Skatzes v. Warden Mansfield Correctional Institution

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GEORGE SKATZES,
:
Petitioner, 	Case No. 3:09-cv-00289
:
-vs- 	Magistrate Judge Michael R. Merz
WARDEN, Ross Correctional
Institution,
:
Respondent.
DECISION AND ORDER
This is a habeas corpus case under 28 U.S.C. § 2254 in which Petitioner George Skatzes
pleads seventeen grounds for relief challenging his convictions for three counts of aggravated
murder and two death sentences (Petition, ECF No. 25). Respondent has filed an Answer (ECF
No. 31), Skatzes has filed his Traverse (Doc No. 42), and Respondent has filed a Sur-Reply (ECF
No. 50). Also before the Court is Skatzes’ Motion to Expand the Record (ECF No. 169), the
Respondent’s Opposition (ECF No. 170), and Skatzes’ Reply (ECF No. 171).
The parties have unanimously consented to plenary Magistrate Judge jurisdiction under 28
U.S.C. § 636(c) and the case has been referred on that basis (ECF No. 165).
I. 	Litigation History
In the fall of 1995, Skatzes was tried and convicted of the aggravated murders of his fellow
inmates, Earl Elder and David Sommers, and correctional officer Robert Vallandingham in the
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Montgomery County Court of Common Pleas1 . (ECF No. 66-2 at PageID 2880-2883). For the
aggravated murder of Vallandingham, Skatzes was sentenced to life imprisonment, but for the
aggravated murders of Sommers and Elder, Skatzes was sentenced to death. (Id.). According to
the Ohio Supreme Court, the facts adduced during state court proceedings are as follows:
{¶ 1} On the afternoon of April 11, 1993, inmates at the Southern Ohio Correctional
Facility (“SOCF”) at Lucasville rioted and took control of L Section, one of
three main prison cell blocks. On or about April 12, inmates killed inmate Earl
Elder. On April 15, inmates killed Robert Vallandingham, one of eight
corrections officers taken hostage during the riot. On April 21, while inmates
were surrendering and releasing the remaining hostages, inmates killed inmate
David Sommers. Defendant-appellant, George Skatzes, was found guilty as one
of the inmates responsible for the murders of Elder, Vallandingham, and
Sommers and was sentenced to death.
{¶ 2} Sometime before April 11, 1993, the Ohio Department of Health mandated
that all prison inmates in Ohio’s prison system be tested for tuberculosis. The
test required an injection. The Muslim inmates at SOCF, led by Carlos “Hasan”
Sanders, a leader of the Muslims at SOCF, objected to that form of testing on
religious grounds. Word filtered down to the Muslims that a lockdown of SOCF
was going to take place on Monday, the day after Easter Sunday, April 12, 1993,
to facilitate the tuberculosis testing.
{¶ 3} On the evening before the riot, April 10, high-ranking members of the Aryan
Brotherhood, including Jason Robb, Dewey Bocook, and Freddie Snyder, and
the Muslims, including Sanders and James Were, met in the L block gym. Upon
seeing this gathering, inmate Robert Brookover knew “there was something
going on.” Robb told fellow Aryan Brotherhood member Roger Snodgrass,
“[B]e on [your] toes tomorrow.”
{¶ 4} On the afternoon of April 11, inmates took control of the entire L section of
the prison, including cell blocks 1 through 8. Prison authorities attempted to
end the takeover by negotiating over the phone with representatives of the three
dominant gangs. The gangs included the Muslims, led by Sanders, who
controlled L6; the Aryans, led by Jason Robb and Skatzes, who controlled L2;
and the Black Gangster Disciples, led by Anthony Lavelle, who controlled L1.
Inmates controlled access to and from any area of L block.
{¶ 5} Several corrections officers (“C.O.s”), including Robert Vallandingham, who
was working in L1 that day, were taken hostage. As the riot unfolded in its early
stages, Vallandingham had locked himself in the corrections officers’ L1
restroom. Inmates were able to batter open the restroom door and take him
1 Although the offenses were committed in Scioto County, Ohio, trial venue was transferred to Montgomery County.
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hostage. Other inmates saw Sanders and Were escort Vallandingham to L6.
Other guards taken hostage were eventually held in L6 as well, except for C.O.s
Darrold Clark and Jeff Ratcliff, who were confined for most of the riot in L2.
{¶ 6} During the initial stages of the riot, inmates stormed to the back stairwell of
L2 where C.O. Ratcliff and inmate Earl Elder had locked themselves. Using a
weight bar, inmates punched holes in the wall next to the L2 stairwell door.
Ratcliff came out of the stairwell and was beaten. Inmates then brought Elder
out of the stairwell and began beating him with baseball bats and stabbing him
with shanks. Robb was heard telling Elder, “You want to be police, we will
show you what it is to be police.” Elder was then locked in a cell in L6.
{¶ 7} Later that night, Lucky Roper, a Muslim inmate, met with Skatzes in the gym.
Skatzes then went to Snodgrass and told him, “We got to go to L6.” At L6,
Skatzes told Snodgrass: “I want you to take this guy out.” Then Skatzes, Roper,
and Snodgrass went to the cell where Elder was being held, and Skatzes told
Snodgrass, “Go ahead and take care of your business, son.” Snodgrass went into
the cell and stabbed Elder numerous times. When Snodgrass came out of the
cell, Skatzes put his arm around him and said, “You did a good job, brother, I
am proud of you.” Elder’s body was placed in the recreation yard at 10:15 the
next morning. He died from multiple stab wounds in his chest and head, as well
as skull fractures.
{¶ 8} On April 12, prison authorities turned off the electricity and water in L block.
Skatzes shouted from a window with a bullhorn, demanding that the authorities
turn the power back on. He also had C.O.-hostage Ratcliff identify himself
using the bullhorn and demand that power be restored inside L block.
{¶ 9} Within two or three days of the takeover, FBI technicians had placed
microphones in the tunnels underneath L block to record inmate conversations.
By the end of the riot, 591 “tunnel tapes” had been recorded.
{¶ 10} The inmate leaders negotiated over the phone with prison authorities. Inmate
David Sommers controlled the phones and tape-recorded the inmate leaders
during their negotiations with prison authorities. During the first half of the riot,
Skatzes was one of the lead inmate negotiators. He told the prison negotiators
to stop tear-gassing K block, which they were doing to quell a disturbance, or
they were “going to cost an officer’s life.” As he continued to argue with
authorities over the phone, Skatzes declared, “[Y]ou just cost an officer’s life.”
At that time, however, the inmates had not killed a guard.
{¶ 11} At another time during the siege, Skatzes and Robb ordered a crew of
inmates to make a hole in a back wall of L7. They planned to kill a C.O. and
dangle his body out of the back of L7, where it could be seen from the front of
the SOCF by members of the media. In addition, Skatzes instructed inmates
guarding the C.O. hostages to kill them if authorities came into L block.
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{¶ 12} On April 14, the inmate leaders met in L2 to discuss a solution to the
stalemate on their demands. In addition to the gang leaders, including Skatzes,
other inmates within the three gangs also attended the meeting. According to
Lavelle, a vote was taken to kill a guard if their demands were not met. “No one
spoke against doing it, so it was agreed it would happen.”
{¶ 13} Later that evening on April 14, inmate Miles Hogan overheard a
conversation between Skatzes, Sanders, and inmate Stanley Cummings. They
talked about the fact that someone who was supposed to kill a C.O. had backed
out. Skatzes blurted out: “Fuck the CO, I will kill the CO or fuckin’ COs.”
{¶ 14} Another inmate-leader meeting took place on the morning of April 15. At
that time, Skatzes got on the phone and demanded that prison authorities restore
water and power within L block or “there would be a guaranteed murder.” He
added, “Do your thing. 10:30 or a dead man’s out there.” He said that if the
water and power were not turned back on by 10:30, “the hardliners were going
to step in and take over.” At the inmate meeting of leaders, a vote was taken to
kill a C.O., and a member from each inmate gang was chosen to participate in
the killing. According to witnesses at the meeting, Skatzes agreed with the
decision to kill a C.O.
{¶ 15} The deadline set by Skatzes passed without the water or power being
restored. Officer Vallandingham was killed in L6 by Muslim inmates. Several
masked inmates carried Vallandingham’s body out of L6 and down the L
corridor to the gym. Skatzes walked behind those who carried the body. At
11:10 a.m., Vallandingham’s body was placed in the recreation yard. The
coroner later concluded that Vallandingham had died by ligature strangulation.
{¶ 16} Negotiations resumed that afternoon, and the inmate leaders agreed to
release a C.O. in exchange for allowing Skatzes to make a live radio broadcast
to air the concerns and demands of the inmates. The broadcast took place that
evening at 7:30 p.m. in the recreation yard. After the broadcast, C.O. Darrold
Clark was released. Although he had a transcript, Skatzes’s performance was
described as “rambling.” Many inmates were not pleased, and Sanders told
Robb that he wanted him to make all future decisions on behalf of the Aryans.
Skatzes’s role as an inmate negotiator diminished thereafter.
{¶ 17} The following day, April 16, prison officials agreed to allow inmate
Cummings to broadcast inmate grievances on television, in exchange for the
release of another C.O. At 1:35 p.m., C.O. Tony Demons was released while
Cummings delivered his live television address.
{¶ 18} The takeover continued because Sanders and Robb reportedly wanted to
break the record for the longest prison takeover in the United States. Finally, on
April 20 and 21, Sanders, Robb, and Lavelle met with attorney Niki Schwartz
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to discuss ending the takeover. They reached an agreement, and the inmates
began to surrender on April 21.
{¶ 19} Meanwhile, during a meeting in L2 between Robb, Lavelle, and Sanders,
the gang leaders decided that inmate David Sommers, who controlled the
phones and ran the inmates’ tape player throughout the negotiations “had to die,
he knew too much.” Sommers had a reputation as a snitch before the riot. Robert
Brookover also had a reputation as a snitch, but he was given a choice: kill
someone or be killed. Brookover asked Skatzes if he was going to be killed.
Skatzes replied, “[J]ust take care of business, be cool.”
{¶ 20} The surrender was held up for a period of time because, as Skatzes, Robb,
Sanders, and Cummings told Lavelle, they had “some things [they had] to take
care of.” An inmate called “Kinky” gave Brookover baker’s clothes (kitchen
whites, which Brookover put on), a shank, and an extension cord. Skatzes,
Snodgrass, and Bocook also changed into different clothes. When Robb arrived,
the group went to L7 across the corridor from L2. Bocook instructed Brookover
to retrieve baseball bats out of a guitar case in the back of L7. When they arrived
in L7, no one was there. Bocook screamed, “Where’s that bitch Sommers at.”
Robb left to get Sommers from L2 and, moments later, Sommers was seen
chasing Robb into L7. Brookover tackled Sommers and stabbed him. Skatzes
ran up and kicked Sommers in the head. Brookover followed orders to choke
Sommers with the extension cord, and then Skatzes struck Sommers in the head
with a baseball bat at least three times. Brookover and the others beat and
stabbed Sommers until he was dead. Then the killers cleaned themselves,
burned their clothes, and surrendered to authorities.
{¶ 21} Prison authorities found Sommers’s body in L7. The coroner attributed
death to a massive blow to the head leading to skull fracture, laceration of the
skull, and other severe brain injuries and bleeding.
{¶ 22} The Scioto County Grand Jury indicted Skatzes on six counts of aggravated
murder, two counts each for the murders of Vallandingham, Elder, and
Sommers. Each murder count carried four death specifications: murder in a
detention facility [R.C. 2929.04(A)(4)], a prior aggravated murder conviction
[R.C. 2929.04(A)(5)], murder as a course of conduct [R.C. 2929.04(A)(5)], and
murder during a kidnapping [R.C. 2929.04(A)(7)]. Skatzes was also indicted on
three counts of kidnapping [R.C. 2905.01].
{¶ 23} The trial court changed venue to Montgomery County, and the case was
tried before a jury. After the state presented its case, the defense called five
witnesses, including former hostage C.O. Ratcliff. Skatzes testified in his own
behalf. The defense claimed that Skatzes had been a peacemaker during the
prison takeover and had opposed killing a C.O. Skatzes denied involvement in
the Elder and Sommers murders. The jury found Skatzes guilty on all counts
and specifications. After a mitigation hearing, the jury recommended death for
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the murders of Elder and Sommers and a life sentence for the murder of
Vallandingham. The trial judge sentenced Skatzes accordingly.
State v. Skatzes, 104 Ohio St. 3d 195, 195–99 (2004).
Skatzes appealed his conviction and sentence to the Second District Court of Appeals.
(Appellant’s Merit Brief, ECF No. 67-2 at PageID 3970—ECF No. 67-3 at PageID 4216). On
January 31, 2003, the Second District Court of Appeals affirmed Skatzes’ convictions and
sentences. (ECF No. 67-6 at PageID 5027-5163). Skatzes subsequently appealed to the Ohio
Supreme Court, pleading sixty propositions of law. (Appellant’s Merit Brief, ECF No. 67-7 at
PageID 5307-5655). That court affirmed Skatzes’ convictions and sentences. Skatzes, 104 Ohio
St. 3d 195 (2004).
The Second District Court of Appeals denied Skatzes’ motion to reopen his appeal on
September 30, 2003. (Application for Reopening, ECF No. 54-7 at PageID 2662-2675, 2676;
Second District Order, ECF No. 68-3, PageID 7399-7407). The Ohio Supreme Court sua sponte
dismissed Skatzes’ appeal of that order as untimely filed (ECF No. 68-5 at PageID 7645) and
denied Skatzes’ motion for reconsideration. (Id. at PageID 7680-7693, 7684).
At the same time his direct appeal proceedings were pending, Skatzes litigated his petition
for postconviction relief in the Montgomery County Court of Common Pleas, where he pled
twenty-nine claims for relief. (Postconviction Petition, ECF No. 68-7 at PageID 8029—ECF No.
68-8 at PageID 8110). On July 13, 2007, the Montgomery County Court of Common Pleas denied
Skatzes’ postconviction petition, finding some claims were barred by res judicata and the
remainder lacked merit. (ECF No. 68-10 at PageID 8620-8669).
On January 18, 2007, Skatzes filed a motion for leave to file a motion for a new trial
(Motion for Leave, ECF No. 70-8 at PageID 11023-11024; Memorandum in Support, Id. at PageID
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11038-11059). The Montgomery County Court of Common Pleas granted leave, but ultimately
denied the motion on the merits. (Id. at PageID 11025; ECF No. 78-9 at PageID 11271-11274).
Skatzes appealed the denial of his postconviction petition to the Second District Court of
Appeals with twelve assignments of error. (Appellant’s Merit Brief, ECF No. 70-1 at PageID 9938-
9991). Skatzes also appealed the denial of his motion for a new trial to the Second District Court
of Appeals. (Appellant’s Merit Brief, ECF No. 70-10 at PageID 11367-11389). In a consolidated
opinion, the Second District Court of Appeals affirmed (Court of Appeals’ Opinion, ECF No. 70-
7 at PageID 10909-10940), and the Ohio Supreme Court subsequently declined jurisdiction.
(Supreme Court of Ohio Entry, ECF No. 70-11 at PageID 11740).
On April 5, 2010, Skatzes filed his petition for a writ of habeas corpus in this Court. (ECF
No. 25). Skatzes pleads the following Grounds for Relief:
First Ground for Relief
Trial counsel rendered ineffective assistance in the culpability phase when they
failed to investigate and present expert and lay witnesses that were material to
George Skatzes’s defense against the capital murder charges and specifications
pertaining to corrections officer Robert Vallangdingham. U.S. Const. amend. 6, 14.
Second Ground for Relief
George Skatzes’ conviction for the aggravated murder of Robert Vallandingham
rests on insufficient evidence in violation of the due process clause of U.S. Const.
amend. 14.
Third Ground for Relief
Trial counsel rendered ineffective assistance in the culpability phase when they
failed to investigate and present exculpatory, impeaching, and rebuttal witnesses to
defend against the capital murder charges and specifications pertaining to inmate
David Sommers. U.S. Const. amend. 6, 14.
Fourth Ground for Relief
The state pursued materially inconsistent theories when it prosecuted George
Skatzes for the aggravated murder of David Sommers. The state’s inconsistent
theories of prosecution violate Skatzes’ right to due process and his right against
cruel and unusual punishment. U.S. Const. amend. 8, 14.
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Fifth Ground for Relief
The state’s evidence is insufficient to prove that George Skatzes killed David
Sommers with prior calculation and design. U.S. Const. amend. 14.
Sixth Ground for Relief
George Skatzes is actually innocent of the aggravated murder of David Sommers,
in violation of the cruel and unusual punishment clause. His conviction for that
capital crime is unreliable and inaccurate in violation of the due process clause.
U.S. Const. amend. 8, 14.
Seventh Ground for Relief
Trial counsel rendered ineffective assistance in the culpability phase when they
failed to investigate and present exculpatory, impeaching, and rebuttal witnesses to
defend against the capital murder charges and specifications pertaining to inmate
Earl Elder. U.S. Const. amend. 6, 14.
Eighth Ground for Relief
The state violated George Skatzes’s right to due process when it suppressed
evidence that was material to his defense to the aggravated murder charges and
specifications for Earl Elder’s death. U.S. Const. amend. XIV.
Ninth Ground for Relief
George Skatzes’s conviction for the aggravated murder of Earl Elder rests on
insufficient evidence in violation of the due process clause. U.S. Const. amend. 14.
Tenth Ground for Relief
George Skatzes is actually innocent of the aggravated murder of Earl Elder, in
violation of the cruel and unusual punishment clause. His conviction for that capital
crime is unreliable and inaccurate in violation of the due process clause. U.S. Const.
amend. 8, 14.
Eleventh Ground for Relief
Trial counsel rendered ineffective assistance in the mitigation phase when they
failed to prepare for mitigation, investigate for mitigation, and present background,
character, traumatic brain injuries, and evidence that he operated under duress
under the takeover of SOCF. U.S. Const. amend. 6, 14.
Twelfth Ground for Relief
The trial court violated George Skatzes’s due process right to a fair trial when it
improperly instructed the jury on crucial point of law for conspiracy and an element
of capital specification. The instructional error on the capital specification also
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infringed on Skatzes’s right to a reliable capital sentencing hearing. U.S. Const.
amend. 8, 14.
Thirteenth Ground for Relief
George Skatzes’s due process right to a fair trial was violated by the admission of
unreliable and prejudicial testimony from state’s witness Roger Snodgrass. U.S.
Const. amend. 14.
Fourteenth Ground for Relief
George Skatzes’s constitutional right to a fair trial and capital sentencing hearing
was infringed because the prosecutor offered, and the trial court admitted,
prejudicial testimony about two uncharged murders and an irrelevant threat to
commit murder. U.S. Const. amend. 8, 14.
Fifteenth Ground for Relief
Trial counsel rendered ineffective assistance in the culpability phase when they
failed to object to improper jury instructions on crucial points of law and when
counsel failed to object to the prosecutor’s use of prejudicial “other acts” evidence.
U.S. Const. amend. 6, 14.
Sixteenth Ground for Relief
Appellate 	counsel 	rendered 	ineffective 	assistance 	when 	counsel 	omitted
meritorious issues from George Skatzes’s first appeal as of right to the Ohio Court
of Appeals. U.S. Const. amend. 14.
Seventeenth Ground for Relief
George Skatzes’s death sentence violates the cruel and unusual punishment clause
and due process clause because he suffers from serious mental illness. U.S. Const.
amend. 8, 14.
II. 	LEGAL STANDARDS
A. Procedural Default
“Federal courts will not consider the merits of procedurally defaulted claims, unless the
petitioner demonstrates cause for the default and prejudice resulting therefrom, or that failing to
review the claim would result in a fundamental miscarriage of justice.” Williams v. Anderson, 460
F.3d 789, 805–06 (6th Cir. 2006), (citing Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006)).
“A claim may become procedurally defaulted in two ways.” Williams, 460 F.3d at 806. “First, a
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claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner’s failure to comply with a state procedural rule.” Id. “Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies
are no longer available at the time the federal petition is filed because of a state procedural rule.”
Id.; Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013).
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state criminal defendant with federal constitutional claims is required to first present those
claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c); O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). Where state court remedies are no longer available to a petitioner because
he or she failed to use them within the required time period, procedural default and not exhaustion
bars federal court review. Williams, 460 F.3d at 806 (citing Engle v. Isaac, 456 U.S. 107, 125 n.
28 (1982)); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), holding modified by Martinez v.
Ryan, 566 U.S. 1 (2012).
A claim is adequately raised on direct appeal if it was “fairly presented” to the state court.
To fairly present a claim to a state court a petitioner must assert both the legal and factual basis for
his or her claim. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a
“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). A
petitioner can take four actions in his brief which are significant to the determination as to whether
a claim has been fairly presented as a federal constitutional claim: “(1) reliance upon federal cases
employing constitutional analysis; (2) reliance upon state cases employing federal constitutional
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analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to
allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of
constitutional law.” Williams, 460 F.3d at 806.
Under the independent and adequate state ground doctrine, a federal habeas claim is
procedurally defaulted when: (1) the petitioner fails to comply with a state procedural rule; (2) the
state courts enforce the rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show
cause and prejudice excusing the default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)
(en banc) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). The second prong of this
test requires that the state courts “actually enforce[ ]” the state procedural rule in denying relief.
Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011) (quoting Maupin, 785 F.2d at 138).
In other words, “it is not sufficient that the state court could have applied a procedural
default under state law; it must actually have done so.” Skipper v. French, 130 F.3d 603, 609 (4th
Cir. 1997) (citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)). To establish cause, a
petitioner must show that “some objective factor external to the defense” impeded the petitioner’s
efforts to comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986).
The petitioner bears the burden of showing cause and prejudice. Hinkle v. Randle, 271 F.3d 239,
245 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999)).
Procedural default may also be excused if a petitioner can show by clear and convincing
evidence that he is “actually innocent,” such that “a court cannot have confidence in the outcome
of the trial[,]” Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001) (quoting Schlup v. Delo, 513 U.S.
298, 316 (1995)), McQuiggin v. Perkins, 569 U.S. 383 (2013), and thus, his conviction constituted
a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; Murray, 477 U.S. at 515.
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Finally, as a procedural default is not an adjudication on the merits, if a petitioner can successfully
set aside such a default, then this Court must review the claim de novo. Harrington v. Richter, 562
U.S. 86, 99 (2011).
B. Relief on Merits Under 28 U.S.C. § 2254
In analyzing Skatzes’ petition for a writ of habeas corpus, the Court is bound by the
standard of review established in the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. No 104-132, 110 Stat. 1214)(the "AEDPA"). The Court may grant the writ on a claim
adjudicated on the merits in a state court proceeding only if the state court decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court,” or was based on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1); 28 U.S.C. §
2254(d)(1)(2); Harrington, 562 U.S. at 100; Bell v. Cone, 535 U.S. 685, 693–94 (2002); Williams
(Terry) v. Taylor, 529 U.S. 362, 379 (2000).
To determine whether the state courts decided an issue on the merits, the district court looks
to the opinion of “the last state court to issue a reasoned opinion on the issue.” Hoffner v.
Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir.
2005)). “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 Supreme Court] on a question of law or if
the state court decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at 364–65. “Under the ‘unreasonable application’
clause, a federal habeas court may grant the writ if the state court identifies the correct governing
legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the [petitioner’s] case.” Id. at 407.
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In other words, to obtain relief on his petition, Skatzes must identify the “clearly
established” legal principle on which he relies. To qualify as “clearly established,” a principle must
originate from an actual Supreme Court holding, not from dicta. See White v. Woodall, 572 U.S.
415, 419 (2014). Skatzes also must describe this holding with specificity. Brown v. Davenport,
596 U.S. 118, 136 (2022). He cannot recite a holding at a “high level of generality.” Lopez v.
Smith, 574 U.S. 1, 6–8 (2014) (per curiam) (citation omitted); Metrish v. Lancaster, 569 U.S. 351,
367–68 (2013). Circuit precedent cannot turn “a general principle of Supreme Court jurisprudence
into a specific legal rule” that has not been stated by the Supreme Court. Lopez, 574 U.S. at 7
(quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)).
If relying on the “unreasonable application” clause, Skatzes next must show that the state
court engaged in an “unreasonable application” of clearly established law. Under this test, a federal
court’s belief that a state court committed an error when applying a legal principle to the facts of
a case does not suffice. Rather, the federal district court must be able to describe the state court’s
application as “objectively unreasonable[.]” White, 572 U.S. at 419, (quoting Lockyer v. Andrade,
538 U.S. 63, 75–76 (2003)). To warrant that description, a state court must have committed “an
error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103.
Skatzes faces an additional hurdle if he alleges a trial court error subject to harmless error
review. Under these circumstances, a federal court cannot grant habeas relief without applying
both the test outlined in Brecht v. Abrahamson, 507 U.S. 619 (1993), and the deferential review
required by AEDPA. Brown, 596 U.S. 118. Brecht requires a state prisoner seeking to challenge
his conviction in collateral federal proceedings to show that the error had a “substantial and
injurious effect or influence” on the outcome of his trial. 507 U.S. at 637 (quoting Kotteakos v.
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United States, 328 U.S. 750, 776 (1946)). A “substantial or injurious effect or influence” means
“actual prejudice.” See id. at 637–38. A “federal court must deny relief to a state habeas petitioner
who fails to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that the petition
has cleared both tests.” Brown, 596 U.S. at 134. To succeed on any of his trial error claims, Skatzes
must convince this Court that there is grave doubt about his verdict and demonstrate that every
fairminded jurist would agree that the error was prejudicial. Id. at 136.
As elaborated on below, these standards foreclose Skatzes’ claims.
III. 	MOTION TO EXPAND THE RECORD (ECF No. 169)
In 2016, Skatzes filed a Motion to Expand the Record with a list of documents that were
not part of the state court record. (ECF No. 146, PageID 24147). On June 1, 2017, the Court issued
an Order granting in part and denying in part that motion. (ECF No. 152). Specifically, the Court
concluded that it would be appropriate to consider the documents in connection with Skatzes’
actual innocence gateway argument, but for no other purpose. (Id.). Skatzes filed a timely objection
to ECF No. 152 (ECF No. 154), but no order was issued on his objection until August 9, 2024,
when this matter was reassigned to a new District Judge.
The new District Judge overruled Skatzes’ objection to ECF No. 152 “without prejudice to
any argument therein which may be renewed in any further briefing of those Motions to be ordered
by the Magistrate Judge and consideration of those Motions is recommitted to the Magistrate
Judge.” (ECF No. 159). Over concern for intervening case law, the Magistrate Judge subsequently
withdrew ECF No. 152 and permitted Skatzes to “file a new motion or motions seeking parallel
relief not later than September 30, 2024.” (ECF No. 160).
