McGee v. Warden Belmont Correctional Institution

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
WILLIAM McGEE,
Petitioner, 	: 	Case No. 2:25-cv-00446
- vs - 	District Judge James L. Graham
Magistrate Judge Michael R. Merz
WARDEN, Belmont Correctional
Institution,
:
Respondent.
SUBSTITUTED REPORT AND RECOMMENDATIONS
This habeas corpus case was brought pro se by Petitioner William McGee to obtain relief
from his 2021 convictions in the Franklin County Court of Common Pleas. The case is pending
on the Petition (ECF No. 1), the Amended State Court Record (ECF No. 17 as supplemented by
ECF No. 24), Respondent’s Amended Return of Writ (ECF No. 19), and Petitioner’s Traverse
(ECF No. 28) 1 .
Litigation History
On April 4, 2019, a Franklin County Grand Jury returned an indictment charging McGee
1 Petitioner claims to have deposited his Traverse in the prison mail on October 24 (PageID 2736). However, the
postmark on the Traverse is November 4 and the prison cashier received his request for postage on October 30 (PageID
2744, 2656). In the interest of judicial economy, the Court will consider the Traverse without attempting to decide if
it was timely filed. The previously-filed Report (ECF No. 26) has been withdrawn, rendering moot Petitioner’s
Objections to that Report (ECF No. 27).
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 1 of 25 PAGEID #: <pageID>

2
with felonious assault in violation of Ohio Revised Code § 2903.11, two counts of improperly
discharging a firearm at or into a habitation or a school safety zone in violation of Ohio Revised
Code § 2923.161, and having weapons while under a disability, in violation of Ohio Revised Code
§ 2923.13. The first three counts had firearm specifications. (Indictment, Amended State Court
Record, ECF No. 17, Ex. 1). After several changes of counsel and waivers of speedy trial, a jury
found McGee guilty on the first three counts and specifications and the trial judge found him guilty
on the weapons under disability count. He was sentenced to an aggregate of seventeen years
imprisonment.
Petitioner took a direct appeal to the Ohio Tenth District Court of Appeals which overruled
all of his assignments of error and affirmed the convictions. State v. McGee, 2023-Ohio-2935
(Ohio App. 10th Dist. Aug. 22, 2023). Petitioner’s motion for reconsideration was overruled and
he appealed to the Supreme Court of Ohio which declined to exercise jurisdiction. State v. McGee,
173 Ohio St. 3d 1457 (Apr. 16, 2024).
On March 26, 2024, Petitioner filed a delayed application to reopen his direct appeal to
litigate claims of ineffective assistance of appellate counsel (Application, Amended State Court
Record, ECF No. 17, Ex. 39). The Tenth District dismissed the Application as untimely. Id. at Ex.
40.
Petitioner filed in the trial court a motion for re-sentencing based on recent Ohio Supreme
Court jurisprudence. Id. at Ex. 41. The trial court denied the motions as untimely and barred by
res judicata. Id. at Ex. 45. The Tenth District later granted a motion for delayed appeal which
remained pending at the time the Respondent filed the Amended Return of Writ (October 3, 2025).
Petitioner avers that he deposited his Petition in the prison mailing system on April 6, 2025
(Petition, ECF No. 1, PageID 39). The Petition pleads fifteen grounds for relief as follows:
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 2 of 25 PAGEID #: <pageID>

3
Ground One: The trial court erred in overruling the motion to
suppress the evidence: (a) the court of appeals abused its discretion
when it failed to review the trial court’s judgment entry, and also
made misapprehensions of the record of what the trial court made in
its ruling under. and the appellate courts misapplication of the law.
Supporting Facts: The Trial Court Erred By Failing To Suppress
The Evidence Of Firearm Shells Collected During The Warrantless
Sweep Of Smith's Apartment, And Of The Facebook Messages
Between “William Cruse” And McGowan. The Court of Appeals
ruled that the evidence had been deemed credible by the trial court,
even where the trial court's ruling was flawed and contrary to the
suppression hearing testimony of Officer Hicks testimony which
clearly reflects the trial court’s reason for denial and clearly states
appellant had standing and also trial court’s rulings was contrary to
states testimony.
Ground Two: Petitioner was denied the effective assistance of trial
counsel as guaranteed by the United States and Ohio constitution:
(a) the court of appeals abused its discretion when it found that trial
counsel's performance was not deficient as to deny him effective
assistance of counsel when he failed to timely introduce vital alibi
evidence that corroborated testimony and also failure to investigate
or review alibi witness statements that 	appellant 	was denied
effective assistance of trial when counsel failed to conduct proper
pretrial investigation and discovery, and also failure to proffer
excluded evidence for appellate review.
Supporting Facts: Trial Counsel Was Ineffective For Not Securing
Or Attempting To Seek An Continuance In Order To Obtain Vital
Alibi Testimony. Counsel Also Failed To Subpoena Necessary
Business Record To Support Appellants Alibi Defense.
Ground Three: The trial court abused its discretion in permitting
the state to use appellant’s prior conviction to impeach him: (a) the
court of appeals abused its discretion when admitting evidence of
prior convictions for marijuana charged trial court reasoning was
without such impeachment it would give appellant a false aura of
veracity during his testimony.
Supporting Facts: The trial court’s decision to impeach appellant
on behalf of a marijuana trafficking case which was over 10-years
old was an abuse of discretion. The trial court used incorrect
standard 	of 	review 	in 	determining 	the 	admissibility 	of 	the
conviction.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 3 of 25 PAGEID #: <pageID>

