Knowlton v. Okereke

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHANE PATRICK KNOWLTON,
Petitioner,
vs.
WARDEN JOSSETTE OKEREKE,
Respondent.
CASE NO. 1:25-cv-1088
DISTRICT JUDGE
CHARLES ESQUE FLEMING
MAGISTRATE JUDGE
JAMES E. GRIMES JR.
REPORT &
RECOMMENDATION
Pro se Petitioner Shane Patrick Knowlton has filed a Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2254. Knowlton is in custody at the
Correctional Reception Center and challenges his conviction and sentence in
the case State v. Knowlton, Ashtabula County Court of Common Pleas, Case
No. 2021 CR-355. The Court referred this matter to a Magistrate Judge under
Local Rule 72.2 for the preparation of a Report and Recommendation. For the
following reasons, I recommend that the Court dismiss in part and deny in part
Knowlton’s Petition.
Summary of facts
In habeas corpus proceedings brought by a person under 28 U.S.C. §
2254, factual determinations made by state courts are presumed correct. 28
U.S.C. 	§ 	2254(e)(1). 	The 	petitioner 	has 	the 	burden 	of 	rebutting 	that
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presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d
439, 447 (6th Cir. 2012).
The 	Ohio 	Court 	of 	Appeals 	for 	the 	Eleventh 	Appellate 	District
summarized the facts underlying Knowlton’s conviction as follows:
{¶4} Ryan McBride testified that, in July 2021, he
lived with his fiancée, Brittnie Schmidtt. Knowlton
shared 	children 	with 	Schmidtt. 	McBride 	and
Knowlton 	were 	having 	“issues” 	with 	each 	other
around that time. On July 23, 2021, McBride sent a
series 	of 	six 	messages 	to 	Knowlton 	through
Facebook Messenger, which included one stating
“Your f***ing hit!”, and described that he had taken
care 	of 	Knowlton’s 	kids. 	Subsequent 	to 	these
messages, Knowlton replied “bye bye.” McBride then
sent a message which stated “Wya [where you at] so
we can settle this like men.” Knowlton replied with
comments that McBride supported the children with
social security and food stamps. He then stated:
“[Y]ou 	are 	a 	pervert 	and 	will 	be 	dealt 	with
accordingly. Even if it means I do life in prison ... you
are a b**ch who smacks a woman around. You know
where I’m at.” He then provided an address: “956
West 	52nd.” 	After 	further 	discussion, 	Knowlton
stated: “Come see me. I’m always here,” to which
McBride 	responded: 	“I 	will. 	Don’t 	you 	worry.”
McBride continued “Imma show you. Better hope
you can fight” and “Ain’t no saving you this time.”
The 	messages 	concluded with 	Knowlton stating,
“Well I’m here.”
{¶5} 	McBride 	drove 	to 	the 	location 	provided 	by
Knowlton, 	accompanied 	by 	two 	friends, 	Scott
Lindsay and Justin Nemergut. He described that the
purpose of going to see Knowlton was to engage in a
“fist fight.” When McBride arrived at the address
given by Knowlton, which was alternately referred
to as a “shop” or “garage” and Knowlton’s “house,”
McBride got off of his motorcycle and took his pistol
off of his hip, handing it to Lindsay. He then took off
his shirt, hat, and glasses and began walking toward
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Knowlton with his hands down at his side. The two
exchanged insults and profanity. While McBride
approached, Knowlton pulled a gun and pointed it at
McBride. McBride said “this is how we’re really
gonna 	do 	it,” 	and 	then 	Knowlton 	opened 	fire.
Knowlton hit McBride in the bicep and the shoulder.
McBride turned around, began to flee, and a third
shot hit him in the back, passing through his lung.
He made it past his motorcycle and went to the
ground. Lindsay then handed his gun to him and
McBride tried to shoot back but was unable to fire.
He then started “going in and out” and could not
breathe.
{¶6} McBride indicated that after the shooting, he
told the police he had initially set his gun down on
Lindsay’s motorcycle and had retrieved his gun from
the ground rather than from Lindsay. He described
that he was not clear-headed at the time he spoke
with police as he was in the hospital and on pain
medication.
{¶7} Lindsay and Nemergut testified that they went
with McBride to Knowlton’s garage. Lindsay knew
McBride 	intended 	to 	fist 	fight 	Knowlton 	and
believed McBride contacted him to make sure he
“didn’t 	get 	jumped or anything.” Nemergut 	was
aware McBride intended to confront someone. Once
the 	three 	men 	arrived 	at 	Knowlton’s 	address,
McBride took his pistol off and asked Lindsay to hold
it and “took his shirt off to fight.” Lindsay observed
Knowlton fire shots from across the street. He saw
McBride was shot, grabbed him, and dragged him
out of the road. Nemergut testified that Knowlton
was on the garage property while firing and McBride
was 	standing 	in 	the 	road 	by 	his 	motorcycle.
Nemergut indicated that Knowlton fired three shots,
the gun jammed, he fired a few more, the gun
jammed again, and more shots were fired.
{¶8} After the shooting began, Lindsay ran to his
motorcycle to retrieve McBride’s gun, gave it to him,
but then told him not to shoot. Around that time,
Knowlton 	left 	the 	scene. 	Lindsay 	subsequently
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threw the gun in the nearby grass because he was a
felon who could not be in possession of a gun. He
initially lied to police about McBride handing him
the gun because he did not want to get in trouble.
Lindsay stated that McBride had not pointed a gun
at Knowlton before the shooting began and McBride
did not enter onto the property where Knowlton was
located, explaining that McBride “never made it” to
“that side of the street.”
{¶9} Jerry Wheatley was visiting with Knowlton on
July 23 and, during that time, Knowlton told him he
“probably didn’t want to hang out very long.” While
the 	two 	men 	were 	talking, 	Wheatley 	saw
motorcycles pulling up “quickly.” He saw McBride
get off of his bike, take off his shirt, pull a gun from
his pants, and hand it to a man who arrived with
him, all of which occurred before McBride got close
to Knowlton. Knowlton and McBride began yelling
and McBride and his friends approached the shop.
Wheatley dove behind a van and shots were fired.
He heard about five or six shots and observed that
Knowlton’s 	gun 	jammed. 	Wheatley 	did 	not 	see
anyone with McBride pointing a gun at Knowlton.
{¶10} 	After 	responding 	to 	the 	scene, 	Detective
Wesley 	Burns 	of 	the 	Ashtabula 	City 	Police
Department 	recovered 	two 	casings 	from 	the
driveway area where Knowlton had been located.
Officer Ryan White found McBride’s firearm in a
bush in the vicinity of the shooting. Knowlton was
not present when police arrived at the scene.
{¶11} Avery Ellis, a friend of Knowlton’s father who
was present during the shooting, testified for the
defense. He saw McBride and the others arrive on
motorcycles, coming in “fast * * * with a purpose it
would seem.” McBride was yelling and ripped off his
hat, 	glasses, 	and 	shirt, 	and 	headed 	toward
Knowlton. He saw what he “assumed * * * was a
gun” in McBride’s waistband. He observed Knowlton
fire from the middle of the driveway in front of the
building 	and 	did 	not 	hear 	Knowlton 	make 	any
threats. He indicated that the whole incident lasted
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about 30 seconds. He testified that Nemergut had a
gun and “they were shooting back.”
State v. Knowlton, No. 2023-A-0013, 2023 WL 6807193, at *1–2 (Ohio Ct. App.
Oct. 16, 2023).
Procedural background
Trial court proceedings
In August 2021, an Ashtabula County Grand Jury indicted Knowlton on
one 	count: 	felonious 	assault, 	in 	violation 	of 	Ohio 	Revised 	Code 	§
2903.11(A)(2)/2903.11(D)(1)(a), with a three-year firearm specification. Doc.
15-1, at 6 (Exhibit 1).1 At his arraignment, the court appointed Knowlton
counsel and Knowlton entered a plea of not guilty. Id. at 8 (Exhibit 2).
In November 2022, Knowlton filed a request for the court to approve the
hiring of investigator Tom Pavlish to assist with witness interviews. Doc. 15-
1, at 9 (Exhibit 3). The trial court granted the request. Id. at 13 (Exhibit 4).
In December 2022, Knowlton filed a notice that he intended to offer
evidence of self-defense. Doc. 15-1, at 14 (Exhibit 5). He also filed a motion
asking the court to order that five police interviews of witnesses be transcribed,
id. at 16 (Exhibit 6), which the trial court granted, id. at 19. (Exhibit 7).
The case proceeded to a jury trial. The jury returned a verdict finding
Knowlton guilty as charged in the indictment. Doc. 15-1, at 20–21 (Exhibit 8).
In February 2023, the trial court sentenced Knowlton to an indefinite sentence
1 	In this report and recommendation, all of the citations to the docket refer
to the ECF document and page number shown at the top of the page.
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of four years minimum and six years maximum on the felonious assault charge,
to be served consecutively to and after the mandatory three-year firearm
specification, for a total of seven to nine years in prison. Id. at 22–23 (Exhibit
9).
Direct appeal
In March 2023, Knowlton filed in the Ohio court of appeals a timely
notice of appeal. Doc. 15-1, at 48 (Exhibit 14). In his brief, Knowlton, through
new counsel, raised the following assignment of error:
The 	trial 	court 	erred 	to 	the 	prejudice 	of 	the
Defendant-Appellant when it returned a verdict of
guilty against the manifest weight of the evidence.2
Doc. 15-1, at 61 (Exhibit 15). On October 16, 2023, the Ohio court of appeals
affirmed the trial court’s judgment. Id. at 78–87 (Exhibit 17).
Knowlton, pro se, timely appealed to the Ohio Supreme Court. In his
memorandum in support of jurisdiction, Knowlton set forth the following
proposition of law:
The conviction of Felonious Assault is against the
manifest of weight due to Appellant’s claim of self-
defense.
Doc. 15-1, at 97 (Exhibit 19). On February 6, 2024, the Ohio Supreme Court
declined 	under 	its 	rule 	of 	practice 	7.08(B)(4) 	to 	accept 	jurisdiction 	of
Knowlton’s appeal. Id. at 115 (Exhibit 20).
2 	In this report and recommendation, Knowlton’s grounds for relief are
reproduced as written.
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Ohio Appellate Rule 26(B) application to reopen direct appeal
On November 28, 2023, Knowlton filed in the Ohio court of appeals a pro
se Ohio Appellate Rule 26(B) application to reopen his direct appeal. Doc. 15-
1, at 116 (Exhibit 21). In his application, Knowlton alleged that his appellate
counsel was ineffective for failing to raise the following assignments of error:3
1. The trial court erred in failing to instruct the jury
on the offense of aggravated assault, as a lesser
included offense of felonious assault when evidence
was 	present 	of 	serious 	provocation 	and 	actual
sudden passion and fit of rage.