Skatzes complied and re-filed a Motion to Expand the Record, (ECF No. 164), seeking
consideration of documents that were not part of the state court record. (Id., PageID 24404-
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24405). The Court denied Skatzes’ motion without prejudice and directed Skates to refile his
motion with a more detailed explanation of which document pertained to which claim and more
specific record citations. (ECF No. 168). Skatzes re-filed the motion, which is currently before the
Court. (ECF No. 169). His motion complied with the Court’s request with the inclusion of a
detailed index. See Id. at PageID 24465. The index lists the documents with which Skatzes seeks
to expand the record and whether Skatzes is seeking to use the document for a claim on the merits
or the actual innocence gateway (“Proffered Documents”).
Skatzes argues that he should be permitted to expand the record with the Proffered
Documents notwithstanding the decision in Cullen v. Pinholster, 563 U.S. 170 (2011), Shinn v.
Ramirez, 596 U.S. 366 (2022), and Shoop v. Twyford, 596 U.S. 811 (2022). (ECF No. 169).
Namely, Skatzes argues that Pinholster is inapplicable to claims that were not adjudicated by the
state courts on the merits, to claims that were adjudicated unreasonably, or when the state courts
misapplied a procedural rule. (id. at PageID 24480-24486). In opposition, Respondent argues that
the record should not be expanded because Pinholster, Shinn, and Shoop definitively foreclose the
Court’s ability to consider anything outside the state court record. (ECF No. 170).
Cullen v. Pinholster
The Supreme Court held in Cullen v. Pinholster, 563 U.S. 170 (2011), that habeas review
by a federal court “is limited to the record that was before the state court that adjudicated the claim
on the merits.” Id. at 180. The limitations in Pinholster apply to expansion of the record as well as
to evidentiary hearings. Moore v. Mitchell, 708 F.3d 760, 780–784 (6th Cir. 2013).
There are circumstances under which consideration of new evidence does not contravene
Pinholster—such as if the Court determines from the existing record that the state court’s decision
was unreasonable under § 2254(d). See Harris v. Haeberlin, 752 F.3d 1054, 1058 (6th Cir. 2014).
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Skatzes argues that this exception applies to the merits of his “Strickland claims.” (ECF No. 169
at PageID 24485). As discussed in detail throughout this opinion, none of the state court
adjudications of Skatzes’ ineffective assistance of counsel claims were unreasonable and Skatzes
cannot take advantage of this exception to Pinholster.
Pinholster is also inapplicable when a claim was procedurally barred in state court but is
otherwise properly before the Court for federal habeas review. See Davis v. Bobby, 2017 WL
2544083, at *5 (S.D. Ohio June 13, 2017). Skatzes argues that this exception applies to part of
Ground Seven. (ECF No. 169 at PageID 24484-24485). The exception does not apply to the
relevant part of Ground Seven because, as discussed herein, the relevant part of Ground Seven is
procedurally defaulted and not properly before the Court.
Pinholster does not prohibit expansion of the record when the state court did not adjudicate
the claim on the merits. Ballinger v. Prelesnik, 709 F.3d 558, 562 (6th Cir. 2013). Skatzes invokes
this exception for Ground Seven. (ECF No. 169 at PageID 24486). Skatzes asserts that the state
courts failed to adjudicate portions of the claim pertaining to testimony by Marsh and Law (Id.).
Discussed below in connection with Ground Seven, the Court has concluded that Skatzes is not
entitled to de novo review, and therefore this exception to Pinholster does not apply.
Lastly, Skatzes argues that the Court is permitted to consider the Proffered Documents for
purposes of his gateway actual innocence argument. (ECF No. 169 at PageID 24479-24480).
Respondent counters that this exception is no longer available in the wake of Shinn v. Ramirez and
Shoop v. Twyford. (ECF No. 170 at PageID 24640-24641).
Shinn v. Ramirez
On May 23, 2022, the Supreme Court decided Shinn v. Ramirez, which answered the
question of “whether the equitable rule announced in Martinez [v. Ryan, 566 U.S.1 (2012)] permits
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a federal court to dispense with [28 U.S.C.] § 2254(e)(2)’s narrow limits [on evidentiary hearings]
because a prisoner’s state postconviction counsel negligently failed to develop the state-court
record.” The Supreme Court concluded that it does not. Shinn, 596 U.S. 366.
Citing Coleman, 501 U.S. 722, the Court acknowledged that the federal courts may hear a
federal habeas petitioner’s procedurally defaulted claim if he is able to show “cause and prejudice.”
Referring to Martinez, the Court also noted that “cause” can be established for an ineffective
assistance of trial counsel claim if a habeas petitioner’s postconviction counsel was ineffective,
but only if the state requires the claim to be brought for the first time during postconviction
proceedings. Id. at 380. The Supreme Court recognized that habeas petitioners asserting
procedurally defaulted “Martinez” claims often seek to expand the state court record by
introducing new evidence in federal court. Id. at 371.
The Supreme Court set forth the requirements that must be met for expansion of the state
court record per 28 U.S.C. § 2254(e)(2):
Section 2254(e)(2) provides that, if a prisoner “has failed to develop
the factual basis of a claim in State court proceedings,” a federal
court may hold “an evidentiary hearing on the claim” in only two
limited scenarios. Either the claim must rely on (1) a “new” and
“previously 	unavailable” 	“rule 	of 	constitutional 	law” 	made
retroactively applicable by this Court, or (2) “a factual predicate that
could not have been previously discovered through the exercise of
due diligence.” §§ 2254(e)(2)(A)(i), (ii). If a prisoner can satisfy
either of these exceptions, he also must show that further factfinding
would demonstrate, “by clear and convincing evidence,” that “no
reasonable factfinder” would have convicted him of the crime
charged. § 2254(e)(2)(B).
Id. at 381. The Court then explained that the opening clause of Section 2254(e)(2) is triggered by
“fault” of the petitioner, which also includes any negligence or ineffective assistance by the
petitioner’s postconviction counsel. Id. “[U]nder AEDPA and our precedents, state postconviction
counsel’s ineffective assistance in developing the state-court record is attributed to the prisoner…a
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prisoner ordinarily must ‘bea[r] responsibility’ for all attorney errors during those proceedings…”
Id. at 382–383.
In reaching this conclusion, the Supreme Court relied upon its decision in Coleman v.
Thompson which reasoned that “the attorney is the petitioner’s agent when acting, or failing to act,
in furtherance of the litigation, and the petitioner must bear the risk of attorney error.” Id. at 380
(citing Coleman, 501 U.S. at 753). The Court summarized its holding: “under § 2254(e)(2), a
federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence
beyond the state-court record based on ineffective assistance of state postconviction counsel.” Id.
at 382.
Shoop v. Twyford
Shoop involved a challenge to a district court order to transport a habeas petitioner to the
hospital for neurological testing. Shoop, 596 U.S. at 814. The petitioner claimed his trial counsel
was ineffective for failing to present evidence of a head injury he sustained as a teenager, and he
hoped the neurological testing would develop evidence related to his claims for relief. Id. at 814-
815. One challenge on appeal stemmed from the failure of the district court to address whether it
would be able to consider the evidence that the petitioner hoped to develop. Id. at 816. Notably,
the petitioner only “asserted in passing that the desired evidence could ‘plausibly’ bear on the
question whether to excuse procedural default[,]” but “did not identify the particular defaulted
claims he hope[d] to resurrect, nor did he explain how the testing would matter to his ability to do
so.” Id. at 823. The Supreme Court held that the district court erred in granting petitioner’s motion
to transport without first considering whether the newly developed evidence “would aid its
adjudication of his habeas petition.” Id. at 822.
Neither Shinn nor Shoop addressed the specific question posed by Skatzes’ Motion to
Expand the Record: 	Can the Court consider documents outside the state court record when a
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habeas petitioner asserts the actual innocence gateway? Respondent argues that the holdings in
Shinn and Shoop extend to gateway actual innocence, but this Court and others have concluded
that they do not.
After the Supreme Court decisions in Shinn and Shoop, the respondent in Barbour v. Hamm
asked the Middle District of Alabama to reconsider a discovery order. Barbour v. Hamm, No. 2:01-
CV-612-ECM, 2022 WL 3570327, at *1 (M.D. Ala. Aug. 18, 2022). The court determined neither
Shinn nor Shoop called for rescission of the discovery order because those cases did not address
actual innocence. Id. at 2–3. The court determined that 28 U.S.C. § 2254(e)(2) also did not prohibit
the discovery order:
[T]he Court is not limited to the state court record in determining
whether Barbour has demonstrated actual innocence under Schlup,
and § 2254(e)(2) imposes no bar to discovery on the Schlup
question. Schlup makes clear that a successful actual innocence
claim requires new reliable evidence that was not presented at trial.
513 U.S. at 324. House reiterated that “the habeas court must
consider ‘all the evidence,’ old and new.” 547 U.S. at 537 (citation
omitted). Section 2254(e)(2) does impose certain conditions on the
federal habeas court’s ability to hold an evidentiary hearing on a
“claim” if the petitioner “has failed to develop the factual basis of
[the] claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). But
Barbour’s assertion of actual innocence under Schlup and its
progeny is not a “claim” for purposes of § 2254; rather, it is “a
gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits.”
Herrera, 506 U.S. at 404; see also Schlup, 513 U.S. at 314–16. It
therefore falls outside of § 2254(e)(2)’s ambit. See House, 547 U.S.
at 539 (explaining that § 2254(e)(2) does not address “the type of
petition at issue here—a first federal habeas petition seeking
consideration of defaulted claims based on a showing of actual
innocence” and so its “standard of review ... is inapplicable”); see
also Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th Cir. 2004)
(explaining that an actual innocence allegation is not a “claim” as
referred to in § 2254(e)(2) and thus the provision does not “govern[
] the availability of evidentiary hearings when petitioners seek to
introduce evidence concerning actual innocence”); Fontenot v.
Crow, 4 F.4th 982, 1029–30 (10th Cir. 2021).
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Id. at 3.
The Southern District of Mississippi employed a similar rationale in the capital habeas
case, Underwood v. Cain, No. 3:06-CV-273-DPJ, 2024 WL 4311505 (S.D. Miss. Sept. 26, 2024).
Relying on the Fifth Circuit opinion in Mullis v. Lumpkin, 70 F.4th 906, 910 (5th Cir. 2023), the
court allowed the petitioner to conduct discovery to establish the actual innocence gateway:
By its text, § 2254(e)(2) precludes new evidence “on the claim” …
But “[h]istorically, [the Fifth Circuit] has construed ‘claim’ in the
narrower sense ... declin[ing] to apply AEDPA’s evidentiary bar to
showings that a procedural default is excused.” Mullis, 70 F.4th at
910… “Shinn did not reach—and indeed expressly reserved—
resolution of” whether a petitioner could use “evidence outside the
state 	record 	in 	the 	Martinez 	context 	to 	establish 	cause 	and
prejudice.” Mullis, 70 F.4th at 910… Shinn and Shoop were tied to
the specific facts presented and it was clear that the evidentiary
development was nothing more than a “Hail Mary pass” to get new
evidence admitted on the merits claim. Id. at 911.
Underwood, at *4-5.
Other courts considering expansion of the record for procedural rather than substantive
claims 	have 	reached 	the 	same 	conclusion. 	See 	Garcia 	Del 	Castillo 	v. 	Shinn, 	No.
CV211394PHXSPLJFM, 2022 WL 4073014, at *5 (D. Ariz. June 15, 2022), report and
recommendation adopted, No. CV 21-01394-PHX-SPL, 2022 WL 4017404 (D. Ariz. Sept. 2,
2022), report and recommendation adopted, No. CV 21-01394-PHX-SPL, Garcia Del Castillo v.
Shinn, No. CV 21-01394-PHX-SPL, 2022 WL 4017404 (D. Ariz. Sept. 2, 2022) (“this Court is
not precluded by § 2254(e)(2) from considering newly presented evidence in support of a claim of
procedural actual innocence”); Nicholls v. Long, No. 20-1159, 2022 WL 211617, at *5 (10th Cir.
Jan. 25, 2022) (“Because, in substance, a Schlup claim is not a habeas claim that seeks merits relief
... the hurdles and restrictions imposed by 28 U.S.C. § 2254(e)(2) are not applicable to a
petitioner’s request for an evidentiary hearing regarding a Schlup claim”); Sapp v. Jenkins, No.
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2:17-CV-1069, 2023 WL 1793533, at *4–*5 (S.D. Ohio Feb. 7, 2023), appeal denied, No. 2:17-
CV-1069, 2023 WL 3475412 (S.D. Ohio May 16, 2023) (finding plain language of § 2254(e)(2)
shows it restricts only factual development of substantive claims for habeas relief).
Accordingly, the Court GRANTS in part and DENIES in part Skatzes’ Motion to Expand
the Record (ECF No. 169). The Court has considered the Proffered Documents identified in the
index at ECF No. 169 at PageID 24465-24475 when evaluating Skatzes’ actual innocence
gateway argument and for no other purpose. Because the Court finds that no other exception to
the statutory and jurisprudential restrictions on the Court’s authority to consider documents
outside the state court record applies, Skatzes’ motion is denied in all other respects.
IV. 	GATEWAY ACTUAL INNOCENCE ARGUMENT
Skatzes asks the Court to excuse his procedural default of all or part of Grounds One.
Eleven, Twelve, Thirteen, Fourteen, and Sixteen (Traverse, ECF No. 42 at PageID 665, 783, 834,
854-855, 880-881). These claims pertain to ineffective assistance of trial counsel for failure to call
certain inmate witnesses and a prison culture expert; error in the jury instructions; the admission
of Roger Snodgrass’ testimony, and the admission of uncharged murders; and ineffective
assistance of appellate counsel. (Id.). Skatzes asserts the actual innocence gateway in his Traverse
(ECF No. 42), Memorandum on Gateway Innocence Argument (ECF No. 96), and Motion to
Expand the Record (ECF No. 164). Respondent disputes Skatzes’ entitlement to the actual
innocence gateway in the Sur-Reply to Petitioner’s Traverse (ECF No. 50 at PageID 983-994),
Response to Petitioner’s Memorandum on Gateway Innocence Argument (ECF No. 104), and
Opposition to Motion to Expand the Record (ECF No. 166).
A habeas petitioner can overcome a procedural default by showing either “cause for the
default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to
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consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750;
McQuiggin v. Perkins, 569 U.S. 383, 393, 397 (2013) (noting the “miscarriage of justice”
exception survived the passage of the AEDPA “intact and unrestricted” when raised in the context
of “a first petition for federal habeas relief”). The Sixth Circuit has described the actual innocence
“gateway” through procedural default as follows:
[I]f a habeas petitioner “presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to pass through
the gateway and argue the merits of his underlying claims.” Schlup
v. Delo, 513 U.S. 298, 316 (1995). “Thus, the threshold inquiry is
whether “new facts raise[ ] sufficient doubt about [the petitioner’s]
guilt to undermine confidence in the result of the trial.” Id. at 317.
To establish actual innocence, “a petitioner must show that it is more
likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” Id. at 327. The Court has noted
that “actual innocence means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 140
L.Ed. 2d 828, 118 S. Ct. 1604 (1998). “To be credible, such a claim
requires petitioner to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324.
The Court counseled however, that the actual innocence exception
should “remain rare” and “only be applied in the ‘extraordinary
case.’” Id. at 321.
Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005).
The Court has reviewed Skatzes’ actual innocence evidence with the following standard in
mind: we must consider “all the evidence, old and new, incriminating and exculpatory,” without
regard to whether it would necessarily be admitted under rules of evidence. House, 547 U.S. at
538 (quoting Schlup, 513 U.S. at 331–32) (internal quotation marks omitted). Based on this total
record, the court must make “a probabilistic determination about what reasonable, properly
instructed jurors would do.” Id. (quoting Schlup, 513 U.S. at 329). “The court’s function is not to
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make an independent factual determination about what likely occurred, but rather to assess the
likely impact of the evidence on reasonable jurors.” Id. This standard is demanding and permits
review only in the “extraordinary case.” Id. (quoting Schlup, 513 U.S. at 327). The petitioner’s
burden at the gateway stage is to demonstrate that “more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” Id.
The Supreme Court held in Sawyer v. Whitley, 505 U.S. 333 (1992), that habeas courts may
reach the merits of defaulted, successive, or abusive habeas claims when a capital petitioner is
“innocent of death.” Id. at 335–336, 341. To show actual innocence, a petitioner must prove “by
clear and convincing evidence that, but for a constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty under the applicable state law.” Id. at 336. [T]o
the extent a capital petitioner claims he did not kill the victim, the Schlup “more likely than not”
standard applies. “To the extent a capital petitioner contests the special circumstances rendering
him eligible for the death penalty, the Sawyer ‘clear and convincing’ standard applies, irrespective
of whether the special circumstances are elements of the offense of capital murder or mere
sentencing enhancers.” Calderon v. Thompson, 523 U.S. 538, 560 (1998).
This exacting standard sets an extremely high hurdle for Skatzes.
The Ohio Supreme Court found that the following trial evidence was sufficient to sustain
Skatzes’ conviction for the aggravated murder of Robert Vallandingham:
¶ 140} With regard to the kidnapping and aggravated murder of Vallandingham,
the state’s evidence showed that on April 14, inmate gang leaders, including
Skatzes, voted to kill a guard. That evening, Skatzes complained to Muslim gang
leaders that whoever was supposed to kill a guard had backed out of it. Then Skatzes
blurted out, “Fuck the CO, I will kill the CO.”
{¶ 141} On the morning of April 15 at another inmate-leader meeting, Skatzes got
on the phone with prison negotiators and demanded that water and power be
restored within L block or “there would be a guaranteed murder. Do your thing.
10:30 or a dead man’s out there.” The leadership voted to kill a guard, and a member
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of each inmate gang was chosen to participate in the killing. Skatzes agreed with
the decision to kill a C.O. hostage.
{¶ 142} After Vallandingham was killed, Skatzes and other Aryans followed
behind when the body was being carried out by masked inmates. Viewing this
evidence in a light most favorable to the state, sufficient evidence supported
Skatzes’s conviction for the murder of Vallandingham.
Skatzes, 104 Ohio St. 3d at 223. Skatzes’ argues that each of these findings is refuted by newly
discovered evidence, attached to his Motion to Expand the Record (Proffered Documents).
Skatzes makes his case for actual innocence based largely on witness statements to the
Ohio State Highway Patrol (OSHP) and testimony from the trials of Carlos Sanders2 and Jason
Robb. Skatzes argues that this “new evidence” establishes: (1) no vote to kill a guard occurred at
the April 14, 1993 or April 15, 1993 meetings, (2) he did not make the statement “Fuck the CO, I
will kill the CO” and, in fact, opposed killing a guard, (3) his statement to negotiators about a
“guaranteed murder” was not a threat but an attempt to prevent the killing, and (4) the “hardliners”
engaged in rogue action without his knowledge when they killed Robert Vallandingham.
(1) April 14th and April 15th Meetings
Skatzes argues that Anthony Lavelle testified at Skatzes’ trial that the April 14th meeting
culminated only in a decision to communicate an ultimatum to the state, but Lavelle’s testimony
at Carlos Sanders’ trial was more explicit when he said no one was killed as a result of the meeting.
(Traverse, ECF No. 42 at PageID 642).
Anthony Lavelle testified at Skatzes’ trial that the three gangs—the Muslims, Black
Gangster Disciples, and Aryan Brotherhood, controlled the riot. (ECF No. 74-1 at PageID 17827-
17828). According to Lavelle, each gang had representation, and they voted by “majority rules.”
(Id.). George Skatzes was one of the members of the Aryan Brotherhood who had “say-so.” (Id. at
2 Now known as Siddique Abdullah Hasan.
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pid 17828). Lavelle testified that Skatzes was present for the April 14th meeting, where the riot
leaders discussed how they were “being stonewalled by…the state negotiator.” (Id. at pid 17841).
Lavelle testified, “[e]ventually, the discussion ended up getting around the killing of a guard, that
we would kill a hostage if our demands wasn’t met, and we took a vote. No one spoke against
doing it, so it was agreed that it would happen.” (Id. at pid 17842). Skatzes argues that Lavelle’s
testimony at Jason Robb’s trial demonstrates Skatzes’ actual innocence:
Q. No one was killed as a result of the meeting on the 14th?
A. That’s correct.
(ECF No. 145-3 at PageID 23496-97).
Skatzes argues that the Court should disregard the other inculpatory trial evidence about
the April 14th meeting, David Lomache’s testimony. (Traverse, ECF No. 42 at PageID 643;
Memorandum on Gateway Actual Innocence Argument, ECF No. 96 at PageID 20510-20511).
Skatzes contends that the new evidence shows Lomache should not be believed because he gave
inconsistent details about the date and time of the meeting across his various accounts, he failed to
acknowledge an affiliation with the Aryan Brotherhood, and his testimony was not corroborated
by other inmates. (Traverse, ECF No. 42 at 642-644; Memorandum on Gateway Actual Innocence
Argument, ECF No. 96 at PageID 20508-20511).
David Lomache testified at Skatzes’ trial that he was at a meeting where he heard
conversations among the riot leaders, including Skatzes, about the killing of a guard. (ECF No.
73-18 at PageID 16471-16472). According to Lomache, the participants of the meeting agreed that
a hostage would be selected by lottery and the Black Gangster Disciples would carry out the
murder. (Id. at PageID 16473). Lomache provides a timeframe of the meeting as after the Tess
Unwin statement to the media. (Id. at PageID 16475). On cross-examination, Lomache repeated
that the meeting occurred after the Unwin statement (ECF No. 73-20 at PageID 16803). Lomache
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was confronted with his previous testimony that the meeting happened on April 15, 1993, but
denied it. (Id.).
Skatzes provides Lomache’s statement to OSHP, testimony in the Jason Robb trial, and
testimony at the Carlos Sanders trial as evidence that he gave inconsistent accounts about when
the meeting occurred. In his statement to the OSHP, Lomache said that the meeting occurred on
the same day that Vallandingham was killed. (ECF No. 96-16 at PageID 21096). Lomache testified
in the Robb trial that his “chronology of that is a little off” and he believed that the meeting
occurred after the Tess Unwin statement. (ECF No. 145-3 at PageID 23471). On cross-
examination, Lomache was confronted with his different statements about when the meeting
occurred and repeated his testimony that the meeting occurred after the Tess Unwin statement. (Id.
at PageID 23474-23475, 23477). At the Carlos Sanders trial, Lomache testified that the meeting
occurred after the Unwin statement, but before the Vallandingham murder. (Id. at PageID 23488-
23489).
Next, Skatzes argues that his new evidence proves that no vote or decision to kill a guard
occurred at the April 15, 1993, meeting. (Traverse, ECF No. 42 at PageID 645-646). Skatzes
contends that Lavelle offered clearer testimony at the Jason Robb and Carlos Sanders’ trials that
after the ultimatum was delivered to the negotiators, another meeting was supposed to be held to
make a final decision on killing a guard. (Traverse, ECF No. 42 at PageID 646). Affidavits from
two other inmates repeat this point. (Id.).
At trial, Skatzes did not dispute his presence at the April 15, 1993, meeting. (ECF No. 74-
10 at PageID 19406). He did dispute that he agreed to kill a guard. (Id. at PageID 19410-19411).
Anthony Lavelle gave a different account. He testified that the meeting on the 15th picked up where
they left off on the 14th . (ECF No. 74-1 at PageID 17847). They decided to “demand if the lights
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and water aren’t turned on in a certain time period, an officer would be killed. Everyone agreed to
it.” (Id. at PageID 17848). Lavelle testified that a plan was made where a man from each group
would commit the murder and Skatzes would deliver the ultimatum over the phone. (Id. at PageID
17848-17849). Skatzes claims that Lavelle’s testimony in Were’s first trial and Carlos Sanders’
trial helps make his case for actual innocence. Skatzes only provided one page of the transcript, so
it is unclear whether Lavelle is referring to the April 14th or 15th meeting during Sanders’ trial.
Lavelle testified in Sanders’ trial:
I had told them, you know, that we should decide on what we’re going to do but we
need to come back after the deadline and make sure that this is what we want to do.
So, I said, you know, after we give them a deadline, if they don’t meet it we should
come back together and decide, you know, whether we want to do this or not.
(ECF No. 145-3 at PageID 23495). At Were’s first trial, Lavelle testified:
When I left the meeting, the understanding was we was going to meet up later on
that afternoon and give them our final ultimatum. I had told them, you know, just
pick a time later on this afternoon, we can all come back and take the final vote. If
they don’t meet the demands by that time frame that we give them, then we will
kill a guard.
(Id. at PageID 23502). But this testimony is not materially different from the testimony Lavelle
gave at Skatzes’ trial:
Q. As you left that meeting that morning, what was your understanding of what was
going to happen?
A. It was that I told them, Let’s pick a time we can meet and finalize, make sure
this was what we want to do. Everybody said okay, we will meet up later on that
afternoon to finalize it, so I went back to the cell block, L-l.
(ECF No. 74-1 at PageID 17850).
(2) Hogan’s Testimony that Skates said, “Fuck the CO, I will kill the CO” and Opposition
to Killing a Guard
Skatzes also argues his new evidence refutes Miles Hogan’s testimony that Skatzes said,
“Fuck the CO, I will kill the CO” and it is not to be believed. (Traverse, ECF No. 42 at PageID
647). Skatzes points out that at the time Hogan claims he overheard this comment, Skatzes was on
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a recorded telephone call with the state’s negotiator. (Id.). Skatzes also argues that during Hogan’s
interview with the OSHP, he attributed the statement, “Fuck the CO, I will kill the CO,” to a
Muslim inmate. (Memorandum on Gateway Actual Innocence Argument, ECF No. 96 at PageID
20512). Skatzes also offers new evidence in the form of statements from several inmates and two
corrections’ officers to support his position that he did not want to kill a guard. (Traverse, ECF
No. 42 at PageID 650-651; ECF No. 96 at PageID 20491-20498).
Skatzes offers Miles Hogan’s January 28, 1994, statement to the OSHP as new evidence
of his actual innocence. (ECF No. 96-19 at PageID 21166). Hogan recounts overhearing a
conversation between Lavelle, Sanders, and Skatzes, where Sanders said he would make sure
someone killed a guard. (Id.). Hogan did not tell the OSHP that Skatzes said, “Fuck the CO, I will
kill the CO.” (Id.). But this evidence is not new because Hogan was cross-examined on his January
28, 1994, statement at trial. Hogan told the jury on direct examination that he overheard Skatzes
make the comment. (ECF No. 73-20 at PageID 16893). Hogan said there was no doubt in his mind
that Skatzes said it. (Id. at PageID 16893-16894). When Hogan was cross-examined on his January
1994 statement to OHSP, he said that he “may not have” told them that George Skatzes made the
comment, but he remembers him saying it. (ECF No. 73-21 at PageID 16973-16975).