4
Ground Four: The trial court erred and deprived appellant of due
process of law as guaranteed by the Fourteenth Amendment to the
United States Constitution and Article One Section Ten of the Ohio
Constitution 	by 	finding 	him 	guilty 	of 	felonious 	assault 	and
discharging a firearm at or near a habitation, as those verdicts were
not supported by sufficient and were also against the manifest
weight of evidence and against sufficiency of the evidence to
support the conviction.
Supporting Facts: The evidence used to support the convictions are
insufficient and against the manifest weight of the evidence.
Ground Five: The court of appeals erred in their findings of fact in
relation to the suppression hearing as those findings are not
supported by the record.
Supporting Facts: The Court of Appeals Findings of Fact As They
Relate To The Suppression Hearing Determination Are Incorrect
And Not Supported By The Record. The State Argued That No
Exigency Existed, However, The Court Of Appeals Found That The
Trial Courts Decision Deemed Credible And Cannot Disturb The
Trial Court's Judgment There Was No Indication That Officers
Conducted A Search Of The Residence As They Recovered The
Spent Shell Casings That Were In Plain Review When They Arrived
And Found The Door Ajar Which Totally Contradicted The Court
Of Appeals Ruling That A Protective Sweep Was Reasonable Due
To Exigent Circumstance. There Is Also Other Incorrect Findings
Made By The Court Of Appeals Based On The Record Relating To
the suppression hearing as cited in the Supreme Court memorandum
in support of jurisdiction. (See page 12).
Ground Six: Appellate counsel was ineffective when it failed to
raise appellant was denied a complete defense, right fair trial and
due process when the trial court denied his vital alibi evidence in
support of an alibi defense which violated his rights under U.S.
Constitution Amendment V, VI, and XIV and Ohio Const. art. i, §1,
§10 and 16.
Ground Seven: Appellate counsel was ineffective when it failed to
raise trial counsel to be ineffective for failing to file motion to
dismiss via speedy trial in violation of his rights under U.S.
Constitution Amendment VI, AND XIV, and Ohio Const. ART. I,
§1, §10 and 16.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 4 of 25 PAGEID #: <pageID>

5
Ground Eight: appellate counsel was ineffective when it failed to
raise the confrontation clause over reserved objection violated his
rights under U.S. Constitution Amendment V, VI, AND XIV, and
Ohio Const. ART. I, 10 AND 16.
Ground Nine: Appellate counsel was ineffective when it failed to
raise cumulative error argument.
Ground Ten: Appellant counsel was ineffective for not raising
reversible error pursuant due to the due process clause of fourteenth
amendment evidence obtained by a search and seizure and violation
of fourth amendment was inadmissible in state prosecution of
appellant criminal trial.
Supporting Facts: Appellate Counsel was ineffective for not
raising colorable error on behalf of shell casings and also Facebook
pictures 	and 	also 	messages 	being 	introduced 	into 	trial 	and
admissible which clearly violated appellant due process and equal
protection of Law.
Ground Eleven: Appellate counsel was ineffective by not raising
Crim.R.16 (i), (d) and also discovery violation.
Supporting Facts: Appellate Counsel was ineffective for not
raising trial counsel being ineffective for not objecting to rebuttal
witness not being in discovery violating Crim.R. 16(D) violation in
regard to Dana Crooks rebuttal testimony that was not disclosed and
discovery trial counsel should have objected or club continuance or
held void dear regarding investigator testimony that prejudiced
appellant trial and confused jurors and was a last minute scramble
by the state to try and discredit appellant defense which defendant
was not prepared for it's an established rule that all witnesses
including rebuttal witness whom state reasonably anticipates the
need to calls should be disclosed to defense pursuant to a valid
discovery request….
Ground Twelve: appellate counsel was ineffective for not raising
prosecutor misconduct on various occasions of misleading jurors,
bolstering victim’s testimony, speculating threats without evidence,
leading of state witness, improperly advising jurors of doctrines that
was inapplicable to a permissible theory for R.C. 2923.161 (8)(1),
misstating evidence that was introduced to manipulate jurors and
confuse evidence, vouching and bolstering victim testimony which
violate criminal trial error and misconduct § 5-1, (b) (2) 2-4 (d) (2)
and violates due process and a right to a fair trial.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 5 of 25 PAGEID #: <pageID>