2. Ineffective assistance of trial counsel.
3. Prosecutorial misconduct violated the protections
afforded 	by 	the 	Fifth, 	Sixth 	and 	Fourteenth
Amendments to The United States Constitution as
well as Article 1, Section 10 of the Ohio Constitution.
Id. at 118–22 (Exhibit 21). On January 24, 2024, the Ohio court of appeals
overruled Knowlton’s application to reopen. Id. at 172–80 (Exhibit 22).
Knowlton filed a motion for leave to file a motion for reconsideration and
en banc review. Doc. 15-1, at 181, 184 (Exhibits 23 & 24). On March 14, 2024,
the Ohio court of appeals granted Knowlton’s motion for leave but then
overruled his motion for reconsideration and en banc review. Id. at 190–93
(Exhibit 25).
3 	A Rule 26(B) application to reopen is the method to raise ineffective
assistance of appellate counsel. See Ohio App. R. 26(B)(1). An application must
be filed “within ninety days from journalization of the appellate judgment [on
direct appeal] unless the applicant shows good cause for filing at a later time.”
Id.
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Knowlton appealed to the Ohio Supreme Court. Doc. 15-1, at 194
(Exhibit 26). In his memorandum in support of jurisdiction, Knowlton set forth
the following propositions of law:
1. 	“Whether 	the 	Appellate 	Court 	erred 	when
reviewing 	Appellant’s 	Application 	to 	Reopen
pursuant to App. R. 26(B) when it decided the merits
of the issues presented rather than if a ‘genuine
issue’ as to a ‘colorable claim’ of ineffectiveness of
Appellate counsel existed by requiring Appellant to
conclusively 	establish 	success 	of 	the 	issues
presented.”
2. “The prosecutor’s conduct violated the Appellants
due process clause 	of the Fifth and Fourteenth
Amendments to the U.S. Constitution.”
3. “The trial court erred in failing to instruct the jury
on the offense of aggravated assault, as a lesser
included offense of felonious assault when evidence
was 	present 	of 	serious 	provocation 	and 	actual
sudden passion and fit of rage.”
4. “The ineffective assistance of trial counsel violated
the 	Appellant’s 	Fifth, 	Sixth 	and 	Fourteenth
Amendments to the U.S. Constitution.”
Id. at 201–09 (Exhibit 27). On May 28, 2024, the Ohio Supreme Court declined
under its rule of practice 7.08(B)(4) to accept jurisdiction of Knowlton’s appeal.
Id. at 222 (Exhibit 28). Knowlton filed a motion for reconsideration, id. at 223
(Exhibit 29), which the Ohio Supreme Court denied, id. at 227 (Exhibit 30).
Post-conviction motions
On April 8, 2024, Knowlton filed a request for leave to file a motion for
new trial, stating that his incarceration prevented him from obtaining “newly
discovered evidence,” including an affidavit by Thomas Knox. Doc. 15-1, at 228
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(Exhibit 31). A week later, Knowlton filed a “petition to vacate and/or set aside
judgment of conviction and/or sentence.” Id. at 233 (Exhibit 32). In his petition,
Knowlton raised the following claims:
1. 	The 	defendant’s 	Constitutional 	rights 	to 	due
process afforded by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution were
violated by the ineffective assistance of trial counsel.
2. Detective Howell manufactured, fabricated and/or
introduced 	erroneous 	information 	to 	the
prosecution’s key witnesses.
3. 	The 	prosecutor 	knowingly 	used 	false 	and/or
perjured testimony to misled the jury.
4. The prosecutor committed a Brady violation by
withholding exculpatory evidence showing perjury.
5. Direct Appeal counsel was ineffective for failing to
fully investigate this case before filing the appellate
brief in direct appeal violated the defendant’s Sixth
and Fourteenth Amendment rights.
6. Trial counsel was ineffective for failing to provide
or review with the defendant any written report
from the private investigator hired by the defense.
7. Trial counsel was ineffective for failing to ensure
successful service of subpoena to ensure defense
witness Thomas Knox was present during trail or
securing deposition.
8. The trial court erred by failing to instruct the jury
on the inferior offense of Aggravated Assault where
serious provocation was present.
9. 	Trial 	counsel 	was 	ineffective 	for 	failing 	to
investigate a second firearm recovered near the
crime scene.
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10. The prosecution violated the defendant’s right to
remain silent.
11. The prosecution violated the ban on the “Golden
Rule” argument thus violating the defendant’s right
to a fair trial and due process of law, Fifth, Sixth and
Fourteenth Amendments.
Id. at 245–85 (Exhibit 32). On May 20, 2024, the trial court overruled
Knowlton’s post-conviction petition and his motion for a new trial.4 Id. at 288–
92 (Exhibit 33).
Knowlton appealed to the Ohio court of appeals. Doc. 15-1, at 293
(Exhibit 34). In his brief, he raised the following assignments of error:
1. The trial court deprived Appellant of his right to
due process under the Fourteenth Amendment by
failing 	to 	make 	adequate 	findings 	of 	fact 	and
conclusions 	of 	law 	before 	denying 	Appellant’s
Petition 	for 	Post-Conviction 	Relief 	Motion 	as
required by R.C. 2953.21.
2. The trial court erred by failing to hold a hearing
on 	the 	Appellant’s 	Petition 	for 	Post-Conviction
Relief.
3. The trial court abused its discretion by denying
defendant’s motion for leave to file a motion for new
trial without a hearing.
4. 	The 	defendant’s 	Constitutional 	rights 	to 	due
process afforded by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution were
violated by the ineffective assistance of trial counsel.
5. 	The 	defendant’s 	Constitutional 	rights 	to 	due
process afforded by the Fifth, Sixth and Fourteenth
4 	The trial court also denied Knowlton’s then-pending motions to compel
disclosure, appoint him counsel, provide an expert, and hold an evidentiary
hearing. Doc. 15-1, at 291–92.
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Amendments to the United States Constitution were
violated by the prosecutorial misconduct.
6. The trial court erred by failing to instruct the jury
on the inferior offense of Aggravated Assault where
serious provocation was present.
Doc. 15-1, at 317–34 (Exhibit 35). The State filed an opposition brief, id. at 338
(Exhibit 36), and Knowlton filed a reply, id. at 359 (Exhibit 37). On December
16, 2024, the Ohio court of appeals affirmed the trial court’s judgment. Id. at
395–411 (Exhibit 38).
On December 31, 2024, Knowlton filed a motion for reconsideration and
en banc review, which the Ohio court of appeals overruled. Id. at 413, 420
(Exhibits 39 & 40). Knowlton did not appeal.
Federal habeas corpus petition
Knowlton states that on May 19, 2025, he placed in the prison mailbox
his federal habeas corpus petition under 28 U.S.C. § 2254.5 Doc. 1. In his
petition, he raises the following grounds for relief:
Ground one: The conviction of Felonious Assault is
against the manifest of weight due to Appellant’s
claim of self-defense.
Ground two: The trial court erred by failing to
instruct 	the 	jury 	on 	the 	inferior 	offense 	of
Aggravated Assault where serious provocation was
present.
Ground 	three: 	Ineffective 	assistance 	of 	trial
counsel 	violated the 	defendant’s 	U.S. 	Sixth 	and
5 	A petition is deemed filed when a petitioner places it the prison mailing
system. Houston v. Lack, 487 U.S. 266, 270 (1988).
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Fourteenth 	Amendment 	Right 	to 	effective
assistance of counsel.
Ground four: Prosecutorial misconduct violated
the protections afforded by the Fifth, Sixth and
Fourteenth 	Amendments 	to 	The 	United 	States
Constitution as well as Article 1, Section 10 of the
Ohio Constitution.
Ground five: Ineffective assistance of appellate
counsel 	violated the 	defendant’s 	U.S. 	Sixth 	and
Fourteenth 	Amendment 	Right 	to 	effective
assistance of counsel.
Doc. 1, at 6–17. The Warden filed a Return of Writ, Doc. 15, and Knowlton filed
a traverse, Doc. 26. Also pending is Knowlton’s Motion for leave to expand the
record, Doc. 25, which the Warden has opposed, Doc. 27.
Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain
procedural requirements to have their claims reviewed in federal court. Smith
v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural
barriers, such as statutes of limitations and rules concerning procedural
default and exhaustion of remedies, operate to limit access to review on the
merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381
(2001). Although procedural default is sometimes confused with exhaustion,
exhaustion and procedural default are distinct concepts. Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state
remedies are “still available at the time of the federal petition.” Id. (quoting
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Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies
are no longer available, procedural default rather than exhaustion applies. Id.
Exhaustion
A federal court may not grant a writ of habeas corpus unless the
petitioner has exhausted all available remedies in state court. 28 U.S.C. §
2254(b)(1)(A). A state defendant with federal constitutional claims must fairly
present those claims to the state courts before raising them in a federal habeas
corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher
v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have
jurisdiction to consider a claim in a habeas petition that was not ‘fairly
presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877
(6th Cir. 2003)). A constitutional claim for relief must be presented to the
state’s 	highest 	court 	to 	satisfy 	the 	fair 	presentation 	requirement. 	See
O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Hafley v. Sowders, 902
F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the
factual and legal underpinnings of the claims to the state courts. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner
must present his claim to the state courts as a federal constitutional issue—
not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984).
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Procedural default
Procedural default may occur in two ways. Williams, 460 F.3d at 806.
First, a petitioner procedurally defaults a claim by failing “to comply with state
procedural rules in presenting [the] claim to the appropriate state court.” Id.
In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors
when determining whether a claim is barred on habeas corpus review due to a
petitioner’s failure to comply with a state procedural rule: whether (1) there is
a state procedural rule applicable to the petitioner’s claim and whether the
petitioner failed to comply with that rule; (2) the state court enforced the
procedural rule; (3) the state procedural rule is an adequate and independent
state 	ground 	on 	which 	the 	state 	can 	foreclose 	review 	of 	the 	federal
constitutional claim; and (4) the petitioner can demonstrate cause for failing to
follow the rule and actual prejudice by the alleged constitutional error. 785
F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the
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.”) (citing Maupin, 785 F.2d at 138).
Second, “a petitioner may procedurally default a claim by failing to raise
a claim in state court, and pursue that claim through the state’s ‘ordinary
appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,
526 U.S. at 847). “If, at the time of the federal habeas petition, state law no
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longer allows the petitioner to raise the claim, the claim is procedurally
defaulted.” Id. While the exhaustion requirement is satisfied because there are
no longer any state remedies available to the petitioner, see Coleman v.
Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal
claims considered in the state courts constitutes a procedural default of those
claims that bars federal court review, Williams, 460 F.3d at 806.
