1
atra UnBed
*
p App’x 291, 297 (6th Cir. 2004). It follows that reasonable jurists also could not debate th
district court’s conclusion that appellate counsel reasonably dedined to raise an exeessrv. a.
prejudice.
Claim Twelve - Extradition Matters
Hoerig claims that the prosecutor violated the extradition heaty between the Umted State,
and Brazil by using false affidavits to secure her extradition, which violated her constobonaln^hg
to be tried in Brazil. The district court determined that Hoeng farle to r en
information that influenced her extradition proceedings and that, moreover, he.: argumen
regarding extradition were beyond the scope of federal habeas review. Indeed,
t e scope
claim that trial counsel faded to object to allegedly false testimony.
3 The same goes for Hoerig’s
A-4
No. 24-3382
-12habeas review of an extradition action is highly constrained,” and “‘[h]abeas corpus is available
only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the
treaty and, by a somewhat liberal extension, whether there was any evidence warranting a finding
that there was reasonable ground to believe the accused guilty.’” In re Drayer, 190 F.3d 410,415
(6th Cir. 1999) (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)). None of Hoerig’s
arguments fall into these categories. Jurists of reason thus could not debate the district court’s
rejection of Hoerig’s IAAC claim related to her extradition.
The court therefore DENIES the motion for a COA.
ENTERED BY ORDER OF THE COURT
dy L. S^hens, Clerk
UNITED states court of appeals
for THE SIXTH CIRCUIT
FILED
Jan 21,2025
KELLY L. STEPHENS, Clerk
No. 24-3382
CLAUDIA C. HOERIG,
Petitioner-Appellant,
v.
WARDEN SHANNON OLDS,
Respondent-Appellee.
Before: BOGGS, Circuit Judge.
certifies™?
JUDGMENT
befOre 1116
"pon
WUcata by Claudia C. Hoerig for a
WON FULL REVIEW of the record Md my submissions
rr IS ORDERED that the application for a certificate of appealability is DENIED.
entered by order of the COURT
Case: 24-3382
Document: 20-1
Filed: 03/26/2025
/------------ --------FILED
No. 24-3382
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CLAUDIA C. HOERIG,
Page: 1
X______ __ ______ /
)
)
)
1
v.
ORDER
)
WARDEN SHANNON OLDS,
)
)
Respondent-Appellee.
)
Before: NORRIS, MOORE, and READLER, Circuit Judges.
Claudia C. Hoerig, a pro se Ohio prisoner, petitions for rehearing en banc of this court’s
order on entered January 21, 2025, denying her motion for a certificate of appealability. The
petition was initially referred to this panel, on which the original deciding judge does not sit. After
review of the petition, this panel issued an order announcing its conclusion that the original
application was properly denied. The petition was then circulated to all active members of the
court, none of whom requested a vote on the suggestion for an en banc rehearing. Pursuant to
established court procedures, the panel now denies the petition for rehearing en banc.
ENTERED BY ORDER OF THE COURT
Kelly L. S^hens, Clerk
ll
Mar 26, 2025
KELLY L. STEPHENS, Clerk
)
Petitioner-Appellant,
(1 of 2)
APPENDIX-B
Hoerig v. Smith, 2024 U.S. Dist. LEXIS 71494 (Opinion: N.D. Ohio) (April 19, 2024)
APPENDIX (B)
Case: 4:22-cv-00300-PAB Doc #: 85 Filed: 04/19/24 1 of 76. PagelD #: 9970
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Claudia C. Hoerig,
Case No. 4:22-cv-00300
Petitioner,
-vs-
JUDGE PAMELA A. BARKER
Magistrate Judge Carmen E. Henderson
Warden Shelbie Smith,
Respondent
MEMORANDUM OPINION AND
ORDER
This matter is before the Court upon the Report & Recommendation (“R&R”) of Magistrate
Judge Carmen E. Henderson (Doc. No. 70), which recommends that the Petition of Writ of Habeas
Corpus filed by Petitioner Claudia C. Hoerig (“Hoerig”) pursuant to 28 U.S.C. § 2254 be dismissed.
Hoerig has filed Objections to the R&R. (Doc. No. 82.)
For the following reasons, Hoerig’s Objections (Doc. No. 82) are OVERRULED and the
Magistrate Judge’s R&R (Doc. No. 70) is ACCEPTED as set forth herein.
I.
Summary of Facts
Hoerig challenges the constitutionality of her conviction and sentence for aggravated murder
of her husband, Karl Hoerig (“Karl”), in the case of State v. Hoerig, Trumbull County Court of
Common Pleas, Case No. 2007 CR 00269. The state appellate court summarized the facts underlying
Hoerig’s conviction as follows:1
H21} . . . [Hoerig] learned , that she was pregnant for the third time on March 9
(Friday), 2007. She knew that [Karl] wanted to divorce, but she decided that she would
try to save the marriage and, if tha?failed, she would kill herself. On that day she made
1 The facts as presented in the “last reasoned state-court opinion” are “presumed to be correct” and can only be rebutted
by “clear and convincing evidence.” Gibbs v. Huss, 12 F.4th 544, 546 (6th Cir. 2021). See also’28 U.S.C, § 2254(e)(1).
Case: 4:22-cv-00300-PAB Doc #: 85 Filed: 04/19/24 2 of 76. PagelD #: 9971
arrangements to have $9,900, the balance of her personal savings, wired to her father
in Brazil. She did not want [Karl] to have the money if she killed herself.
{1p2} [Karl] was out of town on the weekend of March 10 to 11. [Hoerig] searched
the internet for information about killing oneself with a gun.
{^23} On March 10, [Hoerig] purchased the .357 Magnum, the laser grip, and
ammunition and took the gun to a firing range for practice. [Hoerig] explained that,
based on what she had learned from the internet, she was concerned about recoil and
how that could affect her aim. She did not want to maim herself and survive the suicide
attempt. She practiced with a laser sight to see what effect recoil was having on her
accuracy. After practicing, she purchased additional ammunition at Gander Mountain.
{5[24} That weekend she built a gun mount in the closet of the upstairs bedroom
because she continued to be concerned about recoil. She set the mount at the height
her head would be at if she were sitting on a chair in front of the closet. She also
drafted a letter pleading with [Karl] not to leave her which she sent to him as well as
a few of his friends.
{^25} [Karl] returned home on the morning of March 12, 2007. [Hoerig] confronted
him with the pregnancy and they began to argue. The argument became heated and
they began to struggle. Then [Karl] stopped fighting and went to take a shower.
[Hoerig] started drinking and continued until she was intoxicated.
{^26} When [Karl] finished showering (after about an hour), [Hoerig] stood before
him with the .357 Magnum pointed at her head. She wanted his attention and to
impress upon him that she was both serious about having the baby and desperate to
save their relationship. [Karl] stared at her for about ten seconds, then grabbed her and
threw her to the floor. He told her “that was a good idea” but she should wait for him
to leave the house and do it in the basement so she would not splatter blood on his
paintings.
{5[27} [Hoerig] testified she became very angry and described thus what happened
next:
I thought to myself, well, that’s it. There’s no more talking. I’m gonna
kill myself. But you know what? If I’m gonna die, * * * he’s gonna get
his wish. This child is gonna die. The three of us are gonna die here
right now. So I just — when he started going down the steps, I just got
up real fast and positioned myself behind him and I shot the first time,
and he died instantly. * * * And he just fell. * * * The position that he
fell on the floor, he never moved from that position.
[Hoerig] believed that she “shot three times” and “hit him three times, saving two
bullets for herself.” She fired the second and third shots “next to him downstairs.” She
B”2
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did not realize that she had fired five shots. She then went upstairs to the bedroom
with the suicide mount to kill herself but the gun did not fire. She reloaded it.
{^28} At this point, [Hoerig] hesitated and decided to call her family in Brazil to say
goodbye. They urged her not to kill herself but to return to Brazil instead. [Hoerig]
decided to flee. She went to the bank where she kept her passport in a safe deposit box
and withdrew some money from a checking account and then proceeded to the airport
in Pittsburgh.
State v. Hoerig, 2020 WL 1685624, at *3 (Ohio App. 11th Dist. Apr. 6,2020). In addition to Hoerig’s
own testimony, the state appellate court summarized the testimony of the State’s witnesses as follows:
H4} Krista Bridges, a friend of [Karl], testified that, in August 2006, she was at a
bachelorette party at which [Hoerig] was also present. While talking about [Karl], she
heard [Hoerig] comment that, “if he ever leaves me, I’d kill him.”
H5} Donald Schrecengost testified that, in February 2007, he arranged with [Karl] to
rent a house on West Broad Street in Newton Falls. Schrecengost received a deposit
from [Karl] and gave him the house key.
{W Daniel Henry, a friend of [Karl], testified that, in February 2007, [Karl] confided
that his marriage with [Hoerig] was failing and that they were going to divorce. [Karl]
showed Henry the house on Broad Street where he intended to live after they
separated.
{^7} Brian Martin testified that, on March 10 (Saturday), 2007, he was an employee
of Slugmasters gun shop in Leavittsburg. On that date, he sold [Hoerig] a Smith &
Wesson .357 Magnum Revolver, Crimson Trace Laser Grip (which he installed for
her), and .38 and .357 hollow point ammunition. According to Martin, [Hoerig]
claimed she wanted a firearm for home protection, asked several questions, and made
notes of their conversation in a concealed carry handbook.
H8} Richard Sliter, Jr. testified that, on March 10, 2007, he was an employee of the
JCL Shooting Range in Warren. On that date, [Hoerig] used the range to practice firing
a .357 Magnum with laser sights.
H9} Harry Dodge, a friend of [Karl], testified that he was aware [Karl] intended to
leave [Hoerig] and had invited him to stay at his home. They were members of 910th
Airlift Wing based at Youngstown-Warren Air Reserve Station. On the morning of
March 15 (Thursday), 2007, Dodge learned that [Karl] had failed to report at the base
the previous evening. Dodge contacted the police to request a welfare check on [Karl].
{5[ 10} Ron Lane, formerly with the Newton Falls Police Department, testified that, on
March 15, 2007, he was dispatched to a residence at 64 West Ninth Street in Newton
Case: 4:22-cv-00300-PAB Doc #: 85 Filed: 04/19/24 4 of 76. PagelD #: 9973
Falls to perform a welfare check. Lane discovered [Karl’s] body at the bottom of a
flight of stairs.
{5fl 1} Pete Pizzulo, formerly a sergeant in the detective bureau of the Trumbull
County Sheriff’s Department, conducted an investigation of the killing. Pizzulo
testified that, based on the odor and other indicators, [Karl] had been dead for a few
days. His body was face-down and covered with a comforter and tarp. He had been
shot three times. Two other shots had been fired, striking the floor near the body and
continuing into the basement. There was a water bottle and a pair of shoes near the
body.
{1fl2} In an upstairs bedroom, Pizzulo found a bottle of alcohol on the bed. In the
bedroom closet, a two by four had been screwed to the wall and a hole drilled in the
middle of the board. The muzzle of a .357 Magnum, loaded and cocked, was inserted
into the hole and aiming into the bedroom.
{1113} Pizzulo attempted to contact [Hoerig] by phone without success: A BMW
belonging to the couple was found at the Pittsburgh airport and it was learned that
[Hoerig] had flown from Pittsburg[h] to New York and thence to her native Brazil.
{TJ14} Andrew Chappell, a forensic scientist in the firearms section of the Ohio Bureau
of Criminal Investigation, testified that the bullet fragments and cartridges recovered
from the scene were .38 caliber hollow points fired from the .357 Magnum found in
the bedroom.
{1J15} Christopher Jester, a Trooper in the Ohio State Highway Patrol’s Crash and
Crime Scene Reconstruction Unit, testified that, based on the trajectory of the two
bullets striking the floor, the shooter would likely have fired from the landing at the
top of the steps or from the first and second step at the bottom of the staircase.
{5[16} Joseph Felo, a forensic pathologist and chief deputy medical examiner for
Cuyahoga County Medical Examiner’s Office, testified regarding the three gunshot
wounds. Wound A was a nonfatal, penetrating gunshot wound caused by a bullet
entering [Karl’s] right upper back and travelling through the body at a steep upwards
angle before shattering the right shoulder. Wound B was a fatal, penetrating gunshot
wound where the bullet entered [Karl’s] back closer to the neck and spine than the
bullet that caused wound A. The bullet traveled downward and to the left piercing a
lung and his aorta before ending behind the left nipple. Wound C was a fatal,
perforating gunshot wound in which the bullet entered the right side of his head, exited
the left side, and lodged in the floor underneath the head.
{^17} Dr. Felo opined that wound A was caused first, possibly while [Karl] was bent
over at the bottom of the stairs tying a shoe. Wound B was caused after [Karl] had
fallen to the floor which prevented the bullet from exiting the body. Dr. Felo could not
estimate the distance at which the bullets were fired causing wounds A and B. The
'4
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bullet that caused wound C was fired from a distance of 12 to 24 inches based on the
presence of stipple wounds. Dr. Felo noted that there were no signs of bruises or
lacerations on the body such as would indicate that [Karl] had fallen down the stairs.
{Hl 8} Anthony Sano, an agent with the Federal Bureau of Investigation, testified that,
on January 17,2018, he escorted [Hoerig] on a flight from Brazil to the Akron-Canton
Airport. During the flight, [Hoerig] admitted killing [Karl] but remarked that “a wife
doesn’t kill her husband without having a good reason.”
{H19} Mike Yannucci, a sergeant with the Trumbull County Sheriffs Office,
interviewed [Hoerig] upon her return to Ohio on January 17,2018. A video recording
of the interview was played for the jury.
{120} In the video, [Hoerig] stated she met [Karl] online and they dated for about two
months before marrying in June 2005. According to [Hoerig], the marriage was
volatile. She suffered two miscarriages and went into depression and claimed that
[Karl] was also depressed. By 2007, she had become suicidal. After a confrontation
with [Karl] on the morning of March 12, 2007, she shot and killed him.
Id. at *1-2.
II.
Procedural History
A.
State Court Proceedings
1.
Trial Court Proceedings
On April 24,2007, a Trumbull County Grand Jury indicted Hoerig on one count of aggravated
murder for “purposely, and with prior calculation and design, caus[ing] the death of Karl Hoerig” in
violation of Ohio Revised Code §§ 2903.01(A) & (F), which count included a three-year firearm
specification under Ohio Revised Code § 2941.145. (Doc. No. 30-1, Ex. 1 at PageID#s 1205-07.)
On April 24, 2007, an arrest warrant was issued upon Hoerig’s indictment. (Id., Ex. 2 at PagelD#
1211.) On April 20, 2016, Hoerig was arrested in Brazil for extradition to the United States. (Id.,
Ex. 10 at PagelD# 1439.) Hoerig was later extradited to the United States and was arrested in
Trumbull County, Ohio, on January 17, 2018. (Id. at PagelD# 1438.)