6
Ground 	Thirteen: 	Appellate 	counsel 	deficient 	performance
prejudiced appellant by not raising confrontation clause and an
admissible hearsay testimony over reserved objection violated his
rights under U.S. Constitution Amendment V, VI and Ohio Const.
Art. i, § 1 § 10 and 16.
Ground Fourteen: Appellate counsel was ineffective for failing to
raise on direct appeal that the trial court abused its discretion and
made flawed ruling on behalf of denial of self-authenticating
business records that were made in the ordinary course of day.
Ground Fifteen: Appellate counsel was ineffective for failing to
raise 	sufficient 	error 	that 	the 	state 	never 	properly 	proved
unavailability of witness, not satisfying Ohio Evid R. 803-804 rules
of unavailability.
Supporting Facts: The State presented the testimony of Sabrina
Martin. The State’s claim of unavailability was insufficient and
failed to meet the burden of unavailability.
(Petition, ECF No. 1, PageID 9-35).
Analysis
Claims Under the Ohio Constitution
In Grounds for Relief Two, Four, Six, Seven, Eight and Thirteen, Petitioner makes claims
that his rights under the Ohio Constitution were violated in obtaining his conviction.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions. In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 6 of 25 PAGEID #: <pageID>

7
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring).
Claims made under the Ohio Constitution, therefore, are not cognizable in federal habeas
corpus. No further analysis is offered of those claims which should be dismissed for failure to state
a claim upon which federal habeas corpus relief can be granted.
Grounds One and Five: Failure to Suppress Evidence
In his First and Fifth Grounds for Relief, Petitioner claims evidence used against him
should have been suppressed because it was unconstitutionally seized in violation of the Fourth
Amendment.
The Fourth Amendment to the United States Constitution prohibits searches without
probable cause to believe the search will yield evidence of a crime. Evidence seized without
probable cause must be suppressed and not admitted into evidence. Mapp v. Ohio, 367 U.S. 643
(1961). The Ohio Rules of Criminal Procedure provide a mechanism by way of a motion to
suppress to enforce the exclusionary rule adopted in Mapp.
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that
question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court
to determine whether state procedure in the abstract provides full and fair opportunity to litigate,
and Ohio procedure does. The district court must also decide if a petitioner's presentation of claim
was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an
unanticipated and unforeseeable application of a procedural rule prevents state court consideration
of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 7 of 25 PAGEID #: <pageID>

8
of a “full and fair opportunity,” held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate. Ohio
R. Crim. P. 12 provides an adequate opportunity to raise Fourth
Amendment claims in the context of a pretrial motion to suppress,
as is evident in the petitioner’s use of that procedure. Further, a
criminal defendant, who has unsuccessfully sought to suppress
evidence, may take a direct appeal of that order, as of right, by filing
a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.
5(A). These rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment claims because the state affords a
litigant an opportunity to raise his claims in a fact-finding hearing
and on direct appeal of an unfavorable decision.
Id. at 526.
In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary
hearing was not required by due process and followed its prior conclusion that “opportunity means
opportunity . . . the state court need do no more than ‘take cognizance of the constitutional claim
and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d 1298, 1302
(6th Cir. 1977).
Consistent with Moore and with two of the three votes in Bradley,
we make clear that the Powell "opportunity for full and fair
consideration" means an available avenue for the prisoner to present
his claim to the state courts, not an inquiry into the adequacy of the
procedure actually used to resolve that particular claim.
Id. at 639-40.
In his First and Fifth Grounds for Relief, Petitioner does not claim in the Petition that he
did not receive a full and fair opportunity to litigate his Fourth Amendment claims, but rather that
the outcome was wrong.
In the Traverse, Petitioner writes as to the First Ground for Relief:
The state courts plainly misapprehended or misstated the record in
making 	their 	findings, 	in 	regard 	to 	ground 	one. 	Those
misapprehensions go to a material factual issue that is central to
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 8 of 25 PAGEID #: <pageID>