To overcome a procedural bar, petitioners must show cause for the
default and actual prejudice that resulted from the alleged violation of federal
law that forms the basis of their challenge, or that there will be a fundamental
miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at
750.
Merits review
If a state’s courts adjudicated the merits of a claim, a habeas petitioner
may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish
one of two predicates. To establish the first predicate, the petitioner “must
identify 	a 	‘clearly 	established’ 	principle 	of 	‘Federal 	law’ 	that” 	has 	been
established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,
231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must
then show that state’s court’s adjudication “was contrary to,” or “involved an
unreasonable application of” that “clearly established” precedent. 28 U.S.C. §
2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232.
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To establish the second predicate, the petitioner must show that the
state’s court’s adjudication “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)(2).
“Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached by the
[United States Supreme] Court on a question of law or” based on “a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13
(2000). “Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing legal
principle from th[e] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application
of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely
wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419
(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).
“[A] 	‘clearly 	established’ 	principle 	of 	‘Federal 	law’ 	refers 	to 	the
“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at
231 (quoting White, 572 U.S. at 419). A state court is not required to cite
Supreme Court precedent or reflect an “awareness” of Supreme Court cases,
“so long as neither the reasoning nor the result of the state-court decision
contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v.
Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not
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addressed the petitioner’s specific claims, a reviewing district court cannot find
that a state court acted contrary to, or unreasonably applied, Supreme Court
precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70,
77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for
instances in which a state court unreasonably applies this Court’s precedent;
it does not require state courts to extend that precedent or license federal
courts to treat the failure to do so as error.”).
In 	determining 	whether 	the 	state 	court’s 	decision 	involved 	an
unreasonable 	application 	of 	law, 	the 	Court 	uses 	an 	objective 	standard.
Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks
merit precludes federal habeas review so long as ‘fair-minded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state
prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fair-
minded disagreement.” Harrington, 562 U.S. at 103.
Discussion
Ground one is not cognizable.
In ground one, Knowlton alleges that his conviction is against the
manifest weight of the evidence “due to [his] claim of self-defense.” Doc. 1, at
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6. 24. The Warden argues that ground one is not cognizable for two reasons,
and that, alternatively, it would fail on the merits. Doc. 15, at 12–20.
Federal habeas corpus is available only on “behalf of a person in custody
… in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. §2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (a federal habeas
court does not “reexamine state-court determinations on state-law questions”);
Engle v. Isaac, 456 U.S. 107 (1982). A manifest-weight claim is not cognizable
on federal habeas review “because it is a state-law argument.” Thomas v.
Taskila, 2023 U.S. App. LEXIS 30660, at *17 (6th Cir. Nov. 16, 2023); Jaeger
v. Wainwright, No. 1:19-cv-2853, 2023 WL 6554265, at *22 (N.D. Ohio Sept. 1,
2023) (“It is well-established manifest weight of the evidence claims are not
cognizable on federal habeas review”) (citing and discussing cases), report and
recommendation adopted, 2023 WL 6282944 (N.D. Ohio Sept. 27, 2023).
Knowlton argues that his manifest-weight claim is cognizable because
the Ohio court of appeals’ finding that his conviction was supported by the
manifest 	weight 	of 	the 	evidence 	“must 	necessarily 	include 	a 	finding 	of
sufficiency.” Doc. 26, at 36 (citing Nash v. Eberlin, 258 F. App’x 761, 764–65
(6th Cir. 2007)). And a sufficiency-of-the-evidence claim is cognizable on
federal habeas review. It is true that in Nash, the Sixth Circuit liberally
construed 	the 	pro 	se 	petitioner’s 	state-law, 	manifest-weight 	claim 	as 	a
sufficiency-of-the-evidence claim, and therefore found that it was properly
before the court for federal habeas review, because “the state court’s decision
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on the manifest weight of the evidence subsumed a decision on the sufficiency
of the evidence.” 258 F. App’x at 764 n.4.
But even if this Court were to liberally construe Knowlton’s manifest-
weight claim as a sufficiency-of-the-evidence claim, the claim would still be not
cognizable. This is so because ground one is based on Knowlton’s claim of self-
defense. Doc. 1, at 6, 24–25; Doc. 26, at 36–56. And a sufficiency of self-defense
evidence is not a cognizable claim. As the Sixth Circuit has explained:
the Ohio Supreme Court held that the amendments
to Ohio’s self-defense statute “did not eliminate the
defendant’s burden of production regarding a claim
of self-defense.” State v. Messenger, 216 N.E.3d 653,
660 (Ohio 2022). The court emphasized that the
amended self-defense statute did not change the
elements of any offense: “Self-defense remains an
affirmative 	defense 	in 	Ohio, 	and 	an 	affirmative
defense is not an element of a crime.” Id. at 659. The
court concluded that “the sufficiency-of-the-evidence
standard 	of 	review 	applies 	to 	[the 	defendant’s]
burden of production” regarding a self-defense claim
while the prosecution’s “new burden of disproving
the 	defendant’s 	self-defense 	claim 	beyond 	a
reasonable doubt” is subject to review under the
manifest-weight-of-the-evidence 	standard. 	Id. 	at
660.
“[T]he Due Process Clause requires the prosecution
to 	prove 	beyond 	a 	reasonable 	doubt 	all 	of 	the
elements included in the definition of the offense of
which the defendant is charged,” but “[p]roof of the
nonexistence of all affirmative defenses has never
been constitutionally required.” Patterson v. New
York, 432 U.S. 197, 210 (1977). “[T]he due process
‘sufficient evidence’ guarantee does not implicate
affirmative defenses, because proof supportive of an
affirmative 	defense 	cannot 	detract 	from 	proof
beyond a reasonable doubt that the accused had
committed the requisite elements of the crime.”
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Caldwell v. Russell, 181 F.3d 731, 741 (6th Cir.
1999), abrogated on other grounds as recognized by
Mackey v. Dutton, 217 F.3d 399, 406 (6th Cir. 2000).
Because self-defense remains an affirmative defense
under Ohio law, the prosecution’s alleged failure to
present sufficient evidence to disprove that Smith
acted in self-defense or in defense of another did not
raise a constitutional concern. Smith’s manifest-
weight-of-the-evidence argument likewise presented
a state-law issue 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). Given that Smith’s arguments
about 	her 	affirmative 	defenses 	did 	not 	raise 	a
constitutional issue, reasonable jurists could not
debate the district court’s rejection of her first three
grounds for relief.
Smith v. Smith, No. 24-3251, 2024 WL 4287901, at *3 (6th Cir. July 2, 2024),
cert. denied sub nom. Smith v. Olds, No. 24-5652, 2024 WL 4874711 (U.S. Nov.
25, 2024); see also Smith v. United States, 568 U.S. 106, 110 (2013) (“While the
Government must prove beyond a reasonable doubt ‘every fact necessary to
constitute the crime with which [the defendant] is charged,’ ‘[p]roof of the
nonexistence 	of 	all 	affirmative 	defenses 	has 	never 	been 	constitutionally
required.’”)) (internal citations omitted). So any sufficiency claim that this
Court were to liberally construe would be not cognizable.
Knowlton, for the first time in his traverse, asserts that he “first …
argues whether or not the State presented sufficient evidence that he shot
Ryan McBride.” Doc. 26, at 37, 76. But Knowlton did not say this in his
petition—he only stated that he was challenging the manifest weight of his
self-defense claim. Doc. 1, at 6, 24. Knowlton is not permitted to raise a new
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claim in his traverse. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2000)
(claims raised for the first time in a traverse are improper); see Rice v. Warden,
Warren Corr. Inst., 786 F. App’x 32, 38 (6th Cir. 2019). Furthermore, Knowlton
only raised on direct appeal a manifest-weight argument as to his self-defense
claim, Doc. 15-1, at 61, and this is what the Ohio court of appeals considered,
see Knowlton, 2023 WL 6807193, at *2. So any purported sufficiency-of-the-
evidence 	claim 	regarding 	whether 	Knowlton 	shot 	McBride 	would 	be
procedurally defaulted, even if this Court were to (twice) liberally construe
ground one. See Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (“Ohio
courts have consistently held that claims that can be adjudicated based on facts
in the record can only be presented on direct appeal”) (citing State v. Lentz, 639
N.E.2d 784, 785 (Ohio 1994)).
Portions of ground five are procedurally defaulted and the
remainder fails on the merits6
In ground five, Knowlton argues that appellate counsel was ineffective
for failing to raise, on direct appeal, three claims: (1) the trial court erred in
“failing to instruct the jury on aggravated assault, as a lesser included offense
of felonious assault when evidence was present of serious provocation and
actual sudden passion and fit of rage”; (2) ineffective assistance of trial counsel
for failing to do fourteen things; and (3) eight instances of prosecutorial
misconduct. Doc. 1, at 31–33.
6 	For convenience, I discuss Knowlton’s grounds out of chronological
order.
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A 	successful 	ineffective-assistance 	claim 	requires 	a 	petitioner 	to
demonstrate that: (1) “counsel’s performance was deficient”; and (2) “the
deficient performance prejudiced the defense.” Jones v. Bradshaw, 46 F.4th
459, 487–88 (6th Cir. 2022) (quoting Strickland v. Washington, 466 U.S. 668,
687 (1984)). “The first prong is satisfied when a petitioner ‘show[s] that counsel
made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’” Jones, 46 F.4th at 487
(quoting Strickland, 466 U.S. at 694). “The second prong is satisfied when the
petitioner ‘show[s] that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Jones, 46 F.4th at 487–88. “‘A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’” Jones, 46 F.4th at 488 (quoting
Strickland, 466 U.S. at 694). The combined effect of Strickland and 28 U.S.C.
§ 2254(d) is “‘doubly deferential’” review. Cullen v. Pinholster, 563 U.S. 170,
190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “When
2254(d) applies, the question is not whether counsel’s actions were reasonable,”
but 	“whether 	there 	is 	any 	reasonable 	argument 	that 	counsel 	satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at 105; Foust v. Houk,
655 F.3d 524, 533–34 (6th Cir. 2011). “Or, in more concrete terms, a federal
court may grant relief only if every ‘“fairminded juris[t]”’ would agree that every
reasonable lawyer would have made a different decision.” Dunn v. Reeves, 594
U.S. 731, 739–40 (2021) (quoting Harrington, 562 U.S. at 101).
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The Strickland standard applies to ineffective assistance of appellate
counsel claims. Smith v. Robbins, 528 U.S. 259, 285 (2000). So Knowlton must
show that appellate counsel’s assistance was objectively unreasonable and a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Id. “Counsel’s failure to raise an
issue on appeal could only be ineffective assistance if there is a reasonable
probability that inclusion of the issue would have changed the result of the
appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). Appellate
counsel is not obligated to advance every possible argument on appeal, Jones
v. Barnes, 463 U.S. 745, 750–54 (1983), nor is counsel ineffective for failing to
raise an issue that lacks merit, Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001) (“[B]y definition, appellate counsel cannot be ineffective for a failure to
raise an issue that lacks merit”).