Skatzes provides the statements of James Mays, Joseph Hutchison, Eddie Harris, James
Truxel, Dennis Sipos, Jeffrey Ratcliff, and Darrold Clark as new evidence that Skatzes opposed
the killing of a guard. Mays told the OSHP several times that Skatzes did not want to kill an officer
and contradicted Jason Robb when he suggested cutting off one of their heads. (ECF No. 96-1 at
PageID 	20523, 20524, 20537, 20548; ECF No. 96-2 at PageID 20562, 20564). Hutchison said
that Skatzes did not believe in killing a guard. (ECF No. 96-3 at PageID 20598). Harris said that
he got the impression that Skatzes would rather not have to kill anyone at all. (ECF No. 96-4 at
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PageID 20630). Truxel said that Skatzes told him that the Aryan Brotherhood did not want any
officers to die, it was a “stupid” thing to do, and Skatzes thought it should not have been done.
(ECF No. 96-5 at pid 20694). Sipos said that Skatzes told everyone to “treat [the guards] like you
want to be treated.” (ECF No. 96-6 at PageID 20717). Officer Ratcliff told the OSHP that after
Vallandingham’s murder Skatzes expressed, “this is crazy,” “I can’t control these people,” and a
fear that the others would kill him because he was helping the guards. (ECF NO. 96-7 at PageID
20734-20736). Officer Clark likewise told the OSHP, said that Skatzes told him that he did not
want an officer killed and “almost had tears in his eyes.” (ECF No. 96-8 at PageID 20752).
Skatzes elicited some evidence at his trial that he did not want an officer to be killed.
Skatzes testified that he was “absolutely not” in favor of the death of an officer. (ECF No. 74-10
at PageID 19411). Officer Ratcliff testified on behalf of the defense and described Skatzes’
reaction to finding out Vallandingham had been killed:
He said: Man, I can’t believe it. He just—I can’t act the way he was acting down
when it happened. He come in. He had his head down, he was rubbing his head. He
said: I can’t believe this, I can’t believe it happened. I said: What? He says: I think
they really did a guard. I says: Which one? He says: I don’t know.
(ECF No. 74-9 at PageID 19183). Officer Ratcliff also testified that he and Skatzes got down on
their knees and prayed after they found out about Vallandingham’s death. (Id. at PageID 19184).
Roger Snodgrass testified on direct examination for the State about the April 15, 1993,
meeting where killing a guard was discussed. (ECF No. 74-5 at PageID 18440-18444). Snodgrass
testified that Skatzes spoke up and said:
[L]ook brothers I’m with you; don’t get me wrong now, I’m with you, but, you
know, before we do this, we had better give this a lot of thought because once you
kill a correctional officer, it is going to change the whole ball game. In other words,
he was trying to, I think he was trying to dissuade them or make them think of an
alternative or what, you know.
(Id. at PageID 18443).
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(3) Skates’ Statement About “Guaranteed Murder”
To dispute the Ohio Supreme Court’s finding about his statement to state negotiators,
“there would be a guaranteed murder. Do your thing. 10:30 or a dead man’s out there,” Skatzes
offers an alternative interpretation of the evidence offered at trial. (Traverse, ECF No. 42 at PageID
651-652). Skatzes argues that the transcripts from the negotiation tapes show that his statements
were not a threat, but an attempt to save the guard’s life: “Skatzes spoke of a ‘guaranteed murder’
not out of any support for the hardliners threat to kill a guard; rather, he sought to emphasize to
the authorities the seriousness of the hardliners’ threat and plead with the authorities to take steps
to avoid it.” (Traverse, ECF No. 42 at PageID 652).
Skatzes was recorded communicating the co-conspirators’ ultimatum to the state’s
negotiator: “there would be a guaranteed murder. Do your thing. 10:30 or a dead man’s out there.”
(Negotiation Tape #6, ECF No. 71-9 at PageID 13102). Skatzes testified on cross-examination
about his state of mind when he made that statement:
Q: 	Were you involved in threatening to kill guards?
A: 	I would have to say to a certain degree, yes, sir.
Q: 	When you guaranteed a murder were you lying to the state?
A: 	I knew that that was going to happen that morning.
(ECF No. 74-11 at PageID 19536).
(4) Vallandingham’s Death was Rogue Action Committed without Skatzes Knowledge
Skatzes next argues that he is actually innocent because “[Robert] Vallandingham’s murder
was a rogue action orchestrated and supervised by [Anthony Lavelle],” (Traverse, ECF No. 42 at
PageID 655), and “the hardliners took over and acted without Skatzes.” (Memorandum on
Gateway Actual Innocence Argument, ECF No. 96 at PageID 20504). Skatzes offers statements
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and testimony from inmates, providing details of the hands-on murder of Vallandingham and
accounts suggesting Lavelle was involved. (Id. at PageID 20502-20504).
Eric Girdy told the OSHP that he saw James Were instruct Sherman Sims and Darnell
Alexander to kill Vallandingham. (ECF No. 96-11 at PageID 20966-20974). Sherman Sims told
the OSHP that he saw Alvin Jones and Kenneth Law kill Vallandingham. (ECF No. 96-13 at
PageID 21062-21066). Wayne Flannigan said he believed that he saw Lavelle instruct Aaron
Jefferson to kill Vallandingham. (ECF No. 145-3 at PageID 23661-23663). According to Roy
Donald, Lavelle had Officer Horsely kill Vallandingham. (Id. at PageID 23664-23667). Tony
Taylor told the OSHP that he witnessed Were say, “get me a guard” and Anthony Lavelle escorted
Vallandingham from his cell. (ECF No. 96-10 at PageID 20804-20806). According to Leroy
Elmore, Lavelle confessed to him that he had a guard killed. (ECF No. 145-3 at PageID 23673-
23676).
Willie Johnson testified at James Were’s first trial that after Vallandingham’s murder he
saw Were slap Lavelle, heard Were tell Lavelle he would be held responsible for the decision he
made, and heard Lavelle say, “the bitch didn’t think we were serious.” (ECF No. 145-3 at PageID
23504-05). Johnson testified at Jason Robb’s trial that he heard Lavelle talking about the ultimatum
and said, “the Muslims they playing peacekeepers and they think we ain’t serious.” (ECF No. 145-
3 at PageID 23483). Later, Johnson saw Lavelle return to the cell block with a pipe in his hand
“ranting and raving…now they see that we’re serious.” (Id. at PageID 23485). An unidentifiable
witness3 testified at James Were’s second trial that Lavelle beat him for refusing to participate in
the murder (id. at PageID 23506-12) and another unidentifiable witness testified at the same trial
that he witnessed Lavelle beating Brian Eskridge (id. at PageID 23514-16).
3 	The portion of the transcripts provided by Skatzes do not identify the witness.
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Further to the same, Skatzes argues that the inmate accounts of Anthony Lavelle, Roger
Snodgrass, and Stacy Gordon’s personal involvement in Vallandingham’s murder undermine the
reliability of their trial testimony. (Memorandum on Gateway Actual Innocence Argument, ECF
No. 96 at PageID 20505-08, 20511-12). He offers Eddie Harris’ statement to OSHP, claiming that
Snodgrass was on the Vallandingham “execution squad” (ECF No. 96-4 at PageID 20635), Tony
Taylor’s statement to the OSHP that Gordon accompanied Lavelle when escorting Vallandingham
from his cell (ECF No. 96-10 at PageID 20806-07), and a letter from Clarence Bogan to the Parole
Board, which claims that Gordon admitted to killing Vallandingham. (ECF No. 96-18).
The new evidence offered by Skatzes fails to meet the standard to pass through the actual
innocence gateway in that he cannot show “that it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327.
Reasonable and properly instructed jurors would not have been swayed based on the new evidence
offered by Skatzes to find him not guilty. Skatzes’ jury was instructed:
It is the prosecution’s theory of this case that this defendant purposefully committed
these offenses in conjunction with others. This is referred to as complicity.
***
Before you can find the defendant guilty, you must find beyond a reasonable
doubt…the defendant acting with the required culpable mental state for the
particular offense, number one solicited or procured another to commit the
offenses; number two, aided or abetted another in the committing of the offenses;
and/or three conspired with another to commit the offense.
***
In order to find that the defendant conspired, you must find beyond a reasonable
doubt that on or about the dates charged, the defendant with purpose to commit
aggravated murder or kidnapping, either, one, planned with another person or
persons that one or more of them would engage in conduct which facilitated the
commission of the offense, or two agreed with another person or persons that one
or more of them would engage in conduct which facilitated the commission of such
an offense.4
2 	Skatzes challenges the conspiracy instruction in Ground Twelve, infra.
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(ECF No. 74-13 at PageID 19852-19853).
Skatzes disputes the State’s evidence about what occurred at the April 14th and April 15th
meetings or the fact that he said, “Fuck the CO, I will kill the CO”. But this does not change the
fact that Skatzes delivered the message to the state negotiator:
I stress to you, I…if I turn this on, you think you might electrocute somebody. Fuck
that. If you don’t turn it on, it’s a guaranteed murder. Now I’m sorry. That’s the
way it is and, that’s it…. Do your thing. 10:30 or a dead man’s out there. (Skatzes
hangs up).
(Negotiation Tape #6, ECF No. 71-9 at PageID 13102).
From Skatzes’ words, the jury could conclude that Skatzes agreed with the other inmates
to do just as he said.5 And although Skatzes disputes that he agreed to kill a guard, the jury heard
Tunnel Tape #61, a partial recording of the April 15th meeting where Skatzes was present. In that
recording riot leaders discussed a lack of progress with the negotiations and killing a guard if their
demands were not met.6 (Tunnel Tape #61, ECF No. 72-1 at PageID 13582-13599)
In arguing for his actual innocence, Skatzes offers no “new evidence” that refutes the fact
that he delivered the ultimatum to the negotiator. Indeed, Skatzes testified that his intent in
delivering the “guaranteed murder” line to the negotiator was to express the seriousness of the
situation:
Q: 	What were you trying to do in that conversation?
5 	In Ohio, for a person who is complicit in the commission of an offense to be prosecuted and punished as if
he were a principal offender, the State must show the complicit defendant shared the criminal intent of the principal,
and this intent may be inferred from the circumstances surrounding the crime and from the defendant’s conduct before,
during, and after the offense. State v. Carter, 2017-Ohio-7501, ¶ 98 (citing State v. Johnson, 93 Ohio St. 3d 240, 245
(2001)).
6 	Cummings: Okay, we can but we can sit down and come back in, and we put the non-negotiable things up
then we came back with the time element that we give them to do it. Hey Jason, ahh Hasan, why don’t we put the non-
negotiable things up, George go back in. Talking about the hardlines came up with non-negotiable things. Then we
going to set down and go over the time element, if they don’t do these things…if you don’t give us these things, the
non-negotiable things we going with the time element, then we going to kill them one. Then we open up negotiations
again. I mean, is everyone in agreement on that? (Tunnel Tape #61, ECF No. 72-1 at PageID 13597).
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A: 	I was trying to get that man to understand that this is for real, no matter how
they have to get water in there, whatever, like let’s work on somethin’. They
could have done something, you know, bring a water hose in there,
anything. I tried to explain to this guy this shit is real…
Q: 	…You said words about a guaranteed murder, correct?
A: 	That’s a fact. I sure said it.
Q: 	At this point in time, George, had you voted for the death of a corrections
officer?
A: 	Absolutely not, absolutely no way.
Q: 	Had you agreed with anyone that a corrections officer should die?
A: 	No, sir.
(ECF No. 74-10 at PageID 19409-19410). Skatzes’ spin of the same evidence the jury heard at his
trial is insufficient to pass through the actual innocence gateway. See Claritt v. Kemp, 336 F. App’x
869, 871 (11th Cir. 2009) (noting Claritt’s new interpretation of existing evidence was insufficient
to show actual innocence to overcome a procedural default).
Skatzes’ argument that he should pass through the actual innocence gateway because
Vallandingham’s murder was committed through the “rogue action” of Anthony Lavelle and
others also fails. In Ohio, one conspirator is criminally liable for the acts of co-conspirators done
in furtherance of the conspiracy and reasonably foreseeable as a necessary or natural consequence
of 	the 	conspiracy. 	State 	v. 	Brownlee, 	2018-Ohio-739, 	¶12. 	Even 	if 	there 	was 	some
misunderstanding about whether there was to be another meeting before the murder, it was
reasonably foreseeable that one of the co-conspirators would have followed through with the
ultimatum to kill a guard when the state failed to meet the deadline.
In sum, nothing Skatzes has offered undermines confidence in the verdict such that no
reasonable juror would have found him guilty. Skatzes has failed to meet the strict standard to pass
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through the actual innocence gateway and may not rely on actual innocence to excuse any
procedurally defaulted claims.
V. 	ANALYSIS
Ground One
In Ground One, Skatzes contends that his trial counsel were ineffective for failing to
investigate and present expert and lay witnesses that were material to defend against the charges
for the capital murder of Robert Vallandingham. (Petition, ECF No. 25 at PageID 256-263).
Particularly, Skatzes argues that he was prejudiced because his counsel failed to call lay witnesses:
Kenneth Law, Eddie Moss, and Aaron Jefferson (id. at PageID 260-262) and failed to call an expert
on prison culture. (Id. at PageID 262-263).
Respondent argues that the part of Ground One concerning failure to call lay witnesses is
procedurally defaulted because Skatzes failed to appeal the denial of his postconviction claim.
(Return of Writ, ECF 31 at PageID 427-428). Skatzes concedes the procedural default (ECF No.
42 at PageID 665).7 The Court turns first to the non-defaulted part of Ground One concerning the
failure to retain a prison culture expert.
The Second District Court of Appeals dismissed Skatzes’ appeal of his postconviction
claim, which Skatzes asserted as Assignment of Error No. 8:
{¶ 72} Skatzes’ eighth assignment of error states:
{¶ 	73} 	“THE 	TRIAL 	COURT 	ERRED 	IN 	DENYING 	PETITIONER’S
TWELFTH GROUND FOR RELIEF, THAT HE WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO
CALL A PRISON CULTURE EXPERT TO EXPLAIN HIS STATEMENT
RELEVANT TO THE VALLANDINGHAM MURDER.”
7 	Skatzes asserts his actual innocence as an excuse (Traverse, ECF No. 42 at PageID 665), the merits of
which are addressed and denied in connection with his procedural and substantive claims.
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{¶ 74} Skatzes asserts that, had his attorney called a prison culture expert to testify
at trial, he would have been acquitted of Vallandingham’s murder. He claims that
such an expert would have explained that the hesitation Skatzes allegedly expressed
during the discussions of whether to kill a guard “were as far as an inmate could go
in expressing dissent without fear of personal bodily injury or possibly even death.”
The state claims that this claim is barred by res judicata because it could have been
raised on direct appeal, that the evidence would have been cumulative of other
evidence that Skatzes was hesitant to kill the guard, and that such evidence would
not have been admissible because an expert was not needed to interpret Skatzes’
comments.
{¶ 75} The trial court concluded that Skatzes’ claim was barred by res judicata
because the record establishes that counsel’s failure to call a prison culture expert
could have been raised on direct appeal. Further, the court concluded that Skatzes
had not shown that the failure to call a prison culture expert fell below an
objectively reasonable level of representation.
{¶ 76} Because Skatzes’ argument about the need for a prison culture expert relies,
at least in part, on evidence outside the record, it may not have been properly raised
on direct appeal, as the trial court suggested. However, we agree with the trial
court’s conclusion that Skatzes failed to show that it was objectively unreasonable
not to call such an expert. We question whether the peer pressure that existed in the
midst of the riot was really an issue about which expert testimony was needed or
appropriate. Extensive evidence was presented to the jury about the dynamics
within and among the various prison gangs during the riot, the amount of violence
used to control and punish inmate behavior, and the stress of the negotiations with
authorities. In our view, the jurors were capable of interpreting Skatzes’ behavior
under these circumstances without the benefit of expert testimony. Thus, trial
counsel could have reasonably concluded that such an expert was unnecessary.
State v. Skatzes, 2008-Ohio-5387, ¶¶ 73-77.
Skatzes argues in his habeas petition that the Second District Court of Appeals’ decision
was unreasonable because it found that the jurors could have interpreted Skatzes’ behavior without
expert testimony, but the Ohio Supreme Court made a contrary statement when it permitted the
admission of 	“other acts” testimony, “Given the prison-inmate culture and the gang loyalty
demonstrated by gang members, much of this testimony would not be within the knowledge or
experience of the average juror.” (Traverse, ECF No. 42 at PageID 670-671).
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Respondent 	argues 	that 	the 	Second 	District 	Court 	of 	Appeals’ 	opinion 	was 	not
unreasonable because the jury heard testimony from the “best possible source—the inmates
involved,” about the dynamics at SOCF. (Return of Writ, ECF No. 31 at PageID 435).
“In all criminal prosecutions,” the Sixth Amendment affords “the accused...the right...to
Assistance of Counsel for his defence [sic].” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The Supreme Court set forth the legal principles governing claims of ineffective
assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective
assistance, a defendant must show both deficient performance and prejudice. Berghuis v.
Thompkins, 560 U.S. 370, 389 (2010). As to the first prong of the Strickland test, the Supreme
Court has commanded:
Judicial 	scrutiny 	of 	counsel’s 	performance 	must 	be 	highly
deferential.... A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel's perspective at
the 	time. 	Because 	of 	the 	difficulties 	inherent 	in 	making 	the
evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action “might be
considered sound trial strategy.”
Strickland, 466 U.S. at 689.
As to the second prong, the Supreme Court held: “The defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to overcome
confidence in the outcome.” Id. at 694.
Where an exhausted claim of ineffective assistance of trial counsel is raised in a federal
habeas petition, review under AEDPA is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.
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111, 123 (2009). That is, “Strickland requires deference to counsel and AEDPA requires deference
to the state court.” Moody v. Parris, No. 20-5299, 2022 WL 3788503, at *4 (6th Cir. Aug. 30,
2022). The question then is not whether trial counsel was ineffective, but “whether the state court’s
application of the Strickland standard was unreasonable.” 	Harrington, 562 U.S. at 101. 	The
Supreme Court clarified the double deference that is due:
This 	is 	different 	from 	asking 	whether 	defense 	counsel’s
performance 	fell 	below 	Strickland’s 	standard. 	Were 	that 	the
inquiry, the analysis would be no different than if, for example, this
Court were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are
different. For purposes of § 2254(d)(1), an unreasonable application
of federal law is different from an incorrect application of federal
law. A state court must be granted a deference and latitude that are
not 	in 	operation 	when 	the 	case 	involves 	review 	under
the Strickland standard itself.
Id. (internal citation omitted). A petitioner must show the state court’s decision is so obviously
wrong 	that 	its 	error 	lies 	“beyond 	any 	possibility 	for 	fairminded 	disagreement.” 	Id. 	at
103. Congress “meant” this standard to be “difficult to meet.” Id. at 102.
The Supreme Court recently reiterated how this standard is to be applied to counsel’s’
decision on whether to retain an expert:
As to counsel, we have often explained that strategic decisions—
including whether to hire an expert—are entitled to a “strong
presumption” of reasonableness. Defense lawyers have “limited”
time and resources, and so must choose from among “‘countless’”
strategic options…[E]ven if there is reason to think that counsel’s
conduct “was far from exemplary,” a court still may not grant relief
if “[t]he record does not reveal” that counsel took an approach that
no competent lawyer would have chosen.
Dunn v. Reeves, 594 U.S. 731, 739–40 (2021) (internal citations omitted). Skatzes’ claim does not
meet this standard.
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Skatzes attached an affidavit to his postconviction petition from Clemens Bartollas, Ph.D.,
who identifies himself as an expert in correctional institutions and prison culture. (ECF No. 69-1
at PageID 8920-8928). Dr. Bartollas’ affidavit discusses the reason for and scope of Skatzes’
involvement in the Aryan Brotherhood, and opines the following about Skatzes’ participation in
the April 15, 1993, meeting:
32. 	As Skatzes sat there listening to the debate about killing an officer, it is
reasonable to assume that he was affected by a couple of factors: George had read
the book, The Hate Factory, an anonymous book written by an inmate at Santa Fe
during their 1980 riot, and in this book the author aptly documents how risky it is
for inmates to fail to participate or cooperate with other inmates during a riot.
33. Skatzes knew that he was in a vulnerable position during this “silent vote.” He
was aware that it would not take much for the other inmates to turn on him if he
dissented too strongly. The fact is that this nearly happened following Skatzes’
radio address that dissatisfied many inmates.
34. The “silent vote,” as this meeting among inmates is sometimes called, was one
in which George Skatzes did all he felt he could do to persuade the voting inmates
not to kill the officer. It is difficult to make out the voices in this Tunnel Tape, but
George clearly warns the inmates of the dire consequences to them if the officer
should be killed. Roger Snodgrass, a witness for the state during the trial, said that
he said something like, “look brothers, I’m with you; don’t get me wrong now; I’m
with you, but you know, before we do this, we had better give this a lot of thought
because once you kill a correctional officer, it is going to change the whole ball
game. In other words, he was trying to, I think he was trying to dissuade them or
make them think the alternative.” During our interview, Skatzes says that he also
distinctly remember[s] telling inmates: “if you kill him, there will be war in here.”
35. In other words, Skatzes disassociated to the maximum degree or point that he
felt was possible. He felt, not an unreasonable feeling given other prison riots, that
to do more would result in his being killed by the rioting inmates.
(Id. at PageID 8926-8927).
Skatzes cannot overcome the strong presumption that his counsel’s decision not to hire a
prison culture expert was reasonable. Dr. Bartollas’ affidavit makes the point that the unique
pressures of the prison environment informed Skatzes’ decisions and actions with respect to the
April 15, 1993, meeting where the killing of a guard was discussed. But this point was made at
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trial through the lay testimony of Anthony Lavelle, Roger Snodgrass, and Skatzes himself. On
cross-examination by Skatzes’ counsel, Anthony Lavelle testified:
Q: 	So, if an inmate dissents, another inmate might think it looks like you are
helping the administration, looks like you are working for the staff; that’s a
serious accusation?
A. 	Very serious.
Q. 	It can also have risk of other consequences that other inmates would take it
out on you physically, correct?
A. 	Yes.
Q. 	To be accused or labeled as someone helping the administration can be a
life-threatening position, would you agree?
A. 	It is a life-threatening position.
(ECF No. 74-3 at PageID 18078). Also, on cross-examination by Skatzes’ counsel, Roger
Snodgrass testified about the general feeling of fear among the inmates, “I don’t believe there was
anyone in that riot for that entire eleven days that did not fear for their life, white, black, or
otherwise. Sometimes tensions got higher than others, but everyone in there feared for their life.
If they didn’t, they was a fool.” (ECF No. 74-5 at PageID 18569).
During his direct exam, Skatzes explained how he felt threatened for trying to negotiate
with the state:
Dirk Prise offered me a live radio broadcast for one hostage. I called them fellars
back down there and I put that forth to them…and Lucky Roper called me the police
in there. He said: why you workin’ so hard for them? He called me the police. I
thought my ass was out there then, but it didn’t matter. I’m trying to do something.
(ECF No. 74-10 at PageID 19413).
Skatzes’ trial was a complex one that lasted more than two months and during which more
than twenty witnesses testified. The Court cannot say that his counsel’s performance was deficient
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for forgoing an expert who could discuss unique prison environmental pressures when similar
testimony could be elicited on direct or cross-examination from other witnesses, including Skatzes.
The Court does not find that the Second District Court of Appeals’ dismissal of this claim
was unreasonable. Skatzes argues that the language used by the Second District in this claim and
the Ohio Supreme Court in a different claim is irreconcilable. But it is the standard for habeas
relief on an ineffective assistance of counsel claims that controls here. And Skatzes cannot
establish that there was anything said by Dr. Bartollas in his affidavit that was not said or could
have been said by a lay witness at his trial. Thus, Skatzes has not established that Dr. Bartollas’
testimony would have had any impact on the outcome of his trial.
The Second District’s decision dismissing Skatzes’ claim that his counsel was ineffective
for failing to retain a prison culture expect was neither contrary to nor an unreasonable application
of Strickland.
While procedurally defaulted, Skatzes’ claim about his counsels’ failure to call certain
witnesses to challenge his culpability for Vallandingham’s murder is also without merit. Skatzes
defaulted this part of Ground One because, while he raised it in his postconviction petition, he
failed to include it in his appeal to the Second District. When the Montgomery County Court of
Common Pleas dismissed the claim, it concluded that there was no ineffective assistance of counsel
because the proffered testimony was cumulative, contradictory, and immaterial. (ECF No. 68-10
at PageID 8641-8644).
In his habeas petition, Skatzes proffers the following evidence from Anthony Lavelle,
Eddie Moss, and Aaron Jefferson:
Anthony Lavelle
“On the morning of April 15, 1993, ... [Law] heard ...Lavelle, Aaron Jefferson, and
Tim Williams talking about killing a guard. Lavelle left L-1, along with two others
whom [Law] recognized to be Gangster Disciples, despite their masks.” Later, Law
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saw the two masked men exit L-6 and Law then entered L-6. Lavelle was inside L-
6 and Law saw Vallandingham’s dead body in a shower cell. Law thought it was
clear that “Lavelle and his associates had killed the guard.” (Petition, ECF No. 25
at PageID 260-261).
Eddie Moss
He saw Lavelle “and two masked inmates come out of Block L-6 shortly after 10
a.m. on ... April 15, 1993.” A couple hours later, Lavelle tried to recruit Moss to
join the Gangster Disciples. As an enticement to that offer, Lavelle told Moss that
his group “had taken care of business,” despite the reluctance of the Aryans and
Muslims. Lavelle told Moss that he would know about the business that Lavelle
took care of because it would be on the radio. After news of Vallandingham’s death
was broadcast on the radio, Moss saw Muslim James Were confront Lavelle and
knock him to the floor. Were scolded Lavelle, saying “[Lavelle] didn’t have the
power to make that call and do what he had done. [Moss] understood this to mean
that Were was upset with Lavelle for having killed Officer Vallandingham.” Moss
also said that he was transferred to the prison in Mansfield after the riot, and on the
bus trip there, he heard Lavelle confess to and brag about Vallandingham’s murder.
(Petition, ECF No. 25 at PageID 261).
Aaron Jefferson
Jefferson attested that Skatzes opposed killing a guard. He also said that Lavelle
announced there would be another meeting if the inmates’ “10:30 a.m. deadline
passed without any response by the state.” At the post-ten-thirty meeting, the
groups would “decide whether or not to follow through on [their] threat to kill a
corrections officer. Lavelle would also decide which officer would be killed, who
would do the killing, and how it would be done.” Jefferson also said that Lavelle
“solicited [him] to kill Officer Vallandingham ...” before the morning meeting.
However, Jefferson “ignored him.” And Jefferson said that Lavelle “talked [to him]
about killing the officer” after the ten-thirty meeting. (Petition, ECF No. 25 at
PageID 262).