9
petitioner's claim. The misapprehension fatally undermined the fact-
finding process, rendering the resulting factual finding unreasonable
and because so, the presumption of correctness does not apply. The
state court misconstrued or misstated the record or overlooked or
misconstrued evidence; and or the state court applied an erroneous
legal standard in making the factual determination. Although the
state 	court 	made 	a 	factual 	determination 	and 	employed 	an
adequate procedure in making that determination (emphasis
supplied), the resulting determination is substantively unreasonable
because it is not fairly supported by the "evidence" presented in the
State court proceeding.
(Traverse, ECF No. 28, PageID 2659). This argument misses the point. Under Stone, the question
to be litigated is whether a defendant has been given a full and fair opportunity to litigate his Fourth
Amendment claims. 	Here Petitioner was given the full range of Ohio procedure on Fourth
Amendment questions: 	a motion to suppress process, an evidentiary hearing on that motion at
which he was able to subpoena witnesses and cross-examine the witnesses supporting the search,
a reasoned opinion by the trial judge, and the opportunity to test that opinion on appeal.
Later in the Traverse, Petitioner argues
[T]he application of stone is not absolute, and petitioner contends
that the state court proceedings did not provide a full and fair
opportunity "to litigate his Fourth Amendment claim. Thereby
rendering Stone is not absolute. Moreover Stone is also is not
absolute pursuant to Kimmelman v. Morrison. 477 U.S. 365. 106 S.
Ct. 2574. 91 L. Ed. 2d 305. 1986 U. S. LEXIS 63. 54 U. S. L.W.
4789 (-U. S. June 26, 1986). Which in short means trial counsel
failure to file for franks hearing per holding of Franks, v. Delaware,
438 U. S. 154 (1978).
(Traverse, ECF No. 28, PageID 2683).
Under Franks v. Delaware, 438 U.S. 154 (1978), a party may challenge the veracity of a
search warrant affidavit only upon a substantial preliminary showing that a false statement was
included knowingly and intentionally or with reckless disregard for its truth and that the allegedly
false statement was necessary for a finding of probable cause. 	Because a finding under Franks
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 9 of 25 PAGEID #: <pageID>

10
could lead to exclusion of evidence and that evidence might be crucial, a person could make a
claim in habeas that he received ineffective assistance of trial counsel when his attorney failed to
request a Franks hearing. 	But that would be a Sixth Amendment ineffective assistance of trial
counsel claim, not a Fourth Amendment claim. 	And Petitioner makes no Franks-ineffective
assistance-of-trial-counsel claim in his Petition. 	And if he had made such a claim, it would be
procedurally defaulted because he never presented such a claim to the state courts by way of a
petition for post-conviction relief under Ohio Revised Code § 2953.21.
Petitioner’s Franks hearing argument in the Traverse is unfortunately typical of the
structure of the Traverse. 	That document is seventy-nine pages long, much of it being single-
spaced.2 	The argument on Petitioner’s Fourth Amendment claims runs from PageID 2659 to
PageID 2692 and resumes at PageID 2707 through PageID 2712 and is all focused on the results
of the process.
Under Stone these claims are not cognizable in habeas corpus and should therefore be
dismissed.
Ground Two: Ineffective Assistance of Trial Counsel
In his second ground for relief, Petitioner claims he received ineffective assistance of trial
counsel when his trial attorney failed to seek a continuance to obtain needed alibi evidence, failed
to properly investigate Petitioner’s alibi, and failed to proffer excluded evidence for appeal3 .
The Tenth District Court of Appeals considered this claim on appeal as Petitioner’s second
assignment of error and decided it as follows:
2 S. D. Ohio Civ. R. 5.1 provides in part “All pleadings, motions, briefs, and other papers presented to the Clerk for
filing shall be . . and double-spaced, except for block-quoted material.”
3 As noted above, no failure to request a Franks hearing is pleaded in the Petition as an occasion of ineffective
assistance of trial counsel.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 10 of 25 PAGEID #: <pageID>

11
¶ 	15} 	McGee 	next 	contends 	that 	his 	trial 	counsel 	was
constitutionally ineffective. In order to obtain a reversal on appeal
for ineffective assistance of counsel, a defendant must demonstrate
both that defense counsel's performance was deficient, and that
counsel's 	deficient 	performance 	prejudiced 	the 	defense. 	See
generally Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). A properly licensed attorney is
presumed competent, and a defendant bears the burden of showing
ineffective assistance of counsel. State v. Hamblin, 37 Ohio St.3d
153, 155-56, 524 N.E.2d 476 (1988). In assessing claims of
counsel's deficiency, “a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.” Strickland at 689, 104
S.Ct. 2052, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158, 100 L.Ed. 83 (1955). And in evaluating whether the challenged
action caused prejudice, the court must find that counsel's error was
so serious that there is a reasonable probability it affected the
outcome of the trial. See, e.g., State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989).
{¶ 16} McGee argues that his counsel failed to properly investigate
his alibi defense, and specifically that his counsel failed to ensure
that the Lima invoices were admitted into evidence to support his
alibi. He contends that his trial counsel failed to subpoena the
business that issued the invoices, failed to timely disclose the
invoices to the state, and failed to proffer the invoices for appellate
purposes. Appellant argues that counsel's failures forced him to
testify in his own defense, revealing his prior felony conviction to
the jury and subjecting him to cross-examination on his prior
statement to detectives.
{¶ 17} But as the state correctly argues in response, the existing
record fails to demonstrate that McGee was prejudiced by counsel's
allegedly defective performance. Specifically, the record is unclear
regarding what the invoices would prove, and how and whether they
are admissible. McGee's argument is an “off-the-record” claim that
can only be brought in postconviction where McGee can offer
evidence specifying how the invoices would have proven his alibi
defense, and is accordingly able to establish both prongs of the
Strickland standard. We must similarly observe that trial counsel's
failure to proffer the invoices cannot be viewed as deficient
performance in this context, since McGee has not established on
appeal that the invoices were admissible on the current record.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 11 of 25 PAGEID #: <pageID>