With these principles in mind, I discuss each of Knowlton’s ineffective-
assistance-of-appellate-counsel claims in turn.
1. 	Appellate counsel’s failure to raise the trial court’s failure to include
an aggravated-assault jury instruction.
Knowlton argues that appellate counsel was ineffective for failing to
raise, on direct appeal, a claim that the trial court erred when it failed to
include a jury instruction for aggravated assault. Doc. 1, at 31–32. Knowlton
raised this claim in his Rule 26(B) application to reopen. Doc. 15-1, at 118. The
Ohio court of appeals considered this claim as follows:
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The Ohio Supreme Court has adopted the two-prong
analysis set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as
the 	appropriate 	standard 	to 	assess 	whether 	an
appellant has raised a “genuine issue” as to the
ineffectiveness of appellate counsel in an application
to reopen an appeal. State v. Reed, 74 Ohio St.3d
534, 535, 660 N.E.2d 456 (1996). “To show ineffective
assistance,” 	the 	appellant 	“must 	prove 	that 	his
counsel [was] deficient for failing to raise the issues
that 	he 	now 	presents 	and 	that 	there 	was 	a
reasonable probability of success had they presented
those claims on appeal.” State v. Tenace, 109 Ohio
St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5.
***
In his first error, Knowlton argues that appellate
counsel was ineffective for failing to argue that the
lower court should have given a “lesser included”
instruction on aggravated assault. Knowlton was
charged and convicted of felonious assault and no
instruction for aggravated assault was sought or
given to the jury.
As the Ohio Supreme Court explained in State v.
Deem, 40 Ohio St.3d 205, 533 N.E. 2d 294 (1988),
aggravated assault is an offense of an inferior degree
to felonious assault rather than a lesser included
offense, since “its elements are identical to those of
felonious 	assault, 	except 	for 	the 	additional
mitigating element of serious provocation.” Id. at
210-211. In a trial for felonious assault, where the
defendant presents sufficient evidence of serious
provocation, an instruction on aggravated assault
must be given to the jury. Id. at paragraph four of
the syllabus.
A two-part inquiry is conducted when analyzing
whether there is sufficient evidence of provocation.
First, “an objective standard must be applied to
determine 	whether 	the 	alleged 	provocation 	is
reasonably sufficient to bring on a sudden passion or
fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201,
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694 	N.E.2d 	1328 	(1998). 	Provocation 	must 	be
sufficient to arouse the passions of an ordinary
person beyond the power of his or her control.” State
v. Shane, 63 Ohio St.3d 630, 635, 590 N.E.2d 272
(1992). “If the objective standard is met, the inquiry
shifts to a subjective standard, to determine whether
the defendant in the particular case ‘actually was
under the influence of sudden passion or in a sudden
fit of rage.’” (Citations omitted.) State v. Hale, 11th
Dist. 	Portage 	No. 	2007-P-0015, 	2007-Ohio-6244,
¶66.
Knowlton argues that there was sufficient evidence
of 	serious 	provocation 	because 	there 	were
“allegations of inappropriate behavior between the
victim and [Knowlton’s] * * * daughters.” While the
record did contain references to Knowlton’s belief
that McBride, who was dating Knowlton’s former
girlfriend, had harmed his children in some manner,
the record does not indicate that this suspicion
caused a “sudden passion or fit of rage.” The text
message 	exchange 	which 	precipitated 	the
confrontation was initiated by McBride. McBride
sent a series of text messages to Knowlton, stating
“And for you to talk like someone is touching your
kids you got me all the way f***ed up” and indicating
that 	McBride 	was 	caring 	for 	Knowlton’s 	kids.
Knowlton 	initially 	responded, 	“Bye 	bye.” 	He
subsequently stated that his child learned to kiss
since McBride was in the home. Knowlton did not
respond 	with 	shock 	to 	McBride’s 	message 	but,
instead, his messages indicated that Knowlton had
not just learned this information at or around the
time he shot McBride. Further, although Knowlton
argues that he acted in a sudden fit of passion, he
did not seek out McBride to harm him. Rather,
McBride was the one who suggested they “settle this
like men.”
Knowlton alleges that, although there was a period
of time between his learning of the alleged abuse and
the assault, his rage was reignited when McBride
came 	to 	confront 	him. 	However, 	there 	was 	no
discussion of the allegations during the physical
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26
confrontation. If anything, it appears that the men
both had a plan to engage in a fight with Knowlton
providing McBride his location. “Mutual combat”
has been found to be a “‘classic example’ of serious
provocation.” State v. Spencer, 2018-Ohio-641, 105
N.E.3d 418, ¶ 18 (12th Dist.), citing Shane at 635.
However, 	mutual 	combat 	has 	not 	been 	found
applicable where both parties were not engaging in
a fight while armed with deadly weapons. State v.
James, 2d Dist. Montgomery No. 28892, 2021-Ohio-
1112, ¶ 15 (“This may have been a consensual fight,
but it was not on equal terms, and only James had a
weapon.”). 	The 	facts 	in 	the 	present 	matter
demonstrated McBride did not have his weapon on
him during the altercation.
Given the limited evidence to support a finding that
Knowlton was acting in a sudden passion or fit of
rage, we do not find error in the trial court’s failure
to give such instruction or ineffectiveness by trial
counsel for failing to seek such instruction. As this
court has observed “in most cases, an aggravated
assault instruction is incompatible with instructions
on 	self-defense, 	so 	that 	both 	cannot 	be 	given
together.” State v. Beaver, 119 Ohio App.3d 385, 397,
695 N.E.2d 332 (11th Dist. 1997). It is evident from
a review of the trial transcript that defense counsel
chose to focus on a strategy of pursuing self-defense
in the present matter.
Doc. 15-1, at 172–76.
As an initial matter, Knowlton argues that the Ohio court of appeals
applied “an incorrect [Rule 26(B)] standard” when it evaluated his application.
Doc. 25, at 68–69 (citing Rule 26(B)’s two-step process and State v. Leyh, 185
N.E.3d 1075 (Ohio 2022)). In Leyh, the Ohio Supreme Court reiterated that
there is a two-step process for evaluating Rule 26(B) applications. 185 N.E.3d
at 1079. First, the court considers whether the application has shown “a
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‘genuine issue’ as to whether there is a ‘colorable claim’ of ineffective assistance
of appellate counsel.” Id. If not, the court denies the application. Id. If so, the
court grants the application and “the matter proceeds to the second stage” and
treated “as if it were an initial direct appeal with briefing and oral argument.”
Id. at 1079–80.
Knowlton 	complains 	that 	the 	Ohio 	court 	of 	appeals 	in 	his 	case
erroneously decided his application at the first step.7 Doc. 26, at 68, 150. And
so, Knowlton submits, the appellate decision is not a merits-based decision
entitled to AEDPA deference and his claims should be reviewed de novo. Id. at
69; Doc. 1, at 21–23. But the fact that the Ohio court of appeals decided
Knowlton’s claim at the first step is still a merits decision entitled to AEDPA
deference.8 See e.g., Wolters v. Smith, No. 24-3970, 2025 WL 1312141, at *4
(6th Cir. Apr. 25, 2025) (explaining that the Ohio court of appeals’ rejection of
the petitioner’s Rule 26(B) application at the first step was a merits decision
entitled to deference; “the Ohio Court of Appeals plainly reviewed Wolters’s
7 	To the extent that Knowlton asserts that the Ohio court of appeals
incorrectly applied it’s Rule 26(B) standard, such a claim would be not
cognizable. See Wolters v. Smith, No. 24-3970, 2025 WL 1312141, at *4 (6th
Cir. Apr. 25, 2025).
8 	The case Knowlton cites in support involved a procedurally defaulted
claim that the state court didn’t address on the merits. Doc. 25, at 69 (citing
McKee v. Hart, No. 5:16-cv-410, 2017 LEXIS 83044, at *20 (E.D. Ky. Apr. 6,
2017) (applying de novo review to a claim that the state courts did not consider
on 	the 	merits)). 	Here, 	the 	Ohio 	court 	of 	appeals 	evaluated 	Knowlton’s
ineffective-assistance-of-appellate-counsel claim, so AEDPA deference applies
to the Ohio court of appeals’ decision.
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28
claims on the merits, and his challenges to Ohio procedure are ‘not cognizable
in federal habeas review.’”) (citation omitted); Ludwick v. Warden, Chillicothe
Corr. Inst., No. 1:24-cv-51, 2025 WL 1446906, at *2 (S.D. Ohio May 20, 2025)
(finding that the Ohio court of appeals’ denial of the petitioner’s Rule 26(B)
application to reopen at the first step of that state procedure “was a merits
determination.”); see Haliym v. Mitchell, 492 F.3d 680, 693 (6th Cir. 2007) (“we
conclude that an Ohio court’s finding that there is ‘no genuine issue,’ which
denies the Murnahan application at stage one of the two stage procedure, is a
determination on the merits”). Accordingly, the Ohio court of appeals’ decision
is entitled to AEPDA deference.9
Knowlton argues that there was evidence of “serious provocation” and
“a reasonable probability that the jury could have found provocation” that
would have entitled him to an aggravated assault instruction. Doc. 26, at 28,
32. For his serious provocation argument, Knowlton says that “discovering a
spouse in the act of adultery” is a “classic example[] of serious provocation.” Id.
at 28. He claims that he discovered such an act of adultery between his children
and McBride. Id. at 29–30. Aside from the fact that neither of these individuals
are Knowlton’s spouses, the Ohio court of appeals found that any provocation
that Knowlton may have experienced due to his belief regarding these matters
9 	Even so, Knowlton’s claim would also fail under de novo review.
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occurred well in advance of his shooting McBride.10 Doc. 15-1, at 174–75.
Knowlton concedes that “a cooling off period may have elapsed,” but contends
that “the fire would have become rekindled the moment the face-to-face
encounter took place.” Doc. 26, at 30–31. The Ohio court of appeals considered
this argument and rejected it, finding that “there was no discussion of the[se]
allegations during the physical confrontation.” Id. at 175. Knowlton cites
transcribed police interviews with the witnesses and references testimony at
trial, Doc. 26, at 30–32, but neither of these items show that any rage regarding
Knowlton’s children was “reignited” in Knowlton just before his confrontation
with McBride. “Past incidents or verbal threats do not satisfy the test for
reasonably sufficient provocation when there is sufficient time for cooling off.”
State v. Ortiz, No. 2015CA00098, 2016 WL 530659, at *8 (Ohio Ct. App. Feb.