U5 $
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On February 1, 2018, the State filed a motion to determine speedy trial calculation and trial
date. (Id, Ex. 6 at PagelD# 1228.) Hoerig, through trial counsel, filed a combined response to the
State’s motion and motion to dismiss for lack of a speedy trial on February 16, 2018. (Id., Ex. 7 at
PagelD# 1233.) The state filed an answer to Hoerig’s motion to dismiss on March 13, 2018, and
Hoerig filed a supplemental brief in support of her motion to dismiss on March 20, 2018. (Id., Exs.
8, 9.) On March 22, 2018, the trial court concluded that Hoerig’s speedy trial rights had not been
violated and denied her motion to dismiss. (Id., Ex. 10.) Hoerig signed a written speedy trial waiver
on March 15, 2018, which continued the trial date to September 17, 2018. (Id., Ex. 11.) Hoerig
executed another written speedy trial waiver on September 6,2018, which continued her trial date to
January 14,2019. (Id, Ex. 12.)
On April 16, 2018, Hoerig filed a motion to suppress evidence seized as a result of searches
of her home and automobiles. (Doc. No. 30-1, Ex. 13.) The trial court held a hearing on Hoerig’s
motion to suppress on May 4 and May 5, 2018. (Id., Ex. 20.) The parties then submitted proposed
findings of fact and conclusions of law. (Id, Exs. 14, 15.) After they were filed, the trial court
required the parties to submit supplemental briefing. (Id. Ex. 16.) Following the parties’ submission
of supplemental briefing, the trial court held an additional hearing on Hoerig’s motion to suppress on
August 9,2018. (Id.,Exs. 17,18,19,20.) On August 16,2018, the trial court denied Hoerig’s motion
to suppress. (Id, Ex. 20.)
On April 19, 2018, Hoerig filed a motion to change venue “to ensure that [Hoerig] receives a
fair trial before a jury untainted by pre-trial publicity.” (Id., Ex. 22 at PagelD# 1529.) The trial court
denied Hoerig’s motion to change venue on January 15, 2019. (Id., Ex. 23.)
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Hoerig’s case proceeded to trial on January 14, 2019, and on January 24,2019, the jury found
Hoerig guilty of aggravated murder and the firearm specification. (Id., Ex. 24.) Following a
sentencing hearing, on February 8, 2019, Hoerig was sentenced to life imprisonment without the
eligibility of parole for twenty-five years, plus three years imprisonment on the firearm specification
to “be served prior to and consecutive to the underlying charge for a total imprisonment term prior to
parole eligibility of twenty-eight full years.” (Id, Ex. 26.)
2.
Direct Appeal
Hoerig, through new counsel, challenged her conviction and sentence on direct appeal. (Id,
Ex. 27.) Hoerig raised the following five grounds for relief:
I.
The jury’s finding that appellant had committed [the] crime of aggravated
murder was not supported by sufficient evidence.
II.
Appellant[‘]s conviction is against the manifest weight of the evidence.
III.
The trial court erred and abused [its] discretion by repeatedly permitting the
state to make arguments during opening statements.
IV.
The trial court erred and abused its discretion by making a series of evidentiary
rulings, over the objection of Appellant’s trial counsel, which caused
Appellant to suffer prejudice in the proceedings.
V.
The cumulative effect of various errors occurring in the trial of the case at bar
served to deprive Appellant of her right to a fair trial.
(Id. at PageID#s 1574-76.) On April 6, 2020, the state appellate court affirmed Hoerig’s conviction
and sentence. See State v. Hoerig, 2020 WL 1685624 (Ohio App. 8th Dist. Apr. 6, 2020)
On December 17, 2020, after obtaining leave to file a delayed appeal, Hoerig, acting prose,
filed a memorandum in support of jurisdiction with the Supreme Court of Ohio. (Doc. No. 30-1 at
Exs. 34, 35.) In her memorandum in support of jurisdiction, Hoerig raised the following five
propositions of law:
"8 “■ ?
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I.
Whether the trial court erred and abused its discretion to the prejudice of the
defendant in denying her Crim. R. 29(A) motion for acquittal before closing
arguments because the State failed to present sufficient evidence of
premeditation and prior calculation and design to support a conviction of
aggravated murder beyond a reasonable doubt, in violation of defendant’s due
process rights under the Fourteenth Amendment to the United States
Constitution, thereby mandating a reversal.
II.
Whether the conviction of Claudia Hoerig is against the manifest weight of the
evidence.
III.
Whether the trial court erred and abused [its] discretion by repeatedly
permitting the State to make arguments during opening statements.
IV.
Whether the trial court erred and abused its discretion by making a series of
evidentiary rulings, over the objection of Appellant’s trial counsel, which
caused Appellant to suffer prejudice in the proceedings.
V.
Whether the cumulative effect of various errors occurring in the trial of the
case at bar served to deprive Appellant of her right to a fair trial.
(Doc. No. 30-1, Ex. 35.) On March 2,2021, the Supreme Court of Ohio declined to accept jurisdiction
of Hoerig’s appeal pursuant to Ohio Supreme Court Rule of Practice 7.08(B)(4). (Id., Ex. 37.) See
also State v. Hoerig, 163 N.E.3d 593 (Ohio 2021) (Table); S. Ct. Prac. R. 7.08(B)(4). Hoerig did not
file a petition for a writ of certiorari in the Supreme Court of the United States before her deadline to
do so expired on May 31, 2021. See Sup. Ct. R. 13.
3.
Rule 26(B) Application to Reopen
On October 28, 2020, Hoerig, acting pro se, filed an application to reopen her direct appeal
pursuant to Ohio Rule of Appellate Procedure 26(B). (Doc. No. 30-1, Ex. 38.) In her Rule 26(B)
application, Hoerig asserted that her direct appeal should be reopened because her appellate counsel
was ineffective for failing to raise the following seven assignments of error in her direct appeal:
1.
Claudia Hoerig was denied her rights of due process and assistance of counsel
as guaranteed by the Sixth and Fourteenth Amendments of the United States
Constitution and Article 1, Section[s] 10 and 16 of the Ohio Constitution
Case: 4:22-cv-00300-PAB Doc #: 85 Filed: 04/19/24 9 of 76. PagelD #: 9978
because her trial counsel and her appellate counsel provided ineffective
assistance.
2.
The trial court erred and abused its discretion by denying Claudia’s 02-16-18
and 03-20-18 motions to dismiss due to speedy trial violation pursuant to
[O.]R.C[.] 2945, without a hearing in its journal entry dated 03-22-2018 and
shifted the burden of proof to the defendant, as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and Article 1,
Section 10 of the Ohio Constitution. This is a[l]so [a] violation of due process
because Claudia was not given a chance to defend against the accusations of
the State.
3.
The trial court erred and abused its discretion by denying Claudia’s motion for
a change of venue without a hearing and took nine months to rule on the motion
in violation of due process. Trial court violated due process because the court
release[d] a film of her confession to police and it was repeatedly broadcasted
on television and also [the] prosecutor hired CBS news to air a story on her
case twice before her trial and also for 12 years used the local newspaper which
had her as their top 3 story every year. Her story saturated the community for
12 years and prejudice resulted from disruptive influences in the courtroom. It
was massive, pervasive and prejudicial and it took the jury less than one hour
to come up with [a] verdict, they didn’t even watch her 3-hour DVD
deposition. She has a difficult to understand foreign accent which would
require to watch at[] least once while deliberating.
4.
The prosecutor engaged in misconduct to violate the treaty between the United
States and Brazil. The trial court erred and abused its discretion by not
addressing the issue raise[d] in her pro se motion and her habeas corpus that
the prosecutor had produced false affidavits and employed the media for 12
years, and political help, used federal public money to bribe the Brazilian
Government to violate the Treaty of Extradition between the United States and
Brazil, without due diligence, violating] Claudia’s constitutional rights from
12 years to be tried and Brazil, pe[]r Articles V, VII, XI of the Treaty.
5.
Prosecutorial misconduct resulted in an unfair trial - the prosecution failed to
correct knowingly false testimony in violation of her due process rights as
found in the Fourteenth Amendment[] to the United States Constitution.
Counsel failed to challenge false testimony. Prejudice resulted. There was and
Sections 10 and 16, Article 1 of the Ohio Constitution.
6.
The prosecution failed to disclose exculpatory evidence to Appellant] in
violation of her due process rights as found in the Fourteenth Amendment[] to
the United States Constitution and Sections 10 and 16, Article 1 of the Ohio
Constitution.
B- ’
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7.
The trial court excessive bail journal entry violated Hoerig’s due process
clause of the Fourteenth Amendment, and the excessive fines clause of the
Eighth Amendment to the United States Constitution and Section 9, Article 1
of the Ohio Constitution.
(Id. at PageID#s 1771-75.) On December 22, 2020, the state appellate court denied Hoerig’s Rule
26(B) application. (Id., Ex. 41.) On February 1, 2021, Hoerig, acting pro se, filed a memorandum
in support of jurisdiction with the Supreme Court of Ohio concerning the denial of her Rule 26(B)
application, setting forth the following seven propositions of law:
1.
WHETHER Claudia was denied her Sixth Amendment Right to Assistance of
Counsel; and her Fourteenth Amendment Right to DUE PROCESS as
guaranteed by the United States Constitution and by the Article 1 of Sectionfs]
10 and 16 of the Ohio Constitution, WHEN her trial counsel and appellate
counsel provided ineffective assistance.
2.
WHETHER trial court erred and abused its discretion in violation of the
SPEEDY TRIAL Clause and the DUE PROCESS Clause as guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution Article 1
of Section 10 of the Ohio Constitution WHEN it denied Claudia’s 02-16-2018
and 03-20-2018 MOTIONS TO DISMISS DUE TO SPEEDY TRIAL
VIOLATION pursuant to O.R.C. 2945.71 without a hearing in its journal entry
03-22-2018 and shifted the burden of proof to the Defendant, and denying
Claudia the DUE PROCESS opportunity to defend against the accusations of
the State.
3.
WHETHER trial court erred and abused its discretion in violation of DUE
PROCESS CLAUSE and the CONFRONTATION CLAUSE as guaranteed by
the Fourteenth and Sixth Amendments of the United States Constitution
Article 1 Sectionfs] 10 and 16 of the Ohio Constitution WHEN it denied
Claudia’s MOTION FOR A CHANGE OF VENUE without a hearing, WHEN
it took nine months to rule on the motion; WHEN it released to the media a
film of her misconstrued confession to the police which was repeatedly
broadcasted on television; WHEN prosecutor hired CBS Network to air a story
on her case twice before her trial; WHEN prosecutor used the local newspaper
which had Claudia as their “TOP-3-STORY OF THE YEAR”; WHEN her
story saturated the community for 12 years and prejudice[] resulted from
disruptive influences in the courtroom; WHEN publicity was invasive,
persuasive and prejudicial; and WHEN it took the jury only one hour to come
up with a verdict, indicating that the jury didn’t even watch her 3-hour-DVD
B- io
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deposition; WHEN Claudia has a difficult to understand foreign accent which
would require the jury to watch her DVD at least once while deliberating.
4.
WHETHER the prosecutor engaged in misconduct (malfeasance) to violate the
Extradition Treaty between Brazil and the United States, and WHETHER the
trial court erred and abused its discretion WHEN it did not address these issues
which were raised in her pretrial pro se motion and in her Habeas Corpus
claiming that the prosecutor had engaged in pretrial malfeasance producing
false affidavits, employing the media for 12 years, using political help, using
public money to bribe the Brazilian Attorney General to violate the Treaty of
Extradition, not exercising Due Diligence and violating Claudia’s
constitutional Rights for 12 years to be tried in Brazil per Articles V, VII and
XI of the Treaty.
5.
WHETHER Claudia was denied her right to a FAIR TRIAL and DUE
PROCESS as found in the Fourteenth Amendment to the United States
Constitution and in Article 1 of Sections 10 and 16 of the Ohio Constitution,
WHEN prosecutor engaged [in] misconduct and failed to correct knowingly
false testimony; and WHETHER Claudia was denied her right to have
effective assistance of counsel as guaranteed by the Sixth Amendment to the
United States Constitution, and Article 1 of Sections 10 and 16 of the Ohio
Constitution, WHEN her trial counsel failed to challenge prejudicial false
testimony.
6.
WHETHER Claudia was denied her Fourteenth Amendment Right to a FAIR
TRIAL and her right to DUE PROCESS; and her Sixth Amendment Right to
the CONFRONTATION Clause, as found in the United States Constitution
and in Article 1 of Sections 10 and 16 of the Ohio Constitution, WHEN
prosecutor failed to disclose EXCULPATORY EVIDENCE.
7.
WHETHER Claudia was denied her right to DUE PROCESS as found in the
Fourteenth Amendment to the United States Constitution and the EXCESSIVE
FINE Clause of the Eighth Amendment to the United States Constitution and
Article 1 of the Section 9 of the Ohio Constitution, WHEN the trial court issued
a Journal Entry setting excessive bail.
{Id., Ex. 43 at PageID#s 1910-11.) On April 13,2021, the Supreme Court of Ohio declined to accept
jurisdiction of Hoerig’s appeal of the denial of her Rule 26(B) application pursuant to Ohio Supreme
Court Rule of Practice 7.08(B)(4). {Id., Ex. 45.) See also State v. Hoerig, 166 N.E.3d 17 (Ohio 2021)
U- 11
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(Table); S. Ct. Prac. R. 7.08(B)(4). Hoerig did not file a petition for a writ of certiorari in the Supreme
Court of the United States before her deadline to do so expired on July 12, 2021. See Sup. Ct. R. 13.
B.
Federal Habeas Proceedings
On February 18, 2022, Hoerig filed a pro se Petition for Writ of Habeas Corpus, with an
accompanying Draft Memorandum in Support of her Petition.2 (Doc. Nos. 1, 14, 14-1.) Hoerig
asserts the following twelve grounds for relief:
Ground 1 - Insufficiency of Evidence
Supporting Facts: THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION TO THE PREJUDICE OF THE DEFENDANT IN DENYING HER
CRIM.R 29(A) MOTION FOR ACQUITTAL BEFORE CLOSING ARGUMENTS
BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF
PREMEDITATION AND PRIOR CALCULATION AND DESIGN TO SUPPORT
A CONVICTION OF AGGRAVATE[D] MURDER BEYOND A REASONABLE
DOUBT, IN VIOLATION OF DEFENDANT’S DUE PROCESS RIGHTS UNDER
THE SIXTH, FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION, THEREBY MANDATING TO VACATE SENTENCE.