12
Finally, we observe that it is equally likely that counsel made a
strategic decision at trial that McGee's alibi defense could be shown
exclusively 	through 	Smith's 	testimony. 	As 	a 	result, 	McGee's
decision—against 	the 	advice 	of 	counsel—to 	testify 	was 	not
compelled by issues with the admission of the invoices. For these
reasons, McGee has met neither prong of the Strickland test, and his
second assignment of error is overruled.
State v. McGee, supra.
The governing standard for ineffective assistance of counsel claims is found in
Strickland v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)
counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial 	scrutiny 	of 	counsel's 	performance 	must 	be 	highly
deferential. . . . A fair assessment of attorney performance requires
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 12 of 25 PAGEID #: <pageID>

13
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the 	time. 	Because 	of 	the 	difficulties 	inherent 	in 	making 	the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood
of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been 	established 	if 	counsel 	acted 	differently. 	See 	Wong 	v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009)
(per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052, 80 L.
Ed. 2d 674. Instead, Strickland asks whether it is “reasonably likely”
the result would have been different. Id., at 696, 104 S. Ct. 2052, 80
L. Ed. 2d 674. This does not require a showing that counsel's actions
“more likely than not altered the outcome,” but the difference
between Strickland's prejudice standard and a more probable-than-
not standard is slight and matters “only in the rarest case.” Id., at
693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The likelihood of a
different result must be substantial, not just conceivable. Id., at 693,
104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 13 of 25 PAGEID #: <pageID>

14
As the Tenth District correctly held, this claim of ineffective assistance of trial counsel
depended on proof outside the appellate record, to wit, the invoices which supposedly would show
Petitioner was in Lima, Ohio, at the time of the crime. Ohio has a procedure for raising
constitutional claims that depend on evidence outside (dehors) the record: a petition for
postconviction relief under Ohio Revised Code § 2953.21. That remedy has a one-year statute of
limitations which runs from the time the record is complete on direct appeal. Because that time
has clearly passed and Petitioner did not file under Ohio Revised Code § 2953.21, he has
procedurally defaulted on this claim of ineffective assistance of trial counsel. Ground Two should
therefore be dismissed.
Ground Three: Abuse of Discretion in Admitting Evidence of Prior Conviction
In his Third Ground for Relief, Petitioner asserts the trial court abused its discretion in
allowing the State to impeach him with evidence of a prior conviction and the Tenth District abused
its discretion in affirming that ruling. A claim that a state court has abused its discretion does not
state a claim for relief under the United States Constitution. Sinistaj v. Burt, 66 F.3d 804 (6th Cir.
1995). However, pro se pleadings are to be construed liberally. Haines v. Kerner, 404 U.S. 519
(1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Therefore the Magistrate Judge will
treat the “abuse of discretion” language as surplusage and read this Third Ground for Relief as
asserting it was a denial of due process to allow the impeachment.
Petitioner raised a claim that the prior conviction should not have been admitted as his third
assignment of error on direct appeal and the Tenth District decided it as follows:
{¶ 18} McGee next argued that the trial court erred to his prejudice
by permitting the state to confront him with evidence of his prior
conviction. Under Evid.R. 609(A)(2), when the accused testifies in
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 14 of 25 PAGEID #: <pageID>