1, 2016) (citing State v. Huertas, 553 N.E.2d 1058, 1068–1069 (Ohio 1990) and
State v. Pierce, 414 N.E.2d 1038 (Ohio 1980)).
Knowlton points out that the Ohio court of appeals found that he entered
into “mutual combat” with McBride, which “alone would establish serious
provocation.” Id. at 29. But the Ohio court of appeals explained that “mutual
combat has not been found applicable where,” as here, “both parties were not
engaging in a fight while armed with deadly weapons.” Doc. 15-1, at 175. The
court noted that the facts “demonstrated McBride did not have his weapon on
10 	In his affidavit, Knowlton concedes that his first “concern” 	about
McBride’s interactions with Knowlton’s children occurred in late June 2021,
about a month before the shooting incident. Doc. 25-1, at 1–3.
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him during the altercation.” Id. Knowlton has not in his Petition or Traverse
challenged this finding by the Ohio court of appeals.
In his motion to expand the record, Knowlton asserts that he can show
that “McBride possessed a firearm when Knowlton shot him.” Doc. 25, at 2. In
support, he cites McBride’s transcribed police interview, which he attached to
his motion. Id. But because the Ohio court of appeals adjudicated this claim on
the merits, the Court is limited to the evidence that was presented to the state
court. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (citing 28 U.S.C. §
2254(e)(2)). And Knowlton didn’t present McBride’s transcript in his Rule
26(B) application to reopen, so the Court can’t consider it. See Pinholster, 563
U.S. at 186.
Even so, McBride’s transcribed police interview doesn’t show that
McBride 	“possessed 	a 	firearm 	when 	Knowlton 	shot 	him”; 	it 	indicates
otherwise. See Doc. 25-2, at 5, 9–12. So even if the Court did consider this
evidence, Knowlton hasn’t shown that there was any evidence, let alone
sufficient evidence, of serious provocation to warrant an inferior-degree jury
instruction. See also, e.g., State v. Murray, 2019 WL 7670102, at *7 (Ohio Ct.
App. Dec. 30, 2029) (finding that the court did not err by not giving an
aggravated-assault instruction on a felonious-assault charge; “[a]n instruction
on a lesser-included offense is not warranted every time ‘some evidence’ is
presented to support the lesser offense.”) (citing State v. Shane, 590 N.E.2d
272, 275 (1992)). And because Knowlton hasn’t shown that the Ohio court of
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appeals’ decision on this issue was unreasonable, he hasn’t shown that the
appellate court’s rejection of his ineffective-assistance-of-appellate-counsel
claim for failing to raise on direct appeal this trial-court-error claim was
unreasonable. See Jones, 463 U.S. at 750–54 (Appellate counsel is not obligated
to advance every possible argument on appeal); Greer, 264 F.3d at 676 (counsel
is not ineffective for failing to raise an issue that lacks merit; “[B]y definition,
appellate counsel cannot be ineffective for a failure to raise an issue that lacks
merit”).
2. 	Appellate counsel’s failure to raise an ineffective-assistance-of-trial-
counsel claim for trial counsel’s failure to do fourteen things.
In his petition, Knowlton argues that appellate counsel was ineffective
for failing to raise on direct appeal an ineffective-assistance-of-counsel claim
for trial counsel’s failure to do fourteen things. Doc. 1, at 32–33.
a. 	Six of the fourteen items are procedurally defaulted
In his Rule 26(B) application to reopen, Knowlton only listed the first
eight of the fourteen things that he argues that trial counsel should have done.
Doc. 15-1, at 121. This means that the remaining six items that Knowlton
added to his petition, Doc. 1, at 33, ¶¶(i)–(n), are procedurally defaulted.11 See
11 	The added six items are: “[f]ailed to admit into evidence the transcribed
police interviews of Justin Nemergut and Scott Lindsay”; “[f]ailed to object to
the prosecution witness bolstering”; “[f]ailed to fully investigate this case”;
“[f]ailed 	to 	interview 	potential 	witness 	(State 	or 	Defense)”; 	“failing 	to
investigate a second firearm recovered near the crime scene”; “failed to request
mistrial after the State’s witnesses were identified conversing prior to and
during testimony”; and “[c]umulative effect of trial counsel’s errors.” Doc. 1, at
33.
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Wong v. Money, 142 F.3d 313, 321–22 (6th Cir. 1998) (ineffective assistance of
counsel claim based on different reasons than those alleged in state court is
procedurally defaulted).
Knowlton asserts that he had asked appellate counsel to raise certain
claims. Doc. 26, at 150. To the extent that this could be construed as cause to
excuse his procedural default, it would fail because the claims that he asked
appellate counsel to raise did not include the six procedurally defaulted claims.
See Doc. 21, at 291 (Knowlton’s proposed direct-appeal brief that he states he
sent to appellate counsel).
Elsewhere in his Traverse, Knowlton complains that the 10-page brief-
limit for Rule 26(B) applications to reopen limited his ability to develop the
state court record for his claims. Doc. 25 at 67. But he hasn’t shown that this
prevented him from raising these procedurally defaulted issues. See Seymour
v. Walker, 224 F.3d 542, 551 (6th Cir. 2000) (“[T]he [state-court’s] page limit
[rule] ‘merely limited the manner in which [Seymour] could present [her]
arguments; it did not wholly prevent [her] from presenting them.’”). Indeed,
the ten-page limit is “exclusive of affidavits and parts of the record,” Ohio App.
R. 26(B)(4), which Knowlton could have, and did, include in his application, see
Doc. 15-1, at 127–71. Knowlton has not shown cause to excuse the procedural
default of these six ineffective-assistance-of-appellate-counsel claims.
Knowlton asserts that he can show actual innocence to excuse any
procedural defaults. Doc. 26, at 8. He contends that his actual innocence is
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based on Ohio’s self-defense law, “which renders his conduct non-criminal.” Id.
at 	9. 	But 	“‘actual 	innocence’ 	means 	factual 	innocence, 	not 	mere 	legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). And “[t]he
Sixth Circuit has consistently determined that defenses based on justification
or excuse relate to legal innocence, not factual innocence.” Taylor v. Huss, No.
1:20-cv-1233, 2024 WL 4163376, at *7 (W.D. Mich. Sept. 12, 2024) (collecting
cases), certificate of appealability denied, 2025 WL 2743905 (6th Cir. Apr. 11,
2025); see Bushner v. Bracy, No. 17-3553, 2017 WL 9480312, at *3 (6th Cir.
Dec. 11, 2017) (“Bushner’s claim that he shot the victim in self-defense … goes
to his legal, rather than factual, innocence.”). Knowlton argues that the law
described above holding that self-defense is legal, not factual, innocence is “in
conflict with other districts.” Doc. 26, at 9-10 (citing cases). But none of the
cases Knowlton cites are from the Sixth Circuit, and the cases within the Sixth
Circuit are more persuasive.12 Knowlton writes that “Ohio’s self-defense laws
12 	Taylor v. Huss cited the following cases in support:
Fuller v. Morrison, No. 21-2704, 2022 WL 2719644, at *2 (6th Cir. Mar. 25,
2022) (concluding that an attack on a conviction based on the petitioner’s
mental health diagnoses and their impact on intent did not amount to a claim
of factual innocence); Arellano v. Howard, No. 21-1024, 2021 WL 5499487, at
*4 (6th Cir. Aug. 23, 2021) (concluding that a petitioner’s challenge to a
conviction for shooting her husband under a claim of legal justification relates
to “legal” innocence, not factual innocence); Bushner v. Bracy, 17-3553, 2017
WL 9480312, at *3 (6th Cir. Dec. 11, 2017) (concluding that a claim of self-
defense—which is a claim of justification—“goes to [the petitioner’s] legal,
rather than factual, innocence”); Stewart v. Harry, 17-1494, 2017 WL 9249946,
at *2 (6th Cir. Nov. 21, 2017) (concluding that it was beyond debate that a
claim of innocence based on self-defense is a claim of legal innocence, not
factual innocence); Bacon v. Klee, No. 15-2491, 2016 WL 7009108, at *8 (6th
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have recently changed and continue to evolve,” Doc. 26, at 10, but doesn’t
explain why the changes in Ohio law should necessitate in change in the
determination of whether a self-defense claim goes to actual innocence.
In 	any 	event, 	in 	order 	to 	show 	that 	he 	suffered 	a 	fundamental
miscarriage of justice such that his is “an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is
actually innocent,” Murray v. Carrier, 477 U.S. 478, 496 (1986), Knowlton must
provide “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial,” see Schlup v. Delo, 513 U.S. 298, 324 (1995). In support of
his actual innocence claim, Knowlton rehashes the testimony and evidence
presented at trial and provides his interpretation of events. Id. at 11–28. This
is not new reliable evidence that was not presented at trial. See Schlup, 513
U.S. at 324. In his motion to expand the record, Knowlton says that the
transcribed police interview of McBride is “essential” to his actual innocence
claim because it shows that “McBride possessed a firearm when Knowlton shot
him.” Doc. 25, at 2. But McBride’s transcribed interview does not show this.
See Doc. 25-2, at 5, 7, 9–12 (McBride stating that he arrived at the scene with
his gun in his waistband, and before walking towards Knowlton he pulled the
Cir. Nov. 30, 2016) (same); Harvey v. Jones, 179 F. App’x 294, 298–99 (6th Cir.
2006) (concluding that the petitioner’s claim of justification rested upon legal
innocence, not factual innocence and citing cases).
2024 WL 4163376, at *7.
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gun out and placed it on his friend’s motorcycle). This is the same testimony
that McBride gave at trial. See Doc. 15-2, at 138. Knowlton’s self-serving
affidavit recounting events differently from the accounts of others at trial, Doc.
25-1, is not sufficient. See McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir.
2007) (commenting that a self-serving affidavit is not sufficient evidence to
show actual innocence).
Knowlton speculates that the private investigator hired by trial counsel,
Tom Pavlish, was not actually hired and identifies a letter in which Pavlish
responded to Knowlton’s inquiry and stated, “your file has been purged. I do
not have any material on your case.” Doc. 25, at 2; Doc. 24-4. Knowlton also
cites a letter from his trial counsel stating that the public defender’s office “will
not provide you with any Affidavit regarding Mr. Pavlish’s investigation.” Doc.
25, at 3; Doc. 25-5. These items do not show actual innocence. Finally,
Knowlton claims that McBride’s medical records, which Knowlton does not
have and which he has never seen, will show that he did not shoot McBride in
the back. Doc. 25, at 3–4. Knowlton’s speculation as to what McBride’s medical
records show is not evidence of actual innocence.
b. 	The remaining eight items fail on the merits
This leaves the remaining eight items Knowlton listed in his petition
which, he claims, show trial counsel’s ineffectiveness that appellate counsel
failed to raise. These items are as follows:
(a) Failing to request the jury instruction for a lesser
included/ inferior offense of aggravated assault for
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felonious 	assault 	when 	at 	trial, 	evidence 	of
provocation was present. And failing to object to the
jury instructions.