Ground 2 — Due Process / Manifest Weight of Evidence
Supporting Facts: THE CONVICTION OF CLAUDIA HOERIG IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, DEPRIVING
CLAUDIA OF HER RIGHT TO A FAIR TRIAL AND DUE PROCESS IN
VIOLATION OF HER RIGHTS TO DUE PROCESS UNDER THE SIXTH, FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Ground 3 - Due Process / Trial Court Abuse of Discretion
Supporting Facts: THE TRIAL COURT ERRED AND ABUSED [ITS]
DISCRETION BY REPEATEDLY PERMITTING THE STATE TO MAKE
ARGUMENTS DURING OPENING STATEMENTS, DEPRIVING CLAUDIA OF
HER RIGHT TO A FAIR TRIAL AND DUE PROCESS IN VIOLATION OF HER
RIGHTS TO DUE PROCESS UNDER THE SIXTH, FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
2 Even though, on February 18, 2022, Hoerig filed a “Draft” Memorandum in Support of her Petition (“Draft
Memorandum”), on May 2,2022, with the Court’s leave, Hoerig filed a Revised Memorandum in Support of her Petition
(“Revised Memorandum”), which was meant to replace Hoerig’s Draft Memorandum. (Non-Document Order, Mar. 18,
2022; Doc. No. 4; Doc. No. 14-l;Doc.No. 14-1 at PagelD# 30.) The Court will consider Hoerig’s Revised Memorandum
throughout this Memorandum Opinion and Order.
12
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Ground 4 - Due Process / Trial Court Abuse of Discretion / Evidentiaiy Hearing
Supporting Facts: THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY MAKING A SERIES OF EVIDENTIARY RULINGS OVER
THE OBJECTION OF APPELLANT’S TRIAL COUNSEL, WHICH CAUSED
APPELLANT TO SUFFER PREJUDICE IN THE PROCEEDINGS, DEPRIVING
CLAUDIA OF HER RIGHT TO A FAIR TRIAL AND DUE PROCESS IN
VIOLATION OF HER RIGHTS TO DUE PROCESS UNDER THE SIXTH, FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Ground 5 - Due Process / Unfair Trial / Cumulative Effect
Supporting Facts: THE CUMULATIVE EFFECT OF VARIOUS ERRORS
OCCURIfNG] IN THE TRIAL OF THE CASE AT BAR SERVED TO DEPRIVE
APPELLANT OF HER RIGHT TO A FAIR TRIAL AND DUE PROCESS IN
VIOLATION OF HER RIGHTS TO DUE PROCESS UNDER THE SIXTH, FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
Ground 6 - Ineffective Assistance of Counsel
Supporting Facts: CLAUDIA WAS DENIED HER SIXTH AMENDMENT
RIGHT TO ASSISTANCE OF COUNSEL, AND HER SIXTH, FIFTH AND
FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AS GUARANTEED
BY THE UNITED STATES CONSTITUTION, WHEN HER TRIAL COUNSEL
AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.
Ground 7 - Speedy Trial Violation
Supporting Facts: TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN VIOLATION OF THE SPEEDY TRIAL CLAUSE AND THE
DUE PROCESS CLAUSE AS GUARANTEED BY THE SIXTH, FI[F]TH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
WHEN IT DENIED CLAUDIA’S 02-16-2018 AND 03-20-2018 MOTIONS TO
DISMISS DUE TO SPEEDY TRIAL VIOLATION PURSUANT TO O.R.C. 2945.71
WITHOUT A HEARING IN ITS JOURNAL ENTRY 03-22-2018 AND SHIFTED
THE BURDEN OF PROOF TO THE DEFENDANT, AND DENIED CLAUDIA
THE DUE PROCESS OPPORTUNITY TO DEFEND AGAINST THE
ACCUSATIONS OF THE STATE.
Ground 8 - Due Process / Change of Venue Was Warranted
Supporting Facts: TRIAL COURT ERRED AND ABUSED II
DISCRETION IN VIOLATION OF DUE PROCESS CLAUSE AND TF
CONFRONTATION CLAUSE AS GUARANTEED BY THE FIFT
FOURTEENTH AND SIXTH AMENDMENT^] OF THE UNITED STAT
CONSTITUTION WHEN IT DENIED CLAUDIA’S MOTION FOR A CHAN
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OF VENUE WITHOUT A HEARING; WHEN IT TOOK NINE MONTHS TO
RULE ON THE MOTION; WHEN IT RELEASED TO THE MEDIA A FILM OF
HER MISCONSTRUED CONFESSION TO THE POLICE WHICH WAS
REPEATEDLY BROADCASTED ON TELEVISION; WHEN PROSECUTOR
HIRED CBS TV-NETWORK TO AIR A STORY ON HER CASE TWICE BEFORE
HER TRIAL; WHEN PROSECUTOR USED THE LOCAL NEWSPAPER WHICH
HAD CLAUDIA AS THEIR “TOP-3-STORY-OF-THE YEAR”; WHEN HER
STORY SATURATED THE COMMUNITY FOR 12 YEARS AND PREJUDICE
RESULTED FROM DISRUPTIVE INFLUENCES IN THE COURTROOM; WHEN
PUBLICITY WAS MASSIVE, PERVASIVE, AND PREJUDICIAL; AND WHEN
IT TOOK THE JURY ONLY ONE HOUR TO COME UP WITH A VERDICT,
INDICATING THAT THE JURY DIDN’T EVEN WATCH HER 3-HOUR DVD
DEPOSITION; WHEN CLAUDIA HAS A DIFFICULT TO UNDERSTAND
FOREIGN ACCENT WHICH WOULD REQUIRE THE JURY TO WATCH HER
DVD AT LEAST ONCE DURING DELIBERATION.
Ground 9 - Due Process / Prosecutorial Misconduct & Napue
Supporting Facts: CLAUDIA WAS DENIED HER RIGHT TO A FAIR
TRIAL AND DUE PROCESS AS FOUND IN THE SIXTH, FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
WHEN PROSECUTOR ENGAGED IN MISCONDUCT AND FAILED TO
CORRECT KNOWINGLY FALSE TESTIMONY AND WHETHER CLAUDIA
WAS DENIED HER RIGHT TO HAVE EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION WHEN HER TRIAL COUNSEL FAILED TO CHALLENGE
PREJUDICIAL FALSE TESTIMONY.
Ground 10 - Due Process I Prosecutorial Misconduct & Brady Violation
Supporting Facts: CLAUDIA WAS DENIED HER SIXTH, FIFTH AND
FOURTEENTH AMENDMENT RIGHTS AND BRADY RIGHTS TO A FAIR
TRIAL AND HER RIGHT TO DUE PROCESS; AND HER SIXTH AMENDMENT
RIGHT TO THE CONFRONTATION CLAUSE, AS FOUND IN THE UNITED
STATES CONSTITUTION WHEN PROSECUTOR FAILED TO DISCLOSE
EXCULPATORY EVIDENCE.
Ground 11 - Due Process / Judicial Misconduct & Excessive Bail
Supporting Facts: CLAUDIA WAS DENIED HER RIGHT TO DUE
PROCESS AS FOUND IN THE SIXTH, FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES, AND THE EXCESSIVE FINE
CLAUSE OF THE EIGHTH AMENDQMENT TO THE UNITED STATES
CONSTITUTION, WHEN THE TRIAL COURT ISSUED A JOURNAL ENTRY
SETTING AN EXCESSIVE BAIL IN THE AMOUNT OF $10,000,000.00 AND
THE DOCKET SHEET SHOWED A DIFFERENT AMOUNT.
V— 14
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Ground 12 — Violation of the Extradition Treaty
Supporting Facts: THE PROSECUTOR ENGAGED IN MISCONDUCT
(MALFEASANCE) TO VIOLATE THE EXTRADITION TREATY BETWEEN
BRAZIL AND THE UNITED STATES, AND WHETHER THE TRIAL COURT
ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT ADDRESS
THESE ISSUES WHICH WERE RAISED IN HER PRETRIAL PRO SE MOTION
AND IN HER HABEAS CORPUS 18 USCS 2241 CLAIMING THAT THE
PROSECUTOR HAD ENGAGED IN PRETRIAL MALFEASANCE PRODUCING
FALSE AFFIDAVITS, EMPLOYING THE MEDIA FOR 12 YEARS, USING
POLITICAL HELP, USING PUBLIC MONEY TO BRIBE THE BRAZILIAN
PROSECUTOR TO VIOLATE THE TREATY OF EXTRADITION, NOT
EXERCISING DUE DILIGENCE, AND VIOLATING CLAUDIA’S
CONSTITUTIONAL RIGHTS FOR 12 YEARS TO BE TRIED IN BRAZIL, PER
ARTICLES V, Vn, AND XI OF THE TREATY.
(Doc. No. 14-1 at PageID#s 39—41.)
Hoerig also sent to the Youngstown, Ohio, courthouse a box of exhibits (marked A-Z) totaling
over 5,000 pages. (Non-Document Remark, Mar. 10,2022; Doc. Nos. 11,12.) The Magistrate Judge
noted that the box of “(v]oluminous exhibits [were] manually filed and maintained in the Clerk’s
Office.” (Non-Document Remark, Mar. 10, 2022.) Nevertheless, Hoerig requested that the box of
exhibits be scanned in and “file[d] in the Court’s ECF system.” (Doc. Nos. 11, 12, 15.) The
Magistrate Judge denied Hoerig’s request and explained that the box of “exhibits are part of the record
and will remain part of the record despite not being scanned into CM/ECF. Should Respondent need
access to the exhibits in order to respond to Petitioner’s petition for habeas relief, Respondent may
contact the Clerk of Court to arrange access.” (Non-Document Orders, May 27, 2022, and June 30,
2022.) Despite this explanation, Hoerig began individually mailing the exhibits from the box of
B" 15
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exhibits for filing.3 (Doc. Nos. 31-33, 35-46, 48, 50, 52, 54, 60; see also Doc. No. 70 at PagelD#
9325 n.3.)4
Respondent Warden Shelbie Smith (“Respondent”) filed a Return of Writ on August 1,2022.
(Doc. No. 30.) On October 18,2022, Respondent filed a Reply to Hoerig’s Traverse and Supplements
thereto. (Doc. No. 59.)
On February 15, 2023, the Magistrate Judge issued an R&R, recommending that Hoerig’s
Petition be denied in its entirety, and that the Court not issue a certificate of appealability. (Doc. No.
70.)5
Hoerig, following an extension of the objection deadline,6 filed Objections to the R&R on
April 17,2023.7 (Non-Document Order, Mar. 14,2023; Doc. No. 82.) Respondent filed a Response
3 Hoerig also moved to, in relevant part, expand the state court record under Rule 7 of the Rules Governing Section 2254
Cases, which the Magistrate Judge denied. (Doc. Nos. 34,58.)
4 Document Number 60 was stricken upon motion by Respondent. (Doc. No. 61; Non-Document Order, Nov. 1,2022.)
5 On October 3, 2022, Hoerig filed a “Draft” Traverse, along with subsequent “supplements” in support thereof. (Doc.
Nos. 55, 56, 57.) In her R&R, the Magistrate Judge considered Hoerig’s “Draft” Traverse as well as Hoerig’s
supplements. (Doc. No. 70 at PagelD#s 9309-10.)
6 In Hoerig’s Objections is a request for “leave to file supplemental objections.” (Doc. No. 82 at PagelD# 9834.)
However, the only reason Hoerig provides in support of this request is that “the law library has been closed most of the
time,” in part due to the Easter holiday and illness. (Id) This request is denied for several reasons. First, this request is
not a proper request, as it is not presented in a motion and is instead embedded in her Objections. Second, Hoerig does
not provide any authority that would require the Court to grant an extension to file supplemental objections on these
grounds. Lastly, despite the R&R being only 50 pages, Hoerig’s Objections already amass over 300 pages, so there is
little reason why Hoerig would require additional pages to file objections. (Id.) Thus, Hoerig’s reasons for an extension
are insufficient to demonstrate good cause to grant leave to file, yet again, briefings supplemental to the Objections she
has already filed following a nearly forty-five-day extension. The Court declines to give Hoerig another opportunity to
file supplemental objections.
7 Hoerig filed several documents titled “Objections” in March 2023 in which Hoerig asserts in large part that she has not
received a copy of the R&R and requests that the Court make the R&R available on LexisNexis and extend Hoerig’s
deadline to file objections to the Magistrate Judge’s R&R. (Doc. Nos. 74,75,76,77.) None ofthese “Objections” include
any substantive objections but instead and in sum, merely reiterate Hoerig’s representation that she did not receive a copy
of the R&R. After the Court re-sent a copy of the R&R to Hoerig, Hoerig filed substantive Objections addressing the
R&R on April 17,2023 (“Hoerig’s Objections”), which the Court will consider in this Memorandum Opinion and Order
evaluating the R&R. (Non-Document Order, Mar. 14,2023.)
16
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to Hoerig’s Objections on April 28, 2023.8 (Doc. No. 83.) Hoerig filed a Motion for Leave to File
Instanter a Reply to Respondent’s Response on May 8, 2023, which the Court denied on May 9,
2023. (Non-Document Order, May 9,2023.)9
IL
Standard of Review on Objections
Parties must file any objections to a report & recommendation within fourteen days of service.
Fed. R. Civ. P. 72(b)(2). Failure to object within this time waives a party’s right to appeal the district
court’s judgment. See Thomas v. Am, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).
When a district judge reviews a magistrate judge’s resolution of a non-dispositive matter, it
is not a de novo review, as it is in relation to a magistrate judge’s recommendation as to a dispositive
matter.” Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., 2013 WL 992125, at *6 (S.D.
Ohio Mar. 13, 2013). Rather, the Magistrate Judge’s decision is subject to review under Rule 72(a)
and reversal when it “is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). See 237
F.3d at 603; Alvarado v. Warden, Ohio State Penitentiary, 2018 WL 5783676 at *1 (N.D. Ohio Nov.
5, 2018); Phillips v. LaRose, 2019 WL 5729919 at *2 (N.D. Ohio Nov. 5, 2019).
8 On March 27, 2023, Respondent also filed a Response to Hoerig’s “Objection” from March 24, 2023, in which
Respondent argues that Hoerig’s “Objection” failed to address the Magistrate Judge’s R&R and therefore did not present
proper objections. (Doc. Nos. 77, 78.) However, as noted above, Hoerig’s Objection from March 24, 2023, was not an
objection, but rather a request for an extension of time to file her Objections, which she did on April 17, 2023. (Doc.
Nos., 77,82.) Therefore, only Respondent s Response from April 28,2023, will be considered as responsive to Hoerig’s
Objections from April 17, 2023.
Hoerig also filed a Record Correction on February 16, 2023, in which Hoerig sought to correct and re-file missing
pages she alleged were erroneously filed by the Clerk, and on March 3,2023, Respondent filed a response thereto. (Doc.
Nos. 71,72.) For the purposes of this Memorandum Opinion and Order, Hoerig’s Record Correction will be considered
with Hoerig’s Objections. (Doc. No. 71.)
17
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The clearly erroneous standard applies to factual findings, while legal conclusions are
reviewed under the contrary to law standard. E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F.
Supp. 2d 603, 605 (W.D. Tenn. 2009). As the Sixth Circuit has explained, ‘“[a] [factual] finding is
‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’” Bisig v.
Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364,395 (1948)). “An order is ‘contrary to the law’ when it ‘fails to apply or misapplies
relevant statutes, case law, or rules of procedure.’” Id. (quoting United States v. Winsper, 2013 WL
5673617, at *1 (W.D. Ky. Oct. 17, 2013)).
When a petitioner objects to a magistrate judge’s resolution of a dispositive matter, the district
court reviews those objections de novo. Fed. R. Civ. P. 72(b)(3). Specifically, a district judge:
must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id. “A party who files objections to a magistrate [judge]’s report in order to preserve the right to
appeal must be mindful of the purpose of such objections: to provide the district court ‘with the
opportunity to consider the specific contentions of the parties and to correct any errors immediately.’”
Jones v. Moore, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006) (citing Walters, 638 F.2d at 949-
50).
When a party fails to raise a specific objection to a finding of a magistrate judge on a
dispositive matter, “the court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Fed. R. Civ. P. 72(b)(3), Advisory Committee Notes.
See also Thomas, 474 U.S. at 150 (stating that “[i]t does not appear that Congress intended to require
"O,
18
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district court review of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.”)
III.
Legal Standards Regarding AEDPA Petitions
A.
Claims Reviewed on the Merits
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997).
The relevant provisions of AEDPA provide:
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.
28 U.S.C. § 2254(d).
Clearly established federal law is to be determined by the holdings (as opposed to the dicta)
of the United States Supreme Court. See Parker v. Matthews, 567 U.S. 37 (2012); Renico v Lett, 559
U.S. 766 (2010); Williams v. Taylor, 529 U.S. 362,412 (2000); Shimel v. Warren, 838 F.3d 685, 695
(6th Cir. 2016); Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Moreover, the Supreme
Court has indicated that circuit precedent does not constitute “clearly established Federal law, as
determined by the Supreme Court.” Parker, 567 U.S. at 48-49; see also Lopez v. Smith, 574 U.S. 1,
4 (2014) (per curiam) (“Circuit precedent cannot ‘refine or sharpen a general principle of Supreme
19
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Court jurisprudence into a specific legal rule that this Court has not announced.’”) (quoting Marshall
v. Rodgers, 569 U.S. 58 (2013)).
A state court’s decision is contrary to clearly established federal law “if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. at 413; see also Carter v. Bogan, 900 F.3d 754, 767 (6th Cir.
2018).
By contrast, a state court’s decision involves an unreasonable application of clearly
established federal law “if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Id. See also Shimel, 838 F.3d at 695. However, a federal district court may not find a state court’s
decision unreasonable “simply because that court concludes in its independent judgment that the
relevant state court decision applied clearly established federal law erroneously or incorrectly.”
Williams v. Taylor, 529 U.S. at 411. Rather, a federal district court must determine whether the state
court’s decision constituted an objectively unreasonable application of federal law. Id. at 410-12.
“This standard generally requires that federal courts defer to state-court decisions.” Strickland v.
Pitcher, 162 F. App’x 511, 516 (6th Cir. 2006) (citing Herbert v. Billy, 160 F.3d 1131,1135 (6th Cir.
1998)).
In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court held that as long as “fair
minded jurists could disagree on the correctness of the state court’s decision,” relief is precluded
under the AEDPA. Id. at 786 (internal quotation marks omitted). The Court explained that a
reviewing court may not “treat[ ] the reasonableness question as a test of its confidence in the result
it would reach under de novo review,” and that “even a strong case for relief does not mean the state
20
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court’s contrary conclusion was unreasonable.” Id. at 785. The Court noted that Section 2254(d)
reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal
justice systems” and does not function as a “substitute for ordinary error correction through appeal.”
Id. (internal quotation marks omitted). Therefore, a petitioner “must show that the state court’s ruling
. . . was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fair minded disagreement.” Id. at 786-87. This is a very high
standard, which the Supreme Court readily acknowledged. Id. at 786 (“If this standard is difficult to
meet, that is because it is meant to be.”).
B.
Procedural Default
Federal courts will not consider the merits of procedurally defaulted claims, unless the
petitioner demonstrates cause for the default and prejudice resulting therefrom, or where failure to
review the claim would result in a fundamental miscarriage ofjustice. See Lundgren v. Mitchell, 440
F.3d 754, 763 (6th Cir. 2006). A claim may become procedurally defaulted in two ways. Id. First,
a petitioner may procedurally default a claim by failing to comply with state procedural rules in
presenting his claim to the appropriate state court. Id.-, see also Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986). If, due to petitioner’s failure to comply with the procedural rule, the state court
declines to reach the merits of the issue, and the state procedural rule is an independent and adequate
grounds for precluding relief, the claim is procedurally defaulted.10 Id.
10 In Maupin, the Sixth Circuit established a four-step analysis to determine whether a claim is procedurally defaulted.
Maupin, 785 F.2d at 135. Under this test, the Court decides (1) whether the petitioner failed to comply with an applicable
state procedural rule, (2) whether the state courts actually enforced the state procedural sanction, (3) whether the state
procedural bar is an “independent and adequate” state ground on which the state can foreclose federal review, and (4)
whether the petitioner has demonstrated “cause” and “prejudice.” Id. at 138-39; Barkley v. Konteh, 240 F. Supp. 2d 708
(N.D. Ohio 2002). “To inform this inquiry, we look to the last explained state court judgment.” Stojetz v. Ishee, 892 F.3d
175,191 (6th Cir. 2018) (internal quotation marks and citations omitted).
ts**
JI
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Second, a petitioner may also procedurally default a claim by failing to raise and pursue that
claim through the state’s “ordinary appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S.
838,848 (1999). If, at the time of the federal habeas petition, state law no longer allows the petitioner
to raise the claim, it is procedurally defaulted.11 See Coleman v. Thompson, 501 U.S. 722, 731-32
(1991); Lundgren, 440 F.3d at 763; Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013) (“[A] claim
is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies
are no longer available at the time the federal petition is filed because of a state procedural rule.”).
Where a petitioner has procedurally defaulted claims, “federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Demonstrating cause requires a
petitioner to show that an “objective factor external to the defense impeded counsel’s efforts to
comply” with the state procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). See also Gerth
v. Warden, Allen Oakwood Corr. Inst., 938 F.3d 821, 830 (6th Cir. 2019). “Prejudice, for purposes
of procedural default analysis, requires a showing that the default of the claim not merely created a
possibility of prejudice to the defendant, but that it worked to his actual and substantial disadvantage,
infecting his entire trial with errors of constitutional dimensions.” Jamison v. Collins, 291 F.3d 380,
11 This second type of procedural default is often confused with exhaustion. Exhaustion and procedural default, however,
are distinct concepts. The AEDPA’s exhaustion requirement only “refers to remedies still available at the time of the
federal petition.” Engle, 456 U.S. at 125 n.28. Where state court remedies are no longer available to a petitioner because
he failed to use them within the required time period, procedural default, and not exhaustion, bars federal court review.
Id Thus, “[w]hen a petitioner has failed to exhaust his state remedies, and when he can no longer do so under state law,
his habeas claim is procedurally defaulted.” Adams v. Burton, 2016 WL 6610219, at *2 (6th Cir. Nov. 8, 2016) (citing
O’Sullivan, 526 U.S. at 848).
22
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388 (6th Cir. 2002) (citing United States v. Frady, 456 U.S. 152, 170-71 (1982)). See also Beuke v.
Houk, 537 F.3d 618, 634 (6th Cir. 2008).
C.
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.” 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” and must be dismissed on that basis unless the state
court’s state-law ruling violates a federal constitutional right. 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, 112 S. Ct. 475, 116 L. Ed. 2d 385 (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 ah 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. (quoting Machin v.
Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). Further, a petitioner may not convert a claim
asserting state law error into a constitutional claim merely by alleging that the failure to follow a state
rule violated his due process rights. Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“The Due Process
Clause . . . safeguards not the meticulous observance of state procedural prescriptions, but “the
fundamental elements of fairness in a criminal trial.”); see also Engle v. Isaac, 456 U.S. 107, 121
n.21 (1982) (“We have long recognized that a ‘mere error of state law’ is not a denial of due process.”)
B- 23
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(citation omitted). Moreover, “a state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw
v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle, 502 U.S. at 67-68); see also Allen, 845 F.2d at 614
(stating that a federal habeas court does not function as an additional state appellate court reviewing
state courts’ decisions on state law or procedure).
Nonetheless, habeas relief may be available if an alleged error of state law subjected the
petitioner to a “fundamentally unfair” criminal process. Williams, 460 F.3d at 816. “[T]he category
of infractions that violate fundamental fairness is defined very narrowly,” and includes only state
rulings that “offend some principle ofjustice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.” Bey, 500 F.3d at 521 (cleaned up). The habeas petitioner bears the
burden of showing “the principle of procedure violated by the rule (and allegedly required by due
process)” is fundamental. Id.
IV.
Analysis
As a preliminary matter, the Court notes that Hoerig’s Objections12 present over 300 pages of
largely incoherent and indecipherable arguments, along with “notations” that Hoerig added to dozens
of copied-and-pasted full-length court opinions, drawings, and reproductions of previously submitted
exhibits. (See generally Doc. No. 82; see also id. at PagelD# 9867.) While contending that her
imprisonment “does not facilitate [the] concise[] and coherent filing of motions and records,” Hoerig
nonetheless urges the Court to “carefully look at her arguments and consider all the exhibits
12 In her Response to Hoerig’s Objections, Respondent argues, without examining any particular page of Hoerig’s
Objections, that Hoerig only lodges “non-specific and non-responsive arguments” and does not specifically object to any
of the R&R’s determinations. (Doc. No. 83 at PageID#s 9902,9904.) Because the Response is brief and does not address
any particular page or argument from Hoerig’s Objections, the Court will address Respondent’s Response as appropriate.
Case: 4:22-cv-00300-PAB Doc#: 85 Filed: 04/19/24 25 of 76. PagelD#:9994
submitted.” (Id. at PagelD# 9867.) Hoerig also suggests that it is “important” that the Court “look
at each Exhibit to find the arguments written in the Exhibit,” and that it “is up to the Court to have
the patience to look at the sound arguments made and properly tied to their respective prima facie
evidence.” (Id. at PageID#s 9867, 9869.)
The Court must explain that this position represents a fundamental misunderstanding of the
role of a court reviewing a federal habeas petition, even one submitted by a pro se litigant. “Judges
are not like pigs, hunting for truffles buried in briefs.” Knoefelv. Phillips, 2021 WL 8894449, at *20
(N.D. Ohio Apr. 23, 2021) (citing Emerson v. Novartis Pharms. Corp., 446 F. App’x 733, 736 (6th
Cir. 2011)) (quotation marks omitted). In other words, once an R&R is issued and a petitioner files
objections, the Court need not “find” or “look” for the petitioner’s arguments as Hoerig suggests.
Rather, in raising objections, a petitioner “must direct the [District [J]udge’s attention to specific
issues decided by the [Magistrate Judge] contrary to the petitioner’s petition” and identify a
particularized error in the R&R’s analysis. Williams v. Fender, 2024 WL 1169831, at *2 (N.D. Ohio
Mar. 18, 2024) (citations and alterations omitted); Krug v. Sheldon, 2024 WL 310095, at *8 (N.D.
Ohio Jan. 26, 2024).
The Court has carefully examined each and every page of Hoerig’s Objections. However, as
indicated above, despite Hoerig’s pro se status, it is not the Court’s duty to sift through thousands of
pages of previously submitted “exhibits” to locate, identify, and articulate Hoerig’s arguments for
her. See Salyers v. Burgess, 2024 WL 1068319, at *3 (W.D. Mich. Mar. 12, 2024) (refusing to sift
through “almost 300 mostly handwritten pages” and “more than 500 pages of exhibits” attached to
pro se habeas petitioner s petition). In other words, only the specific arguments Hoerig has
comprehensibly and clearly presented will be addressed and considered.
8-25
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Further, the Magistrate Judge has noted that Hoerig’s 5,000 pages of exhibits are part of the
record but observes that Hoerig’s exhibits are “nearly incomprehensible.” (Doc. No. 70 at PageID#s
9309-10.) Nevertheless, the Magistrate Judge “endeavored to address each of [Hoerig’s] legal
arguments and their supporting documents,” and, when appropriate, “reached the merits of Hoerig’s
arguments even if they were not properly preserved or presented to this Court.” (Id. at PagelD# 9352
n.9.) To combat these comprehensibility issues, Hoerig asserts that she filed an “index” to her
Traverse after the R&R was released. (Doc. No. 82 at PagelD# 9836.) However, any grounds,
arguments, or clarification Hoerig desired to make in support of her Petition should have been made
to the Magistrate Judge prior to the release of the R&R. Indeed, the Magistrate Judge initially ordered
Hoerig to supply briefs that “make specific reference to those portions of the record by citing to the
designated exhibit number and page number.” (Doc. No. 12 at PagelD# 24.) Hoerig’s failure to
abide by the Magistrate Judge’s Order to make specific reference to certain exhibits cannot be
ameliorated by the provision of an index after issuance of the R&R. See Gam v. Haviland, 2023 WL
6149916, at *19 (N.D. Ohio Feb. 13,2023), report and recommendation adopted, 2023 WL 6146641
(N.D. Ohio Sept. 20, 2023) (finding “unclear [as to] what specific ... determination [petitioner] is
challenging because he does not explain in either his merits brief or his traverse how his arguments
relate to any specific exhibits” to be in violation of magistrate judge’s initial order requiring petitioner
to make specific reference to portions of record supporting his arguments).
With these principles in mind, the Court turns to Hoerig’s Objections.
A,
Non-Dispositive Matters
1.
Motion for Evidentiary Hearing
B
26
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Hoerig first contends that she is entitled to an evidentiary hearing and argues that the
Magistrate Judge unreasonably “dismissed” her Petition without one. (Doc. No. 82 at PageID#s 9835,
9868.)
Hoerig’s contention on this ground is meritless. When Hoerig filed her initial Memorandum
in Support of Her Petition, Hoerig indicated that she requested an evidentiary hearing. (Doc. No. 4
at PagelD# 24.)
In fact, her initial Memorandum in Support, as well as her Supplemental
Memorandum in Support of Her Petition, were initially docketed as Motions for an Evidentiary
Hearing. (Doc. No. 18 at PagelD# 488.) However, Hoerig thereafter filed a “Motion to Re-Name
Doc#4 and Doc# 14 on the Docket,” specifically representing that her initial Memorandum in Support
and her Supplemental Memorandum in Support were “not a Motion for Evidentiary Hearing.” (Id.)
Therefore, upon Hoerig’s own motion, the Court updated the docket to reflect these two documents
as being Memoranda in Support as opposed to Motions for an Evidentiary Hearing. (Non-Document
Order, June 30, 2022.) Indeed, to the extent that Hoerig’s later-filed Traverse and supplemental
briefing included a request for an evidentiary hearing, the Magistrate Judge found that Hoerig “must
present more than conclusory statements to obtain an evidentiary hearing on a claim of ineffective
assistance of counsel.” (Doc. No. 70 at PagelD# 9349 n.7.)