Like his claim invoking the actual innocence gateway, Skatzes argues in support of habeas
relief in Ground One that the testimony of these witnesses would have established that he opposed
killing a guard and Anthony Lavelle alone accomplished Vallandingham’s murder. (Traverse, ECF
No. 42 at PageID 666-669). Although the standard is different, the result is the same. Skatzes was
not prejudiced because his counsel failed to call these witnesses. The witnesses would have only
reiterated Skatzes’ point that he opposed the murder. As noted above, the jury heard through other
testimony that he voiced some dissent and lamented Vallandingham’s death after it occurred. Also
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noted above, evidence of Anthony Lavelle’s independent actions associated with Vallandingham’s
death do not absolve Skatzes because he was a co-conspirator. Anthony Lavelle’s actions do not
change the uncontroverted facts that Skatzes attended the meeting on April 15, 1993, and
voluntarily delivered the conspirator’s ultimatum to the state’s negotiator.
For these reasons, the part of Ground One properly before the Court regarding Skatzes’
counsel’s failure to call a prison culture expert is dismissed for lack of merit. The defaulted part of
Ground One concerning Skatzes’ counsels’ failure to call certain lay witnesses would be dismissed
even if it were properly before the Court because it also lacks merit.
Ground Two
In Ground Two, Skatzes contends that the evidence was insufficient to sustain his
conviction for the aggravated murder of Robert Vallandingham. (Petition, ECF No. 25 at PageID
264-267). Skatzes raised Ground Two in his direct appeal as Proposition of Law No. 39
(Appellant’s Brief, ECF No. 67-7 at PageID 5323, 5516), which was ultimately decided and
dismissed by the Ohio Supreme Court:
{¶ 140} With regard to the kidnapping and aggravated murder of Vallandingham,
the state’s evidence showed that on April 14, inmate gang leaders, including
Skatzes, voted to kill a guard. That evening, Skatzes complained to Muslim gang
leaders that whoever was supposed to kill a guard had backed out of it. Then Skatzes
blurted out, “Fuck the CO, I will kill the CO.”
{¶ 141} On the morning of April 15 at another inmate-leader meeting, Skatzes got
on the phone with prison negotiators and demanded that water and power be
restored within L block or “there would be a guaranteed murder. Do your thing.
10:30 or a dead man’s out there.” The leadership voted to kill a guard, and a member
of each inmate gang was chosen to participate in the killing. Skatzes agreed with
the decision to kill a C.O. hostage.
{¶ 142} After Vallandingham was killed, Skatzes and other Aryans followed
behind when the body was being carried out by masked inmates. Viewing this
evidence in a light most favorable to the state, sufficient evidence supported
Skatzes’s conviction for the murder of Vallandingham.
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Skatzes, 104 Ohio St. 3d at 223–52.
“[A federal habeas court] may not characterize state-court factual determinations as
unreasonable merely because [it] would have reached a different conclusion in the first instance.”
Brumfield v. Cain, 576 U.S. 305, 313–14 (2015) (internal citations omitted). “Instead, § 2254(d)(2)
requires that [a federal habeas court] accord the state [] court substantial deference. If [r]easonable
minds reviewing the record might disagree about the finding in question, on habeas review that
does not suffice to supersede the [state] court’s ... determination.” Id. (internal citations omitted).
The standard of review for evaluating sufficiency of the evidence claims was established
by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). The Court held in Jacksonthat,
because the Due Process Clause requires the state to prove beyond a reasonable doubt every fact
necessary to constitute the charged offense, “the relevant question” in assessing the sufficiency of
the evidence “is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319 (emphasis in original).
Under the Jackson standard, the state need not rule out every hypothesis except that of guilt
beyond a reasonable doubt. Id. at 326. Rather, “a federal habeas corpus court faced with a record
of historical facts that supports conflicting inferences must presume–even if it does not
affirmatively appear in the record–that the trier of fact resolved any such conflicts in favor of the
prosecution and must defer to that resolution.” Id.; Walker v. Engle, 703 F.2d 959, 969–70 (6th
Cir. 1983). It is the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the
evidence and to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319.
Consequently, the reviewing court is not permitted to reweigh the evidence, reevaluate the
credibility of witnesses, make its own subjective determination of guilt or innocence, or otherwise
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substitute its opinion for that of the jury. See id. at 318–19 & n.13; see also United States v. Fisher,
648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)).
Federal habeas review of a claim challenging the sufficiency of the evidence is even further
limited. As the Sixth Circuit explained in Brown, the federal habeas court is “bound by two layers
of deference to groups who might view facts differently than [the habeas court] would.” 567 F.3d
at 205. The federal habeas court must defer not only to the trier of fact’s findings as required by
Jackson, but under 28 U.S.C. § 2254(d), must also “defer to the state appellate court’s sufficiency
determination as long as it is not unreasonable.” Id. (emphasis in original); see also Davis v. Lafler,
658 F.3d 525, 531 (6th Cir. 2011). The Sixth Circuit went on to emphasize in Brown:
[W]e cannot rely simply upon our own personal conceptions of what
evidentiary showings would be sufficient to convince us of the
petitioner’s guilt. We cannot even inquire whether any rational trier
of fact would conclude that petitioner...is guilty of the offenses for
which he was charged. Instead, we must determine whether the Ohio
Court of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find [the petitioner] guilty beyond a
reasonable doubt based on the evidence introduced at trial.
567 F.3d at 205 (emphasis in original).
Skatzes argues in Ground Two that the Ohio Supreme Court made an unreasonable
determination of the facts when it concluded that he agreed with the decision to kill a guard.
(Traverse, ECF No. 42 at PageID 674-677). Skatzes points to trial evidence that he argues
establishes that there was no final decision made to kill a guard at the April 15, 1993, meeting. He
also argues that his failure to object at the meeting was insufficient under Ohio law to establish his
culpability because it requires “express concurrence.” Skatzes also disputes the credibility of
Hogan’s testimony that he said “Fuck the CO” because there was other trial evidence that he was
on the phone with the state negotiator at the time. (Id.). Respondent, on the other hand, argues that
the record is “replete” with evidence of express concurrence. (Return of Writ, ECF No. 31 at
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PageID 483-84). In addition to the evidence mentioned by the Ohio Supreme Court, Respondent
points out that Skatzes testified on cross-examination that he knew an officer would be killed when
he relayed the inmates’ ultimatum to the state’s negotiator. (Id. at PageID 483).
The record does in fact include evidence that Skatzes expressly concurred in the plan to
kill a guard. The Ohio Supreme Court laid the evidence out in its opinion. Skatzes delivered the
inmates’ ultimatum to the state. (Negotiation Tape #6, ECF No. 71-9 at PageID 13102). He urges
the Court to adopt a more favorable interpretation of his words. But the plain meaning of Skatzes’
words to the state negotiator as well as Skatzes’ trial testimony reasonably support an inference
that he adopted the conspirators’ plan. In any event, the Jackson standard does not permit the Court
to substitute an alternative view of the evidence.
Besides the recorded conversation with the state, the jury heard testimony from David
Lomache that everyone at the meeting he witnessed, including Skatzes, seemed to agree to the plan
to kill the guard (ECF No. 73-18 at PageID 16473-16474) and testimony from Anthony Lavelle
that Skatzes voted to kill a guard (ECF No. 74-1 at PageID 17904-17905).
The Court is bound to defer to the reasonable conclusions by both the jury and the Ohio
Supreme Court that the evidence was sufficient to sustain a conviction for the aggravated murder
of Robert Vallandingham. The Ohio Supreme Court’s dismissal of Ground Two was neither
contrary to nor an unreasonable application of Jackson. Ground Two is dismissed as meritless.
Ground Three
In Ground Three, Skatzes contends that his trial counsel were ineffective for failing to
investigate and present witnesses that were material to the defense against the charges for the
capital murder of David Sommers. (Petition, ECF No. 25 at pid 267-72). Skatzes raised Ground
Three in his postconviction petition (Postconviction Petition, ECF No. 68-7 at PageID 8036-8038).
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Unsuccessful, Skatzes appealed to the Second District Court of Appeals as Assignment of Error
No. 6, which was also denied:
{¶ 58} Skatzes’ sixth assignment of error states:
{¶ 59} “THE TRIAL COURT ERRED IN REJECTING PETITIONER’S FIRST
GROUND FOR RELIEF, THAT PETITIONER WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL’S FAILURE
TO CALL EXCULPATORY WITNESSES REGARDING THE SOMMERS
MURDER.”
{¶ 60} Skatzes presented affidavits from inmates Aaron Jefferson, Jesse Bocook,
and Wayne Flannigan, each of whom claimed that Skatzes had not been involved
in Sommers’ murder, and from his trial attorneys, who claimed that they had not
had a strategic reason for failing to call these inmate witnesses. Skatzes claims that
these affidavits demonstrate the ineffective assistance of trial counsel in failing to
call the inmates to testify on his behalf. The trial court disagreed.
{¶ 61} As the trial court noted, testimony at Skatzes’ trial revealed that Jefferson
had been present at Sommers’ murder and might have been able to provide
exculpatory evidence. Thus, the failure to call Jefferson could have been raised on
direct appeal and is barred by res judicata.
{¶ 62} Neither Jefferson, Bocook, nor Flannigan indicated in his affidavit that
Skatzes’ trial counsel or other agents of the state knew of the information contained
therein before trial, and the attorneys do not claim that they knew this information
before trial. If counsel had no reason to know of or suspect these claims, the
affidavits fail to establish the constitutional violation of ineffective assistance of
counsel.
{¶ 63} Furthermore, the credibility of the inmates’ affidavits is questionable. The
trial court observed that the affidavits “raise several red flags.” For example, the
affidavits of Jefferson and Bocook are inconsistent as to who was involved in
killing Sommers, and the inmates’ stories have changed over time.
{¶ 64} The trial court properly concluded that Skatzes’ evidence on this issue did
not establish that he had been denied the effective assistance of counsel.
{¶ 65} The sixth assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387, ¶¶ 59-65.
Respondent argues that the Court cannot consider the part of Ground Three concerning
Aaron Jefferson’s affidavit because the Second District Court of Appeals dismissed it as res
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judicata, and it is consequently procedurally defaulted. (Return of Writ, ECF No. 31 at PageID
438). In response, Skatzes argues that the procedural bar was improperly imposed because his
claim relies on evidence outside the trial record. (Traverse, ECF No. 42 at PageID 680-82).
In Ohio, res judicata bars consideration of constitutional claims in postconviction
proceedings brought under Ohio Rev. Code Ann. § 2953.21 when those claims have already been
or could have been fully litigated either before judgment or on direct appeal from that judgment.
State v. Perry, 10 Ohio St. 2d 175 (1967). It is also settled that res judicata applies when a
defendant who is represented by new counsel on direct appeal fails to raise the issue of ineffective
assistance of trial counsel, and the issue could fairly have been determined without resort to
evidence outside the record. Monzo v. Edwards, 281 F.3d 568, 576–77 (6th Cir. 2002) (citing State
v. Cole, 2 Ohio St. 3d 112 (1982)).
The Montgomery County Court of Common Pleas found that part of Ground Three
concerning Aaron Jefferson should have been raised on direct appeal because Robert Brookover
testified at Skatzes’ trial that Aaron Jefferson was present at the murder of David Sommers. (ECF
No. 68-10 at PageID 8632). The Second District Court of Appeals affirmed on grounds of res
judicata. (ECF No. 70-7 at PageID 10925). But neither state court identified the trial record
testimony that established the elements for a claim of ineffective assistance of counsel.
Robert Brookover testified at Skatzes’ trial to the events surrounding the murder of David
Sommers, including his own involvement. (ECF No. 73-24 at PageID 17472-17486). Brookover
testified that Aaron Jefferson was present and implicated Jefferson in the murder along with
Skatzes. (Id.). Brookover gave no indication that Jefferson would have provided beneficial
testimony if defense counsel had called him as a witness. That information came from evidence
de hors the record in the form of Aaron Jefferson’s affidavit where he attests that “George
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[Skatzes] did not kill or participate in the killing or order the murder of David Sommers.” (ECF
No. 69 at PageID 8749). “[P]otential evidence from witnesses who never appeared at trial, as well
as testimony of trial counsel respecting trial tactics, is by definition de hors the record.” Greer v.
Mitchell, 264 F.3d 663, 675 (6th Cir. 2001).
Aaron Jefferson’s affidavit represents a classic example of evidence de hors the record.
Skatzes therefore did not violate Ohio’s doctrine of res judicata by not asserting his ineffective
assistance of counsel claim on direct appeal. Accordingly, the first Maupin factor is not satisfied,
and Skatzes did not procedurally default this part of Ground Three.8
Skatzes argues that the part of Ground Three concerning David Marsh’s affidavit was
overlooked by the state courts, which means that AEDPA deference does not apply. (Traverse,
ECF No. 42 at PageID 693). The Court disagrees. When “a state court rejects a federal claim
without expressly addressing that claim, a federal habeas court must presume that the federal claim
was adjudicated on the merits—but that presumption can in some limited circumstances be
rebutted.” Johnson v. Williams, 568 U.S. 289, 301 (2013). The presumption can be rebutted
“[w]hen the evidence leads very clearly to the conclusion that a federal claim was inadvertently
overlooked in state court.” Id. at 303. In such a situation, “§ 2254(d) entitles the prisoner to an
unencumbered opportunity to make his case before a federal judge.” Id.; see also Nian v. Warden,
N. Cent. Corr. Inst., 994 F.3d 746, 755 (6th Cir. 2021); Wofford v. Woods, 969 F.3d 685, 697 (6th
Cir. 2020). Here, Skatzes has not rebutted the presumption. The Second District addressed the
affidavits submitted by Skatzes as a group and it is likely, as discussed below, the court elected to
8 	The Court notes that in the Sur-Reply, the Respondent “makes no comment” in opposition to Skatzes’
argument that res judicata was improperly imposed. (Sur-Reply, ECF No. 50 at PageID 995). Consistent with the
argument made by Respondent in the Sur-Reply, the Court has deferred to the Second District Court of Appeals’
alternative merits analysis. See Brooks, 513 F.3d at 624–25.
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omit a specific discussion of Marsh’s affidavit because it lacked any noteworthy exculpatory
information.
Turning to the merits of Ground Three, the Court finds that the Second District’s dismissal
of this claim was neither contrary to nor an unreasonable application of Strickland. That court
concluded that Skatzes failed to establish that his trial counsel was deficient because there was no
proof that they were aware of the information in the witnesses’ affidavits before trial. (ECF No.
70-10 at PageID 11467). The court also questioned the credibility of the affidavits, noting “red
flags” identified by the Common Pleas Court (Id.). The trial court expressed concern that the trial
counsel affidavits involved a lack of recollection and were inconsistent with the record, and the
inmate affidavits were too similar to one another and had portions crossed out. (ECF No. 68-10 at
PageID 8633).
Indeed, the only two affidavits that would have had any potential effect on the outcome of
the trial lack credibility. Aaron Jefferson’s affidavit states that he would have testified that Skatzes
was not involved in Sommers’ murder. (ECF No. 69 at PageID 8748). But Jefferson’s affidavit as
well as the status of his own conviction for the David Sommers’ murder at the time of Skatzes’
trial calls his veracity into question.
Jefferson’s affidavit attests that he was convicted of the aggravated murder of David
Sommers in April 1995. (ECF No. 69 at PageID 8749). The transcripts in the record confirm that
Jefferson’s pretrial hearings were held in the early part of 1996. (ECF No. 69 at PageID 8842-47).
This inaccuracy and the fact that Jefferson crossed out the original typed content that he “pled
guilty” raise questions about the reliability of its content and about Jefferson’s involvement in the
preparation. (ECF No. 69 at PageID 8749).
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In any event, Jefferson was convicted for the aggravated murder of Sommers and Skatzes
has asked the Court to take judicial notice of the direct appeal of his conviction. (Traverse, ECF
No. 42 at PageID 683). The Court takes judicial notice that at the time of Skatzes’ trial, Jefferson
was under indictment for David Sommers’ murder. State v. Jefferson, No. 15828, 1997 WL
111757, at *1 (Ohio Ct. App. Mar. 14, 1997) (noting Jefferson was indicted for Sommers’ murder
on August 26, 1994). Skatzes argues that Jefferson’s direct appeal proceedings provide proof that
his counsel should have known that Jefferson confessed his involvement in the Sommers murder
to the OSHP. (Traverse, ECF No. 42 at PageID 683-684).
Even though Jefferson’s 2003 affidavit says he would have testified at Skatzes’ trial, the
Court finds it highly unlikely that, while he was facing charges for aggravated murder, he would
have waived his privilege against self-incrimination or that he would have even provided testimony
consistent with the affidavit. This is especially true since, at his own trial, Jefferson disavowed his
confession to the OSHP and denied that he was present when Sommers was killed. The Second
District Court described Jefferson’s testimony:
Jefferson denied any involvement in the attacks on Sommers and Newell. Jefferson
explained his statement to Trooper Fleming by saying that he had been trying to
“dirty the waters of the investigation” and that he had thought he was “in difficulty”
when he made the statement, although he had not been indicted for any crimes at
that time and had not been interviewed by riot investigators in over a year. When
challenged about how he knew the details of Sommers’ murder if he had not been
present, Jefferson stated that he had talked with some people and had used his
imagination to come up with a story. Jefferson denied that he would have stayed
behind with the Aryan Brothers after the rest of the BGDs had surrendered because
to do so would have been “suicide.” Jefferson also denied that the BGDs had agreed
to any of the killings which occurred on the last day of the riot. On cross-
examination, Jefferson admitted that he would be willing to lie for his friends and
for himself in certain situations.
State v. Jefferson, 1997 WL 111757, at *2 (Ohio Ct. App. Mar. 14, 1997).
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The Court also finds it hard to believe that Jefferson would have exposed himself to
potential questioning about Robert Vallandingham’s murder by testifying at Skatzes’ trial. When
Jefferson made his statement to the OSHP, he “alluded to his involvement in the murder of Officer
Robert Vallandingham but would not discuss any specifics of that murder without his attorney
present.” State v. Jefferson, 1997 WL 111757, at *1 (Ohio Ct. App. Mar. 14, 1997). Jefferson’s
affidavit 	demonstrates 	that 	he 	had 	continued 	concern 	in 	2003 	about 	his 	exposure 	for
Vallandingham’s murder, because as noted by the Court of Common Pleas, Jefferson crossed out
all parts of the affidavit that associated him with the conspiracy. (ECF No. 69 at PageID 8747-
8748). Jefferson altered the affidavit to place all blame on Anthony Lavelle, who testified at
Skatzes’ trial that Jefferson was present at the April 15, 1993, meeting. (Id.; ECF No. 74-1 at
PageID 17847-17848).
Jesse, a/k/a “Dewey” Bocook’s affidavit is similarly suspect. He crossed out all paragraphs
concerning the April 15, 1993, meeting and the subsequent murder of Robert Vallandingham.
(ECF No. 69 at PageID 8765-8766). The original content of these paragraphs, as well as Anthony
Lavelle’s trial testimony, placed Bocook at the April 15 meeting. (Id.; ECF No. 74-1 at PageID
17848). The Court also finds Bocook’s statement that he would have testified for the defense at
Skatzes’ trial to lack credibility because it appears that he harbored concern about his criminal
exposure for the murder of Robert Vallandingham when he signed the affidavit. 	The deletions
also call into question the level of Bocook’s involvement in creation of the affidavit and the extent
to which he truly adopted the statements therein.
The other two inmate affidavits include content that would have had no impact on the
outcome of Skatzes’ trial. Marsh only offers a potential reason for Sommers’s murder based on
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hearsay. (ECF No. 69 at PageID 8791-92). Flannigan offers a vague statement that he did not see
Skatzes in the area where the murder was committed. (ECF No. 69 at PageID 8769-71).
Skatzes’ trial counsel, Robert Dixon, filed affidavits contending that they could either not
recall or had no strategic reason for failing to call witnesses Jefferson, Bocook, Marsh, or
Flannigan. (ECF No. 69 at PageID 8753, 8761). The absence of trial counsels’ recall in these
affidavits is fatal to Skatzes’ ineffective assistance of counsel claim because he cannot prove that
his counsel knew or should have known that these witnesses would have provided favorable
testimony.9 See White v. Plappert, 131 F.4th 465, 478 (6th Cir. 2025) (citation modified) (“It’s not
enough for [a habeas petitioner] to convince us that his counsel ‘took an approach that no
competent lawyer would have chosen’ [he] must also prove that ‘every fairminded jurist would
agree that every reasonable lawyer would have made a different decision.’”).
For these reasons, the Second District’s dismissal of Ground Three was neither contrary
to nor an unreasonable application of Strickland and is therefore entitled to deference.
Ground Four
In Ground Four, Skatzes contends that the state pursued materially inconsistent theories in
the prosecution against him and Aaron Jefferson for the same murder of David Sommers. He
alleges this strategy violated his due process rights and rights against cruel and unusual
punishment. (Petition, ECF No. 25 at PageID 	272-275). Skatzes raised Ground Four
9 	The Court notes that trial counsels’ affidavits are nearly identical and are carefully worded. With respect to
Bocook, the affidavits state that he was interviewed, but counsel “cannot recall having a strategic reason for not calling
[him]” as a witness. (ECF No. 69 at PageID 8753, 8761). The affidavits do not state that Bocook’s interview yielded
favorable testimony or that he was willing to testify at trial.
With respect to Jefferson and Moss, the affidavits state that there was no strategic reason for failing to
interview them or call them as witnesses at trial. (Id.). The affidavits do not provide any insight into how trial counsel
should have known that Jefferson or Moss had favorable testimony they were willing to offer at trial. To be sure, the
way the affidavits are worded, the statements therein would not technically be false if either of these witnesses refused
to be interviewed by Skatzes’ counsel or refused to testify at trial.
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in his postconviction petition. (Postconviction Opposition to Motion to Dismiss, ECF No. 68-8 at
PageID 8231-8234). Unsuccessful, Skatzes appealed Ground Four to the Second District as
Assignment of Error No. 5. The Second District concluded:
{¶ 53} Skatzes contends that his due process rights were violated because the state
charged and convicted two inmates—Skatzes and Aaron Jefferson—with the
murder of David Sommers, when the evidence suggested only one fatal blow. He
argues that these “inherently factually contradictory theories” violated his due
process rights and the prosecutors’ duty to seek justice impartially. He relies on
Smith v. Groose (C.A.8, 2000), 205 F.3d 1045 and Bradshaw v. Stumpf (2005), 545
U.S. 175, 187–188, 125 S.Ct. 2398, 162 L.Ed.2d 143.
{¶ 54} Stumpf involved a guilty plea and did not reach the question of whether the
prosecutor’s use of contradictory evidence at two different trials would have
violated the defendant’s due process rights. The Supreme Court concluded that
Stumpf “never provided an explanation of how the prosecution’s post-plea use of
inconsistent arguments could have affected the knowing, voluntary, and intelligent
nature of his plea” and concluded that the prosecutor’s actions did not require
voiding Stumpf’s plea. Stumpf, 545 U.S. at 187. Thus, the reasoning in Stumpf is
inapplicable to Skatzes’ case.
{¶ 55} In Groose, the Eighth Circuit Court of Appeals found reversible error when,
in separate trials, two defendants were separately convicted of the same murders
through the prosecution’s use of “diametrically opposed” statements by its key
witness. The court held that the state was forbidden from using irreconcilable
theories to secure convictions against two separate defendants in prosecutions for
the same offenses arising out of the same event. Groose, 205 F.3d at 1049.
{¶ 56} Here, the state’s theories in obtaining murder convictions against Skatzes
and Jefferson were not irreconcilable. The evidence established that a group of men
savagely choked, stabbed, and beat Sommers about his head and torso. Although
the coroner referred to the wound both as a fatal “blow” and fatal “injury,” there
was no question that multiple inmates inflicted head injuries. The state’s theory was
that both Skatzes and Jefferson were complicit in the crime; there was no way to
prove who had inflicted the fatal head injury. These theories are not “diametrically
opposed.” We also note that, pursuant to R.C. 2923.03(F), “[a] charge of complicity
may be stated in terms of this section, or in terms of the principal offense.” A
defendant charged with an offense may be convicted of that offense upon proof that
he was complicit in its commission, even though the indictment is stated in terms
of the principal offense and does not mention complicity. State v. Herring, 94 Ohio
St.3d 246, 251, 2002–Ohio–796, 762 N.E.2d 940. See, also, State v. Walton,
Cuyahoga App. No. 88358, 2007–Ohio–5070, ¶ 20. The state’s theory of the case
did not produce inconsistent verdicts because it always acknowledged that there
were multiple perpetrators. Skatzes’ due process rights were not violated by this
approach.
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State v. Skatzes, 2008-Ohio-5387, ¶¶ 50-57.
Respondent argues that Skatzes’ Eighth Amendment claim is procedurally defaulted
because Skatzes failed to raise it with the Ohio state courts. (Return of Writ, ECF No. 31 at PageID
524). The Court agrees. The record reflects that Skatzes mentioned the Eighth Amendment in the
headings of his brief to the Second District (Appellant’s Brief, ECF No. 70-1 at PageID 9969) and
the Ohio Supreme Court (Appellant’s Brief, ECF No. 70-11 at PageID 11595). But this is
insufficient to preserve an Eighth Amendment claim for review. See Blackmon v. Booker, 394 F.3d
399, 400–401 (6th Cir. 2004). Skatzes did, however, fairly present his Fourteenth Amendment due
process claim to the state courts.
That said, the Court finds that Skatzes’ due process claim lacks merit. Skatzes argues that
during his trial the state advanced a theory that he was the “principal offender” in David Sommers’
murder. (Petition, ECF No. 25 at PageID 273-74). Skatzes argues that the state offered testimony
from Roger Snodgrass and Robert Brookover that he hit Sommers on the head with a baseball bat
(id. at pid 273) and testimony from the medical examiner, Dr. Buerger, that Sommers died from a
“single massive blow” to the right temple area of his skull (id. at PageID 273). Skatzes argues that
in Aaron Jefferson’s trial, the state took the position that Jefferson, not Skatzes, inflicted the single
death blow. (Id. at PageID 273-74). Skatzes contends that his constitutional rights were violated
because the state advanced materially inconsistent theories at the two trials. (Traverse, ECF No.
42 at PageID 698-709).
In opposition, Respondent argues that the Supreme Court has never declared that a due
process violation occurs when the state pursues different theories for the prosecution of two
suspects in the same crime. (Return of Writ, ECF No. 31 at PageID 524-27). Respondent further
argues that the Second District’s 	dismissal of Ground Four was not objectively unreasonable
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because the prosecution argued in both trials that David Sommers was beaten by several inmates.
(Id. at PageID 527-531).
In Count Five of the Indictment, Skatzes was charged with the aggravated murder of David
Sommers “purposely, and with prior calculation and design.” In Count Six, he was charged with
the aggravated murder of David Sommers “while committing or attempting to commit, or while
fleeing immediately after committing or attempting to commit the offense of Kidnapping.” (ECF
No. 65 at PageID 1723-1725). Both counts carried death penalty specifications. (Id.).
At Skatzes’ trial the prosecution elicited testimony from Roger Snodgrass regarding the
events surrounding David Sommers’ murder. (ECF No. 74-5 at PageID 18484-18495). Snodgrass
identified himself, Skatzes, Jefferson, Brookover, and Bocook as participants in the murder.