(b) Failure to object to hearsay witness testimony of
bullet 	entry 	and 	exit 	wounds 	when 	no
medical/forensic/expert testimony or evidence was
presented.
(c) Failed to ensure defense witness Thomas Knox
was properly served by subpoena or deposition prior
to trial.
(d) Failure to request continuance to ensure defense
witness was present for trial when subpoena return
service was not filed with the court.
(e) 	Failed 	to 	consistently 	object 	to 	prosecutor’s
questions 	and 	comments 	regarding 	defendant’s
Fifth Amendment right to remain silent and other
improper comments.
(f) Failed to provide or allow defendant to review
Transcribed Recorded Police Interviews before trial,
and photos which were provided with discovery.
(g) Failed to object to evidence admitted without
proper authentication.
(h) Failed to subpoena/investigate victim’s medical
records.
Doc. 1, at 23–33, Doc. 15-1, at 121. The Ohio court of appeals considered and
rejected these claims as follows:
In his second alleged error, Knowlton raises various
complaints 	with 	representation 	by 	trial 	counsel.
First, Knowlton argues that trial counsel erred by
failing 	to 	object 	to 	“hearsay 	witness 	testimony”
regarding the bullet entry and exit wounds in the
absence of expert testimony. Knowlton, however,
references 	McBride’s 	and 	Lindsay’s 	testimony
describing the gunshot wounds suffered by McBride.
This 	is 	not 	hearsay 	but 	admissible 	testimony
regarding their observations.
To 	the 	extent 	that 	Knowlton 	contends 	counsel
should have presented expert testimony relating to
the nature of the wounds and whether the injuries
supported his 	claim of self-defense, we 	will not
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37
second-guess trial counsel as to this issue. There was
consistent 	testimony 	from 	multiple 	witnesses
regarding the details of where the shots hit and the
direction 	in 	which 	Knowlton 	was 	firing. 	It 	is
reasonable 	to 	conclude 	that 	counsel 	determined
there was no relevant expert testimony available or
that such testimony may contradict the self-defense
claim. “[I]t is generally a legitimate trial strategy for
defense counsel not to present expert testimony * *
* because such an expert might uncover evidence
that further inculpates the defendant.” (Citation
omitted.) State v. Craig, 11th Dist. Lake No. 2021-L-
023, 2022-Ohio-2200, ¶ 14.
We also find no merit to Knowlton’s claim that
counsel 	was 	ineffective 	for 	the 	failure 	to 	seek
admission 	of 	medical 	records. 	He 	does 	not
demonstrate how such records would have proven he
acted 	in 	self-defense. 	Courts 	have 	declined 	to
second-guess 	trial 	counsel’s 	strategic decision 	in
relation to the admission of medical records where
the 	defendant 	failed 	to 	demonstrate 	“why 	the
records were necessary or how the result of the trial
was unreliable or unfair because the records were
not admitted.” State v. Vales, 2020-Ohio-245, 143
N.E.3d 577, ¶ 43 (5th Dist.).
Knowlton 	next 	argues 	that 	trial 	counsel 	was
ineffective by failing to ensure a defense witness was
subpoenaed and to seek a continuance to allow his
appearance. The record does not establish what
testimony this witness would have offered or how it
would have impacted the defense. “The mere failure
to subpoena witnesses is not a substantial violation
of an essential duty to a client in the absence of [a]
showing that [the] testimony * * * would have
assisted the defense.” (Citation omitted.) State v.
Heald, 11th Dist. Lake Nos. 2021-L-111 and 2021-L-
112, 2022-Ohio-2282, ¶ 30.
Knowlton raises other arguments which he fails to
support with additional argumentation: counsel did
not provide certain evidence to him or object to
evidence that was not authenticated. Pursuant to
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App.R. 26(B)(2)(d), the defendant must indicate the
basis for allegations of how counsel was deficient as
well 	as 	demonstrate 	the 	manner 	in 	which 	this
prejudicially affected the outcome of the appeal.” In
the absence of argumentation in support of these
alleged errors, we decline to find they have merit.
Doc. 15-1, at 176–77. The Ohio court of appeals had rejected Knowlton’s
ineffectiveness claim related to the lesser-degree jury instruction when it
rejected Knowlton’s claim of trial-court error, id. at 175, discussed above. And
for 	the 	same 	reasons 	discussed 	above, 	Knowlton’s 	appellate-counsel-
ineffectiveness claim for failing to raise an ineffectiveness-of-trial-counsel
claim for failing to object to the lack of a lesser-degree instruction or to request
such an instruction fails on the merits.
As for Knowlton’s claim regarding trial counsel’s failure to object to
“hearsay 	witness 	testimony 	of 	bullet 	entry 	and 	exit 	wounds 	when 	no
medical/forensic/expert 	testimony 	or 	evidence 	was 	presented,” 	Knowlton
continues to insist, with no evidence in support, that McBride’s medical records
would have shown that he was not shot in the back. Doc. 25, at 111. Knowlton
argues that only two shots were fired, and that the shot that hit McBride in
the shoulder exited his back. Id. But Knowlton has not shown that the Ohio
court of appeals’ decision on this issue was unreasonable. He has not shown
that the witness testimony was hearsay such that counsel should have objected
to it. And the Ohio court of appeals’ statement that counsel’s failure to present
expert testimony on the gunshot wounds is legitimate trial strategy not to be
second-guessed, Doc. 15-1, at 176, is not an unreasonable application of
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Supreme Court precedent. See, e.g., Davis v. Carpenter, 798 F.3d 468, 473 (6th
Cir. 2015) (“The Supreme Court has never reached the specific question[] …
[of] how hard” an attorney must try to obtain an expert); see Dovala v. Baldauf,
No. 20-4222, 2021 WL 3732338, at *7 (6th Cir. Aug. 24, 2021) (“Strickland does
not require a defense attorney to present an expert,” and “the [Supreme] Court
endorsed 	… 	an 	alternative 	to 	expert-testimony: 	cross-examination, 	‘the
greatest legal engine ever invented for the discovery of truth’”) (quoting
California v. Green, 399 U.S. 149, 158 (1970)).
Next, and relatedly, Knowlton argues that trial counsel was ineffective
for failing to “subpoena/investigate victim’s medical records.” Doc. 26, at 112,
119. He claims that this evidence, which he does not have and has not seen,
would have shown that McBride was shot twice, not three times as McBride
had testified. Id. at 112, 119–20; Doc. 15-2, at 140–41. But Knowlton has not
shown that this is so—he only speculates what the medical records would have
shown. In fact, the evidence that Knowlton seeks to include in the record shows
that trial counsel had seen the medical records and that they showed that
McBride was shot three times. See Doc. 25-5 (letter from the public defender’s
office to Knowlton stating, “We cannot provide you with copies of medical
records for Mr. McBride due to HIPAA regulations. However, we reviewed the
medical records and can confirm Mr. McBride suffered three (3) gunshot
wounds.”). Even Knowlton himself did not state in his affidavit, which he also
seeks to include in the record, that he only shot McBride twice and not three
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40
times. 	See 	Doc. 	25-1. 	All 	told, 	Knowlton 	has 	not 	shown 	that 	it 	was
unreasonable for the Ohio court of appeals to defer to trial counsel’s strategic
decisions. See Strickland, 466 U.S. at 689 (a court “must indulge [the] strong
presumption” that counsel “made all significant decisions in the exercise of
reasonable professional judgment.”); Pinholster, 563 U.S. at 196 (“[t]he Court
of Appeals was required not simply to ‘give [the] attorneys the benefit of the
doubt,’ but to affirmatively entertain the range of possible ‘reasons Pinholster’s
counsel may have had for proceeding as they did’”) (citation omitted).
Knowlton claims that trial counsel was ineffective for “[f]ail[ing] to
ensure defense witness Thomas Knox was properly served by subpoena or
deposition prior to trial” and “to request continuance to ensure defense witness
was present for trial.” Doc. 1, at 32. Knowlton cites cases which found that trial
counsel was ineffective for failing to pursue witnesses at trial, but his summary
of these cases shows that they involved witnesses who would have corroborated
the defendant’s story or provided exculpatory testimony. Doc. 26, at 113–14.
Here, as the Ohio court of appeals observed, Knowlton does not say what Knox
would have said. Doc. 15-1, at 177. So Knowlton has not shown that trial
counsel was ineffective for failing to pursue Knox as a witness. And he hasn’t
shown that the Ohio court of appeals’ finding was contrary to or represents an
unreasonable application of Supreme Court precedent. Doc. 15-1, at 177; see
Johnson v. Sloan, No. 5:18-cv-1846, 2020 WL 9813446, at *11 (N.D. Ohio Jan.
15, 2020) (“The decisions of ‘whether to call a witness and how to conduct a
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41
witness’ testimony are classic questions of trial strategy.’”) (quoting Rayborn
v. 	United 	States, 	489 	F. 	App’x 	871, 	878 	(6th 	Cir. 	2012)), 	report 	and
recommendation adopted, 2021 WL 2187965 (N.D. Ohio May 28, 2021); see
Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) (“In the absence of any
evidence showing that [the uncalled witnesses] would have offered specific
favorable testimony, Tinsley cannot show prejudice from counsel’s strategy
recommendation not to introduce this evidence.”).
Knowlton also complains that trial counsel “[f]ailed to provide or allow
defendant to review Transcribed Recorded Police Interviews … and photos”
“before trial” and “[f]ailed to object to evidence admitted without proper
authentication.” Doc. 1, at 31. The Ohio court of appeals summarily rejected
these claims because Knowlton failed to provide argument in support. Doc. 15-
1, at 177. In his Traverse, Knowlton argues in support of these claims. Doc. 26,
at 117–19. But he hasn’t shown that these claims have merit. His assertion
that 	trial 	counsel 	failed 	to 	object 	to 	the 	messages 	as 	not 	having 	been
authenticated and that there was “no showing that … Knowlton was actually
involved in the conversation,” id. at 118–19, fails because Knowlton has not
claimed that he wasn’t involved in the conversation. Indeed, Knowlton relied
at trial—and in his habeas petition—on these text messages to support his self-
defense theory. See, e.g., Doc. 15-2, at 349, 380–81; Doc. 26, at 29. Knowlton
complains that counsel failed to timely provide him with transcripts of police
interviews. 	Doc. 	26, 	at 	117–18. 	But 	he 	hasn’t 	shown 	that 	counsel 	was
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42
ineffective in these matters, and he hasn’t explained why having seen the
police-interview transcripts would have changed anything.