Hoerig did not make a clear, express motion or request for an evidentiary hearing at any other
point, and therefore cannot now assign error to the Magistrate Judge based on her failure to provide
such a hearing. See Hasan v. Ishee, 2011 U.S. Dist. LEXIS 98954, at *4-5 (S.D. Ohio Sept. 1, 2011)
(finding request for evidentiary hearing waived where petitioner did not request hearing before
magistrate judge). If there is a request hidden among Hoerig’s 5,000-page box of exhibits, for the
reasons discussed above, the Court need not search for it. Accordingly, the Court finds that the
- 27
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Magistrate Judge’s denial of an evidentiary hearing is neither clearly erroneous nor contrary to law.
Hoerig’s “obj ection” is without merit and overruled.13
2.
Motions for Appointment of Counsel and “Expert Assistance”
Hoerig also “objects” on the basis that she was entitled to the appointment of counsel for her
federal habeas claims and the appointment of a “forensic expert to challenge the State’s doctor.”
(Doc. No. 82 at PageID#s 9838, 9866, 9868, 9869.)
Hoerig filed a Motion for Appointment of Counsel and a Motion for Expert Assistance. (Doc.
Nos. 2, 3.) The Magistrate Judge did not expressly consider in her R&R whether Hoerig would be
entitled to counsel or to a forensic expert. (See generally Doc. No. 70.) Therefore, the Court will
review Hoerig’s requests de novo.
Generally, in considering whether a petitioner is entitled to counsel, courts must acknowledge
that a habeas corpus proceeding is civil in nature and the Sixth Amendment right to counsel afforded
for criminal proceedings does not apply. See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)
(citing McCleskey v. Zant, 499 U.S. 467, 495 (1987)); see also Stockman v. Berghuis, 627 F. App’x
470, 475 (6th Cir. 2015); Ross v. Coleman, 2019 WL 8333533 at *11 (N.D. Ohio July 1, 2019). A
district court must appoint counsel for an indigent petitioner when an evidentiary hearing is required
or when necessary for the petitioner’s effective utilization of discovery.14 See Rules Governing
13 To the extent the Magistrate Judge did not expressly rule on the evidentiary hearing issue, thereby requiring the Court
to review Hoerig’s argument de novo, the Court still concludes that her argument is without merit and is rejected.
14 In addition, an indigent petitioner seeking to vacate or to set aside a death sentence has a statutory right to appointed
counsel, as well as expert and investigative services. 18 U.S.C. § 3599(a)(2). Here, however, Hoerig is not seeking to
vacate or set aside a death sentence.
<■*• 28
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Section 2254 Cases, Rule 6(a).15 In all other circumstances, a district court has considerable
discretion in deciding whether to appoint counsel. The Sixth Circuit has noted, however, that
appointment of counsel in non-capital habeas proceedings is justified only in “exceptional”
circumstances. See Stockman, 6T1F. App’x at 475 (stating the privilege of appointment of counsel
in habeas proceedings is justified “only in exceptional circumstances.”) (citing Lavado v. Keohane,
992 F.2d 601, 605-06 (6th Cir. 1993)). Likewise, the appointment of a non-psychiatric expert or of
an expert for non-capital defendants has not been constitutionally mandated. See Irwin v. Trim, 2014
WL 201512, at *7-8 (N.D. Ohio Oct. 3, 2013), report and recommendation adopted, 2014 WL
201512 (N.D. Ohio Jan. 17, 2014).
The Court rejects Hoerig’s requests. As to the appointment of counsel, Hoerig does not
articulate any convincing reason as to why she is entitled to the appointment of counsel. Specifically,
Hoerig only asserts that she is entitled to appointment of counsel because English is not her first
language and her case is complex. (See, e.g., Doc. No. 82 at PageID#s 9833,9835,9838,9868.) Yet
Hoerig has demonstrated several times that she is able to successfully move and articulate a basis for
relief, such as extensions of time. (See, e.g., Doc. Nos. 18, 28.) Hoerig does not otherwise argue or
show that hers is such an exceptional case that the appointment of counsel is necessary, and the issues
in this case are not unusually complex. For example, Hoerig does not contend or assert that she labors
under disabilities unusual for a pro se petitioner, and as mentioned above, Hoerig’s voluminous
exhibits and motions practice indicate that she is capable of understanding case law and seeking
15 See 28 U.S.C. § 2254(h) (“Appointment of counsel under this section shall be governed by section 3006A of title 18.”).
18 U.S.C. § 3006A(a)(2)(B) provides in part: “Whenever the United States magistrate judge or the court determines that
the interests of justice so require, representation may be provided for any financially eligible person who ... is seeking
relief under [§ 2254].”
29
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particular relief as needed. Hoerig’s conclusory contentions in her Objections are thus insufficient to
demonstrate cause for the Court to appoint counsel. Accordingly, Hoerig’s argument is meritless and
her request for appointment of counsel is denied.
As to the appointment of an expert, Hoerig’s argument in her Objections is comprised of
conclusory assertions that Hoerig is entitled to an expert. (Doc. No. 82 at PageID#s 9838, 9868.)
This request is also rejected. In her Motion for Expert Assistance, Hoerig lists six experts that she
believes the Court should fund to establish an alternative theory as to which bullet killed Karl and
that Hoerig was subject to abuse. (Doc. No. 3 at PagelD# 23.) Nowhere in Hoerig’s Motion for
Expert Assistance does she explain how or why these experts’ appointments are necessary or why
she is unable to establish her Grounds for Relief without them. (Id.) Hoerig is not a capital Defendant
and does not appear to seek a psychiatrist beyond a “battery wife syndrome expert.” (Id.) Therefore,
Hoerig has not demonstrated that she is entitled to the appointment of an expert, and accordingly, her
request for such is denied.16
B.
Dispositive Matters
1.
Ground One
In Ground One, Hoerig asserts that the state trial court erred and abused its discretion by
“denying her Crim. R 29(A) motion for acquittal before closing arguments,” which she had moved
for on the basis that the State had failed to present sufficient evidence of premeditation and prior
calculation, and therefore she could not have been convicted of aggravated murder beyond a
16 In her Objections, Hoerig also requests that the Court send her a copy of her Objections so that she can access the
PageID#s of her Objections. (Doc. No. 82 at PagelD# 9900.) The Court finds no need to do so. Hoerig does not supply
any authority which would indicate that the Court must forward to her a copy of her own filings. The Court reminds
Hoerig that, as a pro se litigant, she can register for a read-only PACER account that would allow her to view filings in
this case.
30
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reasonable doubt, in violation of her due process rights under the Fifth, Sixth, and Fourteenth
Amendments. (Doc. No. 14-1 at PagelD# 39.)
This claim was presented on direct appeal to the state appellate court, which rejected it on the
merits as follows:
{^|37} Under the first assignment of error, Claudia argues there was insufficient
evidence of prior calculation and design to sustain her conviction.
{^|38} “A claim challenging the sufficiency of the evidence invokes a due-process
concern and raises the question whether the evidence is legally sufficient to support
the jury verdict as a matter of law.” State v. Clinton, 153 Ohio St.3d 422,2017-Ohio9423, 108 N.E.3d 1, 5 165; Crim.R. 29(A) (“[t]he court * * * shall order the entry of
a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction”).
An appellate court’s function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus, following Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). “Evaluation of the witnesses’ credibility is not relevant to a sufficiency
analysis.” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,11
207.
{5139} In order to convict Claudia of Aggravated Murder, the State was required to
prove beyond a reasonable doubt that she “purposely, and with prior calculation and
design, cause[d] the death” of Hoerig. R.C. 2903.01(A).
{^40} “[T]he phrase ‘prior calculation and design’ is a single indivisible term,
describing the mens rea element of proof necessary to find a violation of R.C.
2903.01(A).” State v. Taylor, 78 Ohio St.3d 15,18, 676N.E.2d 82 (1997).
[R.C. 2903.01(A) employs] the phrase, “prior calculation and design,” to
indicate an act of studied care in planning or analyzing the means of the crime,
as well as a scheme compassing the death of the victim. Neither the degree of
care nor the length of time the offender takes to ponder the crime beforehand
are critical factors in themselves, but they must be sufficient to meet the
31
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proposed test of “prior calculation and design.” In this context, momentary
deliberation is considered insufficient to constitute a studied scheme to kill.
(Citation omitted.) State v. Walker, 150 Ohio St.3d 409,2016-Ohio-8295, 82 N.E.3d
1124417.
'
441} The Ohio Supreme Court has “traditionally” considered three factors in
determining whether a defendant has acted with prior calculation and design: “(1) Did
the accused and victim know each other, and if so, was that relationship strained? (2)
Did the accused give thought or preparation to choosing the murder weapon or murder
site? and (3) Was the act drawn out or ‘an almost instantaneous eruption of events?’ ”
Id. at 20, quoting Taylor at 19. However, “it is not possible to formulate a brightline test that emphatically distinguishes between the presence or absence of ‘prior
calculation and design.’” Taylor at 20. “Instead, each case turns on the particular facts
and evidence presented at trial.” Id.
4J42} Claudia argues that the “mere fact that [she] purchased a firearm and then
learned how to use it does not support a conclusion that [she] intended to kill her
husband.” Appellant’s brief at 3. We disagree. The fact that Claudia purchased a
firearm with a laser sight, learned how to use it, and then used it to kill her husband at
the next opportunity is evidence which, if believed, would convince the average mind,
beyond a reasonable doubt, that she acted with prior calculation and design. By her
own admission, Claudia and Hoerig’s marriage was troubled and she purchased the
firearm with the intent to kill - the issue being whom she intended to kill. Given the
circumstances, the evidence is sufficient to support the conclusion that Hoerig rather
than Claudia was the intended victim.
443} Claudia also argues that her flight to Brazil might indicate consciousness of
guilt that “some crime had been committed,” but it is not evidence of prior calculation
and design inasmuch as “[n]one of the travel arrangements had already been made
when the homicide occurred and * * * one would expect to find prior travel
arrangements had been made.” Appellant’s brief at 4. The fact that Claudia did not
make arrangements to travel to Brazil until after Hoerig’s murder bears on the weight
of the evidence, and not its sufficiency.
444} The first assignment of error is without merit.
State v. Hoerig, 2020 WL 1685624, at *4-5 (Ohio App. Apr. 6, 2020).
The Magistrate Judge found that, to the extent that Hoerig challenges the trial court’s denial
of her motion for acquittal on the basis of state law, her claim is not cognizable on habeas review,
and recommended that Ground One be dismissed on this basis. (Doc. No. 70 at PagelD# 9333.) The
ft - 32
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Court agrees. Hoerig does not raise a specific objection to the Magistrate Judge’s conclusion that a
challenge to the trial court’s denial of her motion for acquittal, if made on the basis of state law, is
not cognizable. After reviewing the Magistrate Judge’s discussion of this matter, the Court finds no
clear error. See Cannon v. Bobby, 2024 WL 1054450, at *8 (N.D. Ohio Jan. 26, 2024), report and
recommendation adopted, 2024 WL 1051630 (N.D. Ohio Mar. 11, 2024) (review of motion for
acquittal on basis of state law not cognizable). Accordingly, the Court accepts the Magistrate Judge’s
recommendation that Ground One be dismissed to the extent Hoerig challenges the trial court’s denial
of her motion for acquittal on the basis of state law.
The Magistrate Judge then determined that Hoerig’s sufficiency of the evidence claim, if
challenging the trial court’s denial of her motion on the basis of federal law, is without merit.
Specifically, the Magistrate Judge considered this claim on the merits, applying AEDPA deference
to the state appellate court’s decision. (Doc. No. 70 at PageID#s 9333-38.) After discussing the state
appellate court’s reasoning, the Magistrate Judge found that the court relied on State v. Jenks, 574
N.E.2d 492 (1991), which follows the sufficiency of the evidence standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). (Id. at PagelD# 9336.) The Magistrate Judge observed that, under
Jackson, “a sufficiency of the evidence claim is reviewed by determining 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. (citing Jackson, 443 U.S. at 319).) The
Magistrate Judge determined that the state appellate court “correctly identified and applied the
governing legal principle” as set forth in Jackson. (Id.) Hoerig does not contest or object to this
determination. The Court concludes that the Magistrate Judge correctly determined that the state
33
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appellate court identified and applied the appropriate legal standard for sufficiency of the evidence
claims from Jackson.
After recounting the elements for aggravated murder under Ohio law,17 the Magistrate Judge
concluded that the state appellate court’s decision was not an objectively unreasonable application of
federal law. In particular, according to the Magistrate Judge, the appellate court considered Hoerig’s
marriage and pregnancy problems and the two-day turnaround from Hoerig’s purchase of and practice
with the firearm and her shooting of her husband. {Id. at PagelD# 9338.) The Magistrate Judge also
determined that Hoerig’s alternative arguments, e.g. that her intent was to commit suicide and that
she was fearful that the gun’s recoil would only leave her disfigured, “go to the weight of the
evidence, not sufficiency.” (Id.)
The Court agrees with the Magistrate Judge. Before reviewing the substance of the state
appellate court’s decision, the Court must first determine the proper standard of review. If the state
appellate court adjudicated Hoerig’s sufficiency of the evidence claim “on the merits,” the Court
17 The state appellate court explained the elements of aggravated murder as follows: “[T]o convict [Hoerig] of Aggravated
Murder, the State was required to prove beyond a reasonable doubt that she ‘purposely, and with prior calculation and
design, cause[d] the death’ of [Karl], [O.R.C. 2903.01(A).” State v. Hoerig, 2020 WL 1685624, at *4. In defining “prior
calculation and design,” the state appellate court observed that the phrase “is a single indivisible term, describing the mens
rea element of proof necessary to find a violation of R.C. 2903.01(A).” Id (citing State v. Taylor, 78 Ohio St.3d 15,18,
676 N.E.2d 82 (1997)). Additionally, according to the state appellate court, Ohio Revised Code 2903.01(A) employs
“the phrase, ‘prior calculation and design,’ to indicate an act of studied care in planning or analyzing the means of the
crime, as well as a scheme compassing the death of the victim. Neither the degree of care nor the length of time the
offender takes to ponder the crime beforehand are critical factors in themselves, but they must be sufficient to meet the
proposed test of ‘prior calculation and design.’ In this context, momentary deliberation is considered insufficient to
constitute a studied scheme to kill.” (citing State v. Walker, 150 Ohio St.3d 409,2016-Ohio-8295,82 N.E.3d 1124, 17).
The state appellate lastly observed as follows: “[T]he Ohio Supreme Court has “traditionally” considered three factors in
determining whether a defendant has acted with prior calculation and design: “(1) Did the accused and victim know each
other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder
weapon or murder site? and (3) Was the act drawn out or ‘an almost instantaneous eruption of events?”’ Id at 20,
quoting Taylor at 19. However, “it is not possible to formulate a bright-line test that emphatically distinguishes between
the presence or absence of ‘prior calculation and design.’” Taylor at 20. “Instead, each case turns on the particular facts
and evidence presented at trial.” Id." State v. Hoerig, 2020 WL 1685624, at *4.