15
his own defense, the state is permitted to impeach the accused's
credibility with evidence that the accused was convicted of an
offense punishable by death or imprisonment in excess of one year,
only if the probative value of the evidence outweighs the dangers of
unfair prejudice, confusion of the issues, and misleading the jury.
See, e.g., State v. Canada, 10th Dist. No. 14AP-523, 2015-Ohio-
2167, ¶ 65, citing State v. Bryan, 101 Ohio St. 3d 272, 2004-Ohio-
971, ¶ 132, 804 N.E.2d 433. The trial court's decision to permit such
impeachment is reviewed for an abuse of discretion. Canada at ¶ 63,
citing State v. Williams, 2d Dist. No. 24149, 2011-Ohio-4726, ¶ 60.
{¶ 19} Here, the trial court permitted the state to impeach McGee
with evidence of his November 30, 2010 conviction for conspiracy
to transport marijuana into West Virginia. (Tr. Vol. 4 at 784-85.)
Because he was not released from supervision until November 2011
and his trial occurred in July of 2021, this conviction was not
excludable under Evid.R. 609(B). But McGee argues that the trial
court misapplied the test for admission, because it referenced
Evid.R. 403 in its ruling. Citing State v. Goney, 87 Ohio App.3d 497,
622 N.E.2d 688 (2d Dist.1993), McGee contends that “Evid.R. 403
is biased in favor of admissibility, but this is not the case where the
accused 	is 	impeached 	by 	a 	prior 	conviction 	under 	Evid.R.
609(A)(2); the unfair prejudice need only outweigh probative value,
rather than ‘substantially’ outweigh it.” Id. at 502-03, 622 N.E.2d
688.
{¶ 20} But as this court has observed, the plain language of Evid.R.
609 references both Evid.R. 403(A) and 403(B), and the two rules
must be read in conjunction—“[n]otwithstanding Evid.R. 403(A),
but subject to Evid.R. 403(B), evidence that the accused has been
convicted of a crime is * * * if the court determines that the
probative value of the evidence outweighs the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.”
Evid.R. 609(A)(2). See, e.g., State v. Staten, 10th Dist. No. 98AP-
263, 1999 WL 52381 *2, 1999 Ohio App. LEXIS 349 *6 (Feb. 4,
1999), citing State v. Wright, 48 Ohio St.3d 5, 7, 548 N.E.2d 923
(1990). At the point McGee decided to testify, his credibility became
central to the question of his alibi defense and his identification by
McGowan. McGee cannot establish that the trial court's decision to
allow evidence of his prior conviction was prejudicial to him, and
given the fact that Evd.R. 609 itself refers to Evid.R. 403, the trial
court's statements that it had “done the 403 balancing test in [its]
head” and that its ruling allowing impeachment on the offense “does
a good job of spreading the equities out” cannot establish an abuse
of the trial court's discretion. 	McGee's third assignment of error
consequently lacks merit and is overruled.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 15 of 25 PAGEID #: <pageID>

16
State v. McGee, supra.
As can be seen from this portion of the appellate decision, the Tenth District did not read
the appeal as presenting a constitutional claim in this assignment of error. Nor should it have read
the assignment that way; Petitioner’s appellate brief did not present the issue as a constitutional
one.
Constitutional claims presented in federal habeas corpus must first have been presented to
the state courts as federal constitutional claims so that those courts have a fair opportunity to
correct any constitutional error before the issue is presented in habeas. The issue must be presented
at every level of the state court proceedings. O'Sullivan v. Boerckel, 526 U.S. 838, 846-7(1999));
see also Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004) ("A federal court is also barred from
hearing issues that could have been raised in the state courts, but were not[.]").
In the Traverse Petitioner again argues the state court’s decision as being a misapplication
of the rules of evidence, albeit he argues Fed. R. Evid. 609 should have been applied. (Traverse,
ECF No. 28, PageID 2701-02). The Federal Rules of Evidence are not applicable in state criminal
trials nor are the principles they include commanded by the United States Constitution.
Petitioner’s argument about Fed. R. Evid. 609 is completely irrelevant.
Because Petitioner did not fairly present his prior conviction claim to the Ohio courts as a
Federal constitutional claim, he has procedurally defaulted on the claim. Because he has also
presented no excusing cause and prejudice for that default, his Third Ground for Relief should be
dismissed.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 16 of 25 PAGEID #: <pageID>

17
Ground Four: Insufficiency and Manifest Weight of the Evidence
In his Fourth Ground for Relief, Petitioner asserts his conviction is against the manifest
weight of the evidence and is not supported by sufficient evidence. 	The manifest weight claim
does not state a claim for relief under the United States Constitution. Johnson v. Havener, 534 F.2d
1232 (6th Cir. 1986).
However, the second part of this ground for relief – insufficiency of the evidence – does
state a federal constitutional claim. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397
U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d
792, 794 (6th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every
element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he 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 . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson).
Petitioner argued his manifest weight and sufficiency claims together as his first
assignment of error on direct appeal and the Tenth District decided it as follows:
We address each issue in turn, beginning with McGee's sufficiency
and manifest weight arguments.
{¶ 12} Pursuant to State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus, to determine whether a
conviction is supported by sufficient evidence of guilt, “[t]he
relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 17 of 25 PAGEID #: <pageID>