Snodgrass testified that he saw Skatzes hit Sommers with a bat three times in the upper head area,
he saw Bocook “beat [Sommers’] brains in” with a bat and saw Jefferson stab Sommers. (Id. at
PageID 18492-93). Snodgrass testified that he saw Jefferson with a bat as they left the area where
the murder occurred. (Id.).
Robert Brookover also testified at Skatzes’ trial regarding the events surrounding David
Sommers’ murder. (ECF No. 73-24 at PageID 17468-87). Brookover testified that five inmates
inflicted blows on Sommers, including himself, Bocook, Snodgrass, Skatzes, and Jefferson. (Id. at
PageID 17485-86). Brookover testified that he saw Aaron Jefferson hit Sommers with a baseball
bat. (Id. at PageID 17484).
The medical examiner, Dr. Buerger, testified that the right side of Sommers’ skull in the
parietal, temple region was shattered from a single injury from a blunt instrument. (ECF No. 73-
23 at PageID 17263). Dr. Buerger described the injuries to Sommers’ skull and commented, “all
of this was the result of a single massive blow.” (Id. at PageID 17264). Dr. Buerger testified that
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Sommers’ cause of death was a “massive blow to the head leading to skull fracture….” (Id. at
PageID 17266).
During closing argument in Skatzes’ trial, the state argued—“[n]ext homicide David
Sommers. Aggravated murder, again two theories, kidnapping and the prior calculation and
design.” (ECF No. 74-12 at PageID 19719). The state argued that riot leadership planned to kill
David Sommers because he was a snitch that knew too much, and a group of killers subsequently
lured him to his death during the final hours of the riot. (Id. at PageID 19719-25). The state argued
that several men participated in the murder, including Skatzes who “got his hands dirty.” (Id. at
PageID 19722). The prosecutor did not explicitly dispute Dr. Buerger’s testimony, but he did argue
that different people inflicted blows on Sommers, including Jefferson (id. at PageID 19723), and
both Skatzes and Bocook hit him in the head with a baseball bat (id. at PageID 19721).
In addition to receiving instructions on the elements of aggravated murder, with respect to
David Sommers’ murder, the jury was instructed:
Before you can find the defendant guilty of Specification Number 3, you must find
that the State has proved beyond a reasonable doubt that the defendant purposely
caused the death of David Sommers while committing, or attempting to commit, or
fleeing immediately after the committing or attempting to commit kidnapping, and
either the offense or the offender was a principal offender in the commission of the
aggravated murder or, if not a principal offender, committed the aggravated murder
with prior calculation and design.
A principal offender is one who has hands-on involvement in the homicide. (ECF
No. 74-13 at PageID 19875). The first paragraph tracks the language of Ohio Rev. Code
Ann. § 2929.04(7).
The jury found Skatzes guilty of the aggravated murder of David Sommers. (ECF No. 66-
1 at PageID 2695; 2707). According to the verdict form, the jury concluded that Skatzes was a
principal offender in Sommer’s murder. (ECF No. 66-1 at PageID 2698; 2706). On direct appeal,
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the Supreme Court of Ohio found that the trial court erred because its instruction on “principal
offender” was not specific enough, but the error was harmless because “the evidence at trial
showed that Skatzes was an actual killer of Sommers.” Skatzes, 104 Ohio St. 3d at 209–10.
In his postconviction petition, Skatzes relied on Bradshaw v. Stumpf, 545 U.S. 175 (2005),
as authority for his position that his due process rights were violated. (Postconviction Opposition
to State’s Motion to Dismiss, ECF No. 68-8 at PageID 8231-34). Stumpf pled guilty to aggravated
murder in Ohio. Bradshaw, 545 U.S. at 179. During his sentencing hearing before a three-judge
panel, the state argued that Stumpf pulled the trigger and killed the victim, but even if he did not
pull the trigger, Stumpf deserved the death penalty because he was an accomplice to the murder.
Id. at 180. After Stumpf’s guilty plea, his co-defendant, Clyde Wesley was extradited to Ohio and
tried by jury for the same murder. Id. at 180. At Wesley’s trial, a previously unavailable witness
came forward and testified that Wesley pulled the trigger, and the prosecutor argued that Wesley
deserved the death penalty because he was the principal offender. Id. The Supreme Court declined
to void Stumpf’s guilty plea, finding that “the precise identity of the triggerman was immaterial to
Stumpf’s conviction for aggravated murder.” Id. at 187. However, the Supreme Court then found
that “the prosecutor’s use of allegedly inconsistent theories may have a more direct effect on
Stumpf’s sentence...” and remanded the case to the Sixth Circuit to “consider, in the first instance,
the question of how [the witness’s] testimony and the prosecutors conduct in the Stumpf and
Wesley cases relate to Stumpf’s death sentence in particular.” Id. at 187–88.
On remand, the Sixth Circuit found no due process violation, distinguishing the
circumstances where a prosecutor’s behavior has been found improper:
Nothing misleading or deceitful happened here. The prosecution did
not present a different and incomplete set of facts in support of
different theories of culpability for the same crime… It did not offer
different (and contradictory) testimony from the same witness in
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Wesley’s trial, without acknowledging the contradiction… And it
did not omit evidence of Wesley’s or Stumpf’s guilt or innocence
from its presentation.
Stumpf v. Robinson, 722 F.3d 739, 749 (6th Cir. 2013) (internal citations and quotations omitted).
The Sixth Circuit then found that if a due process violation could be recognized, it would be subject
to harmless error analysis. Id. at 752. The Sixth Circuit concluded that any error was harmless
because the record contained ample evidence that Stumpf, not Wesley, pulled the trigger. Id.
Respondent first argues that Skatzes is not entitled to relief on Ground Four because there
is no clearly established due process right under the circumstances. (Return of Writ, ECF No. 31
at PageID 525-27). The Supreme Court’s treatment of the issue in Bradshaw, 545 U.S. 175, and
the Sixth Circuit’s subsequent treatment of the open question on remand, Stumpf, 722 F.3d 739, at
least suggests that under the appropriate circumstances, the Supreme Court would recognize a due
process violation. But the Court does not need to reach the issue because the Second District Court
was not unreasonable for concluding the prosecution theories in the Skatzes and Jefferson trials
were not inconsistent because “it always acknowledged that there were multiple perpetrators.”
State v. Skatzes, 2008-Ohio-5387, ¶ 56. The prosecution put on evidence at Skatzes’ trial that
multiple inmates planned Sommers’ murder, participated in beating Sommers, hit Sommers on the
head with a bat, and that his cause of death was a single blow to the head. The prosecution argued
to the jury in closing that Skatzes should be found guilty of the aggravated murder of David
Sommers because it was committed during a kidnapping, the decision to kill him had been made
with prior calculation and design, and Skatzes “got his hands dirty.” (ECF No. 74-12 at PageID
19719-25). The jury found Skatzes guilty and selected “principal offender” on the verdict form.
The state did not seek the death penalty in Aaron Jefferson’s trial. His jury received
instructions, inter alia, on the elements of “aggravated murder” and “complicity.” State v.
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Jefferson, 1997 WL 111757, at *7 (Ohio Ct. App. Mar. 14, 1997). The prosecutor in Jefferson’s
trial argued to the jury:
…Everybody said, everybody who was there, all the testimony, that this man was
beaten many, many times. It was not just one single bat or blow to the head. There
were multiple ones this is a conclusion that is inescapable once you’ve examined
these photos this man was a victim of a massive beating, multiple wounds to the
head. But you know, I didn’t say I don’t believe Dr. Buerger, he couldn’t [sic] be
mistaken on that factor. It doesn’t make any difference.
Why doesn’t it make a difference? Two reasons. First one, what did this man say
and reiterate time and again even when Trooper Fleming was trying to get him---
no, no, no, no that’s not true, no sir, not true, couldn’t do that, couldn’t be that way.
I know that first lick I hit on him did damage. It leaked. I saw the brains leak. I got
the blood all over me.
If there was only one blow to the head of David Sommers the strongest evidence
you have is the individual---I won’t call him human—this is the individual that
administered the blow. Out of his own mouth. If there was only one blow, he’s the
one that gave it…
Ah, we don’t know who did it…Still, when then we get back to what the Court is
going to tell you about complicity, aiding and abetting. It is not necessary that he
be the one that actually administered the fatal blow.
(ECF No. 69 at PageID 8846-8847). 10
According to the prosecutor’s argument, Dr. Buerger’s testimony remained consistent
between the two trials. The difference between the Skatzes and Jefferson trials is that in the
Jefferson trial, the prosecutor explicitly mentioned that evidence supported a contrary conclusion
that there were multiple blows to the head and also argued that resolution of that fact was
unnecessary because the defendant was guilty either way under the theory of complicity.
10 	Per Pinholster, 563 U.S. 170 (2011), the Court has not considered references in Skatzes’ Traverse to
transcript pages from Jefferson’s trial that are not included in the state court record. (Traverse, ECF No. 42 at PageID
706-09). Because the exhausted claim relates to the Aaron Jefferson trial, the Court has also not considered any
arguments about how the evidence at Skatzes’ trial is inconsistent with the evidence offered at Carlos Sanders’ trial.
(Traverse, ECF No. 42 at PageID 705-06).
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The state made it known at both trials that multiple inmates participated in the Sommers’
murder, including Aaron Jefferson. Skatzes focuses his argument on the fact that Dr. Buerger
testified that Sommers died from a single blow to the head, contending that it could not have been
delivered by both him and Jefferson. (Traverse, ECF No. 42 at PageID 705). Trial testimony other
than Dr. Buerger’s supported a reasonable inference that Sommers in fact suffered multiple blows
to the head, with Snodgrass testifying that he witnessed both Skatzes and Brookover strike
Sommers in the head (ECF No 74-5 at PageID 18492-93), and Brookover testifying that five
inmates inflicted blows. (ECF No. 73-24 at PageID 17485-86).
The Ohio Supreme Court rejected Skatzes’ argument on direct appeal in Proposition of
Law No. 13 that “principal offender” was synonymous with “sole offender”: “We have stated that
‘principal offender’ means the ‘actual’ killer and not the ‘sole’ offender. As there can be more than
one actual killer, there can be more than one principal offender.” Skatzes, 104 Ohio St. 3d at 210.
See also Joseph v. Coyle, 469 F.3d 441, 455 (6th Cir. 2006) (acknowledging that under O.R.C.
2929.04(A)(7) “there may be multiple principal offenders corresponding to multiple fatal blows.”).
The state presented evidence at both trials that Sommers received multiple blows from
several inmates, including Skatzes and Jefferson, and the coroner believed that Sommers died from
a single blow to the head. Like the Sixth Circuit concluded in Stumpf, 722 F.3d at 749, there was
nothing deceitful about the state’s conduct in the two trials, Skatzes has no basis for a due process
claim. Skatzes’ argument ignores the fact that the jury was free to reject Dr. Buerger’s testimony,
in whole or in part. A reasonable inference could be made from the evidence presented that Skatzes
was an actual killer of David Sommers.
Even if the prosecutor’s behavior could be considered a due process violation, the error
was harmless. Stumpf, 722 F.3d at 752. If the prosecutor had acknowledged at Skatzes’ trial that
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Dr. Buerger’s testimony about the single fatal blow may be wrong, according to the Ohio Supreme
Court, the evidence still established that Skatzes was a “principal offender.”
Ground Four is without merit and must be dismissed.
Ground Five
In Ground Five Skatzes contends that the state’s evidence is insufficient to prove that he
killed David Sommers with prior calculation and design. (Petition, ECF No. 25 at PageID 275-
277). Skatzes raised Ground Five in his direct appeal as Proposition of Law No. 40 (Appellant’s
Brief, ECF No. 67-7 at PageID 5323, 5514-15), which was ultimately denied by the Supreme Court
of Ohio:
{¶ 144} With respect to the murder of Sommers, several inmates testified that
Sommers controlled the phones in L2 during negotiations and had made some
bombs during the riot. Although Sommers stayed in the Aryan-controlled L2 during
the riot, he was not a member of the Aryan Brotherhood. Moreover, Sommers had
a reputation as a “snitch,” an inmate who cooperated with prison authorities against
other inmates.
{¶ 145} As the surrender was taking place at the end of the riot, Skatzes, Robb,
Sanders, and Cummings told Lavelle that they had “some things [they had] to take
care of.” Skatzes, Snodgrass, and Bocook dressed in other clothes in L2, and when
Robb showed up, they went to L7, across the hall from L2. Inmate Brookover also
had a reputation as a snitch and was led to believe that he had a choice: kill someone
or be killed. When Brookover asked Skatzes if he was going to be killed, Skatzes
replied, “Just take care of business, be cool.” Brookover was with the group that
went into L7.
{¶ 146} When the group entered L7, no one else was there. Bocook yelled out,
“Where’s that bitch Sommers at.” Robb lured Sommers into L7, and the group
proceeded to beat him. Skatzes ran up, kicked Sommers in the head, and hit him in
the head with a baseball bat—three times, according to Snodgrass. Brookover
testified that Skatzes hit Sommers in the head as “[h]ard as you could hit.” Other
inmates also beat and stabbed Sommers. The killers, including Skatzes, then
cleaned themselves and burned their clothes. The coroner testified that Sommers’s
skull had been “shattered” and that he died from a massive blow to the head. Based
on the foregoing, a jury could have reasonably concluded that Skatzes murdered
Sommers. The fact that others also stabbed and beat Sommers does not absolve
Skatzes from culpability in his murder. See State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, at ¶ 69. We reject proposition of law XL.
Skatzes, 104 Ohio St. 3d at 223–24.
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Skatzes argues in his habeas petition that the Supreme Court of Ohio was unreasonable,
and he is entitled to relief on Ground Five because “there was no evidence Skatzes had any designs
on killing Sommers” and “the Ohio Supreme Court erroneously and unreasonably inferred that
Skatzes had ‘prior calculation and design’ specific to killing Sommers.” (Traverse, ECF No. 42
at PageID 713, 714). In the Return of Writ, the Respondent counters that Sommers’ murder was
not a “spur of the moment” decision, and that satisfies “prior calculation and design” under Ohio
law. (Return of Writ, ECF No. 31 at PageID 710-18).
Skatzes made the same argument to the Supreme Court of Ohio that he now makes in his
habeas petition—that the facts support “spur of the moment contemplation” and not “prior
calculation and design.” (Appellant’s Brief, ECF No. 67-7 at PageID 5514). The Supreme Court
implicitly rejected this argument when it upheld the jury’s finding of “prior calculation and
design,” and the testimony adduced at trial supports that conclusion.
Roger Snodgrass testified that during their last meeting before the surrender, he, Skatzes,
Bocook, Tramp Johnson, and Robb discussed killing inmates Newell, Israel, and Creager. (ECF
No. 74-5 at PageID 18480-81). But, when he, Skatzes, Bocook, Brookover, and Aaron Johnson,
went to L-7 to accomplish the job, Robb left to get the inmates and returned without them. (Id. at
PageID 18488-89). This prompted Bocook to say, “where’s that bitch Sommers at?” Id. Snodgrass
testified that he stood around for a while and then saw Skatzes hitting Sommers with a baseball
bat. (Id. at PageID 18489-90). Snodgrass testified that he did not know how Sommers got to L-7.
(Id.).
Brookover’s account largely mirrors Snodgrass’s (ECF No. 73-24 at PageID 17471-80).
Brookover added, however, that after Bocook said, “go get that bitch Sommers,” Robb left to get
him from L-2. (Id. at PageID 17479). Bocook testified that he was not sure how long, “minutes
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later” Robb and Sommers returned (Id. at PageID 17480), and they proceeded to attack and kill
Sommers (id. at PageID 17480-86).
As discussed in Ground Two, the well-settled standard of review for evaluating the merits
of constitutional claims challenging the sufficiency of the evidence was established by the
Supreme Court in Jackson. 	The federal habeas court is “bound by two layers of deference to
groups who might view facts differently than [the habeas court] would.” Brown, 567 F.3d at 205.
The habeas court must defer not only to the trier of fact’s findings as required by Jackson, but
under 28 U.S.C. § 2254(d), must also “defer to the state appellate court’s sufficiency
determination as long as it is not unreasonable.” Id.
The trial evidence established that the group of inmates, including Skatzes, did not
originally plan to kill Sommers, but that does not absolve him from “prior calculation and design.”
The jury could make a reasonable inference from the evidence presented that the passage of time
from the decision to kill Sommers until the time Sommers arrived at L-7 was enough to satisfy
“prior calculation and design.” Considering the deference owed to the jury’s finding of prior
calculation and design and the Ohio Supreme Court’s conclusion that evidence was sufficient to
sustain that verdict, the Court cannot say that the dismissal of the claim made in Ground Five was
an unreasonable application of Jackson. As pleaded here, it must be dismissed.
Ground Seven
In Ground Seven, Skatzes contends that his counsel was ineffective for failing to
investigate and call the following witnesses to defend against the Earl Elder aggravated murder
charge: Michael Trocadoro, Anthony Taylor, Eric Girdy, and Kenneth Law. (Petition, ECF No. 25
at PageID 280-86). Skatzes raised Ground Seven in his postconviction petition as his fourth and
sixth grounds for relief (Postconviction Petition, ECF No. 68-7 at PageID 8043-45, 8048-49). On
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appeal to the Second District Court of Appeals, Skatzes asserted Ground Seven as Assignment of
Error No. 2. (Appellant’s Brief, ECF No. 70-1 at PageID 9939, 9957-9963). The Second District
Court of Appeals affirmed the dismissal of the claim:
{¶ 14} Skatzes’ second assignment of error states:
{¶ 	15} 	“THE 	TRIAL 	COURT 	ERRED 	IN 	REJECTING 	PETITIONER’S
FOURTH AND SIXTH GROUNDS FOR RELIEF, THAT COUNSEL WAS
INEFFECTIVE FOR FAILING TO INVESTIGATE AND PRESENT EVIDENCE
THAT 	INMATE 	ERIC 	GIRDY 	MURDERED 	EARL 	ELDER 	AND 	FOR
FAILING 	TO 	INVESTIGATE 	AND 	CALL 	INMATES 	MICHAEL
TROCODARO AND THOMAS ANTHONY TAYLOR AS EXCULPATORY
WITNESSES.”
{¶ 16} Skatzes claims that he was denied the effective assistance of counsel because
his attorneys did not investigate and present evidence that another inmate, Eric
Girdy, had murdered Earl Elder or had witnessed Elder’s murder and did not call
inmates Michael Trocodaro and Thomas Anthony Taylor as exculpatory witnesses.
{¶ 17} As the state points out, Skatzes did not argue in his petition that his attorneys
should have called Girdy as a witness to Elder’s murder. He argued only that
counsel did not adequately pursue and present evidence that Girdy had actually
committed the murder. Because it was not raised in the trial court, Skatzes has
waived the former argument.
{¶ 18} The state presented evidence at trial that Elder had been attacked three times
in the early hours of the riot: once in the stairwell to which he fled with one of the
guards as the riot began and twice hours later in cell L–6–60. In all, Elder received
163 stab wounds, as well as many other injuries, in these attacks, and numerous
inmates were involved. Skatzes was implicated in the second attack, and Girdy
seems to have been implicated in the third attack. Many of Elder’s stab wounds
were superficial, but several caused injuries that could have been fatal. During
Elder’s autopsy, glass was found in one of his more serious wounds.
{¶ 19} In support of his argument that counsel was ineffective in failing to discover
and present evidence that Girdy had killed Elder, Skatzes relied on evidence that
included 	an 	affidavit 	from 	attorney 	Alice 	Lynd, 	who 	assisted 	counsel 	in
representing Skatzes in the postconviction proceedings; the coroner’s autopsy of
Earl Elder; and affidavits from defense counsel, attached to which was a copy of
Girdy’s indictment for the aggravated murder of Earl Elder.
{¶ 20} According to Lynd, Girdy admitted to her that he had killed Elder by
stabbing him with a piece of glass. Skatzes claims that this exculpatory evidence,
coupled with the autopsy report indicating that glass was found in one of Elder’s
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more serious wounds would have changed the outcome of his trial. He also claims
that Girdy’s subsequent indictment for Elder’s murder proves that he was
prejudiced by counsel’s failure to investigate Girdy.
{¶ 21} The trial court concluded that the evidence presented regarding Girdy did
not support postconviction relief based on the ineffective assistance of counsel. We
agree. As the trial court noted, there is nothing in the record to suggest that trial
counsel should have known about Girdy’s purported involvement at the time of
Skatzes’ trial. Lynd’s interview with Girdy occurred much later, and Skatzes’
petition did not point to any reason why counsel should have suspected that an
interview with Girdy would be helpful to their case. Hindsight is not permitted to
distort the assessment of what was reasonable in light of counsel’s perspective at
the time, and counsel’s actions were not objectively unreasonable if there was no
basis to suspect Girdy’s alleged involvement.
{¶ 22} Skatzes also asserts that the state’s subsequent indictment of Girdy in 2005
for Elder’s murder supports his theory that his attorneys were ineffective and
contradicts the state’s theory in his own case. The trial court properly concluded,
however, that Girdy’s subsequent indictment did not show that Skatzes had been
wrongly convicted or that he had been denied the effective assistance of counsel.
The fact that Girdy may have been involved in these attacks, even if he inflicted a
potentially fatal blow, does not preclude the conclusion that Skatzes was also
culpable for Elder’s murder.
{¶ 23} Moreover, the trial court noted that Lynd’s and Girdy’s affidavits were
inconsistent. In Girdy’s affidavit, he stated that, after some other attacks on Elder,
inmates Tim Williams, Doc Ellis, and two other men punched Elder and stabbed
him with a piece of glass, after which he “became quiet.” In other words, Girdy
implied that Williams, Ellis, and two other men inflicted the fatal blows. Lynd
claims that, in her interview with Girdy, he admitted that he was one of the “other
men.” These inconsistencies call Girdy’s credibility into question and cast doubt on
whether Girdy would have been a helpful witness at trial.
{¶ 24} Skatzes also contends that the trial court erred in failing to hold a hearing
on his claims that his counsel was ineffective in failing to call inmates Michael
Trocodaro and Thomas Anthony Taylor to testify on his behalf. Skatzes claims that
both men were in a position to witness the events in cell L–6–60, where Elder was
killed on the first night of the riot.
{¶ 25} Trocodaro stated by affidavit that Skatzes did not enter Elder’s cell on L-
block. He claimed that only Roger Snodgrass had been involved in the first attack
in the cell and that inmate Lucky Roper and a few other inmates inflicted the final
blows in a later attack. Trocodaro claimed that Skatzes was protecting inmates in
L-block, including Elder, rather than harming anyone. These claims contradicted
the statements Trocodaro made to Highway Patrol officers shortly after the riot, in
which he provided a version of events consistent with the state’s evidence at trial.
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Specifically, in May 1993, Trocodaro had reported seeing Skatzes escorting
Snodgrass to Elder’s cell and holding the door while Snodgrass stabbed Elder.
Skatzes’ trial attorney stated by affidavit that he had spoken with Trocodaro before
trial, but Trocodaro not did provide information that called into doubt Skatzes’
involvement in Elder’s murder.
{¶ 26} Based on Skatzes’ evidence with respect to Trocodaro, the trial court
properly 	concluded 	that 	ineffective 	assistance 	of 	counsel 	had 	not 	been
demonstrated. Because there is no evidence that Trocodaro told a version of events
exonerating Skatzes prior to Skatzes’ trial, trial counsel’s conduct did not fall below
an objective standard of reasonableness in failing to call Trocodaro as a witness or
to further investigate him. Moreover, considering the starkly inconsistent stories
told by Trocodaro in May 1993 and in his affidavit, there is no reasonable
probability that Trocodaro’s testimony would have been deemed so reliable as to
have affected the outcome of the trial.
{¶ 27} Similarly, Taylor’s affidavit asserts that Skatzes did not enter Elder’s cell
the day Elder was killed. However, like Trocodaro, Taylor gave statements in the
months after the riot that were consistent with the state’s evidence at trial that
Skatzes and Snodgrass had attacked Elder in cell L–6–60. Because Taylor had made
statements prior to trial that incriminated Skatzes, trial counsel’s conduct did not
fall below an objective standard of reasonableness in failing to further investigate
Taylor as a potentially helpful witness.
{¶ 28} Finally, we address Skatzes’ assertion that the trial court was bound to
presume that Girdy’s, Trocodaro’s, and Taylor’s affidavits were truthful under the
authority of Calhoun, 86 Ohio St.3d at 284, 714 N.E.2d 905. Skatzes implies that
the court was unduly skeptical of these affidavits in reviewing his petition for
postconviction relief. “However, not all affidavits accompanying a postconviction
relief petition demonstrate entitlement to an evidentiary hearing, even assuming the
truthfulness of their contents. Thus, where a petitioner relies upon affidavit
testimony as the basis of entitlement to postconviction relief, and the information
in the affidavit, even if true, does not rise to the level of demonstrating a
constitutional 	violation, 	then 	the 	actual 	truth 	or 	falsity 	of 	the 	affidavit 	is
inconsequential.” (Citations omitted.) Id. The trial court was confronted with this
exact situation. Even if the substance of the affidavits was true, the affidavits did
not establish that trial counsel committed errors that affected the outcome of the
trial 	or 	that 	counsel’s 	representation 	fell 	below 	an 	objective 	standard 	of
reasonableness. Accordingly, Skatzes was not entitled to postconviction relief on
these bases.
{¶ 29} The second assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387, ¶¶ 14-29.
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Respondent argues that the parts of Ground Seven pertaining to Anthony Taylor and Eric
Girdy are procedurally defaulted. (Return of Writ, ECF No. 31 at PageID 444-45). Respondent
argues that the part of Ground Seven concerning counsels’ failure to call Anthony Taylor as a
witness is procedurally defaulted because Common Pleas Court found that it was barred by res
judicata. However, “[t]o determine whether a state procedural rule was applied to bar a habeas
claim, [a federal habeas court] look[s] to the last reasoned state court-decision disposing of the
claim.” Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013) (internal citations omitted). The
last reasoned decision here, that of the Second District, made no mention of res judicata in
connection with Anthony Taylor and reviewed this part of Ground Seven on the merits.
On the other hand, the Second District Court of Appeals did find that the part of Ground
Seven concerning trial counsels’ failure to call Eric Girdy as a witness was waived because it was
not presented to the Court of Common Pleas. (ECF No. 70-7 at PageID 10914). The Second
District Court found that Skatzes only presented a claim to the lower court that his counsel failed
to present evidence that Eric Girdy murdered Earl Elder (Id.). Because the Second District
enforced a state procedural rule with which Skatzes failed to comply, this part of Ground Seven is
procedurally defaulted. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994) (“Waiver is an adequate
and independent state ground to bar habeas review.”).
Skatzes makes an argument that the part of Ground Seven concerning Kenneth Law should
be reviewed de novo because the state courts overlooked it. (Traverse, ECF No. 42 at PageID 748).