S _ 34
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applies deference under the AEDPA and may grant relief only if the state court’s decision was
contrary to, or involved an unreasonable application of, clearly established federal law, or was based
on an unreasonable application of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1)
& (2). See Smith v. Cook, 956 F.3d 377, 385—86 (6th Cir. 2020). If the state court did not evaluate
the merits of Hoerig’s claim, the Court reviews that claim de novo. Id. See also Rice v. White, 660
F.3d 242, 252 (6th Cir. 2011) (citing Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005)).
In this case, the state appellate court adjudicated Hoerig’s sufficiency of the evidence claim
on the merits. As discussed above, the state appellate court noted the various aspects of trial testimony
which could lead the jury to conclude that Hoerig acted with prior calculation and design. State v.
Hoerig, 2020 WL 1685624, at *4-5. In doing so, the state appellate court relied on State v. Jenks,
574 N.E.2d 492 (1991), which it acknowledged followed the federal standard of Jackson v. Virginia.
Therefore, the Court must determine whether the state appellate court unreasonably applied the
principles enunciated in Jackson to Hoerig’s sufficiency of the evidence claim.
Under the Jackson standard, a petitioner who claims that the evidence at trial was insufficient
for a conviction must demonstrate that, “after viewing the evidence in the light most favorable to the
prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Scott v. Mitchell, 209
F.3d 854, 885 (6th Cir. 2000). The role of the reviewing court in considering such a claim is limited:
A reviewing court does not reweigh the evidence or redetermine the credibility of the
witnesses whose demeanor has been observed by the trial court. It is the province of
the factfinder to weigh the probative value of the evidence and resolve any conflicts
in testimony. An assessment of the credibility of witnesses is generally beyond the
scope of federal habeas review of sufficiency of evidence claims. The mere existence
of sufficient evidence to convict therefore defeats a petitioner’s claim.
B- 35
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Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) (internal citations omitted).
Moreover, it is well established that ‘“attacks on witness credibility are simply challenges to the
quality of the government’s evidence and not to the sufficiency of the evidence.’” Martin v. Mitchell,
280 F.3d 594, 618 (6th Cir. 2002) (quoting United States v. Adamo, 742 F.2d 927,935 (6th Cir. 1984)
abrogated on other grounds by Buford v. United States, 532 U.S. 59 (2001)). See also Moreland v.
Bradshaw, 699 F.3d 908, 920 (6th Cir. 2012).
Consistent with these principles, the Supreme Court has emphasized that habeas courts must
review sufficiency of the evidence claims with “double deference:”
We have made clear that Jackson claims face a high bar in federal habeas proceedings
because they are subject to two layers ofjudicial deference. First, on direct appeal, ‘it
is the responsibility of the jury—not the court—to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury.’ Cavazos v. Smith, 565 U.S. 1,----- , 132 S.Ct. 2, 4, 181
L.Ed.2d 311 (2011) (per curiam). And second, on habeas review, ‘a federal court may
not overturn a state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The federal court
instead may do so only if the state court decision was ‘objectively unreasonable.’”
Ibid, (quoting Renico v. Lett, 559 U.S. 766,----- , 130 S.Ct. 1855, 1862, 176 L.Ed.2d
678(2010)).
Coleman v. Johnson, 566 U.S. 650, 651 (2012). Under this standard, “we cannot rely simply upon
our own personal conceptions of what evidentiary showings would be sufficient to convince us of the
petitioner’s guilt,” nor can “[w]e . . . inquire whether any rational trier of fact would conclude that
petitioner ... is guilty of the offenses with which he is charged.” Brown v. Konteh, 567 F.3d 191,
205 (6th Cir. 2009). Rather, a habeas court must confine its review to determining whether the state
court “was unreasonable in its conclusion that a rational trier of fact could find [petitioner] guilty
beyond a reasonable doubt based on the evidence introduced at trial.” Id.
B~ 36
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Upon a careful review of the trial transcript, the Court concludes that Hoerig’s aggravated
murder conviction18 is supported by substantial evidence. In this case, Hoerig does not dispute that
she killed her husband using the .357 magnum revolver she purchased the week before the shooting.
Rather, Hoerig only disputes whether sufficient evidence Supports the jury’s verdict finding that she
had the requisite intent, i.e. “prior calculation and design,” in doing so to establish guilt beyond a
reasonable doubt of aggravated murder.
The state appellate court accurately summarized the trial testimony and evidence included in
the record. As noted by the state court, evidence was introduced at trial that Hoerig and Karl’s
marriage was in trouble, that Karl was considering divorcing Hoerig, and that Hoerig pondered killing
Karl if he did divorce her. Specifically, the jury heard testimony from Hemy, a “close friend” of
Karl’s that, in February 2007, Karl confided that his marriage with Hoerig was failing and that they
were going to divorce. (Doc. No. 30-2 at Tr. 980, 982.). Karl even sought to rent a house where he
intended to live after his separation from Hoerig and showed it to Henry. (Id. at Tr. 547-49, 982.)
Karl had also informed Dodge,19 another friend, that he intended to leave Hoerig. (Id. at Tr. 985,
990.) Dodge then offered Karl the opportunity to stay at his place. (Id. at Tr. 990.)
Hoerig herself testified that, on March 9, 2007, the week before Karl was found dead, she
learned that she was pregnant. (Doc. No. 30-2 at Tr. 1087.) Hoerig testified that she knew Karl was
considering divorce, so she thought, “if I tell him I’m pregnant, my chances of me fixing this damage
18 Hoerig does not challenge or dispute the firearm specification that was applied to her aggravated murder sentence.
19 The state appellate court mistakenly referred to Mr. Dodge as “Harry Dodge.” State v. Hoerig, 2020 WL 1685624, at
*1 (Ohio App. 11th Dist. Apr. 6, 2020). Mr. Dodge’s complete name is “Gary Lee Dodge.” (Doc. No. 30-2 at Tr. 985.)
37
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is very small. So I’ll go, I’ll prepare plan B, which is if I cannot reverse the damage, if I cannot
convince him to try one more time, I’m gonna kill myself.” (Id. at 1087-89.)
The jury also heard testimony that, at a social gathering in August 2006, Hoerig told Bridges,
a “good friend” of Karl’s, that “[i]f he ever leaves me, I’d kill him.” (Doc. No. 30-2 at Tr. 910.)
Other evidence introduced at trial showed that Hoerig purchased a revolver with a laser sight
and hollow point ammunition and learned how to use it the week before Karl’s body was discovered
on March 15, 2007. Specifically, Martin testified that, on March 10, 2007, Hoerig came to the gun
store where he was working and, with the intent to use it for home defense, purchased a .357 magnum
revolver. (Doc. No. 30-2 at Tr. 571-72, 575.) Hoerig also purchased a Crimson Trace laser grip for
the revolver, and Martin installed it for her. (Id. at Tr. 580.) After Hoerig purchased the revolver,
she brought it to the JCL Shooting Range in Warren, Ohio, where she used it on the practice range.
(Id. at tr. 606,611.)
The jury next heard testimony that, after Hoerig was apprehended in Brazil, Hoerig admitted
to killing Karl. Specifically, an FBI agent testified that Hoerig commented to him that, “a wife
doesn’t kill her husband without having a good reason.” (Doc. No. 30-2 at Tr. 814-15.) According
to Hoerig, her pregnancy and suicidal ideation led her to purchase a gun with the intention of
committing suicide, and that during her confrontation with Karl, she shot and killed him. (Id. at Tr.
815.)
Hoerig also testified after she shot Karl, she attempted to use the suicide mount to commit
suicide, but the revolver did not fire. (Id. at Tr. 1111-12.) Following this unsuccessful attempt,
Hoerig fled to Brazil. (Id. at Tr. Ill 5-19.)
B " 38
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Considering the above, the Court finds that the state appellate court reasonably concluded that
sufficient evidence supported the jury’s finding that Hoerig acted with prior calculation and design
when she shot and killed her husband. The State introduced evidence of Hoerig’s motive, i.e., to
prevent her husband from leaving her while she was pregnant. The State’s other circumstantial
evidence showed that Hoerig purchased the .357 magnum revolver and laser sight and learned how
to practice shooting it with the intent to kill someone. While Hoerig contended that the sole target
was herself, and that she only killed her husband in “sudden passion,” one of the State’s witnesses,
Bridges, testified that Hoerig herself had previously commented that, if Karl ever left her, she would
“kill him.” (Doc. No. 30-2 at Tr. 910.) The Court finds, therefore, that it was not unreasonable for
the state appellate court to conclude that there was sufficient evidence of Hoerig’s prior calculation
and design to kill Karl given the (1) evidence of Hoerig’s motive; (2) Karl’s intent to divorce Hoerig
and move out to a rental house; and (3) Hoerig’s admitted knowledge that her marriage was failing
and that Karl was going to divorce her.
As to the Magistrate Judge s conclusion that the state appellate court’s decision was not an
objectively unreasonable application of federal law, Hoerig presents several objections. First, Hoerig
challenges the prosecutor’s use of forensic pathologist Dr. Felo, in particular his “ambush” theory, as
“improper” because it exceeded the scope of his expertise under Daubert. (Doc. No. 82 at PageID#s
9616, 9744, 9850.) And, according to Hoerig, there was no direct evidence that her husband was on
the steps when Hoerig shot him, and Detective Yannucci testified that the evidence was not definitive.
(Id. at PageID#s 9604-06.)
These arguments are rejected. The state appellate court did not appear to consider Karl’s
position on the steps in evaluating whether Hoerig acted with prior calculation and design, so it is
39
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unclear how this contention relates to the state court’s opinion. Nevertheless, the Court acknowledges
that the evidence presented by the State was entirely circumstantial. The Supreme Court has held,
however, that “[c]ircumstantial evidence ... is intrinsically no different from testimonial evidence,”
and that it is sufficient if the jury is convinced beyond a reasonable doubt. See Holland v. United
States, 348 U.S. 121, 138-40 (1955); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)
(stating that “we have never questioned the sufficiency of circumstantial evidence in support of a
criminal conviction, even though proof beyond a reasonable doubt is required”). Thus, the fact that
Hoerig’s conviction was based on circumstantial evidence is not, standing alone, sufficient to show
that it was not supported by the evidence under the standard set forth in Jackson v. Virginia, supra.
Second, Hoerig asserts that her conviction was not supported by sufficient evidence because
(1) Bridges testimony that she was Karl’s friend before his death was false and therefore lacked
credibility; and (2) contrary to Dr. Felo’s testimony and as Hoerig testified, based on the lack of blood
splatter, it was the very first bullet she fired that killed Karl, and not the second bullet that Dr. Felo
said might be fatal.20 (Doc. No. 82 at PagelD# 9741.)21 These arguments are without merit. It is
20 The jury heard testimony from Dr. Felo, who testified concerning the circumstances of Karl’s death based on his
wounds. Specifically, Dr. Felo testified that Karl was shot three times. (Doc. No. 30-2 at Tr. 936.) According to Dr.
Felo, Karl was shot once in the right shoulder, notated as Wound A, which would have incapacitated and prevented him
from moving but was a non-fatal wound. (Id at Tr. 939—40.) Another shot impacted the center of his back, notated as
Wound B, which would have been “potentially lethal” since it traveled through one of his lungs and other vital structures.
(Id at Tr. 940-43.) Dr. Felo opined that Karl was “on the floor” when he suffered Wound B. (Id at Tr. 943.) The last
shot, notated as Wound C, was a fatal wound that came from a shooter who was also positioned “on the first floor” and
was received while Karl’s “head is near or on the floor.” (Id at Tr. 945-46,948, 961.) The state appellate court did not
appear to consider Dr. Felo’s testimony as to Karl’s death in evaluating whether sufficient evidence existed to demonstrate
that Hoerig killed Karl with prior calculation and design.
Hoerig also asserts that Lane s testimony that Karl’s body was found at the bottom of the stairs was not convincing
evidence of premeditation and “only corroborates [Hoerig’s] version of the events.” (Doc. No. 82 at PagelD# 9741.) Not
only was this argument, for the reasons described below, not within the scope of the state appellate court’s consideration
of Hoerig s sufficient evidence claim, but it is not clear that the state appellate court considered Lane’s testimony as to
where he found Karl’s body in her evaluation of her sufficient evidence claim. This argument is therefore rejected.
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well established that the credibility of witness testimony is outside the scope of the state appellate
court’s consideration of Hoerig’s claim of insufficient evidence. See Martin, 280 F.3d at 618. The
state appellate court properly considered all of the evidence in the light most favorable to the State
and determined there was sufficient evidence to convict Hoerig. The standard of review applied by
the state appellate court coincides with the standard for sufficiency of the evidence set forth in
Jackson, supra. Hoerig points to no federal legal precedent requiring the state appellate court, in the
context of a challenge to the sufficiency of the evidence, to engage in the evidence-weighing that she
requests.
Third, Hoerig insists that the trial court “misapplied the standard of review for intent” when
it reviewed her “case of aggravated felony murder on a theory of transferred intent.” (Doc. No. 82 at
PagelD# 9765.) According to Hoerig, she shot and killed her husband and she purchased the .357
magnum revolver with the sole intention of committing suicide. (Id.) According to Hoerig, because
suicide is not a crime or a wrongful act, the intent to commit suicide cannot supply a “transferred
intent” for “aggravated felony murder.” (Id. at PageID#s 9759,9765.) Thus, Hoerig appears to insist
that her intent to commit suicide cannot “transfer” to the premeditated intent to kill her husband. (Id.)
These arguments are also without merit.
While Hoerig is correct that suicide is not
criminalized as a felony in Ohio, Hoerig was charged with aggravated murder and not felony murder.
As such, the criminality of suicide is not relevant to Hoerig’s case. See State v. Sage, 510 N.E.2d
343, 348 (Ohio 1987). Additionally, Ohio courts have found that, even where a defendant raises the
claim that she intended to only commit suicide but another person dies, prior calculation and design
to commit the killing can still be found. See, e.g., id. (finding evidence of prior calculation and design
for murder “in the manner of the shooting and in the suicide note” where defendant contended
g- 41
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decedent committed suicide pursuant to a suicide pact); see also State v. Turner, 826 N.E.2d 266,282
(Ohio 2005) (sufficient evidence of prior calculation and design in killing of second decedent despite
defendant’s argument that “planned to kill [first decedent], but [second decedent] ‘got in the way’”
and that defendant committed the murder of second decedent “in a state of emotional distress”).
Accordingly, the Court rejects Hoerig’s felony murder and transferred intent arguments.
