Reed v. Mackey

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES ALBERT REED,
Petitioner,
vs.
ACTING WARDEN STEPHEN
REYNOLDS, 1
Respondent.
CASE NO. 5:25-CV-00228-BMB
JUDGE BRIDGET MEEHAN BRENNAN
MAGISTRATE JUDGE DARRELL A. CLAY
REPORT AND RECOMMENDATION
I NTRODUCTION
Representing himself, Petitioner Charles Reed, a prisoner in state custody, seeks a writ of
habeas corpus under 28 U.S.C. § 2254. (ECF #1). The District Court has jurisdiction under
§ 2254(a) and the matter is referred to me to prepare a Report and Recommendation.
(Non-document entry of Feb. 12, 2025). Respondent Warden Stephen Reynolds, as Acting
Warden of the Lake Eire Correctional Institution (hereinafter, the State), filed the Return of Writ
with the state court record. (ECF #4). Mr. Reed filed a Traverse. (ECF #6). He also filed a motion
asking the Court to take judicial notice of surveillance camera footage and the report and
testimony of his expert witness at trial (ECF #5) that I denied (ECF #9).
1 After Mr. Reed filed his petition, Acting Warden Stephen Reynolds replaced Misty
Mackey as Warden of the Lake Eire Correctional Institution. See Lake Erie Correctional Institution
(LAECI), Ohio Dept. of Rehab. & Corr., http://drc.ohio.gov/about/facilities/lake-erie-correctional
(last accessed Nov. 13, 2025). Under Fed. R. Civ. P. 25(d) and Rule 2(a) of the Rules Governing
Section 2254 Cases in the United States District Courts (Habeas Rules), I automatically substitute
Acting Warden Reynolds as the proper respondent.
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Mr. Reed asserts four grounds for relief challenging his convictions for felonious assault
and menacing by stalking. For the reasons below, I recommend the District Court DISMISS
Grounds One, Two, and Four as procedurally defaulted or, alternatively, as not cognizable;
DISMISS Ground Three as not cognizable; and DENY the petition. I further recommend the
District Court DENY Mr. Reed a certificate of appealability (COA) on all grounds.
PROCEDURAL HISTORY
A. 	State court factual findings
The Ohio Court of Appeals, Fifth Appellate District, set forth the facts here. These factual
findings are presumed correct unless Mr. Reed rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). The Fifth District determined:
{¶2} In 2017, Appellant moved in across the street from the victim and his wife. One
day shortly after moving in, Appellant asked the victim if he could help the victim
move a piece of paneling out of the victim’s truck. The victim declined the offer, and
Appellant seemed offended. Appellant began trying to annoy the victim with his
behavior, including barking at the victim’s dogs and houseguests, walking up and
down the sidewalk clucking like a chicken, mocking the victim’s post-surgery limp,
mowing his lawn while openly carrying a gun, installing and aiming high-wattage
spotlights at the victim’s house, and blinding the victim with his car headlights in the
morning when the victim attempted to leave for work.
{¶3} On August 26, 2019, the victim and Appellant engaged in a verbal altercation
which turned physical. Appellant suffered injuries to his face which required medical
treatment. On several occasions thereafter, Appellant pulled out a gun in the
presence of others when the victim was outside. Police were called to the
neighborhood multiple times. In June of 2021, following an alleged rock-throwing
incident, Appellant told a Stark County Deputy Sheriff he would hate to have to use
the new self-defense law.
{¶4} On May 23, 2022, Appellant and the victim both found themselves at the same
gas station in Alliance, Ohio. The victim pulled into the gas station to get a sandwich
and a drink for lunch. He saw Appellant’s truck parked. The victim walked around
the side of the building where he saw Appellant filling water jugs. No words were
exchanged, and Appellant immediately pulled out a gun. The victim remained still
with his thumbs in his pockets. Appellant shot the victim in the chest.
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{¶5} Appellant was indicted by the Stark County Grand Jury with attempted murder,
felonious assault and menacing by stalking. Prior to trial, Appellant filed a notice of
his intent to claim self-defense. Appellant also filed an expert report of Dr. James
Pritchard, which detailed Appellant’s significant medical history and advanced the
doctor’s expert opinion an older person such as Appellant, who has heart disease,
would fare far worse than a younger person in an altercation if he sustained a fall.
The expert opinion opined Appellant could sustain significant or grave consequences
from a verbal and/or physical assault, especially if the attacker is twenty years
younger, taller, heavier, and in better physical condition.
{¶6} The State filed a motion in limine to prohibit Dr. Pritchard from testifying at
trial, to exclude Dr. Pritchard’s expert report, and to require Appellant to provide
additional evidence of a bona fide belief Appellant was entitled to use self-defense in
this case. The trial court found Dr. Pritchard’s report did not provide knowledge or
expertise beyond that of a lay person as a juror, as a lay person is perfectly capable of
comprehending older adults who fall or break bones fare far worse than younger
adults, and the 78-year-old Appellant could easily sustain grave consequences from
an altercation with the younger, heavier victim. The trial court granted the State’s
motion in part, allowing Dr. Pritchard to testify as to Appellant’s significant medical
history, but precluding his testimony as to the potential consequences of an
altercation between Appellant and the victim and its effect on Appellant’s state of
mind at the time of the shooting.
{¶7} The case proceeded to jury trial. At trial, Dr. Pritchard testified about Appellant’s
significant medical history, including prostate cancer, heart disease, lung disease,
hypertension, prediabetes, and Agent Orange exposure. Appellant testified at trial he
obtained a concealed carry permit following a mass shooting during the Batman
movie in Colorado. Appellant testified the victim referred to him as “dick head,”
while he called the victim “pecker head.” Appellant testified he heard the victim had
told a deputy sheriff if Appellant ever pulled a gun on the victim, the victim would
shove the gun up Appellant’s ass. Appellant believed something was going to happen
with the victim, and so he began carrying his gun. Appellant said following the
physical altercation in 2019, the victim threatened to beat him up again.
{¶8} On the day of the shooting, Appellant testified the victim pulled his vehicle next
to Appellant at the gas station, rolled down the window, and said, “Hey, dick head.”
Appellant was apprehensive, but the victim pulled out of the gas station. Appellant
testified the victim then turned around, returned to the gas station, got out of his
vehicle, and started walking toward Appellant. Because the victim’s thumb was in his
pocket, Appellant testified he did not know if he was reaching for a weapon. When
Appellant pulled his own pistol out, he said the victim didn’t raise his hands or say
not to shoot, and Appellant thought the victim was going to assault him. Appellant
then shot the victim. Appellant testified his health was not good, and he feared for
his life if he went through another beating from the victim.
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{¶9} While the jury deliberated, Appellant made the following proffer:
Yeah, this is Jeff Jakmides. I would proffer that if I had been permitted
to ask Dr. James Pritchard hypothetical questions, I would have asked
him question number one: Given the information you have about
Charlie Reed, I would ask you, if—hypothetically if he was yelled at or
put in a position of stress, within a reasonable degree of medical
certainty, could that be fatal?
Dr. Pritchard would have answered yes.
I also wanted to ask Dr. Pritchard a hypothetical question that given
the medical conditions of Charlie Reed, within a reasonable degree
of medical certainty, could Charlie Reed suffer death as a result of
being pushed down?