Finally, the Ohio court of appeals did not expressly rule on Knowlton’s
claim that appellate counsel was ineffective for failing to argue on appeal that
trial counsel was ineffective for failing to “consistently object to prosecutor’s
questions and comments regarding defendant’s Fifth Amendment right to
remain silent and other improper comments.” Doc. 1, at 32, ¶(e). In his Rule
26(B) application to reopen, Knowlton didn’t identify what the comments were
and when they occurred; he only wrote, “although defense counsel did object to
one comment regarding defendants right to remain silent, several other
instances before and after were not objected to.” Doc. 15-1, at 122. This vague
reference 	can 	reasonably 	be 	read 	into 	the 	Ohio 	court 	of 	appeals’ 	final
paragraph in which it rejected “other arguments” Knowlton raised “which he
fails to support with additional argumentation.” Doc. 15-1, at 177. Moreover,
the Ohio court of appeals considered and rejected Knowlton’s claim that
appellate counsel was ineffective for failing to raise on direct appeal issues of
prosecutorial misconduct, which I discuss below. And for the same reasons, I
recommend to the Court that the Ohio court of appeals’ finding on this issue
was not unreasonable, such that appellate counsel could not be said to have
been ineffective for failing to raise an ineffectiveness-of-trial-counsel claim for
failing to object to the prosecutor’s comments. See Greer, 264 F.3d at 676 (“[B]y
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43
definition, appellate counsel cannot be ineffective for a failure to raise an issue
that lacks merit”).
3. 	Appellate counsel’s failure to raise a prosecutorial misconduct claim
based on eight things
In his petition, Knowlton argues that appellate counsel was ineffective
for failing to raise on direct appeal a prosecutorial misconduct claim for eight
things 	that 	the 	prosecutor 	did 	or 	said, 	including 	that 	the 	prosecution
committed a Brady violation13 by withholding evidence. Doc. 1, at 33. But in
his 	Rule 	26(B) 	application 	to 	reopen, 	Knowlton 	did 	not 	claim 	that 	the
prosecutor committed a Brady violation. Doc. 15-1, at 122–25. So Knowlton has
procedurally defaulted any Brady-based ineffective assistance claim. See
McMeans, 228 F.3d at 681 (A claim is only considered fairly presented when
the petitioner asserts both the factual and legal bases for that claim to the state
courts). Nor did Knowlton claim in his Rule 26(B) application that the
prosecutor committed misconduct when he “deliberately elicited, and then
failed 	to 	correct, 	false 	and 	misleading 	testimony 	from 	the 	State’s 	key
witnesses” about whether McBride handed the gun to Lindsay, Doc. 26, at 136–
40, and allowed McBride to testify that he was shot three times, including once
in the back, id. at 141–45. Knowlton also hadn’t raised a “Golden Rule” claim.14
13 	See Brady v. Maryland, 373 U.S. 83 (1963).
14 	A “Golden Rule” “violation occurs when the prosecutor ‘urges jurors to
identify individually with the victims with comments like “it could have been
you” the defendant [harmed] or “‘it could have been your children.”’” United
States v. Al-Maliki, 787 F.3d 784, 795 (6th Cir. 2015) (citation omitted).
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Id. at 147; see Doc. 15-1, at 122–25. These claims, too, are procedurally
defaulted. See McMeans, 228 F.3d at 681.
Knowlton has not alleged cause to excuse this procedural default. To the
extent he claims that the 10-page brief-limit for Rule 26(B) applications to
reopen limited his ability to develop the state court record for his claims, Doc.
25 at 67, such an argument would fail, see Seymour, 224 F.3d at 551; Ohio App.
R. 26(B)(4). And as discussed above, Knowlton has not shown actual innocence
to excuse the procedural default.
This leaves the ineffective-assistance-of-appellate-counsel claims for
failing to raise on direct appeal instances of prosecutorial misconduct that
Knowlton did raise. When reviewing a claim of prosecutorial misconduct, “[t]he
relevant question is whether the prosecutor’s comments ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’”
Darden 	v. 	Wainwright, 	477 	U.S. 	168, 	181 	(1986) 	(quoting 	Donnelly 	v.
DeChristoforo, 416 U.S. 637 (1974)). The reviewing court’s focus in a claim of
prosecutorial misconduct is “the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). The Ohio court of
appeals considered Knowlton’s claims as follows:
In his third alleged error, Knowlton argues that
appellate counsel should have raised various issues
relating to prosecutorial misconduct. “In a claim of
prosecutorial misconduct, we determine (1) whether
the prosecutor’s remarks were improper, and if so,
(2) whether the remarks prejudicially affected the
appellant’s substantial rights.” State v. Nixon, 11th
Dist. Portage No. 2023-P-0001, 2023-Ohio-4871, ¶
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154. 	“An 	improper 	comment 	does 	not 	affect 	a
substantial right of the accused if it is clear beyond
a reasonable doubt that the jury would have found
the defendant guilty even without the improper
comments.” (Citation omitted.) Id.
First, Knowlton asserts that the State incorrectly
indicated McBride had a concealed carry permit
while he testified to the contrary. The prosecutor
was 	mistaken 	in 	this 	assertion 	but 	McBride’s
testimony 	clarified 	this 	issue. 	Further, 	there 	is
nothing 	to 	indicate 	this 	mistake 	impacted 	the
conviction. McBride’s possession of a CCW license is
inconsequential to the circumstances of the shooting
and Knowlton’s claim that he acted in self-defense.
Knowlton also argues that the State improperly
injected 	its 	opinion 	into 	closing 	argument 	by
comparing the conflict between the two men to a
junior high fight. He fails to demonstrate how this
comment constituted misconduct. Similarly, as to
the prosecution’s statement that the record proved
beyond a reasonable doubt that Knowlton did not act
in self-defense, Knowlton does not cite authority
demonstrating how this was improper. See State v.
Lang, 	129 	Ohio 	St.3d 512, 	2011-Ohio-4215, 954
N.E.2d 596, ¶ 160 (prosecution’s statement that the
evidence proved the offense beyond a reasonable
doubt was not improper).
Knowlton 	also 	takes 	issue 	with 	the 	State’s
comments 	about 	a 	witness, 	Lindsay, 	testifying
honestly. It has been held that “[c]ommenting on the
truthfulness of a witness is not proper.” State v.
Clay, 181 Ohio App.3d 563, 2009-Ohio-1235, 910
N.E.2d 14, ¶ 45 (8th Dist.). The statements, viewed
in context, indicated that Lindsay was honest in
admitting his past felony charges in relation to his
desire to not be found in possession of a firearm.
Even presuming the prosecutor improperly spoke to
Lindsay’s honesty in this regard, the record does not
indicate the statements impacted the outcome of the
trial, as they related to the recovery of the gun
rather than the facts surrounding the incident itself
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and whether Knowlton acted in self-defense. See
State v. Taylor, 2d Dist. Greene No. 2018-CA-9,
2019-Ohio-142, ¶ 67 (the defendant’s substantial
rights 	were 	not 	prejudicially 	affected 	by 	the
prosecutor’s comments when the jury would have
found him guilty absent such remarks).
Knowlton also takes issue with the prosecutor’s
statement, in closing argument, that, if the law
allowed 	Knowlton 	to 	claim 	self-defense 	merely
because McBride brough a gun to the location of the
shooting, 	it 	would 	lead 	to 	“a 	whole 	bunch 	of
shootings.” 	An 	objection 	to 	this 	comment 	was
sustained. Again, Knowlton does not advance an
argument 	that 	demonstrates 	this 	impacted 	his
substantial rights. The jury was instructed correctly
on the law relating to self-defense and, as noted in
this court’s opinion, the facts supported the jury’s
conclusion that Knowlton did not demonstrate self-
defense.
Knowlton also argues that the prosecutor misled the
jury by inquiring of a witness regarding only certain
text 	messages 	between 	McBride 	and 	Knowlton.
There is nothing to indicate that this constituted
misconduct. Although there were some messages in
the exhibit that may not have been referenced by the
prosecutor, these messages were not relevant to the
dispute leading to the assault and the State was not
required to ask questions to the witnesses regarding
every message.
Finally, 	Knowlton 	argues 	that 	the 	prosecutor
committed misconduct by making comments about
his failure to speak to police or give testimony. The
prosecutor 	made 	comments 	about 	the 	difficulty
police had in getting in contact with Knowlton and
that they did not speak with him. The prosecutor
further stated that there was a lack of evidence to
explain why Knowlton shot McBride and that no one
could testify as to Knowlton’s thoughts or feelings. It
was well-settled that a prosecutor may not comment
on 	a 	defendant’s 	failure 	to 	testify. 	Griffin 	v.
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d
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106 	(1965). 	To 	the 	extent 	that 	the 	prosecution
commented on Knowlton’s failure to offer evidence
to prove intent and/or self-defense, “the prosecution
is entitled to comment on defendant’s failure to offer
evidence.” State v. Vaughn, 11th Dist. Ashtabula No.
2018-A-0045, 2019-Ohio-268, ¶ 37. To the extent
that 	the 	prosecutor’s 	comments 	related 	to
Knowlton’s failure to give a statement to police
and/or failure to testify, the record demonstrates
that the court properly instructed the jury not to
consider this. It instructed the jury, during the
testimony, that it “will disregard any statement
made by the prosecuting attorney regarding the
Defendant communicating with or speaking with
law enforcement, and you will not consider that for
any 	purpose 	whatsoever” 	and, 	further, 	during
closing arguments, that “the fact that the Defendant
did 	not 	testify 	must 	not 	be 	considered 	for 	any
purpose.” Given the nature of the comments and the
curative 	instructions, 	we 	do 	not 	find 	that 	the
statements prejudiced Knowlton or resulted in his
conviction. 	See 	State 	v. 	Fitzgerald, 	11th 	Dist.
Portage No. 2003-L-084, 2004-Ohio-6173, ¶ 50 (“the
alacrity with which the court issued its curative
instruction 	functioned 	to 	further 	lessen 	the
possibility of prejudice”); State v. Smith, 2d Dist.
Montgomery 	No. 	29597, 	2023-Ohio-4565, 	¶ 	139
(“[w]e presume that the jury followed” instructions
not to consider the defendant’s failure to testify for
any purpose).
For the foregoing reasons, Knowlton’s Application to
Reopen Appeal is overruled.
Doc. 15-1, at 177–80.
Knowlton reiterates his arguments in support of this claim, see Doc. 26,
127–49, 153–54, but he has not shown that any portion of the Ohio court of
appeals’ decision on this claim was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
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Court of the United States.” 28 U.S.C. § 2254(d)(1). To start, the Ohio court of
appeals correctly considered the prosecutor’s remarks within the context of the
trial. Doc. 15-1, at 177–80; see Stermer v. Warren, 959 F.3d 704, 726 (6th Cir.