18
have found the essential elements of the crime proven beyond a
reasonable doubt.” Id., following Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 13} But determinations of credibility and weight of the testimony
are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The
jury, or the court in a bench trial, may take note of inconsistencies
at trial and resolve them accordingly, “believ[ing] all, part, or none
of a witness's testimony.” State v. Raver, 10th Dist. No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964). And therefore, “[w]hen a court of appeals
reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder's resolution of the
conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on
other grounds and quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). An appellate court considering
a manifest weight challenge “may not merely substitute its view for
that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” State v. Harris, 10th Dist. No. 13AP-770,
2014-Ohio-2501, ¶ 22, citing Thompkins at 387, 678 N.E.2d 541.
Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most “ ‘exceptional case
in which the evidence weighs heavily against the conviction.’ ”
Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 14} Under these established standards, McGee's sufficiency and
manifest weight arguments cannot prevail. McGowan's testimony
alone 	provides 	sufficient 	evidence 	upon 	which 	a 	reasonable
factfinder could conclude that all elements of the offenses of
felonious assault, improper discharge into a habitation, discharge
into a habitation, and having weapons under disability, along with
the attached firearm specifications were established. And moving to
his manifest weight challenge, it is worth observing that McGee
does not argue that the shooting did not happen, he simply argues
that he was not involved and not present. The mere fact that McGee
presented a loose and contradicted alibi defense is not enough to
show that his convictions were against the manifest weight of the
evidence at trial—his identification by the eyewitness and target of
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 18 of 25 PAGEID #: <pageID>

19
the shots, the damage to the victim's truck, his subsequent Facebook
messages to the victim, and the presence of the empty firearm shells
are more than enough to overcome his manifest weight challenge.
McGee's first assignment of error is meritless and is accordingly
overruled.
State v. McGee, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379
(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence 	challenges, 	we 	must 	determine
whether, viewing the trial testimony and exhibits 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.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence,
reevaluate the credibility of witnesses, or substitute our judgment
for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620
(6 th Cir. 1993). Thus, even though we might have not voted to
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 19 of 25 PAGEID #: <pageID>

20
convict a defendant had we participated in jury deliberations, we
must uphold the jury verdict if any rational trier of fact could have
found the defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “When reviewing a claim for sufficient
evidence, a federal habeas court must apply a twice-deferential standard.” Parker v. Matthews,
567 U.S. 37, 43 (2012) (per curiam). In a sufficiency of the evidence habeas corpus case, deference
should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to the appellate
court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652
(6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.
Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing
more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
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, 181 L. Ed. 2d 311, 313 (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.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 20 of 25 PAGEID #: <pageID>

21
In his Traverse, Petitioner cites the correct legal standard (ECF No. 28, PageID 2703-07).
However, he argues about the weight to be given to the evidence, which is not material to the
insufficiency claim. He also claims there was not evidence he knowingly fired into a habitation,
but the test is not whether anyone was present at the time, but whether the building was indeed a
habitation. Throughout this section of the Traverse, he gives no record references at all.
Upon review of the Tenth District’s decision of Petitioner’s first assignment of error, the
Magistrate Judge finds it is entitled to deference. It applies the correct federal standard to the
sufficiency of evidence claim and its review of the evidence shows there plainly was sufficient
evidence to support the jury’s verdicts. Because the Tenth District’s decision is a reasonable
application of Jackson, supra, it is entitled to deference under AEDPA. Petitioner’s Fourth Ground
for Relief should be dismissed.
Grounds Six through Fifteen: Ineffective Assistance of Appellate Counsel
In his Sixth through Fifteenth Grounds for Relief, Petitioner raises ten claims of ineffective
assistance of appellate counsel. Under Ohio law, the sole remedy for ineffective assistance of
appellate counsel is by application for reopening under Ohio R. App. P. 26(B). State v. Murnahan,
63 Ohio St. 3d 60 (1992) 4 .
Petitioner filed an application to reopen under Rule 26(B) raising his ineffective assistance
of appellate counsel claims (State Court Record, ECF No. 17, Ex. 39). However, the Tenth District
Court of Appeals declined to consider the Application on the merits because it was untimely filed
4 In Murnahan the Ohio Supreme Court held ineffective assistance of appellate counsel claims could not be brought
in a petition for post-conviction relief under Ohio Revised Code § 2953.21 and instructed its Rules Committee to draft
a remedy, which became Ohio Rule App. 126(B).
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 21 of 25 PAGEID #: <pageID>