He would have answered yes.
And 	then 	finally 	I 	would 	have 	asked 	Dr. 	James 	Pritchard 	a
hypothetical question that given Charlie Reed’s conditions, within a
reasonable degree of medical certainty, could he be killed by a blow
to any part of his body or any part of his head?
Dr. Pritchard would have answered that question yes as well.
{¶10} The jury found Appellant not guilty of attempted murder, and guilty of
felonious assault and menacing by stalking. The trial court sentenced Appellant to a
term of six-to-nine years’ incarceration for felonious assault, three years’ incarceration
for the firearm specification, to be served consecutively to the sentence for felonious
assault, and eighteen months’ incarceration for menacing by stalking, to be served
concurrently to the sentence for felonious assault, for an aggregate term of
incarceration of nine-to-twelve years.
(ECF #4-1 at PageID 280-81 (citations omitted); see also State v. Reed, No. 2023-CA-33, 2023 WL
8869189, at *1-2 (Ohio Ct. App. Dec. 21, 2023), appeal not allowed, 230 N.E.3d 1210 (Ohio 2024)
(table)).
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B. 	Direct appeal
Through counsel, Mr. Reed timely appealed his convictions to the Fifth District. (ECF #4-1
at PageID 186). There, he raised one assignment of error:
The trial court erred in precluding Defendant’s expert from testifying regarding the
possibility that relatively minor confrontations could prove fatal to the Defendant
due to his failing health. To establish self-defense, Defendant was required to show
a belief that he was in imminent danger of death or great bodily harm and that such
belief was objectively reasonable under the circumstances. Dr. Pritchard’s testimony
regarding Defendant’s medical history and physical condition was offered to
demonstrate that his belief was objectively reasonable, and by precluding Dr.
Pritchard from drawing that connection the Trial Court improperly excluded
evidence critical to the Defendant’s case.
(See id. at PageID 196) (cleaned up). On December 21, 2023, the Fifth District affirmed. (See id. at
PageID 294; see also Reed, 2023 WL 8869189).
On January 16, 2024, through counsel, Mr. Reed timely appealed to the Supreme Court of
Ohio. (Id. at PageID 295). There, he advanced one proposition of law:
A trial court must allow a jury to consider all relevant evidence bearing on a
Defendant’s claim of self-defense. This includes expert opinion on the physical state
of the Defendant and how the extreme frailty of the Defendant affected the
Defendant’s decision to resort to deadly force in self-defense.
(Id. at PageID 302). On April 2, 2024, the Supreme Court of Ohio declined to hear his appeal. (Id.
at PageID 380; see also Reed, 230 N.E.3d 1210).
C. 	State post-conviction relief
On December 12, 2024, representing himself, Mr. Reed filed a petition for state post-
conviction relief under Ohio Revised Code § 2953.21. (ECF #4-1 at PageID 381-83). There, he
argued he was innocent of the stalking charges because he was the victim of stalking, not the
perpetrator; the State pursued a malicious prosecution by charging an innocent person, distorting
facts, and keeping expert testimony from the jury; and the State did not prove beyond a reasonable
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doubt that Mr. Reed did not use force in self-defense. (See id.). The trial court denied relief,
concluding the petition did not set forth evidence to support his claims, the claims were barred by
Ohio’s doctrine of res judicata, and the petition was untimely. (Id. at PageID 399-401).
F EDERAL H ABEAS PETITION
Mr. Reed raises four propositions of law before this court, which I construe to be grounds
for habeas relief:
GROUND ONE: We are arguing that the Petitioner is TOTALLY INNOCENT;
this is a case of self-defense. To of indicted and convicted the Petitioner, violated the
Petitioners 	Due 	Process, 	Fourth, 	and 	Fourteenth 	Amendment 	to 	the 	U.S
Constitution. The petitioner was indicted for a crime where it’s right in the
records/video where this is a clear case of self-defense. This is a total miscarriage of
justice and a malicious prosecution that lead to a chain of Constitutional violations.
Which is plain reversible error. The conviction must be overturned on the ground
that after a look at the totality of the circumstances, the preponderance of the
evidence weighs in favor of self-defense. The Petitioner should have never been
indicted.
GROUND TWO: Petitioner is totally innocent of menacing by stalking. It’s right in
the video where the so called victim, Mr. Nichols stalked the petitioner to the station.
Not only stalked the petitioner to the station, but left and returned. Violation of Due
Process, Fourth, Sixth and Fourteenth Amendment to the U.S Constitution. The
poor discretion of the court was improper, it was egregious, prejudicial and
constituted plain reversible error. The conviction must be overturned on the ground
that after a look at the totality of the circumstances, the preponderance of the
evidence weighs in favor of the alleged victim being the stalker.
GROUND THREE: The trial court erred in precluded Defendants expert from
testifying regarding the possibility that relative minor confrontation could prove fatal
to the defendant due to his failing health. This was a miscarriage of justice, a violation
of Due Process to a fair trial, Fourth, Sixth and Fourteenth Amendment. The poor
discretion of the court to not let the petitioner prove self-defense was improper, it
was egregious, prejudicial and constituted reversible plain error. The conviction must
be overturned on the ground that after a look at the totality of the circumstances, the
preponderance of the evidence weighs in favor self-defense.
GROUND FOUR: The Petitioner was charged with a firearm specification when
the hand gun was legal. It was registered to the Petitioner and the Petitioner has a
C.C.W. The only reason the Petitioner was convicted of the firearms specification is
because the Court wouldn’t let the Petitioner present testimony critical to prove self-
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defense. This was a violation of Due process, Fourth, and Fourteenth Amendments.
Using the facts and laws above, the firearms specification must be over turned on the
grounds that after a review of the totality of the circumstances, the preponderance of
the evidence weighs in favor of innocence.
(ECF #1 at PageID 13, 17, 18, 19-20) (capitalization in original).
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Mr. Reed’s
habeas petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA recognizes that “[s]tate courts
are adequate forums for the vindication of federal rights” so AEDPA acts as a “formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v.
Titlow, 571 U.S. 12, 19 (2013). AEDPA “dictates a highly deferential standard for evaluating state-
court rulings which demands that state-court decisions be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citation and quotation omitted). Habeas courts review the last-
explained state-court judgment on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805
(1991).
Accordingly, habeas relief cannot be granted for a person in custody pursuant to a state
conviction unless the adjudication “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the State court proceedings.”
28 U.S.C. § 2254(d).
For the purposes of § 2254(d)(1), “clearly established Federal law” means “the governing
legal principle or principles set forth by the Supreme Court at the time the state court renders its
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decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes “the holdings, as opposed to
dicta, of [Supreme Court] decisions.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court’s decision is “contrary” to Supreme Court precedent if the state court arrives
at a conclusion opposite that reached by the Supreme Court on a question of law or if the state
court decides a case differently than the Supreme Court has decided on a set of materially
indistinguishable facts. Id. at 405. The word “contrary” means “diametrically different, opposite in
character or nature, or mutually opposed.” Id. A state court does not act contrary to Supreme
Court precedent when the precedent of the Supreme Court is ambiguous or nonexistent. See
Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).
