McGee v. Warden Belmont Correctional Institution

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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.
OPINION AND ORDER ON MOTION FOR RECONSIDERATION
This habeas corpus case, brought pro se by Petitioner William McGee to obtain relief from
his 2021 convictions in the Franklin County Court of Common Pleas, is before the Court on
Petitioner’s Objections (“Objections,” ECF No. 40) to the Magistrate Judge’s Report and
Recommendations (the “Report,” ECF No. 39) on Petitioner’s Motion for Reconsideration under
Fed.R.Civ.P. 59(e)(ECF No. 38). As required by 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b),
the Court has reviewed the Report de novo with particular attention to those portions objected to
by Petitioner.
The Report recommends that the Petitioner’s Motion for Reconsideration be denied except
for deleting the finding that Petitioner procedurally defaulted his ineffective assistance of appellate
counsel claim by not properly appealing denial of that claim to the Ohio Supreme Court.
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First Objection: Specificity of Stone v. Powell Decision
Petitioner’s first objection is that neither the Magistrate Judge in his Report on the merits
nor the District Judge in adopting it made specific findings of fact on Petitioner’s claim that he
was excepted from the Stone v. Powell bar on litigating Fourth Amendment claims in habeas
because he satisfied the “sham legal process” exception to Stone recognized in Riley v. Gray, 674
F.2d 522 (6th Cir. 1982)(Objections, ECF No. 40, PageID 2889-92).
Petitioner’s current Objections exemplify why motions for reconsideration are
discouraged. Petitioner’s Rule 59(e) Motion (ECF No. 38) is twenty-one pages long. Nowhere in
that document does he claim the Court erred in not properly deciding his “sham legal process”
claim. In fact, the phrase “sham legal process” does not occur in that document at all. Petitioner
did use that language in his Objections on the merits (ECF No. 35, PageID 2818). But in adopting
the Magistrate Judge’s Report on the merits, the Court noted Petitioner’s objection, but found “the
process provided [by the Ohio courts] . . . is completely parallel to the process for litigating Fourth
Amendment claims in federal cases. Petitioner argues the whole state process was a “sham,” but
the Court is unpersuaded.” Petitioner now objects that that language is conclusory and specific
findings are required. But he made no such argument in his Rule 59(e) motion. All the arguments
about “findings” in the Rule 59(e) motion are about failures to make specific findings by the state
trial court. But nothing in Riley v. Gray purports to control the form of state trial court findings in
Fourth Amendment cases or to require specific findings of fact by a District Court in applying the
Stone v. Powell bar.
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Second Objection: Procedural Default of Ineffective Assistance of Trial Counsel Claim
In his Rule 59(e) Motion, Petitioner argued his ineffective assistance of trial counsel claim
was saved from procedural default by Martinez v. Ryan, 566 U.S. 1 (2012). The Report rejected
that argument because the Ohio system for litigating ineffective assistance of trial counsel claims,
unlike that in Arizona, requires that when such claims can be adjudicated on the direct appeal
record, they must be raised in that forum or be held to be barred by res judicata (Report, ECF No.
39, PageID 2883, et seq.).
The present Objections offer no rebuttal to that conclusion, but instead argue the procedural
default can be overcome by showing excusing cause and prejudice (Objections, ECF No. 40,
PageID 2893-98). This argument, made in Objections to a Report recommending denial of a Rule
59(e) motion, is untimely. Petitioner’s claim in his Rule 59(e) Motion was that the Court had
committed a clear error of law by not recognizing a Martinez exception to excuse the procedural
default of failing to present this ineffective assistance of trial counsel claim on direct appeal. The
Report shows why Martinez is inapplicable. Instead of offering rebuttal to that conclusion,
Petitioner reargues the procedural default of this claim which had already been upheld in the
Court’s Opinion and Order adopting the Report on the merits (ECF No. 36, PageID 2852-54). If
Petitioner claims that decision was a “clear error of law,” his opportunity to make that claim was
in his Rule 59(e) Motion, instead of in Objections to denying that Motion. And in any event, the
alibi evidence was never presented to the Ohio courts and Petitioner has never offered cause and
prejudice to excuse that failure.