The Court disagrees. The state courts did not overlook an argument concerning Law; Skatzes never
presented it. No argument that his counsel failed to investigate Law or call him as a witness appears
in Skatzes’ postconviction petition or his brief to the Second District. (Postconviction Petition,
ECF No. 68-7 at PageID 8043-45, 8048-49; Appellant’s Brief, ECF No. 70-1 at PageID 9957-
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9963). In fact, Skatzes has procedurally defaulted this part of Ground Seven. See Sowell v.
Bradshaw, 372 F.3d 821, 830 (6th Cir. 2004) (holding it is not inappropriate for the district court
to raise procedural default sua sponte); see also Lorraine v. Coyle, 291 F.3d 416 (6th Cir.), opinion
corrected on denial of reh’g, 307 F.3d 459 (6th Cir. 2002) (§ 2254 capital case); White v. Mitchell,
431 F.3d 517, 514 (6th Cir. 2005) (capital case). “Fair presentation requires that the state courts
be given the opportunity to see both the factual and legal basis for each claim.” Hooks v. Sheets,
603 F.3d 316, 320 (6th Cir. 2010). Skatzes did not provide the state courts with the legal and
factual basis of his claim pertaining to counsels’ failure to call Kenneth Law as a witness, and thus
it is procedurally defaulted.11 In any event, as discussed below the Court finds that all of Ground
Seven lacks merit.
Skatzes alleges in his petition that his trial counsel were ineffective for failing to present
evidence that Eric Girdy killed Earl Elder and in failing to call Girdy as a witness at trial. (Petition,
ECF No. 25 at PageID 283-85). Skatzes argues that his trial counsel were on notice that Girdy
could have had exculpatory information and it was objectively unreasonable for them to fail to
investigate him or call him as a witness. (Traverse, ECF No. 42 at PageID 746).
The record reflects that Eric Girdy gave an interview to OSHP on August 25, 1993. (ECF
No. 68-8 at PageID 8194). During the interview, Girdy admitted to murdering inmates Farrell and
Svette, but took no responsibility for the death of Earl Elder. (Id.). Girdy told the OSHP that Roper
and Bocook killed Elder. (Id.).
Skaztes attached an affidavit to his postconviction petition from one of his attorneys, Alice
Lynd. (ECF No. 69 at PageID 8855-8859). Lynd interviewed Eric Girdy at Ohio State Penitentiary
11 	Although no argument was made in Skatzes’ postconviction petition concerning his counsels’ failure to call
Kenneth Law as a witness, Law’s affidavit was presented to the postconviction court. For this reason, the Court is not
prohibited by Pinholster from considering it in a merits review.
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on August 9, 2000, with the intent of obtaining favorable information for Skatzes’ postconviction
proceedings. (Id.). According to Lynd’s affidavit, during the interview, Girdy said that “Skaztes
did not have anything to do with killing Elder.” (Id.). Lynd asserted that Girdy told her that Elder
was killed by Doc Ellis, Tim Williams, and “another guy,” using a piece of glass from the officers’
bathroom. (Id.). Girdy admitted to Lynd that he was the “other guy.” (Id.). Lynd’s affidavit is dated
August 16, 2000. (Id. at PageID 8859).
A little more than three years later, on September 21, 2003, Eric Girdy executed an affidavit
that was also attached to Skatzes’ postconviction petition. (ECF No. 69-1 at PageID 8907-10).
Girdy claimed that he witnessed the death of Earl Elder on April 12, 1993, and Skatzes was not
involved. (Id.). According to Girdy’s affidavit, he was standing at “front of the block” when he
saw Williams, Ellis, and “two other men” stab Elder with a piece of broken glass. (Id.). Girdy’s
affidavit does not admit to his participation in the murder.
Girdy was indicted in Scioto County on October 11, 2005, for the aggravated murder of
Elder. (ECF No. 68-9 at PageID 8400-01). On June 6, 2006, he plead guilty to the reduced charge
of murder and received a sentence of fifteen years to life. (ECF No. 68-10 at PageID 8586-8589).
In opposition to Skatzes’ postconviction petition, Respondent presented evidence that
Anthony Taylor gave interviews to the OSHP on July 20, 1993, and on March 14, 1994. (ECF No.
68-9 at PageID 8383-84). Taylor told the OSHP, “Carlos Sanders told guys to finish off Elder in
L-6-60” and then he saw George Skatzes and Roger Snodgrass go in the cell and come back out.
(Id. at PageID 8384). In an affidavit dated September 27, 2003, and attached to Skatzes’
postconviction petition, (ECF No. 69 at PageID 8851-52), Taylor asserted that Skatzes was not in
L-6 “at all.” (Id.) He attested that he saw Roger Snodgrass and one or two other people, not
including Skatzes, enter Elder’s cell and attack him, but Elder was alive after they left. (Id.).
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According to Taylor’s affidavit, thirty minutes later he saw seven or eight people, not including
Skatzes, drag Elder from his cell. (Id.).
Respondent presented evidence to the postconviction court that Michael Trocadoro gave a
statement to the OSHP on May 3, 1993. (ECF No. 68-9 at PageID 8383). Trocadoro said:
I seen inmate Skatzes come in and open up the door to L-6-60. I saw Snodgrass—
he went in and told Earl Elder you got 5 minutes to live, make peace with God. I
hear him hit him four or five times with a knife or something. …Skatzes had a long
steel rod. He opened up the door for Snodgrass to go in.
(Id.) Trocadoro gave another interview on July 13, 1993, where he gave a substantially similar
account. (Id.).
Skatzes attached two affidavits from Trocadoro to his postconviction petition—one dated
March 18, 1999 (ECF No. 69-1 at PageID 8911-13) and one dated September 4, 2003. (ECF No.
69 at PageID 8848-50). In his 1999 affidavit, Trocadoro claimed that around 10:00 p.m. on the
first night of the riot, he saw Roger Snodgrass go into L-6-60, tell Elder, “you got 5 minutes to
make your peace with God,” and then Trocadoro heard blows. (ECF No. 69-1 at PageID 8912).
Trocadoro swore in the 1999 affidavit that a couple of hours later, a group of black prisoners,
including Lucky Roper and Tim Williams came out of L-6-60 with Elder’s dead body on a blanket.
(Id.).
In Trocadoro’s 2003 affidavit he swore again that he witnessed the murder of Earl Elder.
(ECF No. 69 at PageID 	8848-50). Trocadoro’s 2003 affidavit asserted that he saw Snodgrass,
alone, enter Elder’s cell, tell him to “make your peace with God,” and stab him. (Id. at PageID
8849). Trocadoro swears that Snodgrass left Elder alive until Lucky Roper and three other
guys, none of whom were Skatzes, followed Loper’s instructions to “put Elder out of his misery.”
(Id.).
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Kenneth Law’s affidavit is dated September 19, 2003. (ECF No. 69-1 at PageID 8967-70).
He asserted that he saw Roger Snodgrass, Lucky Roper, Tim Williams, and Sterling Barnes kill
Earl Elder. (Id. at PageID 8968). Law asserted that the OSHP interview summary stating he said
that Skatzes was involved in Elder’s murder is “utterly false.” (Id.).
Skatzes’ trial counsel, Jeffrey Kelleher, and Robert Dixon, also filed affidavits with
Skatzes’ postconviction petition. (ECF No. 69 at PageID 8750-64). Kelleher asserted that he
interviewed Trocadoro, but did not call him as a witness at trial. (Id. at PageID 8753). Kelleher
further asserted that he did not interview Girdy. (Id.). Kelleher’s affidavit does not mention Taylor
or Law in connection with the Earl Elder murder. Dixon’s affidavit mirrors Kelleher’s. (Id. at
PageID 8760).
The Second District’s dismissal of the ineffective assistance of trial counsel claims in
Ground Seven is not an unreasonable application of Strickland. The Sixth Circuit has explained:
[H]indsight bias is the very thing that Strickland’s deferential
standard counsels against: in assessing attorney performance after
the fact, we must make “every effort ... to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s
challenge[d] conduct, and to evaluate the conduct from counsel's
perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052
(emphasis added). And given Strickland’s objective standard of
reasonableness, the subjective, post-hoc views of trial counsel are
simply not relevant considerations.
Hale v. Cool, 122 F.4th 637, 649 (6th Cir. 2024).
The record contains no indication that Skatzes’ counsel knew before trial that Eric Girdy
was involved in Elder’s murder or would have provided favorable testimony as a witness. In fact,
the record reveals the opposite. Girdy withheld information about his involvement in the murder
at least until he privately confessed to Skatzes’ attorney in August 2000, and officially withheld
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his involvement until he pled guilty in 2006. Girdy did not even acknowledge his involvement in
the Elder murder when he executed his affidavit for Skatzes’ postconviction petition in 2003.
This raises the next issue with Girdy’s potential testimony. He told three different stories
about what occurred—one to OSHP, one to Alice Lynd, and one in his 2003 affidavit. The different
stories to Alice Lynd and in his 2003 affidavit were simultaneously submitted by Skatzes to the
postconviction court. As noted by the Second District Court of Appeals, Girdy’s multiple stories
and vulnerability to impeachment “cast[] doubt” on his viability as a favorable witness at trial.
The record also reflects that Taylor, Trocadoro, and Law gave statements to the OSHP that
implicated Skatzes, which they recanted in their postconviction affidavits. There is no proof in the
record that Skatzes’ counsel had information that any of these three witnesses before trial had
favorable information to offer. And, like Girdy, all three of these witnesses would have been
vulnerable to impeachment on cross-examination because their original statements to the OSHP
were consistent with the state’s theory about how the Elder murder occurred.
Moreover, all the witnesses offered by Skatzes in Ground Seven present different stories
about how Elder was murdered and those stories have evolved over time. Calling these witnesses
would have left Skatzes’ counsel without the ability to present a believable and cohesive theory to
the jury on how Elder’s murder occurred. It also would have likely damaged Skatzes’ credibility
because Skatzes testified to yet another, divergent story about Elder’s death during the defense’s
case in chief.12 Even if counsel had known the witnesses were willing to change their OSHP
statements, it would not have been ineffective to strategically forgo calling them at trial.
12 	Skatzes testified that when he first saw Elder he was in the L-6 shower and “near dead,” but still breathing.
Skatzes testified that he went to the gym and got Charles Parker and Roger Snodgrass so they could move Elder to the
yard. When they returned to L-6, Elder was in cell L-6-60 and was dead. (ECF No. 74-10 at PageID 19381-19387).
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Considering this record, the Court cannot say that the Second District Court of Appeals
was unreasonable in concluding Skatzes failed to prove his counsel were deficient or that he was
prejudiced because they failed to call any of the proffered witnesses at trial. Skatzes failed to prove
that his counsel had favorable evidence before trial that these witnesses could have credibly offered
to change the outcome. Ground Seven is without merit and is dismissed.
Ground Eight
In Ground Eight, Skatzes contends that the prosecution violated Brady v. Maryland, 373
U.S. 83 (1963), by failing to disclose to the defense favorable statements from Michael Trocadoro,
Jack Spurlock, and Tim Williams. (Petition, ECF No. 25 at PageID 286-88). Skatzes raised Ground
Eight in his postconviction petition as grounds for relief eight, nine and ten. (Postconviction
Petition, ECF No. 68-7 at PageID 8052-57). When Skatzes appealed the denial of his
Postconviction Petition, he appealed grounds nine and ten, only, as Assignment of Error No. 3.
(Appellant’s Brief, ECF No. 70-1 at PageID 9963-9965). The Second District Court of Appeals
affirmed the denial, concluding:
{¶ 31} “THE TRIAL COURT ERRED IN REJECTING PETITIONER'S NINTH
AND TENTH GROUNDS FOR RELIEF THAT THE STATE WITHHELD
FROM TRIAL COUNSEL IMPEACHING AND EXCULPATORY EVIDENCE
REGARDING ELDER’S MURDER.”
{¶ 32} Under the ninth ground for relief in Skatzes’ petition, he asserted that the
state had withheld evidence—namely, statements made by inmate Tim Williams—
which would have exonerated him or allowed him to impeach Williams at trial.
Under Skatzes’ tenth proffered ground for relief, he claimed that the state failed to
provide exculpatory evidence from inmate Jack Spurlock’s statements to the
highway patrol. Skatzes relies on Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215, which requires the state to disclose exculpatory evidence to
the defense.
{¶ 33} When he was first interviewed by the highway patrol after the riot, Williams
denied having seen anything related to the murder of Earl Elder. Later, he made a
statement incriminating Skatzes and another inmate, Jason Robb. Skatzes claims
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that his conviction should be vacated because he did not receive a copy of the
statement Williams initially made to the highway patrol.
{¶ 34} Skatzes’ attorneys had been provided with the transcript of Jason Robb’s
trial, and they relied on it in preparing for Skatzes’ trial. It was clear from Williams’
testimony in both cases that he had given conflicting accounts to the highway
patrol—first denying any knowledge of Elder’s murder in L–6–60 and later
implicating Skatzes in the killing. Because it is clear that Skatzes’ attorneys were
aware of the conflicting statements when they questioned Williams at trial, the trial
court properly concluded that a claim based on Brady was barred by res judicata;
such a claim could have been raised on direct appeal. The court also correctly
concluded that there could have been no prejudice under these circumstances. Thus,
Skatzes’ argument is without merit.
{¶ 35} With respect to Spurlock, the summaries of highway patrol interviews
provided to the defense before trial indicated that Spurlock had implicated Williams
in Elder’s murder. Counsel for postconviction relief contends that he did not receive
copies of the full statements from previous counsel. Skatzes contends that this
would have been “powerful impeachment and exculpatory evidence.”
{¶ 36} Based on the cross-examination at trial, the trial court concluded that trial
counsel were, in fact, familiar with the content of Spurlock’s statement to the
highway patrol. Thus, the trial court concluded that the state had complied with
Brady and had provided Skatzes’ trial counsel with the statement, even if his
subsequent attorneys did not receive it. The affidavits from trial counsel do not
indicate that they did not receive Spurlock’s statements. Because trial counsel was
familiar with the exculpatory evidence, Skatzes has not demonstrated a Brady
violation, and the court properly concluded that Skatzes’ objection to the
evidentiary issue was barred.
{¶ 37} The third assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387, ¶¶ 31-37.
Respondent argues that Ground Eight is procedurally defaulted in its entirety. (Return of
Writ, ECF No. 31 at PageID 531-33). Respondent argues that Skatzes failed to appeal his
postconviction claim concerning Michael Trocadoro’s statement to the Second District Court of
Appeals, and the remaining two statements from Spurlock and Williams were dismissed by the
Second District Court of Appeals as barred by res judicata. (Id.).
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The Court agrees that the part of Ground Eight concerning Trocadoro’s statement is
procedurally defaulted. The record reflects that Skatzes raised this claim in his postconviction
petition as ground eight (Postconviction Petition, ECF No. 68-7 at PageID 8052-53), but he failed
to appeal the denial of the claim to the Second District Court of Appeals or the Ohio Supreme
Court. See Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (finding that, in circumstances
where the petitioner has failed to present a claim in state court, a habeas court may deem that claim
procedurally defaulted because the Ohio state courts would no longer entertain the claim). In any
event, as discussed below, this part of Ground Eight would be dismissed for lack of merit even if
it was not procedurally defaulted.
The Court disagrees, however, that the remainder of Ground Eight is barred by res judicata.
The record reflects that Skatzes’ Brady claim could not have been adjudicated on direct appeal
without evidence de hors the record. The cross-examination by Skaztes’ trial counsel of Tim
Williams never directly references the prior witness statements.13 (See ECF No. 73-22 at PageID
17205-08, 17178, 17195-96). Indeed, the Second District Court relied on evidence outside the
record provided by the parties to the postconviction court when it determined that the evidence
had not been suppressed, including the transcript of the Jason Robb trial, summaries of the OSHP
interviews, and affidavits from trial counsel. Because the merits of Skatzes’ Brady claim could not
13 	Skatzes’ trial counsel asked Tim Williams to identify photos of Tony Taylor, Billy Browner, and Jack
Spurlock and asked if these witnesses were present when Elder was killed. (ECF No. 73-22 at PageID 17203-06). The
state objected to the line of questioning and the defense responded that their good-faith basis for the questioning was
“interviews with these inmate witnesses.” (Id. at PageID 17206-08). The trial court sustained the objection. This
passage from the trial transcript does not reference whether counsel was in possession of Spurlock’s May 5, 1993, or
July 28, 1993, interview. Nor does the content of the cross-examination of Williams unequivocally suggest that
counsel was in possession of these two interviews. The transcript of the cross-examination of Williams also includes
no references to his May 26, 1996, interview. While counsel was questioning Williams about his September 22, 1993,
interview with OSHP, Williams spontaneously admitted to counsel that he told OSHP “the first time” that he “didn’t
see, hear, or know anything, period.” (Id. at PageID 17195-96).
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be reached solely on the trial record, the first part of the Maupin test is not satisfied and this part
of Ground Eight is not procedurally defaulted. Maupin, 785 F.2d at 138.14
A Brady claim arises when (1) there is evidence favorable to the accused, “either because
it is exculpatory or because it is impeaching”; (2) that evidence was “suppressed by the State,
either willfully or inadvertently”; and (3) “prejudice must have ensued.” Strickler v. Greene, 527
U.S. 263, 281–82 (1999). The Brady obligation applies even to “evidence known only to police
investigators” and thus imposes on prosecutors “a duty to learn of any favorable evidence known
to the others acting on the government’s behalf ... including the police.” Id. at 280–81, (internal
quotation marks omitted). Brady thus applies to relevant evidence in the hands of the police,
whether the prosecutors knew about it or not, whether they suppressed it intentionally or not, id.,
and whether the accused asked for it or not, id. at 280; accord United States v. Agurs, 427 U.S. 97,
107 (1976), holding modified by United States v. Bagley, 473 U.S. 667 (1985).
The prejudice analysis under Brady evaluates the materiality of the evidence. “Evidence is
material under Brady if a reasonable probability exists that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Jells v. Mitchell, 538 F.3d 478,
501 (6th Cir. 2008), writ denied, 2011 WL 1257306 (N.D. Ohio Mar. 31, 2011). “The question is
not whether the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419 (1995).
On habeas review, Skatzes’ claim must be examined through “the dual lens of AEDPA and
Brady. The two standards work ‘in tandem.’” Chinn v. Warden, Chillicothe Corr. Inst., 24 F.4th
1096, 1103 (6th Cir. 2022) (citing Harrington, 562 U.S. at 105).
14 	Because the Second District alternatively reviewed the merits of Ground Eight, AEDPA deference applies.
See Brooks, 513 F.3d at 624–25 (6th Cir. 2008).
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[The habeas court does not] ask whether the new evidence creates
“a reasonable probability of a different result.” Instead, [the habeas
court asks] whether any fairminded judge could agree with the state
court’s Brady assessment….so long as the state courts reach a
decision 	that 	reasonably 	applies 	Supreme 	Court 	precedent—
however deficient some of the court’s reasoning might be—[the
habeas court] must deny the writ.
Id. (internal citations omitted). Skatzes’ Brady claim fails because he cannot meet this standard.
In his postconviction petition, Skatzes relied on Michael Trocadoro’s affidavit as proof that
he provided favorable information to the OSHP that was suppressed by the prosecution.
(Postconviction Petition, ECF No. 68-7 at PageID 8052-8053). Trocadoro’s averred:
The highway patrol interviewed me several times after the surrender. I also took a
polygraph. I said Snodgrass killed Elder. The man who administered the polygraph
told me I was a liar. He said Lucky Roper killed Elder. I said he was wrong. Then
Officer Phillip Long apologized for the polygraph administrator and said Skatzes
killed Elder. I said he was wrong.
(ECF No. 69-1 at PageID 8913). Respondent attached an affidavit to its opposition to Skatzes’
Postconviction Petition from Howard Hudson. (ECF No. 68-8 at PageID 8192-98). Hudson’s
affidavit contained a summary of the tape-recorded statements Trocadoro gave to the OSHP:
6. Inmate Michael Trocadoro was interviewed on May 3, 1993, in interview number
33. In this interview he said “I seen Skatzes come in and open the door to L-6-60.
I saw Snodgrass—he went in and told Earl Elder you got 5 minutes to live, make
peace with God. I hear him hit him four or five times with a knife or something.”
At page 6 of this same interview he said, “Skatzes had a long steel rod. He opened
the door and let Snodgrass go in.”
7. Inmate Michael Trocadoro was re-interviewed on July 13, 1993, in interview
number 866. At page 15 of side B of the interview tape, Trocadoro stated, I talked
to George (Skatzes) off and on all day. Around 9 to 10 at night George came down
with a long key. And then Snodgrass slides into L-6-60. He tells Elder you have 5
minutes to make your peace with God. At page 16 he states, “George is holding the
door, he pulled it real wide and Snodgrass goes under George’s arm…I see
Snodgrass making stabbing motions. Thirty seconds later George closes the door
and they walk off.
(Id. at PageID 8193).
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Even if Skatzes had not procedurally defaulted the part of Ground Eight concerning
Trocadoro’s statement, it would be dismissed for lack of merit. The Trocadoro statements that
Skatzes contends were suppressed were not favorable because they were not exculpatory.
Trocadoro’s May 3, 1993, and July 13, 1993, statements were consistent with Roger Snodgrass’
and Tim Williams’ testimony about how Elder’s murder occurred. The statements do not exonerate
Skatzes and corroborate the prosecution witnesses’ testimony that Skatzes escorted Snodgrass to
Elder’s cell for the purpose of murdering Elder.
The record reflects that the remainder of Ground Eight lacks merit because the Second
District Court of Appeals was not unreasonable for concluding that the Spurlock and Williams’
statements were not suppressed.
Tim Williams was interviewed by the OSHP on May 26, 1993. (ECF No. 68-8 at PageID
8195). In the interview, he said, “he did not see any assaults…[he] saw assault victims but no
suspects.” (Id.). During Skatzes’ trial, his counsel acknowledged during a pretrial hearing that they
had received a copy of the trial transcript from Jason Robb’s trial. (ECF No. 73-3 at PageID 13941-
44). Skatzes attached relevant portions of the Robb transcript including the testimony of Tim
Williams to his postconviction petition:
Q: 	On May 26th , Sir, isn’t it true that you told Ohio State
Highway Patrol that you did not see any assaults but was
recruited to go out into the yard and get food, you saw assault
victims, but no suspects. You saw victims, but no suspects.
Isn’t it true you told them that on May 26th of 1993?
Williams: 	It was asked of me, and I was recruited to do anything. That
was the only thing I was recruited to do is get some food.
Q: 	Okay. You admit that you told them that you were recruited
to get food?
Williams: 	Yes, I did.
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Q: 	But you also denied to them seeing any assaults. You saw
assault victims, you said, but you did not see any suspects
correct?
Williams: 	That’s correct.
(ECF No. 69 at PageID 8795-99).
Skatzes’ trial counsel had knowledge of the contents of Williams’ May 26, 1993, statement
before his trial. Counsel had Williams’ sworn testimony that he had originally denied to the OSHP
that he saw any assaults and could have used this testimony to impeach Williams at his trial, but
did not need to, because Williams spontaneously admitted during his cross-examination that he
told OSHP “the first time” that he “didn’t see, hear, or know anything, period.” (ECF No. 73-22
at PageID 17195-96).
The Second District’s conclusion that the prosecution did not suppress the Williams’
statement was not unreasonable. A prosecutor violates his constitutional duty of disclosure only if
“his omission is of sufficient significance to result in the denial of defendant’s right to a fair trial,”
United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting Agurs, 427 U.S. at 108), and
where the defendant was aware of the essential facts that would allow him to take advantage of
the exculpatory evidence, the government’s failure to disclose it did not violate Brady. Coe v. Bell,
161 F.3d 320, 344 (6th Cir. 1998). If the person on trial knows or should have known the crucial
information, there is really nothing for the government to disclose Clark v. Abdallah, 131 F.4th
432, 455 (6th Cir. 2025)(internal citations omitted). Here, Skatzes’ trial counsel had the essential
facts of Williams’ May 26, 1993, statement from Williams’ testimony in the Robb trial, which
could have been used to impeach Williams at Skatzes’ trial. But, as noted above, impeachment
was unnecessary because Williams admitted during his testimony that he told the OSHP “the first
time” that he saw nothing.
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The record reflects that Skatzes’ trial counsel also had the essential facts of Jack Spurlock’s
statements before trial. According to Howard Hudson’s affidavit:
14. Inmate Jack Spurlock was initially interviewed on May 5, 1993, in interview
number 644. In this interview he said he was not a snitch and would not talk to
investigators even if they furnished an attorney. He was later re-interviewed in
interview number 896 on July 28, 1993. In this interview, he said that inmate
Michael Ellis entered L-6-60 and attacked inmate Elder. He also said Inmate
Timothy Williams entered L-6-60 on two occasions and attacked Elder. On August
3, 1993, Spurlock was given a polygraph, assigned interview number 922, and
determined to be lying about inmates Ellis and Williams participating in the murder
of Earl Elder. On October 27, 1993, in interview number 1170, the information
provided by inmate Spurlock was deemed false through the use of polygraph and
subsequent interview.
(ECF No. 68-8 at PageID 8195). Skatzes’ postconviction petition alleged that his trial counsel
were provided with a summary of inmate interviews before trial. (Postconviction Petition, ECF
No. 68-8 at PageID 8138-40). Skatzes attached the summary (in pertinent part):
Victim’s Name 	Information Regarding Incident 	Suspect’s
Name
Interview
No.
Earl Elder 	Inmate 	Jack 	Spurlock 	said 	that
inmate Timothy Williams entered L-
6-60 and attacked Earl Elder on two
occasions
Timothy
Williams
896
Earl Elder 	Inmate Jack Spurlock on a second
interview 	confirmed 	that 	inmate
Timothy Williams killed Earl Elder.
Timothy
Williams
897
Earl Elder 	Witness 	information 	was 	deemed
false through the use of polygraph
and subsequent interview
Timothy
Williams
1170
(ECF No. 69-1 at PageID 8915, 8717).
Skatzes argued in his postconviction petition that a Brady violation occurred because he
received the summaries in lieu of the interviews themselves. (Postconviction Petition, ECF No.
68-8 at PageID 8138-40). However, Skatzes’ trial counsel knew before trial that Jack Spurlock
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had accused Timothy Williams of killing Earl Elder during two interviews with OSHP. Coe, 161
F.3d at 344. Skatzes has not demonstrated that he was prejudiced by not receiving the actual
statements.
Skatzes has failed to demonstrate that the prosecution suppressed the Williams or Spurlock
statements. The record reflects that his counsel, in fact, had knowledge of the essential facts needed
to take advantage of any favorable information from these statements. Notably, the affidavits from
Skatzes’ trial counsel make no allegation that the Williams or Spurlock statements were
suppressed. (ECF No. 69 at PageID 8750-8764).