A state court’s decision involves an “unreasonable application” of Supreme Court
precedent if (1) the state court identifies the correct governing legal rule from the Supreme Court’s
cases but unreasonably applies it to the facts of the state prisoner’s case or (2) the state court either
unreasonably extends a legal principle from the Supreme Court’s precedent to a new context
where it should not be applied or unreasonably refuses to extend that principle in a new context
where it should apply. Williams, 529 U.S. at 407. A state-court decision must be “objectively
unreasonable” to have unreasonably applied Supreme Court precedent which requires more than
the decision being “erroneous” or “incorrect.” See id. at 409-11. “It bears repeating that even a
strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”
Harrington v. Richter, 562 U.S. 86, 102 (2011).
Under § 2254(d)(2), a state court’s factual determinations stand unless they too are
objectively unreasonable in light of the evidence presented in state court. See Harrington, 562 U.S.
at 100. The Supreme Court has repeatedly emphasized “a state court factual determination is not
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unreasonable merely because the federal habeas court would have reached a different conclusion.”
Burt, 571 U.S. at 18. Under AEDPA, “a determination of a factual issue made by a state court shall
be presumed to be correct” unless the petitioner offers clear and convincing evidence to the
contrary. See 28 U.S.C. § 2554(e)(1).
Comity principles also require federal courts to defer to a state court’s judgment on issues
of state substantive and procedural law. Murray v. Carrier, 477 U.S. 478, 491 (1986); Engle v. Isaac,
456 U.S. 107, 128-29 (1982). Federal courts must accept a state court’s interpretation of its statutes
and rules of practice. Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986).
The standard is intended to be difficult to meet and reflects the view that habeas corpus is
a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for
ordinary error correction through appeal. Harrington, 562 U.S. at 102-03; see also Brown v.
Davenport, 596 U.S. 118, 133 (2022) (describing habeas as an “extraordinary remedy, reserved for
only extreme malfunctions in the state criminal justice system and different in kind from providing
relief on direct appeal”) (cleaned up). To obtain “habeas corpus from a federal court, 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.
PROCEDURAL B ARRIERS TO F EDERAL HABEAS REVIEW
Before a federal court may review a petitioner’s habeas claims on the merits, the petitioner
must overcome several procedural barriers. These barriers, including the statute of limitations,
exhaustion of state remedies and procedural default, limit a petitioner’s access to review on the
merits of a constitutional claim. See Daniels v. United States, 532 U.S. 374, 381 (2001). Put simply,
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federal habeas review is limited to federal claims that a state court decided on the merits. Claims
that were not evaluated on the merits, either because they were never presented to the state courts
(i.e., they are unexhausted) or because they were not properly presented to the state courts (i.e.,
they are procedurally defaulted), are generally not reviewable by a federal habeas court. See Bonnell
v. Mitchel, 301 F.Supp.2d 698, 722 (N.D. Ohio Feb. 4, 2004).
State-law claims not cognizable on federal habeas review. Federal habeas review is
available only for claims that “challenge the legality of [the petitioner’s] custody” based on a
“violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2254(a). Put
another way, “[t]he writ of habeas corpus is not available to remedy errors of only state law.” Smith
v. Morgan, 371 F.App’x 575, 582 (6th Cir. 2010); see also Norris v. Schotten, 146 F.3d 314, 328
(6th Cir. 1998) (“A claim based solely on an error of state law is not redressable through the
federal habeas process.”); see also Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“The Due Process
Clause . . . safeguards not the meticulous observance of state procedural prescriptions, but the
fundamental elements of fairness in a criminal trial.”) (quotation omitted); see also Engle, 456 U.S.
at 121 n.21 (“We have long recognized that a ‘mere error of state law’ is not a denial of due
process.”) (citation omitted).
Federal habeas review is generally not available to decide whether a state court complied
with state law or state procedural requirements. Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987).
A federal habeas court “does not function as another state appellate court to review a state court’s
interpretation of its own law or procedure.” Id. Instead, a federal habeas court is bound by “[a]
state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
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A petitioner cannot justify habeas relief simply by asserting that a state-law error violates
the federal constitution. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010). But habeas relief may be
available if an error of state law made the criminal process “fundamentally unfair.” Williams,
460 F.3d at 816. “[T]he category of infractions that violate fundamental fairness is defined very
narrowly,” and includes only state rulings that “offend some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.” Bey v. Bagley, 500 F.3d
514, 521 (6th Cir. 2007) (cleaned up). The habeas petitioner must show “the principle of
procedure violated by the rule (and allegedly required by due process)” is fundamental. Id.
Procedural default. A federal habeas court may not review claims that have been
procedurally defaulted under state law. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). There
are two avenues by which a petitioner may procedurally default a claim. Williams, 460 F.3d at 806.
One way a procedural default occurs is if a petitioner “fails to comply with state procedural rules in
presenting his claim to the appropriate state court.” Id. To determine whether that failure bars
review of a habeas claim, courts in the Sixth Circuit ask four questions: (1) whether there is a state
procedural rule applicable to petitioner’s claim and whether petitioner failed to meet that rule;
(2) whether the state court enforced the procedural rule; (3) whether the procedural rule is an
adequate and independent state ground on which the state can bar review of the federal
constitutional claim; and (4) whether the petitioner can show cause for his failure to follow the
rule and that he was actually prejudiced by the alleged constitutional error. Maupin v. Smith,
785 F.2d 135, 138 (6th Cir. 1986).
The other way a claim can be procedurally defaulted is if a petitioner does not raise it in
state court and pursue it through the state’s “ordinary appellate review procedures.” Williams,
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460 F.3d at 806 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). To have a habeas claim
considered on the merits, a petitioner must present that federal claim at “each and every level” of
the state courts. See Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003). If a petitioner did
not first raise his federal habeas claim before the state courts and state law would no longer allow
the petitioner to raise the claim in state court, the claim is procedurally defaulted. Williams,
460 F.3d at 806.
Excusing procedural default. A procedural default is not the end of a habeas claim. A
petitioner can overcome a procedural bar by showing either (1) cause for the default and actual
prejudice because of the alleged violation of federal law or (2) not considering the claims will result
in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 749. Success here does not entitle
a petitioner to habeas relief; it only allows a federal court to consider the merits of a claim (subject
to the standard of review above) when the claim would otherwise be procedurally defaulted. See
Martinez v. Ryan, 566 U.S. 1, 10 (2012); see also Coleman, 501 U.S. at 750.
Habeas petitioners cannot rely on conclusory assertions of cause and prejudice to overcome
procedural default. Rather, “the existence of cause for a procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray, 477 U.S. at 488; see also
Wogenstahl v. Mitchell, 668 F.3d 307, 321 (6th Cir. 2012). Neither a petitioner’s pro se status nor
any ignorance of the law and procedural filing requirements are enough to show cause to
overcome procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004).
To show prejudice sufficient to overcome procedural default, a petitioner must show more
than mere errors in the state trial creating a possibility of prejudice. Murray, 477 U.S. at 494.
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Rather, the petitioner must show the alleged errors worked to the petitioner’s actual and
substantial disadvantage, infecting the entire trial with error of constitutional dimensions. Id.
There is no prejudice where the petitioner does not show a reasonable probability that the result of
the proceeding would have been different. Ambrose v. Booker, 801 F.3d 567, 577-78 (6th Cir. 2015).