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Objection Three: Procedural Default of Ineffective Assistance of Appellate Counsel Claims
In the original Report on the merits, the Magistrate Judge found Petitioner’s claims of
ineffective assistance of appellate counsel were procedurally defaulted in two ways: (1) by filing
outside the time limit provided by Ohio R. App. P. 26(B) and (2) by not appealing from the adverse
decision of the Tenth District Court of Appeals to the Ohio Supreme Court.
The Magistrate Judge was persuaded that Petitioner’s efforts to appeal to the Ohio Supreme
Court had been frustrated in some way not fully explained and recommended that the Rule 59(e)
Motion be granted to the extent of removing the finding of the second procedural default.
Respondent has not objected and the recommendation is therefore adopted. The Judgment is
modified to eliminate any finding that Petitioner procedurally defaulted his ineffective assistance
of appellate counsel claims by not properly appealing to the Ohio Supreme Court.
As to the untimely filing default, Petitioner now objects that the Tenth District Court of
Appeals misapplied Ohio R. App. P. 26(B)(2)(b)(Objections, ECF No. 40, PageID 2898, et seq.)
Petitioner writes:
Petitioner asserts that the Magistrate Judge's finding are erroneous
because the Tenth District's application of procedural default to the
second delay in filing the 26(B) application was misplaced, was
improper, and does not constitute reliance on an adequate and
independent state ground pursuant to Wogenstahl v. Mitchell,668
F.3d 307. 341 (6th Cir. 2012).
(Objections, ECF No. 40, PageID 2899).
Ohio R. App. P. 26(B) requires that an application to reopen to raise a claim of ineffective
assistance of appellate counsel must be filed within ninety days of the appellate judgment unless
the appellant makes a showing of good cause for a later filing. Petitioner purported to show good
cause by documenting institutional mail room difficulties. The Tenth District Court of Appeals
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found he had shown good cause for some of the delay. In his Objections, McGee notes the
following finding by that court:
Upon review, we find McGee's explanation for his delayed filing
insufficient to establish good cause under App.R. 26(b)(l). Although
McGee focuses hjs 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 Mar.ch 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)(b)(2)(b).
(ECF No. PageID 2899). Petitioner argues this holding misapplied App. R. 26(B)(2)(b). He
asserts that for a state procedural to act as an adequate basis for procedural default, it must be
“clear, consistently applied, and well-established at the time of the petitioner's purported default.”
(Objections, ECF No. 40, PageID 2899). But the Sixth Circuit has upheld the timeliness rule for
filing a 26(B) application as an adequate and independent state ground of decision for many years.
See Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008); 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). The Ohio Supreme Court has expressly held that good cause can excuse the lack of a
filing only while it exists, not for an indefinite period. State v. Fox, 83 Ohio St. 3d 514 (1998).
Petitioner relies on Wogenstahl v. Mitchell,668 F.3d 307 (6th Cir. 2012), for the proposition
that the Tenth District’s decision was “misplaced, improper, does not constitute reliance on an
adequate an independent state ground of decision. However, in Wogenstahl the Sixth Circuit
expressly held:
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Since 1996, ‘Ohio law has provided sufficient guidance on what
constitutes a ‘good cause’ for a late filing under Rule 26(B),’ and “
‘the time constraints of Rule 26(B) [have been] firmly established
and regularly followed.’ ” Hoffner v. Bradshaw, 622 F.3d 487, 504–
05 (6th Cir.2010) (quoting Parker v. Bagley, 543 F.3d 859, 861 (6th
Cir.2008)). Thus, Rule 26(B) is an adequate and independent
ground on which to find procedural default. Id. at 505.
668 F.3d at 3221.
Accordingly, Petitioner’s objection as to procedural default of his ineffective assistance of
appellate counsel claims by untimely filing is overruled.
Conclusion
Having conducted a de novo review of the Magistrate Judge’s Report on Petitioner’s
Fed.R.Civ.P. 59(e) Motion for Reconsideration, the Court finds that Petitioner’s Objections are
without merit and they are overruled. Judgment in this case (ECF No. 37) will remain as entered
except that the finding that Petitioner procedurally defaulted his ineffective assistance of appellate
counsel claims by not appealing denial of those claims to the Ohio Supreme court is withdrawn.
March 13, 2026.
________________________
James L. Graham
United States District Judge
1 Note also that Wogensthal is a capital case and the Sixth Circuit in the past applied different procedural default
considerations in those cases.
/s/James L. Graham
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