Skatzes has also not demonstrated that he was prejudiced. As discussed above, Williams
admitted during his trial testimony that he originally gave an inconsistent statement to the OSHP,
obviating the need for impeachment. Spurlock implicated Williams in the Elder murder, but
Skatzes offers no proof that Spurlock would have been willing to repeat the accusation under oath
at his trial or that his counsel would have called him as a witness. The fact that Spurlock failed the
OSHP polygraph suggests that Spurlock could have been a very risky witness for the defense. The
unknown potential for impeachment or rebuttal evidence may have seriously damaged the
credibility of Skatzes’ defense.
Skatzes has failed to establish the elements of a successful Brady claim. Ground Eight is
without merit and is dismissed.
Ground Nine
In Ground Nine Skatzes contends that the evidence was insufficient to sustain his
conviction for the aggravated murder of Earl Elder. (Petition, ECF No. 25 at PageID 288-90).
Skatzes raised Ground Nine on direct appeal as Proposition of Law No. 38. (Appellant Brief, ECF
No. 67-7 at PageID 5510-5511). The Supreme Court of Ohio issued the last reasoned decision:
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{¶ 136} With regard to the murder and kidnapping of Earl Elder, the state’s
evidence showed that during the initial stages of the takeover, C.O. Jeffrey Ratcliff
and inmate Elder fled to the locked rear stairwell in L2. Inmates retrieved Ratcliff
and Elder from the stairwell and then beat them. Elder was thereafter locked in a
cell in L6.
{¶ 137} Inmate Snodgrass testified that on the first night of the takeover, after a
meeting with Muslim inmate Lucky Roper, Skatzes told Snodgrass, “We got to go
to L6.” At L6, Skatzes told Snodgrass, “I want you to take this guy out,” which
Snodgrass understood to mean that he was to kill someone. When Skatzes,
Snodgrass and Roper arrived at Elder’s cell, Skatzes told Snodgrass, “Go ahead and
take care of business, son.” After Snodgrass stabbed Elder a number of times, he
left the cell. Skatzes put his arm around Snodgrass and told him, “You did a good
job, brother, I am proud of you.”
{¶ 138} Snodgrass explained that he acted on Skatzes’s orders because he believed
that he would have been killed if he disobeyed an order from the Aryan
Brotherhood. Aryan by-laws were introduced in support of this claim. Roper later
told Snodgrass that Elder was not dead. When Snodgrass told Skatzes what Roper
had said, Skatzes told Snodgrass that he would “take care of it.” Inmate Tim
Williams corroborated most of Snodgrass’s testimony.
{¶ 139} This evidence was sufficient to support Skatzes’s convictions for the
kidnapping and aggravated murder of Elder. We reject proposition of law
XXXVIII.
Skatzes, 104 Ohio St. 3d at 222–23.
Skatzes argues that the Supreme Court of Ohio’s denial of his claim was unreasonable
because Snodgrass’ attack on Elder was unconnected to Elder’s death. (Traverse, ECF No. 42 at
PageID 764). Particularly, Skatzes argues that Snodgrass used an icepick to attack Elder and the
coroner testified that Elder’s fatal wounds were elongated and not inflicted by an icepick. (Id. at
PageID 767-68). Skatzes also argues that the Ohio Supreme Court got the facts wrong because it
concluded that Skatzes told Snodgrass “I’ll take care of it,” when the transcript reflects that this
statement was made by Lucky Roper. (Id. at PageID 769). Skatzes argues that he was prejudiced
by the erroneous factual conclusion because it suggests the Ohio Supreme Court believed that he
inflicted the final blows on Elder and not Roper. (Id.).
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The record reflects that the state offered testimony from the following witnesses to prove
the aggravated murder of Earl Elder: Jeffrey Ratcliff, Roger Snodgrass, Tim Williams, and Dr.
Larry Tate. Corrections officer Jeffrey Ratcliff testified that shortly after the riot began, he
retreated to the stairwell in the rear of the range where he was working. (ECF No. 74-9 at PageID
19149). Ratcliff testified that inmate Earl Elder followed him into the stairwell, ran up the stairs
and refused to get out. (Id. at PageID 19151-52). Eventually, a group of inmates broke into the
stairwell and grabbed Elder. (Id. at pid 19155-57). Ratcliff testified they, “started beating and
killing [Elder] right there” with knives, ball bats, and weight bars. (Id. at PageID 19157). Ratcliff
testified that when the inmates took him to the shower in L-6, Elder was still near the stairwell.
(Id. at PageID 19157-58).
Roger Snodgrass testified that on the first night of the riot he was smoking marijuana in
the gym when Skatzes came in and approached a man who he now knows to be Lucky Roper.
(ECF No. 74-4 at PageID 18395-96). Snodgrass testified that after Skatzes spoke to Roper he and
Snodgrass walked over to L-6 and Skatzes told Snodgrass that he wanted Snodgrass to “take this
guy out.” (Id. at PageID 18397). Snodgrass testified that they met Roper in the middle of L-6,
Roper used a key to open cell L-6-60, and Skatzes and Roper told him to “take care of business.”
(Id. at PageID 18397-98). According to Snodgrass, he went into the cell, asked the occupant who
he now knows to be Earl Elder if he believed in God and told him to say his peace with God, and
then stabbed him several times. (Id. at PageID 18398-400). Snodgrass testified that Elder was
moaning and still alive when Roper went in the cell and he and Skatzes left. (Id. at PageID 18400).
Snodgrass testified that when he and Skatzes left, Skatzes put his arm around him. (Id. at PageID
18401). Snodgrass testified that later, Roper returned to the gym and said that Elder was not yet
dead and then Roper said, “it’s cool, I will take care of it.” (Id. at PageID 18403).
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Tim Williams testified that on the first night of the riot he was staying in the back of L-6
when he saw Snodgrass, Lucky Roper, and Skatzes walk down the range and open cell L-6-60.
(ECF No. 73-22 at PageID 17035-36). Williams testified that he saw Snodgrass go into the cell,
heard him tell the occupant words to the effect of “make your peace with God,” and saw Snodgrass
stab the occupant repeatedly with an icepick. (Id. at PageID 	17036-37). Williams testified that
Roper and Skatzes were present during the stabbing (id. at PageID 17037-38) and after Snodgrass
and Skatzes left, Roper went back into the cell and stabbed the occupant four more times. (Id. at
PageID 17041-17042). Williams testified that he knew Earl Elder but did not recognize him during
the attack because he had been injured before it started. (Id. at PageID 17039-40).
Dr. Larry Tate performed the autopsy on Earl Elder. (ECF No. 74-7 at PageID 18849). Dr.
Tate testified that Elder suffered from one hundred sixty-three stab injuries, most of which were
superficial (Id. at PageID 18851-52). Dr. Tate testified that five of the stab wounds were potentially
lethal stab wounds to Elder’s chest. (Id. at PageID 18852). Dr. Tate also testified that Elder suffered
a number of blows to the head which could have been fatal over time. (Id. at PageID 18856). Dr.
Tate testified that the large chest wounds were caused by an elongated instrument and were less
likely to have resulted from an icepick. (Id. at PageID 18862). Dr. Tate testified that Elder’s cause
of death was multiple stab wounds into the vena cava and heart. (Id. at PageID 18859).
Skatzes makes the same argument in Ground Nine that he made to the Ohio Supreme Court
in Proposition of Law No. 38:
[E]ven if Skatzes intended that Snodgrass kill Elder, Snodgrass was unsuccessful.
The State’s two witnesses, Snodgrass and Williams heard Elder alive after George
Skatzes left the area. Both attribute the killing to Mr. Roper. The coroner’s
testimony supports this. Snodgrass used an icepick like weapon. Snodgrass was
killed by wounds from a knife with a wide blade.
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(Appellant Brief, ECF No. 67-7 at PageID 511). The Ohio Supreme Court implicitly rejected this
argument when it found that the evidence was sufficient to support a conviction for aggravated
murder. This Court is bound to defer to the Supreme Court of Ohio’s conclusions on matters of
state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“…a state court’s
interpretation of state law...binds a federal court sitting in habeas corpus.”)
Next, Skatzes argues that the Supreme Court of Ohio made an unreasonable determination
of the facts when it concluded:
{¶ 138} Snodgrass explained that he acted on Skatzes’s orders because he believed
that he would have been killed if he disobeyed an order from the Aryan
Brotherhood. Aryan by-laws were introduced in support of this claim. Roper later
told Snodgrass that Elder was not dead. When Snodgrass told Skatzes what
Roper had said, Skatzes told Snodgrass that he would “take care of it.” Inmate
Tim Williams corroborated most of Snodgrass’s testimony.
Skatzes, 104 Ohio St. 3d 195, ¶¶ 138. To be sure, the trial transcript confirms that Lucky Roper
indeed made this statement to Snodgrass, not Skatzes. (ECF No. 74-4 at PageID 18403). That said,
this error of fact is inconsequential to the sufficiency of evidence analysis.
The state’s theory was never that Skatzes personally killed Elder, but that he was complicit
in the murder. (ECF No. 74-12 at PageID 19707). Skatzes’ jury was instructed on the essential
elements to convict him of the aggravated murder of Earl Elder, including complicity and
conspiracy:
It is the prosecution’s theory of this case that this defendant purposefully committed
these offenses in conjunction with others. This is referred to as complicity.
***
Before you can find the defendant guilty, you must find beyond a reasonable
doubt…the defendant acting with the required culpable mental state for the
particular offense, number one solicited or procured another to commit the
offenses; number two, aided or abetted another in the committing of the offenses;
and/or three conspired with another to commit the offense.
***
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In order to find that the defendant conspired, you must find beyond a reasonable
doubt that on or about the dates charged, the defendant with purpose to commit
aggravated murder or kidnapping, either, one, planned with another person or
persons that one or more of them would engage in conduct which facilitated the
commission of the offense, or two agreed with another person or persons that one
or more of them would engage in conduct which facilitated the commission of such
an offense.
(ECF No. 74-13 at PageID 19868-71). The evidence presented at trial established that Skatzes,
Roper, and Snodgrass participated in a common plan to kill Earl Elder. Whether Snodgrass or
Roper inflicted the death blows with an icepick or some other weapon, the evidence is sufficient
to sustain Skatzes’ conviction for aggravated murder.
For these reasons, and considering the double deference owed to the jury and the Supreme
Court of Ohio, the Court finds that Ground Nine is without merit.
Grounds Six & Ten
In Ground Six, Skatzes asserts a freestanding claim for actual innocence of the murder of
David Sommers (Petition, ECF No. 25 at PageID 277-80), and in Ground Ten, Skatzes asserts a
freestanding claim for actual innocence of the murder of Earl Elder. (Petition, ECF No. 25 at
PageID 291-95). Skatzes raised Grounds Six and Ten through a motion for a new trial based on
new evidence filed with the Court of Common Pleas around the same time as his postconviction
petition. (Memorandum in Support of Motion for a New Trial, ECF No. 70-8 at PageID 11042-
11058). The last state court to address Ground Six and Ten, 15 was the Second District Court of
Appeals’ opinion consolidating postconviction and motion for a new trial issues:
{¶ 105} Under his first and second assignments of error, Skatzes claims that Roger
Snodgrass’s alleged recantation of his trial testimony to Buddy Newell constituted
15 	The standard for a new trial under Ohio’s Crim R. 33(A)(6) is substantially more lenient than the federal
standard for actual innocence. “Before a new trial can be granted upon the basis of newly discovered evidence, the
defendant must show that the new evidence (1) discloses a strong probability that it will change the result if a new
trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6)
does not merely impeach or contradict the former evidence.” State v. Vinzant, 2008-Ohio-4399, ¶ 7.
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new evidence that could have changed the outcome of his trial. As we discussed
under Skatzes’ fourth assignment of error regarding postconviction relief, Newell
claimed that Snodgrass had recanted his trial testimony about Skatzes’ involvement
in Earl Elder’s and David Sommers’ murders. Newell’s claims were based on
statements that were allegedly made to him by Snodgrass while they were in prison
together. The statements directly contradict Snodgrass’s trial testimony, and an
affidavit submitted by Snodgrass. Skatzes asserts, however, that Snodgrass had an
incentive to lie in his affidavit in order to avoid perjury charges. Skatzes contends
that the trial judge “ordinarily should hold an evidentiary hearing” under these
circumstances to assess the credibility of the affidavits.
{¶ 106} As the state points out, Newell did not have firsthand knowledge of some
of the central allegations in his affidavits, such as the nature of the conversations
between Snodgrass and the prosecutors. There are other reasons to doubt the
credibility of the Newell affidavit as well, such as inconsistencies between the
timeline 	that 	Newell 	recounts 	and 	the 	timing 	of 	Snodgrass’s 	plea. 	More
importantly, even if the trial court credited the statements in Newell’s affidavit, the
evidence only serves to impeach or contradict the evidence offered at trial. Such
evidence does not justify a new trial. Vinzant, 2008–Ohio–4399, at ¶ 6 and 7. As
such, the trial court did not err in denying the motion for new trial based on
Newell’s affidavit.
State v. Skatzes, 2008-Ohio-5387, ¶¶ 105-107.
To begin with, the Court will address Respondent’s argument that freestanding claims of
actual innocence are not cognizable in federal habeas corpus review. (Return of Writ, ECF No. 31
at PageID 494-499, 501). To be sure, “federal habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution—not to correct errors of fact.” Herrera v. Collins, 506
U.S. 390, 400 (1993). In House v. Bell, 547 U.S. 518 (2006), the Supreme Court declined to answer
the question left open in Herrera—whether a habeas petitioner may bring a freestanding claim of
actual innocence. See id. at 554. Yet the Supreme Court also noted, “in a capital case a truly
persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a
defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to
process such a claim.” Id. (quoting Herrera, 506 U.S. at 417); Wright v. Stegall, 247 F. App’x 709,
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711–12 (6th Cir. 2007) (“Except in death penalty cases, freestanding actual innocence claims are
not cognizable in federal habeas proceedings.”).
Ohio’s Criminal Rule 33 ostensibly provided Skatzes an avenue to litigate his innocence
through the procedure to seek a new trial. Nevertheless, because the viability of a freestanding
actual innocence claim remains an open question, and because the Supreme Court and the Sixth
Circuit have acknowledged such a claim’s possibility in a capital case, the Court will not
summarily dismiss Grounds Six and Ten. The question becomes, then, which standard the Court
should use to analyze Skatzes’ freestanding actual innocence claims.
Perhaps the best example of the implementation of freestanding actual innocence is found
in In re Davis, 557 U.S. 952 (2009), where the Supreme Court transferred a habeas petition filed
under its original jurisdiction to the Southern District of Georgia to “receive testimony and make
findings of fact as to whether evidence that could not have been obtained at the time of trial clearly
establishes petitioner’s innocence” under Herrera. Id. In determining the appropriate standard to
apply, the Southern District of Georgia, began with Herrera:
[B]ecause of the very disruptive effect that entertaining claims of
actual innocence would have on the need for finality in capital cases,
and the enormous burden that having to retry cases based on often
stale evidence would place on the States, the threshold showing for
such an assumed right would necessarily be extraordinarily high.
In re Davis, No. CV409-130, 2010 WL 3385081, at *43 (S.D. Ga. Aug. 24, 2010) (quoting
Herrera, 506 U.S. at 417 (emphasis added)). The court found, “the standard must be (1)
extraordinarily high, (2) more demanding than Schlup, and (3) crafted from the perspective of a
reasonable juror.” And the court concluded that, “[the petitioner] must show by clear and
convincing evidence that no reasonable juror would have convicted him in the light of the new
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evidence.” Id. at 44. Applying this standard to Grounds Six and Ten, the Court concludes that
Skatzes is not entitled to habeas relief based on a freestanding actual innocence claim.
To demonstrate his innocence in Ground Six, Skatzes offers the affidavits of Emanuel
“Buddy” Newell (ECF No. 70-8 at PageID 11111-19, ECF 70-9 at PageID 11259-62), Aaron
Jefferson (ECF No. 69 at PageID 8747-49), Dewey Bocook (id. at PageID 8765-68), Wayne
Flannigan (id. at PageID 8769-71), and James Hunt (id. at PageID 8788-90).16 Respondent
counters with competing affidavits from Mark Piepmeier (ECF No. 70-9 at PageID 11215-16) and
Roger Snodgrass17 (id. at PageID 11213-14).
Newell’s affidavit (11/8/2006) attests that while he was incarcerated with Roger Snodgrass
at Toledo Correctional Institution in 2006, Snodgrass recanted his trial testimony implicating
Skatzes in Sommers’ murder. (ECF No. 69 at PageID 11111). According to Newell, he and
Snodgrass reconciled, and Snodgrass confided in him that he lied during his testimony at Skatzes’
trial to save himself from the death penalty. (Id. at PageID 11113-14). Newell attests that
16 	The only affidavit attached to Skatzes’ motion for a new trial based on the murder of David Sommers was
Buddy Newell’s. (ECF No. 70-8 at PageID 1111-16; 70-9 at PageID 11259-62). Skatzes referenced the Johnson,
Bocook, Flannigan, and Hunt affidavits that were attached to his postconviction pleadings in his motion for a new trial
(ECF No. 70-8 at PageID 11049) and his brief to the Second District Court of Appeals. (Appellant Brief, ECF No. 70-
10 at PageID 1384). These affidavits were not considered by the Second District in its opinion. Out of an abundance
of caution, the Court has considered the affidavits in the manner they were referenced by Skatzes in his state court
pleadings. The Court has not considered the affidavits by Albert Klontz or David Marsh because they were not attached
to the motion for new trial or referenced therein, and thus not before the Second District Court of Appeals.
17 	On November 10, 2010, Respondent filed a Motion to Expand the Record (ECF No. 36) with an affidavit
from Newell that recants the affidavit he provided to Skatzes. (ECF Nos. 36-1, 36-2). The Court granted Respondent’s
motion. (ECF No. 40). But this decision was rendered on November 17, 2010, which was before the United States
Supreme Court opinion in Pinholster, 563 U.S. 160, was issued in 2011. The Sixth Circuit has held that the limitations
on a habeas court’s ability to consider documents outside the state court record cannot be waived, even by the state,
see Moore, 708 F.3d at 784, indicating that the restrictions announced in Pinholster equally extend when the
Respondent wishes to supplement the record with a document that was omitted from the state court proceedings.
Accordingly, despite the Court’s Order at ECF No. 40, Newell’s recantation affidavit (ECF Nos. 36-1, 36-2) has not
been considered in assessing the merits of Grounds Six and Ten.
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Snodgrass admitted that he, Bocook, and Brookover alone killed Sommers.18 (Id. at PageID
11114).
The Johnson, Bocook, Flannigan, and Hunt affidavits are offered by Skatzes to bolster the
credibility of Newell’s affidavit. (ECF No. 70-10 at PageID 1384-86). Particularly, Skatzes claims
that these affidavits show that Snodgrass was lying because he was not present during Sommers’
murder. The specific content of the Johnson, Bocook, and Flannigan affidavits are discussed in
connection with Ground Three, supra.
James Hunt asserts in his affidavit that he was incarcerated with Roger Snodgrass at
Warren Correctional Institution “after the Lucasville riot.” (ECF No. 69 at PageID 8788-90).
Hunt’s affidavit states that Snodgrass bragged about killing Sommers with Brookover and that
Skatzes was not involved. (Id.) The affidavit further asserts that Snodgrass said he made a deal
with prosecutors and planned to say whatever they wanted. (Id.)
Respondent’s affidavits from Roger Snodgrass and prosecutor, Mark Piepmeier contradict
Skatzes’ contention that Snodgrass lied during his trial testimony. Snodgrass asserts that he was
not promised anything or threatened in exchange for his testimony, his testimony was truthful, he
never spoke to Newell about his testimony, and he was within 47 days of release on parole when
he was housed at Toledo Correctional Institution. (ECF No. 70-9 at PageID 11213-14). Piepmeier
18 	Skatzes attached a second Newell affidavit to his motion for a new trial (12/30/1998). (ECF No. 70-9 at
PageID 11259-62). This affidavit does not specifically mention details of the Sommers’ murder but alleges that the
Ohio State Highway Patrol urged him to implicate Skatzes, and even though he testified on behalf of the state in the
Aaron Jefferson trial, and the parole board denied him parole because he had also testified on behalf of Lucasville
defendants.
Mark Piepmeier’s affidavit appears to contradict Newell’s statement that he testified for the state in the Aaron
Jefferson trial, stating, “As a result of his unstable mental state [Newell] was never called as a witness for the state at
any riot trial.” (ECF No. 70-9 at PageID 11216). The Court notes that this is not accurate. The state called Newell as
a rebuttal witness in Aaron Jefferson’s trial. 	See State v. Jefferson, No. 15828, 1997 WL 111757, at *2 (Ohio Ct.
App. Mar. 14, 1997) (“On rebuttal, the state presented the testimony of Buddy Newell, who stated that Jefferson,
Snodgrass and another man had beaten him with an aluminum baseball bat on the last day of the riot, but that he had
escaped because he wrestled the bat away from Jefferson.”).
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asserts that Snodgrass never changed his story and was never promised anything or threatened for
his testimony. (Id. at PageID 11215-16).
The Second District determined that Newell’s affidavit lacked credibility. This conclusion
is not unreasonable. Delayed affidavits which seek to exonerate a habeas petitioner are “treated
with a fair degree of skepticism.” Herrera, 506 U.S. at 423. Indeed, claims “based solely upon
affidavits are disfavored because the affiants’ statements are obtained without the benefit of cross-
examination and an opportunity to make credibility determinations.” Id. at 390. As noted by the
Second District, Skatzes’ claim of perjury is based on hearsay and “[h]earsay is presumptively
unreliable and insufficient to establish actual innocence.” See Bell v. Howes, 701 F. App’x 408,
412 (6th Cir. 2017) (citing Herrera, 506 U.S. at 417); Knickerbocker v. Wolfenbarger, 212 F.
App’x 426, 433 (6th Cir. 2007).
In addition to the credibility issues identified by the Second District, Newell’s affidavit
should be viewed in context. Snodgrass testified that he tried to kill Newell during the riot, Newell
begged Snodgrass not to murder him, and Newell only narrowly escaped death because he
managed to get “the upper hand” by obtaining a shank. (ECF No. 74-5 at PageID 8495-97). The
history between Newell and Snodgrass casts a healthy amount of doubt on the veracity of Newell’s
claims of reconciliation with Snodgrass and his accusations of perjury.
The remaining affidavits fare no better. The specific credibility and content problems of
the Jefferson, Bocook, and Flannigan affidavits are discussed in Ground Three, supra. Hunt’s
affidavit suffers from the same problem as Newell’s affidavit in that it discredits sworn trial
testimony solely on hearsay.
The fair degree of skepticism with which the Court views the affidavits coupled with the
extraordinarily high standard for actual innocence, presuming the Supreme Court would ever
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actually entertain a freestanding actual innocence claim, prevents relief on Ground Six. Skatzes
argues that evidence at his trial proves that he was not present during the Sommers’ murder.
(Traverse, ECF No. 42 at pid 720-735). He argues that there was no physical evidence connecting
him to the murder, the state’s case hinged on the testimony of Snodgrass and Brookover, Snodgrass
admitted to multiple murders, Skatzes was not involved in the plot to kill Sommers, and Snodgrass’
testimony contradicted the coroner’s testimony about the nature and location of Sommers’
injuries.19 (Id. at PageID 728-33). The jury heard all this evidence at trial and still convicted.
Skatzes’ new affidavits, which suffer from general and specific credibility problems, considered
along with the trial evidence,are simply insufficient to prove by clear and convincing evidence that
no reasonable juror would have rendered a guilty verdict.
In Ground Ten, Skatzes argues that he is actually innocent of the aggravated murder of Earl
Elder, relying on the affidavits of Eric Girdy, Anthony Taylor, Michael Trocadoro, Kenneth Law,
James Hunt, and Buddy Newell. (ECF No. 69-1 at PageID 8907-10; 8851-52; ECF 69 at PageID
8848-52; ECF No. 69-1 at PageID 8967-70; ECF No. 69 at PageID 8788-90; ECF No. 70-8 at
PageID 	11111-16). He also relies on the interview summary of Jack Spurlock. (ECF No. 69 at
PageID 8915).
Skatzes argues that these affidavits exonerate him of the Elder murder. But as pointed out
in Ground Seven, the affidavits of Girdy, Taylor, Trocadoro, and Law lack credibility because they
tell four different stories about how Elder was killed and each name a different group of
perpetrators. (ECF No. 69-1 at PageID 8907-10; ECF No 69 at PageID 8851-52; ECF No. 69-1 at
PageID 8911-13; ECF No. 69 at PageID 8848-50; ECF No. 69-1 at PageID 8967-70). Also pointed
out in Ground Seven, Eric Girdy’s affidavit is unreliable because he fails to mention his own
19 	Following Pinholser, supra,(2011), the Court has not considered evidence cited by Skatzes in his Traverse
(ECF No. 42 at PageID 28-33) that was not included in the state court record.
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culpability, to which he later admitted in 2006 when he plead guilty to Elder’s murder. (ECF No.
68-10 at PageID 8586-89).
Newell’s affidavit asserts that Skatzes was not involved in Elder’s murder, but the
credibility problems with Newell’s affidavit discussed in Ground Six apply equally to Ground Ten.
James Hunt’s affidavit only offers hearsay testimony and does not specifically mention the murder
of Earl Elder. (ECF No. 69 at PageID 8788-90). The Spurlock interview summary accuses Timothy
Williams of the Elder murder, but without an affidavit Skatzes cannot show that Williams was
willing to repeat this accusation under oath to a court of law. See Freeman v. Trombley, 483 F.
App’x 51, 63 (6th Cir. 2012) (finding unsworn statement in support of actual innocence to be
“inherently unreliable.”); Bell, 701 F. App’x at 412 (same).
The jury heard largely consistent testimony from Snodgrass and Williams about the murder
of Earl Elder. Skatzes’ actual innocence witnesses offer inconsistent statements over time and
compared to each other. Skatzes has failed to demonstrate by clear and convincing evidence that
no reasonable juror would have convicted him of the aggravated murder of Earl Elder with these
witnesses’ testimony.
Skatzes has failed to prove, by clear and convincing evidence, that no reasonable juror
considering the new evidence would have found him guilty of the murders of Sommers and Elder.
Skatzes freestanding actual innocence claims in Grounds Six and Ten are dismissed for lack of
merit.
Ground Eleven
In Ground Eleven, Skatzes contends that his trial counsel were ineffective in the penalty
phase of his trial. (Petition, ECF No. 25 at PageID 295-314). Skatzes raised what he now identifies
in his federal habeas petition as Ground Eleven across ten separate claims in his postconviction
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petition (ECF No. 68-7 at PageID 8074-75, 8082-8098—ECF No. 68-8 at PageID 8108). The
postconviction court denied the claims that form Ground Eleven and Skatzes appealed. (ECF No.