Actual innocence exception. Alternatively, a petitioner may overcome a procedural bar
through a convincing claim of actual innocence. See McQuiggin v. Perkins, 569 U.S. 383, 386
(2013). By such a showing, a petitioner can overcome the end of the statute of limitations, see id.,
and a procedural default. See Schlup v. Delo, 513 U.S. 298 (1995); House v. Bell, 547 U.S. 518
(2006). Actual innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998). As the Sixth Circuit recently summarized,
This means that a petitioner may not pass through the equitable gateway by simply
undermining the state’s case. Rather, he must demonstrate that he factually did not
commit the crime. Of course, dismantling the state’s case is relevant and helpful to the
petitioner because it leaves a vacuum to be filled by an exonerative explanation; but
it is not sufficient in and of itself.
Hubbard v. Rewerts, 98 F.4th 736, 743 (6th Cir. 2024) (emphasis in original), cert. denied, 145 S.Ct.
1201 (2025). A valid actual innocence claim must be supported by “new, reliable evidence” that
was not presented at trial and is “so strong a court cannot have confidence in the outcome of the
petitioner’s trial.” Schlup, 513 U.S. at 324. Such evidence can include exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence. Id. But this evidence must
show that, “more likely than not[,] any reasonable juror would have reasonable doubt.” House,
547 U.S. at 538.
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A NALYSIS
In the Return of Writ, the State raises only procedural defenses. It argues Grounds One
and Two are not cognizable because there is no freestanding habeas claim for actual innocence.
(ECF #4 at PageID 95-96). Next, the State argues Ground Three is not cognizable because the
evidentiary ruling was not a denial of fundamental fairness. (Id. at PageID 96-102). Finally, the
State argues Grounds One, Two, and Four are procedurally defaulted because they were not
presented to the state courts on direct review. (Id. at PageID 107-08). I begin with the issue of
procedural default.
A. 	Procedural Default
The State argues Grounds One, Two, and Four are procedurally defaulted because they
were not presented to the state courts on direct review. (Id. at PageID 107-08). Mr. Reed responds
by citing “Criminal Rule 52(B)” to argue plain errors may be raised when not previously presented
to the court (ECF #6 at PageID 1196-97, 1207); he also claims a fundamental miscarriage of justice
would occur if the claims are not considered (id. at PageID 1207-08).
1. 	Grounds One, Two, and Four are procedurally defaulted because Mr. Reed did
not first raise them in state court in accordance with state procedures.
Grounds One, Two, and Four are procedurally defaulted. A claim can be procedurally
defaulted if a petitioner does not raise it in state court and pursue it through the state’s “ordinary
appellate review procedures.” Williams, 460 F.3d at 806. A petitioner must present his federal
habeas claim at “each and every level” of the state courts before it may be reviewed on the merits
here. See Baston, 282 F.Supp.2d at 661. If a petitioner did not first raise his federal habeas claim
before the state courts and state law would no longer allow the petitioner to raise the claim in state
court, the claim is procedurally defaulted. Williams, 460 F.3d at 806.
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Mr. Reed raised Ground Three on direct appeal by challenging the exclusion of expert
testimony. (See ECF #4-1 at PageID 196, 302). He did not present his claims asserting his
innocence based on self-defense, which comprise Grounds One, Two, and Four on direct appeal.
Thus, they are procedurally defaulted.
Mr. Reed argues that “he is making the same claims” that he presented to the state court,
“just litigated different.” (ECF #1 at PageID 12). However, only Ground Three arguably appears in
his direct appeal. It is possible Mr. Reed intended to raise Grounds One, Two and Four in his
state post-conviction petition. (See ECF #4-1 at PageID 381-83) (arguing among other things that
he innocent of stalking and used force only in self-defense). But that petition does not help him
because it was procedurally improper. A procedural default occurs if a petitioner “fails to comply
with state procedural rules in presenting his claim to the appropriate state court.” Williams,
460 F.3d at 806. The state court rejected Mr. Reed’s post-conviction petition because it was
untimely under the one-year statute of limitations and barred by res judicata. (See ECF #4-1 at
PageID 399-401; see also Ohio Rev. Code § 2953.21(A)(2)(a) (365 days to file a post-conviction
petition); State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967) (holding claims must be raised on direct
appeal if possible or be barred as res judicata)). A procedural default occurs under either
procedural bar. See White v. Warden, 940 F.3d 270, 275 (6th Cir. 2019) (recognizing Ohio courts’
use of Revised Code § 2953.21(A)(2) to bar a claims raised in untimely post-conviction petitions
results in procedural default); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (holding
habeas claims first raised in post-conviction proceedings and barred by Ohio’s doctrine of res
judicata are procedurally defaulted). Because the petition was untimely and barred by res judicata,
the claims Mr. Reed raised there are procedurally defaulted.
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2. 	There is no exception to procedural default for plain errors.
Mr. Reed argues that his claimed errors can be reviewed regardless of any procedural
default because he raises plain errors and under “Criminal Rule 52,” plain errors can be reviewed
at any time. (ECF #1 at PageID 12; ECF #6 at PageID 1196, 1207). First, neither the Ohio nor the
Federal Rules of Criminal Procedure apply to habeas proceedings. See Habeas Rule 12; Fed. R.
Civ. P. 81(a)(4) (civil rules apply to habeas proceedings). Moreover, the Supreme Court has
expressly rejected creating an exception to procedural default for plain errors as incompatible with
the basic role of the writ of habeas corpus. See Engle v. Isaac, 456 U.S. 107, 134 (1982) (“Federal
habeas challenges to state convictions, however, entail greater finality problems and special comity
concerns. We remain convinced that the burden of justifying federal habeas relief for state
prisoners is greater than the showing required to establish plain error on direct appeal.”) (citations
and quotation omitted). Instead, petitioners must either (i) show cause for the default and actual
prejudice from the constitutional error (plain or otherwise) or (ii) demonstrate a manifest
miscarriage of justice will occur. See id.; see also Coleman, 501 U.S. at 749.
3. 	Mr. Reed does not show his actual innocence to excuse his procedural default
because his self-defense claim goes to legal, not actual, innocence, and he does
not otherwise support his arguments with new evidence.
Mr. Reed argues his procedural defaults should be overlooked because he is actually
innocent of menacing by stalking and felonious assault. As discussed above, the actual-innocence
exception to procedural default requires the presentation of “new, reliable evidence” that is “so
strong a court cannot have confidence in the outcome of the petitioner’s trial.” Schlup, 513 U.S. at
324. Despite this standard, Mr. Reed claims at various points that he does not have to provide new
evidence. (See ECF #1 at PageID 15 (“In the past, the State has said a Petitioner is required to
show new evidence in a total innocence claim. That would not be true in a case where the State
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fabricated evidence and ignored the law and the Petitioner’s constitutional rights.”); ECF #6 at
PageID 1201-02 (“Every case I help out with that involves total innocence the state brings up new
evidence. I keep having to explain no new evidence is needed when the evidence is presented but
the court refuses to use it”); id. at PageID 1202-03 (“New evidence is not needed in these type of
cases.”)). He provides no support for his new interpretation of Schlup and the cases he does cite do
not completely summarize Schlup’s requirements. (See, e.g., ECF #1 at PageID 15 (discussing Schlup
but not its requirement for “new, reliable evidence”)). Neither the Supreme Court nor the Sixth
Circuit have articulated the exception Mr. Reed advances. While Mr. Reed is correct that Ohio
statutory law requires the State prove at trial that he did not act in self-defense (See ECF #6 at
PageID 1199), that statute does not require the State again disprove self-defense on federal habeas
review. Rather, the petitioner who seeks to overcome a procedural default has the burden of show
his or her actual innocence.