Fourth, Hoerig maintains that the prosecutor failed to disprove her affirmative defense of
“sudden passion” or manslaughter. (Doc. No. 82 at PageID#s 9675-79, 9900.) In Ohio, however,
the defendant has the burden of demonstrating that he had the requisite passion or rage at the time of
the murder to be convicted of manslaughter rather than aggravated murder. Benge v. Johnson, 474
F.3d 236, 247 (6th Cir. 2007) (citing State v. Rhodes, 590 N.E.2d 261, 365 (Ohio 1992)). Similarly,
the lack of the heat of the passion is not an element of aggravated murder, and therefore, the State
was not required to prove it at trial. See Rhodes v. Brigano, 91 F.3d 803, 804, 809 n.2, 810-11 (6th
Cir. 1996). Because Hoerig does not argue or demonstrate otherwise, this argument is also rejected.
Hoerig’s Objections to the Magistrate Judge’s recommendations concerning Ground One of
her Petition are rejected. Accordingly, the Court accepts the Magistrate Judge’s recommendation that
Ground One be dismissed.
2.
Grounds Two, Three, Four, and Five
As an initial matter, the Court observes that Hoerig raises no objection to the Magistrate
Judge’s recommendations that Ground Two be dismissed as not cognizable, and that Grounds Three,
Four, and Five be dismissed as procedurally defaulted (to the extent they are raised under federal law)
Case: 4:22-cv-00300-PAB Doc#: 85 Filed: 04/19/24 43 of 76. PagelD #: 10012
or not cognizable (to the extent they are raised under state law). (Doc. No. 70 at PageID#s 9338-48;
Doc. No. 82.) Instead, Hoerig opts to dispute the merits of Grounds Two, Three, Four, and Five.22
The Court has carefully reviewed the Report and Recommendation’s discussion and analysis
of Grounds Two, Three, Four, and Five, and finds no clear error. (Doc. No. 70 at PageID#s 9338-
48.) Therefore, the Court accepts the Magistrate Judge’s conclusions that Ground Two is not
cognizable, and that Grounds Three, Four, and Five are procedurally defaulted and/or not cognizable.
Where a claim for relief in a habeas petition is not cognizable, the Court cannot evaluate the merits
of the claim unless the petitioner demonstrates fundamental unfairness in the state court ruling. Bey
v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007); see also Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Likewise, where a claim is procedurally defaulted, the Court cannot evaluate the claim unless
the petitioner demonstrates cause and prejudice for the failure to raise it, or that there will be a
fundamental miscarriage ofjustice if the Court does not consider it. Coleman v. Thompson, 501 U.S.
722, 750 (1991). In her Objections, Hoerig does not offer any specific, substantive argument that the
state court’s ruling on Ground Two was fundamentally unfair, or that there is cause for her procedural
default of Grounds Three, Four, and Five or that the failure to consider them will result in a
fundamental miscarriage of justice. Accordingly, and in the absence of any specific Objection as to
these Grounds, the Court accepts the Magistrate Judge’s recommendation that Grounds Two, Three,
Four, and Five be dismissed.
22 If Hoerig’s Objections can be construed as an attempt to excuse her procedural default, Hoerig does not argue or explain
what the cause of her failure to raise these issues in her direct appeal would have been or whether there would be a
miscarriage ofjustice in finding these Grounds procedurally defaulted. Likewise, if Hoerig’s objections are construed as
an attempt to demonstrate fundamental unfairness in response to their non-cognizability, Hoerig does not explain that the
state court’s rulings on these issues resulted in a denial of fundamental fairness. Therefore, these Grounds would still be
dismissed.
B-«
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3.
Procedural Default of Grounds Six through Twelve
In Ground Six, Hoerig contends that she was denied her constitutional right to assistance of
counsel and due process under the Sixth, Fifth, and Fourteenth Amendments when her trial and
appellate counsel failed to provide effective assistance. (Doc. No. 14-1 at PageID#s 40, 96.) Hoerig
specifically asserts that her trial counsel was ineffective because he: (1) failed to challenge the jury
venire because Latinos were underrepresented; (2) failed to subpoena additional witnesses including
“expert witnesses”; (3) filed and withdrew a motion to suppress evidence found in one of Hoerig’s
automobiles; (4) failed to authenticate evidence; and (5) failed to challenge Dr. Felo and Detective
Pizzulo. (Id. at PageID#s 96-98.)
Hoerig asserts the following general claims in each of her Grounds Seven through Twelve.
In Ground Seven, the trial court erred in denying her state court motion to dismiss on constitutional
speedy trial grounds. (Doc. No. 14-2 at PagelD# 116.) In Ground Eight, the trial court erred by
denying her motion to change venue. (Id. at PagelD# 188.) In Ground Nine, trial counsel was
ineffective for failing to object to prejudicial false testimony. (Doc. No. 14-3 at PagelD# 245.) In
Ground Ten, the state court prosecutor engaged in misconduct for failing to disclose exculpatory
evidence. (Doc. No. 14-3 at PagelD# 262.) In Ground Eleven, the trial court erred by imposing
excessive bail. (Id. at PagelD# 264.) In Ground Twelve, the prosecutor violated the extradition treaty
between the United States and Brazil. (Id. at PagelD# 266.)
In her R&R, Magistrate Judge explained that, while Ground Six’s caption mentions
ineffective assistance of appellate counsel, Hoerig “fails to develop this argument” and instead argues
only the merits of the sub-issues and “makes no mention of how her appellate counsel failed to
n- 44
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provide effective assistance.” (Doc. No. 70 at PagelD# 9349 n.7.) Thus, the Magistrate Judge implies
that Ground Six only raises a claim for ineffective assistance of trial counsel. (Id.)
The Magistrate Judge initially considered the default of Grounds Six through Twelve in
tandem. (Doc. No. 70 at PageID#s 9348-51.) In doing so, the Magistrate Judge concluded that
Grounds Six through Twelve are procedurally defaulted because they were not raised on direct appeal
and were only raised for the first time in Hoerig’s Rule 26(B) application. (Doc. No. 70 at PageID#s
9348-50.) Specifically, the Magistrate Judge found that “Hoerig introduced each of these sub-issues”
in her Rule 26(b) application “by arguing that her appellate counsel had been ineffective for failing
to raise each of the sub-issues.” (Id. at PagelD# 9350.)
As a preliminary matter, the Court observes that Hoerig does not dispute or object to the
Magistrate Judge’s conclusion that Grounds Six through Twelve are procedurally defaulted. Hoerig
undisputedly raised Grounds Six through Twelve for the first time in her Rule 26(B) application.23
The Court concludes that there is no clear error in the Magistrate Judge’s conclusion that these
grounds have been procedurally defaulted. See Cody v. Sheldon, 2021 WL 1437557, at *22 (N.D.
Ohio Apr. 16, 2021) (finding claim procedurally defaulted because petitioner failed to raise it on
direct appeal and state appellate court refused to reopen his direct appeal to allow him to reassert it).
However, if, as discussed below, Hoerig’s ineffective assistance of appellate counsel claim is
23 Hoerig contends that, in concluding that Hoerig “does not mention ineffective assistance of appellate counsel in
Grounds Seven through Twelve,” the “Magistrate lost its way by overlooking” a page from one of her A-Z exhibits. (Doc.
No. 82 at PagelD# 9837 (citing Doc. No. 48-2 at PagelD# 5263).) Not only is Document Number 48-2 not an argument
in Hoerig’s Petition or Traverse, but the page Hoerig cites is merely a scan of Hoerig’s Rule 26(B) application for
reopening. (See Doc. No. 48-2 at PagelD# 5263.) The Magistrate Judge came to her conclusion in referring to the
arguments presented in Hoerig’s instant habeas Petition and Traverse, which includes her Rule 26(B) application. Indeed,
the Magistrate Judge acknowledged that Hoerig raised Grounds Seven through Twelve in her Rule 26(B) application.
(Doc. No. 70 at PagelD# 9350.) Therefore, Hoerig’s Rule 26(B) application is immaterial to whether Grounds Seven
through Twelve of Hoerig’s instant habeas Petition expressly reference ineffective assistance of appellate counsel.
45
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construed as an attempt to demonstrate cause or excuse for this procedural default, the Court must
consider the Magistrate Judge’s other conclusions regarding Grounds Six through Twelve and
Hoerig’s Objections thereto.
4.
Ineffective Assistance of Appellate Counsel (Grounds Six through Twelve)
Despite the Magistrate Judge’s conclusion that Grounds Seven through Twelve did not
mention ineffective assistance of counsel, the Magistrate Judge recognized that “if Hoerig had raised
[Grounds Seven through Twelve] in the Petition as claims of ineffective assistance of appellate
counsel[,] they would not be procedurally defaulted” because they were raised for the first time in
Hoerig’s Rule 26(B) application.
(Id. at PagelD# 9351.) Accordingly, the Magistrate Judge
proceeded to address both Ground Six and Grounds Seven through Twelve individually in a
“summary fashion,” considering both whether Hoerig’s ineffective assistance of appellate counsel
claim “is viable as a stand-alone claim,” as well as “whether it can serve as the cause to excuse the
procedural default” for Grounds Six through Twelve.” (Id. at PageID#s 9348-51, 9351 n.9, 9353.)
Ultimately, as will be discussed in greater detail below, the Magistrate Judge found that Grounds Six
through Twelve are without merit. (Id. at PageID#s 9348-53.)
The Court finds as follows. Given that Hoerig raised Grounds Six through Twelve in her Rule
26(B) application (and Ground Six expressly asserts ineffective assistance of appellate counsel,)
Grounds Six through Twelve can reasonably be interpreted to assert sub-grounds for ineffective
assistance of appellate counsel. In fact, the state appellate court considered and rejected Hoerig’s
Rule 26(B) claims as asserting ineffective assistance of appellate counsel. Therefore, because Hoerig
is a pro se litigant and because Hoerig brought these arguments in state court in her Rule 26(B)
application, the Court liberally construes Grounds Six through Twelve of Hoerig's Petition as raising
«*=’• 46
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grounds for which her appellate counsel was constitutionally ineffective and will address them
accordingly, as appropriate where Hoerig has objected.24
a.
Standard
In order to establish ineffective assistance of counsel, a petitioner must demonstrate that her
counsel’s conduct was so below acceptable standards of representation that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment to the United States Constitution.
When addressing a claim of ineffective assistance of counsel, courts apply the familiar standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate
that: (1) her counsel’s performance was deficient; and (2) the allegedly ineffective assistance resulted
in prejudice to the petitioner, meaning that “counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “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.” Id. Moreover, to establish the prejudice
component of the Strickland standard, a 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.”
Lundgren v. Mitchell, 440 F.3d 754, 799 (6th Cir. 2006) (citations omitted).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mere
24 Hoerig first raises a general Objection that the Magistrate Judge “failed to take the notations and arguments made
directly in the exhibits into consideration.” (Doc. No. 82 at PagelD# 9842.) In support of this argument, Hoerig cites
Document Number 48, a set of exhibits that Hoerig filed as part of her A-Z box of exhibits. (Id.) However, as Hoerig
herself acknowledges, the exhibits introduce “evidence,” and not arguments, across a span of over 600 pages. (See
generally Doc. No. 48.) As noted elsewhere throughout this Memorandum Opinion and Order, the Court is not required
to sift through voluminous exhibits to locate Hoerig’s arguments or notations in support thereof. Hoerig must articulate
her arguments and present them to the Court in a readily comprehensible form, despite her pro se status. With this
principle in mind, the Court turns to Hoerig’s Grounds Six through Twelve.
47
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disagreements by a defendant with tactics or strategies employed by counsel are not enough to support
a claim of ineffective assistance of counsel and there is a presumption that the challenged conduct of
a petitioner’s counsel was a matter of strategy. Id. at 689; see also United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990).
The Supreme Court has held a defendant is entitled to effective assistance of counsel in his
first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Thus, the two-part test
enunciated in Strickland is applicable to claims of ineffective assistance of appellate counsel. Smith
v. Robbins, 528 U.S. 259, 285 (2000). An appellant has no constitutional right, however, to have
every non-frivolous issue raised on appeal, Jones v. Barnes, 463 U.S. 745,750-54 (1983), and tactical
choices regarding issues to raise on appeal are properly left to the sound professional judgment of
counsel. Perry, 908 F.2d at 59. “[O]nly when issues are clearly stronger than those presented, will
the presumption of effective assistance of [appellate] counsel be overcome.” Joshua v. DeWitt, 341
F.3d 430, 441 (6th Cir. 2003) (internal quotation marks and citations omitted).
b.
Ground Six
In Ground Six, Hoerig argues that her trial counsel (1) failed to challenge the jury venire; (2)
failed to subpoena additional witnesses including “expert witnesses”; (3) filed but then withdrew a
motion to suppress evidence found in one of Hoerig’s automobiles; (4) failed to authenticate
evidence, and (5) failed to challenge certain witnesses. As discussed supra, during her state court
proceedings, Hoerig only raised these instances of alleged ineffectiveness of trial counsel in her Rule
26(B) Application, i.e., in the context of arguing that her appellate counsel was ineffective for failing
to raise her trial counsel’s alleged ineffectiveness on direct appeal.
7 7 ’ 48
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The Magistrate Judge, however, appears to have construed Ground Six as asserting claims of
ineffectiveness of trial counsel. The Magistrate Judge concluded that Hoerig does not offer any
argument suggesting that Ohio’s presumptively constitutional voter registration lists can be
challenged. (Doc. No. 70 at PagelD# 9353.) The Magistrate Judge further concluded that, as to the
remainder of her arguments, Hoerig has “fail[ed] to meaningfully develop these arguments beyond
her own self-serving conclusions that they are meritorious.” (Id.) As an example, the Magistrate
Judge explained that Hoerig fails to argue what substantive information could have been revealed
through “a more vigorous examination” or the “potential impact on the verdict from her [counsel’s]
alleged errors.” (Id.)
Hoerig objects on the single basis that the Magistrate Judge “made a false and conclusory
statement” when she concluded that “[Hoerig] wholly fails to argue what substantive information
could have been revealed through a more vigorous examination.” (Doc. No. 82 at PagelD# 9850.)
Hoerig argues that she “made [this] point very clear,” citing to 96 pages from her Traverse. (Id.
(citing Doc. No. 55 at PageID#s 8071-8167).) The remainder of Hoerig’s Objections on this point
are restatements and reproductions of arguments as to what she believes her trial counsel should have
done differently.