22
without adequate excuse. Id. Ex. 40.
The Sixth Circuit has repeatedly held the timeliness rule for filing a 26(B) application is an
adequate and independent state ground of decision. Parker v. Bagley, 543 F.3d 859 (6th Cir.
2008)(noting that Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir.
2007)(distinguishing holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002);
Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th
Cir. 2009).
At PageID 2712 of his Traverse, Petitioner introduces his argument on the ineffective
assistance of appellate counsel claims as follows: “Petioners [sic] Response To Ground Six,
Respondents Standing Arguments That Petitioner Has Procedurally Defaulted The App.R.26 (B)
Claims.” 	For the next twenty-two single-spaced pages, Petitioner argues the merits of his
ineffective assistance of appellate counsel claims, but never argues cause and prejudice to excuse
his late filing of the 26(B) application.
Well before this point in the Traverse, Petitioner blames his late filing on the prison
mailroom personnel (Traverse, ECF No. 28, PageID 2674, et seq.). 	In support of his claim of
excusing cause and prejudice, he writes:
On November 9, 2023, I gave my App. R.26(B) application
Envelope to my Case Manager, Mr. Yeager, to be mailed out;.The
Envelope has an attached Check Out-Cash Slip dated for November
9, 2023 attached with Mr. Yeager's signature and my signature. I
was under the belief that my legal envelope had been mailed out
because on my trust fund account I was charged $1.55 for the mail
addressed to Franklin County Clerk (FCC) On January 19, 2024, 1
received a pass for the date of January 22, 2024 to go to the
mailroom to pick up what is listed on the pass as property;_0n
January 22, 2024, I went to the mailroom where the mailroom
employee returned the legal envelope which contained the 26(B)
Application, which I was already, charged $1.55 and under the
impression that it was already sent;
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 22 of 25 PAGEID #: <pageID>

23
On January 24, 2024 I filed a grievance with the Institutional
Inspector complaining that the mail room held on to my legal mail
envelope for over 60-days before returning it to me;.0n February 1,
institutional Inspector passed me to his office he admitted the error
and provided me with a letter that proved error on their behalf
(exhibit F)_Due to the prison mail room failing to return my legal
envelope to me in a timely manner, I was prevented from timely
filing my 26(B);. I acted diligently at all times in sending out my
App. R.26 (B) timely. 	With all due respect petitioner believes he
clearly showed cause and prejudice and extraordinary circumstances
that prevented petitioner to file timely App.R.26(B) see affidavit
(Traverse, ECF No. 28, PageID 2675).
The Amended State Court Record shows that Petitioner’s App. R. 26(B) application was
filed March 26, 2024 (ECF No. 17, Ex. 39). To show good cause for late filing, Petitioner recited
the facts set forth above. Id. at PageID 2187-88.
In rejecting his 26(B) Application as untimely, the Tenth District Court of Appeals wrote:
{¶ 5} Upon review, we find McGee's explanation for his delayed
filing insufficient to establish good cause under App.R. 26(B)(1).
Although McGee focuses his explanation on the prison mail room
error which occurred between November 9, 2023 and late January,
2024, conspicuously absent from either his application or his
affidavit is any explanation of why, once he learned of the mail room
delay in late January and obtained the letter of confirmation dated
February 1, 2024, he nonetheless still failed to file his application to
reopen until March 26, 2024-almost another two months later.
Without providing any explanation for what amounts to the second
delay in filing the application to reopen, we find McGee has not
established good cause under App.R. 26(B)(1).
{¶6} In sum, we find McGee has not set forth the grounds which
would establish the good cause required to excuse the approximately
seven-month 	delay 	in 	filing 	his 	application 	for 	reopening.
Accordingly, McGee's application for reopening is denied.
(Memorandum Decision, State v. McGee, Amended State Court Record, ECF No. 17, Ex. 40,
PageID 2341-42).
Thus while the Tenth District was prepared to accept that some of McGee’s delay was
caused by the mailroom, his delay beyond the date when he learned of the mailroom’s failure was
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 23 of 25 PAGEID #: <pageID>

24
not excused. Cause must be something external to the petitioner, something that cannot fairly be
attributed to him; it must be some objective factor external to the defense. Hartman v. Bagley, 492
F.3d 347, 358 (6th Cir. 2007); Murray v. Carrier, 477 U.S. 478 (1986). 	Petitioner’s delay after
learning of the mailroom failure is his responsibility and cannot count as excusing cause.
After Petitioner learned that his excuse has been rejected by the Tenth District, he had an
opportunity to appeal that decision to the Ohio Supreme Court. 	However, the Amended State
Court Record shows no such appeal. This constitutes another unexcused procedural default of the
ineffective assistance of appellate counsel claims.
Accordingly, Petitioner’s Grounds Six through Fifteen are barred by his unexcused
procedural default in presenting them to the Tenth District Court of Appeals and further failure to
appeal to the Supreme Court of Ohio.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.
November 12, 2025.
s/ Michael R. Merz
United States Magistrate Judge
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 24 of 25 PAGEID #: <pageID>

25
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Any objections must be
double-spaced as required by S. D. Ohio Civ. R. 5.1. Failure to make objections in accordance
with this procedure may forfeit rights on appeal.
Case: 2:25-cv-00446-JLG-MRM Doc #: 32 Filed: 11/12/25 Page: 25 of 25 PAGEID #: <pageID>