Mr. Reed does not advance new evidence to support his claims of actual innocence and
instead relies on the same evidence presented at trial, namely testimony about the long-standing
feud between Mr. Reed and the victim and Mr. Reed’s medical condition (see, e.g., ECF #1 at
PageID 9, 14) to argue self-defense and the surveillance video of the shooting to argue the victim
stalked Mr. Reed (see, e.g., id. at PageID 8, 10, 17-18; ECF #6 at PageID 1201, 1204-05). But the
jury saw all this evidence and concluded Mr. Reed was guilty beyond a reasonable doubt. Mr. Reed
does not meet his burden to show “more likely than not[,] any reasonable juror would have
reasonable doubt,” House, 547 U.S. at 538, by disagreeing with the same evidence that a jury relied
on to convict him.
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As the Court must “actively construe” Mr. Reed’s pro se petition leniently, see Franklin v.
Rose, 765 F.2d 82, 84-85 (6th Cir. 1985), the court could construe Mr. Reed’s argumentation to
advance Dr. Pritchard’s expert testimony and report about Mr. Reed’s physical state that was
excluded at trial as the new evidence. While the Supreme Court has not explicitly defined what
evidence counts as “new,” the Sixth Circuit has held that evidence is “new” for the purposes of the
actual-innocence inquiry so long as it was not presented at trial. See Souter v. Jones, 395 F.3d 577,
596 n.9 (6th Cir. 2005) (citing Schlup, 513 U.S. at 324). Thus, the court could read Mr. Reed’s
petition as arguing his innocence to felonious assault based on Dr. Pritchard’s testimony (see ECF
#4-1 at PageID 283) and expert report (see id. at PageID 321-25).
However, Dr. Pritchard’s report and ultimate opinions go to whether Mr. Reed shot the
victim in self-defense. Actual innocence means “factual innocence, not mere legal insufficiency.”
Bousley, 523 U.S. at 623. The Sixth Circuit has consistently determined that a claim of self-defense
is a claim of legal innocence—that the conduct was legally justified—not factual innocence. See, e.g.,
Bushner v. Bracy, No. 17-3553, 2017 WL 9480312, at *3 (6th Cir. Dec. 11, 2017) (concluding a
claim of self-defense “goes to [the petitioner’s] legal, rather than factual, innocence”). Thus, to the
extent Mr. Reed relies on Dr. Pritchard’s testimony and report as new evidence to support his
claim he is innocent because he shot the victim in self-defense, that argument only shows his legal
innocence, not his factual innocence.
I thus recommend the District Court DISMISS Grounds One, Two, and Four as
procedurally defaulted because Mr. Reed did not first raise them in the state courts. Mr. Reed’s
claim of self-defense goes to legal innocence, not actual innocence, and he does not otherwise
support his arguments with new evidence.
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B. 	Cognizablity
The State also argues that Grounds One and Two are not cognizable because there is no
freestanding habeas claim for actual innocence and that Ground Three is not cognizable because
the evidentiary ruling was not a denial of fundamental fairness. (ECF #4 at PageID 95-102).
1. 	Even if they are not procedurally defaulted, Grounds One, Two, and Four are
not cognizable because the Supreme Court has not recognized a freestanding
habeas claim for actual innocence nor recognized such a claim under the
Fourteenth Amendment.
In Grounds One, Two, and Four, Mr. Reed argues he is innocent of felonious assault,
menacing by stalking, and the gun specification attached to his felonious-assault conviction
respectively. (See ECF #1 at PageID 2-3). The State argues that freestanding habeas claims for actual
innocence are not cognizable claims. (ECF #4 at PageID 95-96). Mr. Reed responds that conviction
of an innocent defendant violates the due process clause of the Fourteenth Amendment. (See ECF
#6 at PageID 1201, 1203-06).
Habeas relief is not available for a petitioner’s freestanding claim of innocence absent a
separate constitutional violation in the petitioner’s proceeding. Habeas relief requires the state
court proceeding “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d). The Supreme Court has clearly established that “[c]laims of actual
innocence based on newly discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in the underlying state
criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); McQuiggin v. Perkins, 569 U.S.
383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based
on a freestanding claim of actual innocence.”). Based on this precedent, the Sixth Circuit has
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repeatedly held that actual innocence is not cognizable as a freestanding habeas claim, particularly
in the context of non-capital proceedings. See, e.g., Hubbard, 98 F.4th at 742 (holding the actual-
innocence exception “is not a freestanding substantive claim for habeas relief”); Sitto v. Lafler, 279
F.App’x 381, 382 (6th Cir. 2008) (“[W]e continue to adhere to the rule that a free-standing
innocence claim is not cognizable for habeas review.”); Wright v. Stegall, 247 F.App’x 709, 711 (6th
Cir. 2007) (“Since the Supreme Court has declined to recognize a freestanding innocence claim in
habeas corpus, outside the death-penalty context, this court finds that petitioner’s claim is not
entitled to relief under available Supreme Court precedent.”).
Mr. Reed argues that the conviction of an innocent defendant violates the due process
clause of the Fourteenth Amendment. 2 (See ECF #6 at PageID 1201, 1203-06). But just as the
Supreme Court in Herrera refused to identify a freestanding claim for innocence, the Herrera Court
also did not find a violation of the due process clause of the Fourteenth Amendment. See Herrera,
506 U.S. at 407-11. The Court explained that the Fourteenth Amendment is violated where the
criminal process “offends some principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.” Id. at 407-08. And, after analyzing the history of
granting a new trial to before the Revolutionary War, the Court concluded “we cannot say that
2 Mr. Reed also argues in Grounds One and Two that his rights under the Fourth
Amendment were violated. (See ECF #1 at PageID 12-13; ECF #6 at PageID 1201, 1203-04). To
the extent he did not mean to refer to the Fifth Amendment and its due process clause and he
instead seeks habeas relief on a claim of illegal arrest, such a claim is not reviewable in habeas
corpus “if he had a full and fair opportunity to raise the claim in state court and presentation of
the claim was not thwarted by any failure of the state’s corrective processes.” See Stone v. Powell, 428
U.S. 465, 494-95 (1976). The state court docket shows at no point did Mr. Reed raise any such
claim in the state court through pretrial motions to suppress or dismiss. (ECF #4-1 at PageID 404-
12). The State cannot be said to have denied him a full and fair opportunity to raise his claim
when he chose not to pursue it. Thus, to the extent he raises Fourth Amendment claims, they too
are not cognizable.
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Texas’ refusal to entertain petitioner’s newly discovered evidence eight years after his conviction
transgresses a principle of fundamental fairness rooted in the traditions and conscience of our
people.” Id. at 411. Thus, the Supreme Court has also not clearly established a substantive claim
for actual innocence based on the Fourteenth Amendment.