In this case, Hoerig does not specifically explain how the Magistrate Judge’s conclusion was
erroneous. Hoerig’s general citation to 96 pages from her Traverse is insufficient to raise a specific
objection to the Magistrate Judge’s conclusion.25 As mentioned several times throughout this
25 The Court nevertheless observes that the 96-page range includes arguments that Dr. Felo is not an expert and that his
opinion was not supported by adequate “scientific bases” such as “fluid dynamics” based upon the alleged lack of “blood
splatter,” the trajectory of the bullets, and Hoerig’s own opinion as to which bullet was fatal. (Doc. No. 55 at PageID#s
8071-8167.) Hoerig, relying solely on photographs of Karl’s body and her own opinions concerning his death, also
contends that trial counsel should have hired an expert to opine on a blood pattern, Karl’s body position, and “signs of
B- 49
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Memorandum Opinion and Order, a petitioner, when filing objections to an R&R, is required to
articulate his arguments specifically and clearly such that the District Judge can determine which of
the Magistrate Judge’s conclusions are purported to be erroneous. Hoerig’s failure to explain or cite
to any error in the R&R precludes a de novo review. The Court finds no clear error with the
Magistrate Judge’s conclusions that (1) the Ohio jury venire selection process is presumptively
constitutional and (2) Hoerig’s Petition does not develop any of her other arguments in support of
Ground Six. Accordingly, Hoerig’s Objections are overruled. Moreover, because Hoerig has failed
to demonstrate that the Magistrate Judge incorrectly concluded that trial counsel was ineffective for
failing to raise the issues discussed in Ground Six, the Court further finds that Hoerig has failed to
show that her appellate counsel was ineffective for failing to raise any of these instances of alleged
ineffectiveness of trial counsel on direct appeal. The Court therefore finds that, whether construed
as a claim of ineffective assistance of trial counsel or a claim of ineffective assistance of appellate
counsel, Ground Six is without merit.
c.
Ground Seven.
In Ground Seven, Hoerig asserts that the state trial court erred and abused its discretion in
violation of her speedy trial and due process rights under the Sixth, Fifth, and Fourteenth
Amendments when it “denied [Hoerig’s] 02-16-2018 and 03-20-2018 motions to dismiss due to
speedy trial violation pursuant to O.R.C. 2945.71 without a hearing in its journal entry [dated] 03-
stress, pain or suffering.” (Id.) Hoerig’s arguments in the 96-page range do little more than offer Hoerig’s speculative
personal theories as to Karl’s death in an attempt to challenge the credibility of Dr. Felo’s opinions. Hoerig fails to direct
this Court’s attention to any authority br evidence in the record to demonstrate what substantive information that could
have been revealed if her trial counsel had engaged in more vigorous cross-examination of Dr. Felo or an examination of
his own expert, and therefore do not raise a specific objection to the Magistrate Judge’s conclusion.
'^-50
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22-2018,” “shifted the burden of proof to the Defendant,” and “denied [Hoerig] the due process
opportunity to defend against” the State’s accusations. (Doc. No. 14-1 at PageID#s 40, 116.)
The Magistrate Judge recommended that Ground Seven be dismissed because Hoerig fails to
raise a legal, non-conclusory argument in support of her contention that her speedy trial rights were
violated. (Doc. No. 70 at PagelD# 9354.) Further, the Magistrate Judge explained that Hoerig
ignored the state court decision denying her motion to dismiss for speedy trial violations wherein the
state court noted that delays in Hoerig’s prosecution were attributable to Hoerig’s flight to Brazil and
refusal to cooperate with extradition proceedings. (Id.) Lastly, the Magistrate Judge found that
Hoerig has not shown that her appellate counsel was deficient for failing to raise this error on appeal.
(ZJ.)
In Hoerig’s Objections, Hoerig argues that the Magistrate Judge ignored the fact that her trial
counsel requested an evidentiary hearing, but that the trial court denied her motion to dismiss for
speedy trial violations without the scheduled hearing. (Doc. No. 82 at PagelD# 9856.) Additionally,
Hoerig argues that the Magistrate Judge “regurgitates” and “merely restate[s]” the same conclusory
assertions made by the state trial and appellate courts and, seemingly erroneously, relied on the state
court’s conclusory decision. (Id. at PagefD#s 9855-57.) According to Hoerig, appellate counsel and
trial counsel “knew about the existence of exhibits (P-Z) and made no effort to uncover these
documents or make arguments.” (Id. at PagelD# 9855.) In support of her arguments, Hoerig cites to
dozens of exhibits and contends that the Magistrate Judge’s determination that the state court
“properly” noted that Hoerig’s delays were of her own doing is “directly contradicted by the records,”
for example that she “was willing to go to trial in Brazil as early as 2007” and “was not avoiding
prosecution.” (Id. at PageID#s 9855, 9857.) For the following reasons, the Court disagrees.
Case: 4:22-cv-00300-PAB Doc #: 85 Filed: 04/19/24 52 of 76. PagelD #: 10021
After reciting the standard for evaluating ineffective assistance of appellate counsel claims
under Stricklandv. Washington, 466 U.S. 668 (1984), the state appellate court considered and rejected
Hoerig’s now-Ground Seven, as follows:
Here, Hoerig argues that appellate counsel should have challenged the denial of her
motion to dismiss for a speedy trial violation. The trial court, in a March 22, 2018
Entry, denied the motion finding that the delay in bringing Hoerig to trial was
occasioned by her flight to Brazil, the State made reasonable efforts to secure her
extradition, and she opposed those efforts. Hoerig counters that the Trumbull County
prosecutor misrepresented the “true facts” of the case in addition to engaging in
bribery and conducting a misinformation campaign through the media. As with her
prior claim, much of Hoerig’s argument rests on evidence outside of the record while
the denial of the motion to dismiss was based on documents attached to the State’s
opposition to dismissal. Accordingly, Hoerig has failed to demonstrate a reasonable
probability of success if the appellate counsel had challenged the denial of the motion
to dismiss.
It is worth noting at this point that, to be effective, appellate counsel need not raise all
possible arguments on appeal. In the exercise of his or her professional judgment,
appellate counsel has the discretion to decide which arguments to raise on appeal.
State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, V (appellate
counsel need not raise every possible issue in order to render constitutionally effective
assistance”); State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2015-Ohio-1446, ^[6
(“the United States Supreme Court has firmly established that appellate counsel
possesses the sound discretion to decide which issues are the most fruitful arguments
on appeal”), citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983); State v. Wainwright, 7th Dist. Mahoning No. 19 MA 0023, 2020-Ohio-4734,
p.
(Doc. No. 30-1, Ex. 41 at PageID#s 1902-03.)
As discussed above, before reviewing the substance of the state appellate court’s decision, the
Court must first determine the proper standard of review. Where the state appellate court, as here,
correctly identifies Strickland as the standard for assessing a petitioner’s ineffective assistance claim,
its ruling must unreasonably apply that standard in order for the petitioner to receive habeas relief.
Knowles v. Mirzayance, 556 U.S. Ill, 123 (2009) (“The question is not whether a federal court
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believes the state court’s determination under Strickland was incorrect but whether that determination
was unreasonable - a substantially higher threshold.”) (internal quotation marks omitted).
For the following reasons, the Court finds that the state appellate court adjudicated what is
now Hoerig’s Ground Seven on the merits and, therefore, its decision is entitled to deference under
the AEDPA. The state appellate court properly recited the governing standard of review for
ineffective assistance of counsel claims set forth in Strickland, supra, and expressly acknowledged
Hoerig’s claim that her appellate counsel should have challenged on direct appeal the trial court’s
denial of her motion to dismiss for a speedy trial violation. (Doc. No. 30-1, Ex. 41 at PagelD# 1161.)
The state appellate court then evaluated the record evidence and rejected Hoerig’s claim, holding that
“much of Hoerig’s argument rests on evidence outside of the record while the denial of the motion to
dismiss was based on documents attached to the State’s opposition to dismissal.” (Id.) Although the
state appellate court’s analysis is somewhat brief, the Court finds it sufficient to constitute an
“adjudication on the merits” for purposes of review under Section 2254(d). Therefore, the inquiry at
this juncture is whether the state appellate court’s disposition of Hoerig’s ineffective assistance of
appellate counsel claim was an unreasonable application of clearly established federal law (28 U.S.C.
§ 2254(d)(1)); or based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding (28 U.S.C. § 2254(d)(2)). For the following reasons, the
Court finds that it was not.
The record shows that, in the trial court, on February 1, 2018, nearly ten years after the
indictment was issued against Hoerig and after she had traveled to Brazil and was subsequently
extradited back to the United States, the State filed a motion to determine speedy trial calculation and
trial date. (Doc. No. 30-1, Ex. 6.) On February 16, 2018, Hoerig, through counsel, filed a response
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and motion to dismiss for lack of speedy trial. (Doc. No. 30-1, Exs. 7,9.)26 Hoerig argued that Ohio
Revised Code 2945.71(C)(2) applied, which provides that a felony defendant “shall be brought to
trial within two hundred and seventy days after the person’s arrest.” (Id., Ex. 7 at PagelD# 1235.)
The State, in filing its opposition to dismissal, attached numerous documents from Interpol and
Brazilian judicial authorities (in Portuguese) in an attempt to establish that Hoerig fled the United
States to Brazil after she killed Karl and refused to return until she was arrested and extradited. (See
generally id., Ex. 8.)
On March 22, 2018, the trial court denied Hoerig’s motion to dismiss for lack of speedy trial.
(Doc. No. 30-1, Ex. 10 at PageID#s 1438-42.) The trial court acknowledged that, because Hoerig
was arrested in Brazil in April 2016 for extradition to the United States and “continued to fight the
extradition process during her incarceration in Brazil for 645 days,” Hoerig had “[t]echnically”
established a prima facie case of a speedy trial violation.” (Id. at PagelD# 1439.) The trial court,
however, observed that while the burden then shifted to the State, the State could still rebut the
presumption that the delay was unreasonable. (Id.)
The trial court concluded that the delay between Hoerig’s indictment, arrest, and trial
proceedings was “attributable solely to [Hoerig].” (Id. at PagelD# 1440.) According to the trial
court, while she was in Brazil, Hoerig “opposed [her] extradition” to the United States. (Id.)
Meanwhile, the State had demonstrated that it “zealously pursued each and every opportunity” for
Hoerig’s extradition beginning “almost immediately” after Karl’s murder. (Id. at PageID#s 144041.) And the trial court observed that, in the extradition context, speedy trial requirements do not
26 Hoerig filed an initial Response/Motion for Discharge, followed by a “Supplement” to her Response/Motion for
Discharge. (Doc. No. 30-1, Exs. 7,9.)
Case: 4:22-cv-00300-PAB Doc #: 85 Filed: 04/19/24 55 of 76. PagelD #: 10024
commence “until the defendant is in Ohio and arrested on an Ohio charge.” (Id. at PagelD# 1440.)
Therefore, because Hoerig’s significant delay was solely attributable to her own actions, the State
had met its burden of demonstrating that the delay was not unreasonable.
The Court concludes that the state appellate court’s decision was neither an unreasonable
determination of the facts nor contrary to, or an unreasonable application of, clearly established
federal law. As the state appellate court noted, Hoerig’s Rule 26(B) argument relied on evidence
outside of the record established in the trial court. (Doc. No. 30-1, Ex. 41 at PagelD# 1902.)
Specifically, the state appellate court had noted earlier in its opinion that “the effectiveness of
appellate counsel cannot be judged on matter not present in the record.” (Id., Ex. 41 at PagelD# 1901
(citing State v. Moore, 758 N.E.2d 1130 (Ohio 2001)).) Thus, under Ohio law, only evidence that is
part of the record can be considered in evaluating an ineffective assistance of appellate counsel claim
under Strickland. See Smith v. Warden, 2023 WL 8718836, at *16 (S.D. Ohio Dec. 18,2023). After
a review of the evidence before the trial court and Hoerig’s Rule 26(B) application, the Court agrees
that Hoerig’s argument on this ground relied on evidence that was not before the trial court in its
review of Hoerig’s motion to dismiss, such as newspaper clippings, congressional acts, and otherwise.
(Doc. No. 30-1 at Exs 8, 40.) Therefore, Hoerig provided no proper evidence in her Rule 26(B)
application to demonstrate that appellate counsel should have challenged the trial court’s denial of
her motion to dismiss and accordingly could not demonstrate that appellate counsel’s assistance was
ineffective in failing to do so. (Id.) Accordingly, the Court finds that it was not unreasonable for the
state appellate court to conclude that appellate counsel was not ineffective for declining to argue, on
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direct appeal, that the trial court improperly denied Hoerig’s motion to dismiss for lack of a speedy
trial.27
Hoerig’s arguments to the contrary are without merit. Liberally construing Hoerig’s pro se
pleadings, it appears that Hoerig is generally asserting that the trial court violated her rights when it
denied her motions to dismiss “without a hearing,” the trial court “shifted the burden of proof’ onto
her, the Magistrate Judge did not consider trial counsel’s evidentiary hearing request, and that,
contrary to the state trial court’s conclusion, the delay was not of her own doing. (Doc. No. 14-1 at
PagelD# 116; Doc. No. 82 at PageID#s 9855, 9857.) The Court rejects these arguments.
First, there is no clear constitutional right to an evidentiary hearing under Ohio Revised Code
§ 2945.71 or the Sixth Amendment, and Hoerig has not provided authority otherwise. And Hoerig
does not contend that, once a hearing was set on her motions to dismiss, the trial court erred by ruling
on the motions beforehand. As indicated above, the trial court received full briefing, and Hoerig was
even permitted to submit a supplement to her first motion to dismiss. Further, that Hoerig was able
to fully brief her motions to dismiss and respond to the State’s motion to calculate speedy trial weighs
against Hoerig’s assertion that the state court denied her the opportunity to defend against the State’s
accusations. Hoerig does not specifically explain how the lack of a hearing on her motions deprived
her of due process. This argument is rejected.
27 The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. Const, amend. VI. When a habeas petitioner alleges a violation based on a speedy trial claim, he must
show that, on balance, he was deprived of a speedy trial based on the following relevant factors: “the length of the delay,
the reason for the delay, the defendant’s diligence in asserting the right, and whether the delay prejudiced the defendant.”
Gaston v. Fender, 2024 U.S. App. LEXIS 2616, at *5 (6th Cir. Feb. 5,2024) (citing Barker v. Wingo, 407 U.S. 514, 522
(1972)). In Ohio, “a criminal defendant’s state and federal constitutional speedy-trial rights are codified in Ohio Revised
Code § 2945.71 et seq.” Id Specifically, Section 2945.71 provides that a felony defendant must be tried within 270 days
of his arrest. Ohio Rev. Code § 2945.71.
w
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Second, the trial court also expressly noted that Hoerig had satisfiedhvc burden of establishing
a prima facie case. (Doc. No. 30-1, Ex. 10 at PagelD# 1439.) The trial court recognized that the
burden thereafter shifted to the State. (Id.) Finally, the trial court concluded that the State had met
its burden of showing that the delay was not unreasonable given Hoerig’s own conduct. (Id. at
PageID#s 1439-41.) Hoerig’s Petition includes little more than a conclusory allegation that the trial
court “shifted the burden of proof to [Hoerig],” and accordingly cannot demonstrate that appellate
counsel should have challenged her conviction on this basis. (Doc. No. 14-2 at PagelD# 116.) This
argument is rejected.
Third, Hoerig fails to explain how her appellate counsel should have challenged the motion
to dismiss on direct appeal other than to say without explanation that the State’s exhibits were
“fraudulent exhibits” and that she was willing to go to trial in Brazil in 2007. (Doc. No. 82 at PagelD#
9857.) This argument is also rejected.28
Further, even assuming arguendo that a challenge to the trial court’s ruling on direct appeal
would not have been frivolous, as the Sixth Cir
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