2020) (“the remarks must be examined within the context of the trial to
determine whether the prosecutor’s behavior amounted to prejudicial error”)
(quoting United States v. Young, 470 U.S. 1, 12 (1985)).
Knowlton claims that the prosecutor elicited misleading testimony
because (1) McBride did not in fact have a concealed-carry permit and (2) he
didn’t review with McBride all of the text messages sent between Knowlton
and McBride before the shooting. Doc. 26, at 128, 129. The Ohio court of
appeals explained that the prosecutor did not act improperly and, in any event,
these items were irrelevant. Knowlton hasn’t alleged—let alone shown—that
that 	Ohio 	court 	of 	appeals’ 	decision 	was 	contrary 	to, 	or 	involved 	an
unreasonable application of, clearly established Supreme Court precedent, or
that it was based on an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d). So, too, with Knowlton’s complaint that the prosecutor during
closing argument likened the fight to boys in junior high school, Doc. 26, at
128; Doc. 15-1, at 178, and the prosecutor’s comments about the self-defense
law, Doc. 26, at 128; Doc. 15-1, at 179. Knowlton argues that the prosecutor
bolstered Lindsay’s testimony when he told the jury that Lindsay was “honest.”
Doc. 26, at 130. But he doesn’t challenge the Ohio court of appeals’ finding that
this statement, taken in context, was “related to the recovery of the gun rather
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than the facts surrounding the incident itself and whether Knowlton acted in
self-defense.” Doc. 15-1, at 178; Doc. 15-2, at 372.
Knowlton 	complains 	that 	the 	prosecutor 	elicited 	police 	officers’
testimony about the officers’ unsuccessful attempts after the shooting to locate
Knowlton to speak to him or investigate. Doc. 26, at 132–33; Doc. 15-2, at 291,
312. He cites Officer Burns’s testimony that Knowlton fled from the police. Doc.
26, at 132. He also cites Officer Allen’s testimony that the day after the
shooting, she visited Knowlton’s father’s house to say that “it would be in
[Knowlton’s] best interest to contact us and … tell us his side of the story.” Id.
see Doc. 15-2, at 291. The prosecutor asked Officer Allen, “And to the best of
your knowledge has that ever happened?” to which Officer Allen answered,
“No.” Id. But the Supreme Court has not held that a prosecutor is barred from
commenting at trial on pre-arrest, pre-Miranda, non-custodial silence. See,
e.g., Salinas v. Texas, 570 U.S. 178, 183 (2013); Jenkins v. Anderson, 447 U.S.
231, 236 n.2 (1980).
Knowlton points out that, during closing argument, the prosecutor told
the jury that “Over the ensuing year and a half, [Officer] Allen told us, she
even went to Shane Knowlton’s father’s house …. Said hey, we really need to
talk to Shane. We’d like to get his side of the story.” Doc. 15-2, at 375. Knowlton
asserts that he “was arrested on July 17, 2022, which is less than one year from
July 23, 2021,” the date of the shooting. Doc. 26, at 133. “Therefore,” Knowlton
contends, “the State argued [he] did not speak with law enforcement while in
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custody.” Id. Even if the prosecutor’s comment, which did not explicitly
reference Knowlton’s purported post-arrest silence, could be construed as a
comment on Knowlton’s presumed post-arrest silence, Knowlton’s attorney
promptly objected and the trial court sustained the objection and immediately
provided to the jury a specific curative instruction. Doc. 15-2, at 375–77 (trial
court’s 	immediate 	instruction: 	“Ladies 	and 	gentlemen 	of 	jury, 	you 	will
disregard any statement made by the prosecuting attorney regarding the
Defendant communicating with or speaking with law enforcement, and you
will not consider that for any purpose whatsoever.”). And later, the court again
provided 	another 	curative 	instruction 	to 	the 	jury. 	Doc. 	15-2, 	at 	391
(“statements that were stricken by the Court or which you were instructed to
disregard are not evidence and must be treated as though you never heard
them.”); see Greer v. Miller, 483 U.S. 756, 766 (1987). (“The sequence of events
in this case—a single question, an immediate objection, and two curative
instructions—clearly indicates that the prosecutor’s improper question did not
violate 	Miller’s 	due 	process 	rights.”) 	(footnote 	omitted). 	So 	even 	if 	the
prosecutor’s statement could be said to have commented on Knowlton’s silence
“while in custody,” the Ohio court of appeals’ finding on this claim was not “so
lacking 	in 	justification 	that 	there 	was 	an 	error 	well 	understood 	and
comprehended 	in 	existing 	law 	beyond 	any 	possibility 	for 	fair-minded
disagreement.” Harrington, 562 U.S. at 103.
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Knowlton contends that the prosecutor’s comments about the lack of
evidence to show that Knowlton acted in self-defense violated his right to
remain silent. Doc. 26, at 134. But the Ohio court of appeals explained that
“the 	prosecution 	is 	entitled 	to 	comment 	on 	defendant’s 	failure 	to 	offer
evidence.” Doc. 15-1, at 180 (citing State v. Vaughn, No. 2018-A-0045, 2019 WL
355168, at *4 (Ohio Ct. App. Jan. 28, 2019)); see also State v. Collins, 733
N.E.2d 1118, 1122 (Ohio 2000)). Knowlton has not shown that the Ohio court
of appeals’ finding “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).
All 	told, 	Knowlton 	has 	not 	in 	ground 	five 	overcome 	the 	“doubly
deferential” standard of review by showing that the Ohio court of appeals’
application of Strickland when reviewing Knowlton’s ineffective-assistance-of-
appellate-counsel claims was unreasonable. See Pinholster, 563 U.S. at 190.
Grounds two and four are procedurally defaulted
In ground two, Knowlton argues that the trial court erred when it failed
to instruct the jury on an inferior offence. Doc. 1, at 8. Ground four is a
prosecutorial misconduct claim based on comments the State made at trial. Id.
at 29–31. The Warden argues that these grounds are procedurally defaulted
because Knowlton should have, but did not, raise them on direct appeal. Doc.
15, at 31.
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Grounds two and four are based on the trial court record and should
have been raised on direct appeal. See Buell, 274 F.3d at 349. Because
Knowlton did not raise these claims on direct appeal, they are procedurally
defaulted. See id. (“a petitioner’s failure to raise his claims in Ohio courts is an
adequate and independent state law ground for upholding the petitioner’s
conviction and sentence.”).
Knowlton concedes that he did not give the state courts an opportunity
to evaluate these claims. Doc. 26, at 64. He points out, however, that he filed
an Ohio Appellate Rule 26(B) application to reopen, id., in which he asserted
that appellate counsel was ineffective for failing to raise, on direct appeal,
these claims, Doc. 15-1, at 173. But “bringing an ineffective assistance claim in
state court based on counsel’s failure to raise [on appeal] an underlying claim
does not preserve the underlying claim for federal habeas review because ‘the
two claims are analytically distinct.’” Davie v. Mitchell, 547 F.3d 297, 312 (6th
Cir. 2008) (quoting White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)).
Moreover, while ineffective assistance of appellate counsel can serve as
cause to excuse a procedural default, it can only do so if the ineffective-
assistance-of-appellate-counsel claim is not itself procedurally defaulted and
the court finds that appellate counsel was constitutionally ineffective. See
Edwards v. Carpenter, 529 U.S. 446, 451–53 (2000). Knowlton must show that
his appellate counsel was objectively unreasonable for not raising these claims
on direct appeal and a reasonable probability that, but for his counsel’s
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unreasonable failure to do so, Knowlton would have prevailed on appeal. See
Robbins, 528 U.S. at 285–86. The Court conducts de novo review of an
ineffective-assistance-of-counsel claim when determining whether it can serve
as cause to excuse a procedural default. See Chase v. MaCauley, 971 F.3d 582,
592 (6th Cir. 2020) (citing Hall v. Vasbinder, 563 F.3d 222, 236–37 (6th Cir.
2009)).
For all of the reasons explained above in the Court’s evaluation of
ground five, and under de novo review, Knowlton has not shown that appellate
counsel was objectively unreasonable for not raising these claims on direct
appeal and a reasonable probability that, but for his counsel’s unreasonable
failure to do so, Knowlton would have prevailed on appeal. See Robbins, 528
U.S. at 285.
Ground three is procedurally defaulted
Ground three is an ineffective-assistance-of-trial-counsel claim. Doc. 1,
at 9. Knowlton lists fourteen ways in which he believes that trial counsel was
ineffective. Id. at 26–29. He raised all but two of these claims in his post-
conviction petition. See Doc. 15-1, at 245–51, 269–70, 276 (listing all but trial
counsel’s 	failure 	to object 	to 	unauthenticated text 	messages and to 	the
prosecutor’s witness-bolstering). And he failed to raise two of his claims on
appeal to the Ohio court of appeals. See id. at 321–26 (listing all but trial
counsel’s 	failure 	to 	object 	to 	the 	prosecutor’s 	witness-bolstering 	and 	for
counsel’s failure to investigate a second firearm). So these three sub-claims are
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procedurally defaulted. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To
provide the State with the necessary ‘opportunity’” to evaluate a claim, “the
prisoner must ‘fairly present’ [the] claim in each appropriate state court”);
Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003) (“[I]ssues …
presented … in a post-conviction relief petition” must be “presented for review
by the Court of Appeals and Ohio Supreme Court.”).
Even worse for Knowlton, he didn’t appeal the Ohio court of appeals’
decision affirming the trial court’s denial of his post-conviction petition to the
Ohio Supreme Court. So he has procedurally defaulted all of the claims that
he raised in his post-conviction petition. See id; see Baldwin, 541 U.S. at 29.
To the extent that Knowlton argues that he also raised the ground-three
claims in his Rule 26(B) application to reopen as a reason that appellate
counsel was ineffective, Doc. 26, at 66–67, such an argument would fail. See
Davie, 547 F.3d at 312 (“[B]ringing an ineffective assistance claim in state
court based on counsel’s failure to raise [on appeal] an underlying claim does
not preserve the underlying claim for federal habeas review because ‘the two
claims are analytically distinct.’”) (citation omitted).
Knowlton argues that he didn’t appeal to the Ohio Supreme Court
because to do so would have been futile. Doc. 26, at 65. But “perceived futility”
cannot constitute cause to excuse a procedural default. See Cvijetinovic v.
Eberlin, 617 F.3d 833, 839 (6th Cir. 2010) (citing, among other cases, Bousley
v. United States, 523 U.S. 614, 623 (1998)). Simply put, Knowlton has not
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shown cause to excuse his procedural default. And as explained above, he has
not shown actual innocence to overcome the procedural bar. Ground three is
procedurally defaulted.
Conclusion
For the reasons set forth above, I recommend that Knowlton’s Petition
be dismissed in part and denied in part. Knowlton’s Motion to expand the
record, Doc. 25, is denied.
Dated: November 13, 2025
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).
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