At various points in arguing his actual-innocence grounds, Mr. Reed gestures that his
convictions lacked sufficient evidence. (See ECF #1 at PageID 13, 18 (citing In re Winship, 397 U.S.
358); ECF #6 at PageID 1204-05 (citing Sera v. Norris, 312 F.Supp.2d 1100 (E.D. Ark. Jan. 21,
2004)). While courts must “actively construe” pro se filings leniently to “encompass any allegation
stating federal relief,” see Franklin, 765 F.2d at 84-85, recharacterizing Ground One and Two to
assert the cognizable claim that his convictions lacked sufficient evidence would not help Mr. Reed
because any such claims would be procedurally defaulted.
As discussed above, if a petitioner did not first raise his federal habeas claim before the
state courts and state law would no longer allow the petitioner to raise the claim in state court, the
claim is procedurally defaulted. Williams, 460 F.3d at 806. In Ohio, claims that convictions lacked
sufficient evidence can be raised on direct appeal and, if they are not, such claims cannot be raised
later. See State v. Szefcyk, 671 N.E.2d 233, 235 (Ohio 1996). Mr. Reed did not challenge the
sufficiency of the evidence against him on appeal, instead challenging only that the trial court
improperly limited Dr. Pritchard’s expert testimony. (ECF #4-1 at PageID 196, 302). Thus, even if
the court actively construed Mr. Reed’s petition to raise sufficiency-of-the-evidence claims, such
claims would be procedurally defaulted.
Thus, if Grounds One, Two, and Four are not procedurally defaulted, I alternatively
recommend the District Court DISMISS those claims as not cognizable either as freestanding
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claims of actual innocence or as violations of the Fourteenth Amendment. To the extent these
Grounds assert sufficiency-of-the-evidence claims, I recommend the District Court DISMISS such
claims as procedurally defaulted.
2. 	Ground Three is not cognizable because limiting Dr. Pritchard from opining on
whether Mr. Reed met the requirements of self-defense was not a denial of
fundamental fairness.
In Ground Three, Mr. Reed argues the trial court wrongly excluded his expert witness from
testifying about Mr. Reed’s physical condition to show his belief he had to use deadly force to
defend himself was objectively reasonable. (ECF #1 at PageID 2, 18-19). The State argues Ground
Three is not cognizable because the evidentiary rulings did not rise to the level of a denial of
fundamental fairness to be a cognizable habeas claim. (ECF #4 at PageID 96-102).
A state court’s decision to admit or exclude evidence is usually a matter of state law. As
discussed above, a state court’s error in applying state law, including in admitting or excluding
evidence, usually will not support habeas relief unless the error results in “a denial of fundamental
fairness.” Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983). “[T]he category of infractions that
violate fundamental fairness is defined very narrowly,” and includes only state rulings that “offend
some principle of justice so rooted in the traditions and conscience of our people as to be ranked
as fundamental.” Bey, 500 F.3d at 521 (cleaned up). The habeas petitioner must show “the
principle of procedure violated by the rule (and allegedly required by due process)” is fundamental.
Id.
In Ground Three, Mr. Reed argues the state courts’ decision limiting expert testimony
denied him the ability to present his self-defense theory and was an abuse of discretion. (See ECF
#1 at PageID 19; ECF #6 at PageID 1207). The right to present witnesses to establish a defense is
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“a fundamental element of due process of law.” Washington, 388 U.S. at 19. And because expert
testimony often forms a critical part of a defense, the Sixth Circuit recognized that “[i]n rare
instances” exclusion of expert testimony might violate that right. United States v. Smead, 317
F.App’x 457, 462 (6th Cir. 2008). But the right to present a defense does not relieve a criminal
defendant of the obligation to comply with the rules of evidence. Clark v. Arizona, 548 U.S. 735,
770 (2006). Rules that exclude evidence from criminal trials do not violate the right to present a
defense unless they are “arbitrary or disproportionate to the purposes they are designed to serve.”
United States v. Scheffer, 523 U.S. 303, 308 (1998). And “well-established rules of evidence [that]
permit trial judges to exclude evidence” under certain circumstances are unlikely to violate a
defendant’s constitutional rights. Holmes v. South Carolina, 547 U.S. 319, 326 (2006).
Ground Three concerns the admissibility of the report and ultimate opinions of Dr.
Pritchard, the expert witness for the defense that was first subject to a pretrial motion:
{¶6} The State filed a motion in limine to prohibit Dr. Pritchard from testifying at
trial, to exclude Dr. Pritchard’s expert report, and to require Appellant to provide
additional evidence of a bona fide belief Appellant was entitled to use self-defense in
this case. The trial court found Dr. Pritchard’s report did not provide knowledge or
expertise beyond that of a lay person as a juror, as a lay person is perfectly capable of
comprehending older adults who fall or break bones fare far worse than younger
adults, and the 78-year-old Appellant could easily sustain grave consequences from
an altercation with the younger, heavier victim. The trial court granted the State’s
motion in part, allowing Dr. Pritchard testify as to Appellant’s significant medical
history, but precluding his testimony as to the potential consequences of an
altercation between Appellant and the victim and its effect on Appellant’s state of
mind at the time of the shooting.
(ECF #4-1 at PageID 281-82; see also id. at PageID 160-66). After trial, Mr. Reed proffered what Dr.
Pritchard would have testified to had it not been excluded:
I would proffer that if I had been permitted to ask Dr. James Pritchard hypothetical
questions, I would have asked him question number one: Given the information you
have about Charlie Reed, I would ask you, if hypothetically if he was yelled at or put
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in a position of stress, within a reasonable degree of medical certainty, could that be
fatal?
Dr. Pritchard would have answered yes.
I also wanted to ask Dr. Pritchard a hypothetical question that given the medical
conditions of Charlie Reed, within a reasonable degree of medical certainty, could
Charlie Reed suffer death as a result of being pushed down?
He would have answered yes.
And then finally I would have asked Dr. James Pritchard a hypothetical question that
given Charlie Reed’s conditions, within a reasonable degree of medical certainty,
could he be killed by a blow to any part of his body or any part of his head?
Dr. Pritchard would have answered that question yes as well.
(ECF #4-1 at PageID 283; see also ECF #4-1 at PageID 1169-70).
The Fifth District discussed the limiting of Dr. Pritchard’s testimony and Mr. Reed’s self-
defense theory as follows:
{¶11} Appellant claimed self-defense at trial. The elements of self-defense in the use
of deadly force are: (1) the defendant was not at fault in creating the situation giving
rise to the affray; (2) the defendant had a bona fide belief he was in imminent danger
of death or great bodily harm and his only means of escape from such a danger was
in the use of such force, and (3) the defendant did not violate any duty to retreat or
avoid the danger.
{¶12} The second element of self-defense requires the evidence tends to show the
accused had reasonable grounds to believe or an honest belief, even if mistaken, he
or another was in imminent or immediate danger of death or great bodily harm. In
State v. Thomas, the Ohio Supreme Court explained:
[T]he second element of self-defense is a combined subjective and
objective test. As this court established in State v. Sheets, self-defense
“is placed on the grounds of the bona fides of defendant’s belief, and
reasonableness therefor, and whether, under the circumstances, he
exercised a careful and proper use of his own faculties.” In Koss, we
once again stated this test by approving similar jury instructions to
those given in the case sub judice:
“In determining whether the Defendant had reasonable grounds for
an honest belief that she was in imminent danger, you must put
yourself in the position of the Defendant * * *. ‘You must consider
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the conduct of [the assailant] and determine if such acts and words
caused the Defendant to reasonably and honestly believe that she was
about to be killed or to receive great bodily harm.’” Thus, the jury
first must consider the defendant’s situation objectively, that is,
whether, considering all of the defendant’s particular characteristics,
knowledge, 	or 	lack 	of 	knowledge, 	circumstances, 	history, 	and
conditions at the time of the attack, she reasonably believed she was in
imminent danger . . . Then, if the objective standard is met, the jury
must determine if, subjectively, this particular defendant had an
honest belief that she was in imminent danger.
{¶13} Appellant argues the trial court erred in excluding Dr. Pritchard’s testimony
concerning the medical outcome to Appellant of an altercation with a man the
victim’s age and size, as such evidence would have demonstrated Appellant
reasonably believed his life was in danger when he shot the victim.
{¶14} “A trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with
the rules of procedure and evidence.”
{¶15} Evid. R. 702(A) provides a witness may testify as an expert if the “witness’
testimony either relates to matters beyond the knowledge or experience possessed by
lay persons or dispels a misconception common among lay persons.” The trial court
found the testimony proffered in the instant case did not relate to matters beyond
the knowledge or experience possessed by lay persons, and did not dispel a
misconception common among lay persons.
{¶16} Appellant relies on the Ohio Supreme Court’s opinion in State v. Koss, in
support of his argument expert testimony was admissible on the issue of whether his
belief he was in imminent danger from the victim was reasonable. In Koss, the court
found testimony concerning battered women’s syndrome was admissible on the issue
of self-defense:
Expert testimony regarding the battered woman syndrome can be
admitted to help the jury not only to understand the battered woman
syndrome 	but 	also 	to 	determine 	whether 	the 	defendant 	had
reasonable grounds for an honest belief that she was in imminent
danger when considering the issue of self-defense. “Expert testimony
on the battered woman syndrome would help dispel the ordinary lay
person’s perception that a woman in a battering relationship is free
to leave at any time. The expert evidence would counter any ‘common
sense’ conclusions by the jury that if the beatings were really that bad
the woman would have left her husband much earlier. Popular
misconceptions 	about 	battered 	women 	would 	be 	put 	to 	rest,
including the beliefs that the women are masochistic and enjoy the
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beatings and that they intentionally provoke their husbands into fits
of rage.
As the Supreme Court of New Jersey stated in State v. Kelly:
“[‘]Battered women include wives or women in any form of intimate
relationships with men. Furthermore, in order to be classified as a
battered woman, the couple must go through the battering cycle at
least twice. Any woman may find herself in an abusive relationship
with a man once. If it occurs a second time, and she remains in the
situation, she is defined as a battered woman.[’]”
“ * * * [E]xpert testimony would be essential to rebut the general
misconceptions regarding battered women.
“The difficulty with the expert’s testimony is that it sounds as if an
expert is giving knowledge to a jury about something the jury knows
as well as anyone else, namely, the reasonableness of a person’s fear
of imminent serious danger. That is not at all, however, what this
testimony is directly aimed at. It is aimed at an area where the
purported common knowledge of the jury may be very much
mistaken, an area where jurors’ logic, drawn from their own
experience, may lead to a wholly incorrect conclusion, an area where
expert knowledge would enable the jurors to disregard their prior
conclusions 	as 	being 	common 	myths 	rather 	than 	common
knowledge.”
{¶17} Id. at 216-17, 551 N.E.2d at 973-74.
{¶18} The Ohio Supreme Court later extended the holding in Koss to child abuse
situations, finding testimony on the syndrome or psychological effects of abuse is
essential to proving the elements of a self-defense claim, because nonconfrontational
killings do not fit the general pattern of self-defense. State v. Nemeth . . . . Without
expert testimony, a trier of fact may not be able to understand the defendant at the
time of the killing could have had an honest belief he was in imminent danger of
death or great bodily harm, and it is difficult for the average person to understand
the degree of helplessness an abused child may feel. Thus, expert testimony would
help dispel the ordinary lay person’s perception that a [person] in a battering
relationship is free to leave at any time.
{¶19} In both Koss and Nemeth, the expert testimony aided the jury in dispelling a
common misconception a woman or child in an abusive relationship is free to leave
any time. However, in the instant case, no such misconception exists. It is not a
commonly held belief an older person with numerous health problems is no more
susceptible to death from an altercation than a younger person in good health. Dr.
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Pritchard testified at trial as to numerous health conditions from which Appellant
suffered. Appellant testified because of his poor health, he feared for his life should
he have another physical altercation with the victim. Further, the jury heard
testimony from both the victim and Appellant, and was in a position to physically
see the differences in age, size, and physical condition between the two men. As
found by the trial court, expert testimony was not necessary for a lay person to
understand the potential fragility of an older person in poor health who is involved
in a verbal or physical altercation, and to evaluate the objective reasonableness of
Appellant’s belief he was in imminent danger of death or bodily harm if engaged in
an altercation with the victim. We find the trial court did not err in finding Dr.
Pritchard’s opinion was not admissible under Evid. R. 702(A), as the proffered
testimony was not beyond the knowledge or experience of a lay person and did not
dispel any misconception common amongst lay persons.
(ECF #4-1 at PageID 285-90) (footnote and citations omitted).
The application of Ohio’s evidence rules was not a denial of fundamental fairness. “In the
realm of expert testimony, a criminal defendant is not constitutionally entitled to introduce an
expert’s conclusion that the criminal defendant acted in self-defense.” Tourlakis v. Morris,
738 F.Supp. 1128, 1135 (S.D. Ohio 1990). As the Fifth Circuit observed,
[T]he issue of self-defense comprises many considerations that are manifestly outside
the area of expertise of a psychiatrist or psychologist. If the experts were to testify, “in
my opinion, [the defendant] was acting in self-defense when she killed [the victim],”
they would be affirming not only that [the defendant] was likely to have had the
requisite subjective state of mind, an opinion that their professional knowledge
might well have qualified them to give, but also that [the defendant’s] state of mind
was reasonable, that she had taken adequate steps to avoid the danger, that it was
not necessary for her to have retreated, et cetera.
Phillips v. Wainwright, 624 F.2d 585, 590 (5th Cir. 1980). Criminal defendants have often been
limited in presenting expert witnesses that conclude other defenses are valid. See, e.g., Buell v.
Mitchell, 274 F.3d 337, 359 (6th Cir. 2001) (“[A] habeas petitioner does not have a constitutional
right to the presentation of expert testimony on the reliability of eyewitness identification.”);
Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012) (limitation of expert testimony on child
witness’s credibility not a denial of fundamental fairness). These cases reveal the balance struck is
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that experts can discuss specialized facts relevant to a defense, but cannot opine on whether the
defendant met the requirements of the defense.
The state court struck that balance. As the state court summarized, Ohio’s self-defense law
requires jurors put themselves “in the position of the Defendant . . . consider the conduct of [the
assailant] and determine if such acts and words caused the Defendant to reasonably and honestly
believe that she was about to be killed or to receive great bodily harm.” (ECF #4-1 at PageID 286)
(emphasis in original). Dr. Pritchard explained Mr. Reed’s frail medical condition to the jury,
including cancer and heart, lung, vascular, and digestive conditions. (ECF #4-2 at PageID 932-39).
Mr. Reed was able to use this testimony during closing argument to support his self-defense theory
by helping jurors understand his frail medical condition when they placed themselves in his
position when determining it was reasonable for him to believe he faced death or great bodily
harm. (ECF #4-2 at PageID 1139-40, 1141, 1149).
What the state court prohibited was Dr. Pritchard opining on whether it was reasonably
certain Mr. Reed could die or suffer great bodily harm from being “yelled at or put in a position of
stress,” “being pushed down,” or struck on “any part of his body or any part of his head.” (See ECF
#4-1 at PageID 283). These opinions essentially state “that [Mr. Reed’s] state of mind was
reasonable” because it was reasonably certain he faced death or serious bodily harm from being
yelled at, pushed, or struck. See Phillips, 624 F.2d at 590. The state court’s conclusion the jury did
not need an expert to understand that an elderly man with Mr. Reed’s medical conditions could
be more likely to die from stress, falls, or impacts than an ordinary person did not result in the
denial of fundamental fairness.
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Mr. Reed’s reliance on State v. Koss, 551 N.E.2d 970 (1990), also does not show how
excluding Dr. Pritchard’s ultimate conclusions blocked him from presenting his self-defense
theory. In Socha v. Wilson, 477 F.Supp.2d 809 (N.D. Ohio 2007), the court found a habeas
petitioner’s right to present a self-defense theory was not denied when the trial court excluded an
expert witness’s testimony. In Socha, the petitioner claimed he killed the victim in self-defense after
a break-in but the State argued he did not act in self-defense because he disposed of the body in a
park and burned bloodstained evidence. See id. at 811-12. To counter this, the petitioner relied on
Koss to have a psychologist testify that his “behavior following the physical confrontation” was
because he “was overwhelmed by the reality of what had happened, that his reason and judgment
were impaired by the alcohol and that his subsequent acts were irrational and symbolic as opposed
to any meaningful attempts to cover his crime.” Id. at 812. Just like here, the state court disagreed
and concluded the jury was capable of deciding for itself whether the petitioner was in fear of
death or great bodily harm at the time of the killing without expert testimony. Id. On habeas
review, the federal court found no denial of due process in excluding the expert’s testimony
because “there was no ‘syndrome’ involved” or misconception to dispel; rather there was a
personal history between the petitioner and the victim that “did not reveal that the [victim] had a
reputation or character for being an aggressor.” Id. at 813. The same is true here: there is no
syndrome involved nor any popular misconception to dispel. The jury heard extensive testimony
from Mr. Reed, the victim, and others detailing their years-long neighborhood feud and a jury does
not require medical expertise to understand a neighbors’ feud.
Mr. Reed also argues the trial court “told the jury not to consider what was being said” by
Dr. Pritchard. Mr. Reed mischaracterizes the record as the transcript recounts Dr. Pritchard
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testified on cross-examination that Mr. Reed could “die from bumps on their head in the car
doors,” the State interrupted with an objection, the court sustained it after holding a bench
conference, and instructed the jury to “disregard the witness’s last response.” (ECF #4-2 at PageID
947-50). An instruction to disregard one response after a sustained objection is not an instruction
to disregard a witness’s whole testimony. Mr. Reed does not show the instruction was in error and,
even if it was, a single erroneous instruction does not render an entire trial fundamentally unfair.
See Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974).
Finally, Mr. Reed argues the trial court abused its discretion to limit his defense. (See ECF
#1 at PageID 19, ECF #6 at PageID 1207). A state court’s abuse of its discretion, without more, is
not a constitutional violation. Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001). A federal
habeas court has even less authority to second-guess a state court’s discretion over matters of state
law. See Robinson v. Sheldon, No. 1:18-CV-556, 2021 WL 423089, at *7 (N.D. Ohio Feb. 8, 2021).
The state court’s decision to limit Dr. Pritchard’s testimony is a discretionary matter of state
evidentiary law. Having already determined Mr. Reed was not deprived of his right to present a
defense, there is no constitutional violation either.
I thus recommend the District Court DISMISS Ground Three as not cognizable.
C ERTIFICATE OF A PPEALABILITY
A habeas petitioner may not appeal the denial of an application for a writ of habeas corpus
unless a judge issues a COA and specifies the issues that can be raised on appeal. 28 U.S.C.
§ 2253(c). “A [COA] may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” § 2253(c)(2). When a district court has determined a petitioner’s
constitutional claim to lack merit, the petitioner “must demonstrate that reasonable jurists would
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find the district court’s assessment of the constitutional claim debatable or wrong” before receiving
a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court denies a habeas
petition on procedural grounds without reaching the petitioner’s underlying constitutional claim,
a COA should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling. Id. A showing that the appeal would succeed on the claim is not needed to grant a COA.
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Mr. Reed has not made a substantial showing that he was denied any federal constitutional
right. Jurists of reason would not find it debatable whether the grounds for relief are procedurally
defaulted or are cognizable federal constitutional claims. I thus recommend the District Court
DENY Mr. Reed a COA.
C ONCLUSION AND R ECOMMENDATION
For these reasons, I recommend the District Court DISMISS Grounds One, Two, and
Four as procedurally defaulted or, alternatively, as not cognizable; DISMISS Ground Three as not
cognizable, and DENY the petition. I further recommend the District Court DENY Mr. Reed a
COA on all grounds.
Dated: November 17, 2025
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Objections, Review, and Appeal
Within 	14 	days 	after 	being 	served 	with 	a 	copy 	of 	this 	Report 	and
Recommendation, a party may serve and file specific written objections to the
proposed findings and recommendations of the Magistrate Judge.
See Fed. R. Civ.
P. 72(b)(2);
see also 28 U.S.C. § 636(b)(1); Local Civ. R. 72.3(b). Properly asserted
objections shall be reviewed de novo by the assigned district judge.
Failure to file objections within the specified time may result in the forfeiture or
waiver of the right to raise the issue on appeal, either to the district judge or in a
subsequent appeal to the United States Court of Appeals, depending on how or
whether the party responds to the Report and Recommendation.
Berkshire v.
Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific and not
merely 	indicate 	a 	general 	objection 	to 	the 	entirety 	of 	the 	Report 	and
Recommendation; “a general objection has the same effect as would a failure to
object.”
Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir.
1991). Objections should focus on specific concerns and not merely restate the
arguments in briefs submitted to the Magistrate Judge. “A reexamination of the
exact same argument that was presented to the Magistrate Judge without specific
objections ‘wastes judicial resources rather than saving them and runs contrary to
the purpose of the Magistrates Act.’”
Overholt v. Green, No. 1:17-CV-00186, 2018
WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting
Howard, 932 F.2d at 509).
The failure to assert specific objections may in rare cases be excused in the interest
of justice.
See United States v. Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).
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