68-10 at PageID 8656-63; Appellant Brief, ECF No. 70-1 at PageID 9982-89). The Second District
affirmed:
{¶ 90} Skatzes contends that trial counsel failed to utilize a “wealth of information”
that could have helped to mitigate his sentence, and that counsel was thus
ineffective in representing him. Specifically, Skatzes contends that his attorneys
did not hire a competent mitigation expert to investigate the evidence that might
have been offered in his case. As a result, he claims that he was deprived of the
possibility that a lesser sentence might have been imposed if counsel had more
thoroughly explored and presented evidence about his childhood, a prior head
injury, and his mental health.
{¶ 91} Skatzes relies on Wiggins v. Smith (2003), 539 U.S. 510, 123 S.Ct. 2527,
156 L.Ed.2d 471, which held that trial counsel cannot make a reasonable strategic
decision not to present extensive evidence about a defendant’s background in
mitigation without having first investigated the defendant’s background. The Court
held that, without an investigation, counsel cannot be presumed to have made a
reasonable and informed strategic decision. The Court defined the deference owed
an attorney’s strategic judgments in terms of the adequacy of the investigations
supporting those judgments, stating:
{¶ 92} “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference 	to 	counsel’s 	judgments.” 	Wiggins, 	539 	U.S. 	at 	521–522, 	citing
Strickland, 466 U.S. at 690–691. See, also, Williams, 529 U.S. 362.
{¶ 93} In Wiggins, the Court concluded that the trial attorneys had acted
unreasonably and ineffectively in failing to investigate Wiggins’ background
before deciding not to present mitigating evidence based on his background during
the sentencing proceedings. In a report prepared for the postconviction proceedings,
a forensic social worker reported that Wiggins, who was 27 years old and had no
history of violent behavior, had suffered severe physical and sexual abuse in his
childhood. His alcoholic mother had left Wiggins and his siblings home alone for
days, forcing them to beg for food and eat paint chips and garbage. She locked the
kitchen to keep the children from getting food, and she beat them if they broke in.
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She had sex with men while her children were in the same bed and, on one occasion,
intentionally burned Wiggins on a hot stove burner. When he had been removed to
foster care, Wiggins continued to suffer abuse. He was physically abused by two
foster mothers and was molested and raped by a foster father. In another foster
home, he was repeatedly gang-raped by other children in the home. Wiggins, 539
U.S. at 513–517. Moreover, Wiggins’ trial counsel did not hire a forensic social
worker to prepare a social history of Wiggins, even though the state made funds
available for that purpose. Some of counsel’s statements at trial indicated that
counsel had no knowledge of the abuse. These factors led the Court to conclude
that counsel’s investigation of mitigation evidence did not reflect reasonable
professional judgment, and thus did not meet Strickland’s performance standards.
Id. at 533.
{¶ 94} Skatzes contends that, as in Wiggins, his counsel failed to thoroughly and
effectively investigate his background for mitigation evidence and to present that
evidence at trial. In affidavits from his attorneys and the mitigation investigator,
Skatzes presented evidence that the mitigation investigator hired by his attorneys
was inexperienced and that the attorneys did not closely oversee her work. Skatzes’
attorneys also claim in their affidavits that they were unaware of any abuse or
neglect. The mitigation investigator stated that she spoke with Skatzes’ sister
numerous times during her investigation, but that other family members did not
return her calls and that Skatzes attempted to “dictate” the questions she would ask.
{¶ 95} Although Skatzes’ attorneys appear to have been unaware of the alleged
abuse in his childhood, there is no suggestion in the petition for postconviction
relief that Skatzes’ abuse was analogous to the abuse in Wiggins. When he sought
postconviction relief, Skatzes’ former wife, who did not have first-hand knowledge
of many of the incidents recounted in her affidavit, offered the following evidence:
Skatzes’ mother raised him, his sister, and two older half-brothers alone; he was
close to his sister but his relationships with the older half-siblings were strained;
Skatzes’ mother brought many men to the house and engaged in sexual activity
with them; Skatzes’ mother verbally abused the children; Skatzes’ father’s death
when he was 14 hit him very hard; Skatzes’ mother was “cold” and “bitter” and did
not show any warmth toward the children; and the children’s clothes were often
dirty, second-hand, and a source of embarrassment. A childhood friend also stated
by affidavit that Skatzes’ half-brothers frequently “beat on him.” Although these
factors paint a picture of Skatzes’ childhood that is far from than idyllic, they are
much less egregious than the incidents endured by Wiggins.
{¶ 96} There are also several references in the record to the fact that Skatzes did
not cooperate with the involvement of his family in his defense. Skatzes apparently
thought that the corrections officer who testified on his behalf was treated harshly
by the prosecutors, and he therefore did not want family members called to testify.
According to the mitigation investigator, this lack of cooperation extended to her
efforts to speak with Skatzes’ family. He placed limits on what he wanted the
investigator to do, and family members did not cooperate with her efforts to contact
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them. Thus, trial counsel’s ignorance of the abuse now alleged does not appear to
have been attributable to a lack of effort, but to a lack of cooperation. As such, it
does not constitute ineffective assistance of counsel.
{¶ 97} Skatzes also contends that trial counsel should have gathered and presented
evidence about his “possible traumatic head injury” and depression. On direct
appeal, however, Skatzes challenged counsel’s effectiveness for failing to present
evidence of mental illness. These arguments are substantially similar. Moreover,
Skatzes’ evidence in support of a head injury and consequent behavioral issues was
very thin. He presented an affidavit and report from Douglas W. Scharre, M.D., a
professor of neurology and psychiatry, who noted “mild” and “slight” impairments
and “hints” of dysfunction. We think it very unlikely that this evidence would have
had a significant impact on the jury’s determination.
{¶ 98} In sum, we conclude that the trial court did not abuse its discretion when it
concluded that the proffered mitigation evidence would not have changed that
outcome of the trial and that counsel were not ineffective in failing to discover or
present it.
{¶ 99} The eleventh assignment of error is overruled.
State v. Skatzes, 2008-Ohio-5387, ¶¶ 89-99.
Skatzes argues that his counsels’ investigation and presentation of mitigation evidence
during the penalty phase of his trial was inadequate. Particularly, Skatzes contends his counsel
retained and failed to properly supervise an unqualified mitigation investigator (Petition, ECF No.
25 at PageID 297-99), failed to identify family members who could have offered relevant
information about his background (id. at PageID 299-302), failed to properly respond to Skatzes’
reluctance for his family members to testify (id. at 299, 302-03, 306-10), failed to obtain prison
and educational records (id. at PageID 302-04), overlooked evidence of brain injury and possible
brain trauma (id. at PageID 304-06), failed to present evidence from the retained psychologist
because he arrived at a diagnosis of antisocial personality disorder (id. at PageID 304-07), and
failed to present evidence from a prison culture expert who would demonstrate duress. (id. at
PageID 312-14). Skatzes explains he was prejudiced “because testimony from an expert would
have provided the jury with the complex picture of a man ‘badly damaged [and] almost certainly
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brain-impaired [who is the] product of a highly dysfunctional family crucible, a person whose
behavior and decisions throughout the Lucasville riot are only comprehensible against the
backdrop of his life experiences....’” (Id. at PageID 311).
Respondent argues that part of Ground Eleven is procedurally defaulted. (Return of Writ,
ECF No. 31 at PageID 453-54). Respondent points out that Skatzes failed to appeal postconviction
claim twenty-eight, which alleged his trial counsel were ineffective for failing to engage a prison
culture expert. The record reflects that Skatzes did not include this part of Ground Eleven in his
appeal to the Second District (ECF No. 70-1 at PageID 9982-89), and it is therefore procedurally
defaulted.20 See Buell, 274 F.3d at 349. In any case, discussed below, the entirety of Ground Eleven
is without merit.
The penalty phase of Skatzes’ trial began on January 10, 1996, twenty-five days after the
guilty verdicts were entered. (ECF No. 74-15).21 Skatzes called five witnesses to testify: John
Powers (id. at PageID 19944-73), Dwayne Johnson (id. at PageID 19975-20003), Wendell Drake
(id. at PageID 20003-33), Charles Schweingrouber (id. at PageID 20033-60), and Jeffrey Ratcliff
(ECF No. 74-16 at PageID 20067-85). Skatzes also made an unsworn statement to the jury. (Id. at
PageID 20087-131).
Powers, Johnson, and Drake, who are African American, testified that Skatzes never
exhibited any racist behavior toward them. (ECF No. 74-15 at PageID 19948-49, 19977, 20006-
07). All five witnesses testified that they believed that Skatzes would be a positive influence in
20 	Skatzes also asserts his actual innocence as an excuse (Traverse, ECF No. 42 at PageID 783), the merits of
which are addressed and denied in connection with his procedural and substantive claims.
21 	At the outset of the proceedings, Skatzes confirmed to the trial judge that he voluntarily chose to wear his
prison uniform instead of street clothes for the penalty phase. (ECF No. 74-15 at PageID 19920).
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prison for younger inmates. (Id. at PageID 19958-61, 19994, 20014-15, 20040; ECF No. 74-16 at
PageID 20068).
Skatzes’ unsworn statement to the jury sheds a good deal of light on the reasons for the
nature and scope of the mitigation evidence. Skatzes gave a lengthy statement, a significant portion
of which he dedicated to emphatically professing his innocence and challenging the evidence from
the guilt phase of his trial. (Id. at PageID 20103-20129). Skatzes specifically told the jury that he
did not want his family to testify:
…I discovered that I was a very fortunate person, and I had a lot of people out there
that really care for me and stuff like that, and I could have them coming in here for
God knows how long.
But I refused to do that because I’m very protective for my loved ones. And no
disrespect intended to the prosecutor, but I seen what they did to Jeff Ratcliff first
time around and I didn’t much appreciate that, and I would not tolerate them
disrespecting my loved ones in that way of talking to them.
(Id. at PageID 20101). Skatzes also told the jury about how the mitigation evidence they heard
took shape:
Well, so my bottom line is I’m not going to come up in here and do anything to
counteract what Mr. Kelleher and Mr. Dixon have done. Like I told you before, the
first time, at first I was ready to tell you to plug it in.
I’m tired I’m real tired, and if it wasn’t for my people, I would still have that attitude
I suppose and Mr. Kelleher, as odd as it seems, he came across with the idea or
reality that I could be of some help in the prison setting.
(Id. at PageID 20128).
Skatzes now argues that his counsel were ineffective because the mitigation evidence
should have been much more expansive. First, Skatzes faults the work performed by his mitigation
investigator, Susan Evanson, as inadequate. Evanson’s invoice largely belies Skaztes’ allegations.
(ECF No. 66-2 at PageID 2842-44). It reflects that Evanson was in regular contact with Skatzes’
sister, beginning in December 1994. (Id.). Evanson interviewed his sister and brother in person in
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December 1994, interviewed Skates and other inmates at Chillicothe Correctional Institute
multiple times, interviewed family members in both Marion and Dayton, made telephone calls to
Skatzes’ friends and relatives asking for testimonials, and prepared a social history for use during
the penalty phase. (Id.). Evanson’s invoice shows over two hundred hours of work. (Id.). Susan
Evanson’s affidavit is consistent with her invoice. It asserts that she recalls speaking to Skatzes’
sister “numerous” times, reaching out to other family members, and gathering background records.
(ECF No. 69-2 at PageID 9088-89).
The state court record also belies Skatzes’ allegation and his trial counsels’ affidavits
swearing that they did not collect prison, child protection, or any other public records. (ECF No.
69 at PageID 8754-55, 8762-63). Jeffrey Kelleher signed and filed a Motion to Release State Held
Records on December 8, 1994, seeking records from: Ohio Department of Youth Services, Adult
Parole Authority, County Probation Department, and Ohio Department of Rehabilitation and
Correction. (ECF No. 66 at PageID 2303-09). Skatzes’ counsel specifically requested these records
for use in the penalty phase of the trial. (Id. at PageID 2034). The record reflects that both Kelleher
and Dixon appeared on behalf of Skatzes at the December 8, 1994, hearing where the Motion to
Release State Held Records was addressed (ECF No. 73-2 at PageID 13819, 13871) and granted
(ECF No. 66 at PageID 2338-40). In connection with counsels’ request for discovery, the Court
ordered the Ohio Department of Rehabilitation and Correction to turn over Skatzes’ institutional
records. (Id. at PageID 2347). On top of that, Skatzes’ counsel issued a subpoena for Skatzes’
“complete DRC file, including medical records.” (Id. at PageID 2497-98). Which documents
Skatzes’ counsel received is unclear, but the record refutes any accusation that no independent
effort was made.
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Skatzes further supports Ground Eleven with an affidavit from his sister, Jackie Bowers
(ECF No. 69-1 at PageID 9012-17) and his former wife, Cindy Skatzes (ECF No. 69-2 at PageID
9085-87). Bowers claimed that she and Skatzes grew up in a house with a mother who was
promiscuous and often had strange men in the house for sex. (ECF No. 69-1 at PageID 9012,
9014). Bowers stated that Skatzes idolized their father and was devastated when he died. (Id. at
PageID 9013). Bowers recounted that they were poor, had inadequate food, and wore dirty
clothing. (Id. at PageID 9015). Bowers attested that both their mother and half-brothers were
physically abusive to Skatzes and recalled that her half-brothers hit George with a “big black belt.”
(Id. at PageID 9013-9014). Bowers stated that Skatzes’ mother would call the Child Welfare Office
to pick him up and the state took custody of George and her on account of truancy. (Id. at PageID
9014, 9015). Bowers recalled a family history of depression and believed Skatzes suffers from
depression as well. (Id. at PageID 9016). Bowers described Skatzes as a good father, husband, and
provider. (Id. at PageID 9016). Bowers asserted that Skatzes did not want her to testify. (Id. at
PageID 9017).
Cindy Skatzes asserted that she was married to Skatzes from 1978 to 1987. (ECF No. 69-
2 at PageID 9085, 9087). The marriage produced one male child named “Shane.” (Id. at PageID
9085). Cindy Skatzes described her former husband as a good father who is loyal to a fault. (Id. at
PageID 9085, 9086). Cindy Skatzes also described Skatzes’ mother as a cold and bitter woman.
(Id. at PageID 9085). Cindy Skatzes asserted that Skatzes’ mother entertained “numerous men” in
the house, and Skatzes once walked in on his mother performing a sexual act on an unknown man.
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Id. at PageID 9086). Cindy Skatzes claimed that her marriage involved “physical altercations”
with Skatzes. (Id.).22
Skatzes relies heavily on an affidavit and sixty-two page report from Jeffrey Smalldon,
Ph.D., in support of his argument that his trial attorneys were ineffective during the penalty phase.
(ECF No. 69-1 at PageID 9018—ECF No. 69-2 at PageID 9081). Smalldon opines that Skatzes’
counsels’ mitigation efforts were deficient based on interviews with lay and expert witnesses and
a records review. (ECF No. 69-1 at PageID 9022).
Dr. Smalldon interviewed Skatzes’ sister, Jackie Bowers. (Id. at PageID 9022-25). Bowers
reported details similar to her affidavit, including that their mother was hypercritical, neglectful,
promiscuous, and emotionally abusive, and their father was absent. (Id. at PageID 9023). Bowers
also reported to Dr. Smalldon that Skatzes was heavily impacted at age 14 by the death of his
father and he was physically abused by his brother, Jim Loop. (Id. at PageID 9023). Bowers also
recalled that they were embarrassed by their living conditions and their mother’s reputation. (Id.
at PageID 9023). Bowers recalled that Skatzes told her that he did not want her to testify because
he did not want the prosecutors to “grill her” on the stand. (Id. at PageID 9025).
Dr. Smalldon interviewed Skatzes’ ex-wife, Cindy Skatzes, who also provided information
similar to her affidavit. According to Cindy Skatzes, Skatzes described his mother as cold, self-
centered, and physically abusive. (Id. at PageID 9025-9026). Dr. Smalldon reported that Cindy
Skatzes spoke about her former husband with affection, but also reported that Skatzes was difficult
to be married to and was controlling, possessive, and physically aggressive towards her. (Id. at
22 	Skatzes also provided an affidavit from his childhood friend, Arthur Davis, who confirmed that Skatzes’
mother was mean and had a reputation for having many men around the house, and his half-brothers were physically
abusive. (ECF No. 69-2 at PageID 9090-9091).
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PageID 9025-26). Cindy Skatzes reported that her former husband had a history of wanting to
prove that he was a “bad ass,” and placed a high value on loyalty and respect. (Id. at PageID 9026).
Dr. Smalldon interviewed Skatzes’ older brother, Jim Loop. (Id. at PageID 9031-9033).
Loop described Skatzes’ father as a mean drunk. (Id. at PageID 9031). He also described Skatzes
as someone who always wanted to help people. (Id. at PageID 9032). Loop reported that Skatzes
was fearful that someone would harm his family if they testified on his behalf. (Id. at PageID 9032-
9033).
Dr. Smalldon summarized his review of Skatzes’ education, child protection, and
corrections records. (ECF No. 69-2 at PageID 9033-36). His records review revealed that Skatzes
had trouble with attendance at school, which was attributed to the circumstances of his home life
(id. at PageID 9033, 9036), his family had “limited funds” (id. at PageID 9033), and he was
removed from the home at age 14 and placed at Marion County Children’s Home (id. at PageID
9036). 	Skatzes’ 	corrections 	records 	showed 	two 	letters 	of 	commendation 	for 	voluntary
participation in a “Christmas Box Detail” and a construction project. (Id.). 23
Dr. Smalldon also interviewed Skatzes. (Id. at PageID 9049-70). Skatzes confirmed reports
from other family members that his mother was emotionally neglectful and physically abusive.
(Id. at PageID 9058). Skatzes conveyed that he grew up very poor and without access to adequate
bathing facilities and clothes. (Id.). Skatzes described his home life as “miserable” and linked his
truancy and the beginning of his criminal activity. (Id. at PageID 9059).
23 	Included here is information that was not presented to the jury during the penalty phase. The Court does not
include Dr. Smalldon’s summary and opinions related to the negotiation tapes and radio broadcast, as that evidence
was presented to the jury during the guilt phase of the trial. It is unclear whether the trial court would have permitted
Dr. Smalldon to reframe the meaning and intent of Skatzes’ words during the mitigation phase of the trial.
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Dr. 	Smalldon 	also 	uncovered 	unfavorable 	information 	about 	Skatzes’ 	history 	and
background during his interview. For example, Skatzes reported that he fathered nine children by
eight women and never met two of the children. (Id. at PageID 9059, 9061, 9063). Skatzes admitted
that he was physically abusive toward most of the women with whom he had been involved. (Id.
at PageID 9059). Skatzes also reported information that would have contradicted a case that he
would have been a model inmate if sentenced to life imprisonment, including his belief system
that his survival depended on an appearance of strength, and he “had” to respond to instances of
disrespect with a show of physical strength. (Id. at PageID 9065). Skatzes served time for assisting
a friend escape from jail, and he described himself as once “being on the run” from authorities (Id.
at PageID 9063).
Dr. Smalldon administered a battery of tests and concluded that Skatzes has average
intelligence. (Id. at PageID 9053). Dr. Smalldon arrived at a diagnosis of depressive disorder,
dementia due to head trauma, antisocial personality disorder, and paranoid and aggressive traits.
(Id. at PageID 9078). Dr. Smalldon concluded that Skatzes’ performance on some of the tests
suggested a “mild degree of functional brain impairment.” (Id. at PageID 9076).
Dr. Smalldon criticized James Eisenberg, Ph.D., the psychologist hired by Skatzes’ trial
counsel, (Id. at PageID 9044-9045). Dr. Smalldon interviewed Dr. Eisenberg who reported that he
diagnosed Skatzes with antisocial personality disorder and “there was little if anything he could
present as a mitigation witness that would assist the defense.” (Id. at PageID 9044). Dr. Smalldon
referred to Dr. Eisenberg’s conclusion as the “wrong approach.” (Id. at PageID 9044). Dr.
Smalldon believed that Skatzes’ diagnosis could have been explained to the jury as a product of
his experiences as a child and adolescent. (Id. at PageID 9044-9045).
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Lastly, Dr. Smalldon criticized Skatzes’ trial counsel for improperly managing Skatzes’
directives that his family members were not to testify during the penalty phase. (Id. at PageID
9046-9047). Dr. Smalldon opined that this type of reluctance is common among capital defendants,
and it was defense counsel’s responsibility to manage Skatzes’ “emotional ups and downs,” and
educate him about the “mitigation enterprise” and how critical it is for his long-range prospects.
(Id. at PageID 9047). Dr. Smalldon acknowledged,
Mr. Skatzes has always insisted that he was not guilty of the most serious crimes
with which he’d been charged by the state. Part of the challenge for the defense was
to overcome his resistance to planning the presentation of mitigation for crimes he
denied having committed in the first place. That was, of course, a steep hill to climb,
but it was one that absolutely had to be scaled if the trial jury was to be afforded
access to information about him and his personal history that could very well
prompt a sentencing decision in favor of life over death.
(Id.).
In support of Ground Eleven, Skatzes also relies on an affidavit and report from Douglas
Scharre, M.D. (ECF No. 69-2 at PageID 9092-95). Dr. Scharre, a neurologist and psychiatrist,
performed a physical exam of Skatzes and ordered a positron emission tomography (“PET”) scan.
(Id. at PageID 9094-9095). Dr. Scharre concluded that the PET scan showed evidence of “mild
right fronto-parietal hypometabolism and mild left parietal hypometabolism” of unknown
etiology, with traumatic brain injury as a possibility.24 (Id. at PageID 9095).
To establish the part of Ground Eleven arguing his counsel was ineffective for failing to
engage a prison culture expert, Skatzes offers the affidavit of Clemens Bartollas, Ph.D. (ECF No.
69-1 at PageID 8920-8928). Skatzes argues that Bartollas’ testimony would have provided
evidence of his duress, which is a statutory mitigating factor under Ohio Rev. Code Ann. §
24 	Skatzes reported “blows to the head,” including a car accident and a couple of work-related accidents. (Id. at
PageID 9053-9054).
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2929.04. (Petition, ECF No. 25 at PageID 312). Dr. Bartollas identified himself as a sociologist
with expertise in correctional institutions and prison culture. (ECF No. 69-1 at PageID 8920). In
discussing the murder of Robert Vallandingham, Dr. Bartollas’ opined that Skatzes was in a
“vulnerable position” during the “silent vote” and any more aggressive dissent from Skatzes would
have resulted in his death. (Id. at PageID 8926-8927).
The Sixth Circuit recently described the process a federal habeas court should employ when
evaluating a penalty phase ineffective assistance of counsel claim:
Counsel might be deficient beyond fair-minded dispute if he fails to
perform any investigations whatsoever. Likewise, counsel acts
unreasonably when he fails to investigate potentially powerful
mitigating evidence that stared him in the face. So too if counsel
never attempts to obtain material that he knows the prosecution will
probably rely on as evidence of aggravation at the sentencing phase
of trial. If counsel’s conduct fails to abide by these specific
guideposts laid down by the Supreme Court, then no fair-minded
judge could disagree that counsel has failed to clear Strickland’s low
bar, and habeas relief will be appropriate. But if counsel’s conduct
doesn’t breach any of these specific constraints, we next assess
whether the state court unreasonably applied Strickland’s general
mandate that counsel’s behavior must fall within “the wide range of
reasonable professional assistance.” 466 U.S. at 689.
The more general the rule, the more leeway the state court enjoys—
because the more standard-like the rule is, the more room there is
for distinct yet “reasonable” applications of it. The Strickland
standard is a general standard. We will upend its rejection of a
petitioner’s 	ineffective 	assistance 	claim 	only 	if 	there 	is 	zero
“reasonable argument” available that counsel in fact satisfied
Strickland’s vague standard.
White v. Plappert, 131 F.4th 465, 485-86 (6th Cir. 2025) (citation modified). Here, the record
reflects that Skatzes’ claim for relief falls under Strickland’s general standard.
Skatzes argues that his counsels’ performance was deficient because they failed to
investigate and present a more aggressive mitigation case. But Skatzes made clear to his attorneys,
to the potential witnesses, to the expert psychologist, and to the jury that he did not want his family
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to testify. He was also very clear that he disagreed with the verdict and adamantly maintained his
innocence.
Pertinent to Skatzes’ case, counsel does not render ineffective assistance when complying
with his client’s express wishes not to present mitigation evidence. “The reasonableness of
counsel’s actions may be determined or substantially influenced by the defendant’s own statements
or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the defendant.” Coleman v. Mitchell, 244 F.3d
533, 545 (6th Cir. 2001), superseded by statute on other grounds (citing Strickland, 466 U.S. at
691). The Sixth Circuit has held that trial counsel is not ineffective for following his client’s
instructions on the scope of mitigation evidence. Coleman, 244 F.3d at 545–46. See also Tyler v.
Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (“the Constitution does not prohibit a competent capital
defendant from waiving the presentation of mitigation evidence”); Schriro v. Landrigan, 550 U.S.
465 (2007) (holding that a death-eligible defendant who instructed his attorney not to present
mitigating evidence could not establish that he was prejudiced by counsel’s resulting failure to
present mitigating evidence); Wickline v. Mitchell, 319 F.3d 813, 821 (6th Cir. 2003) (counsel not
ineffective when petitioner refused to speak with a psychiatrist or a probation officer or involve
his family); Cowans v. Bagley, 624 F. Supp. 2d 709, 770 (S.D. Ohio 2008), aff’d, 639 F.3d 241
(6th Cir. 2011) (finding that counsel was not ineffective when petitioner maintained his innocence
and refused the presentation of mitigation evidence).
It is worth pointing out that Skatzes emphatically maintained his innocence throughout
trial, during his testimony, during his mitigation phase statement, and during appeal and
postconviction proceedings. Skatzes has asserted in these federal habeas proceedings both
“gateway” and substantive actual innocence claims. Skatzes faults his counsel in Ground Eleven
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for not presenting evidence to the jury designed to mitigate his moral culpability. How does this
square with Skatzes’ unwavering position that he has no culpability?
Dr. Smalldon noted the practical problems this posture created for trial counsel when
preparing a mitigation case, describing it as a “steep hill to climb.” The Sixth Circuit has
recognized the potential constitutional problems:
As an initial matter, Fields identifies no Supreme Court precedent
holding that counsel performs deficiently by considering a client’s
informed wishes not to present a case in mitigation. If his counsel
had put on a robust mitigation case conceding that Fields murdered
Horton, Fields may well have argued that this lawyer violated his
right to make this major decision. See McCoy v. Louisiana, ––– U.S.
––––, 138 S. Ct. 1500, 1507–09, 200 L.Ed.2d 821 (2018). But as far
as we can tell, the Supreme Court has yet to decide whether an
attorney or a client decides whether to present a case in mitigation.
Cf. Schriro v. Landrigan, 550 U.S. 465, 469–70, 476–77, 127 S.Ct.
1933, 167 L.Ed.2d 836 (2007). But many lower courts have held
that a defendant can voluntarily waive the presentation of mitigating
evidence.
Fields v. Jordan, 86 F.4th 218, 246 (6th Cir. 2023), cert. denied sub nom. Fields v. Plappert, 144
S. Ct. 2635 (2024). Skatzes’ plea of innocence and limitations on the mitigation case created a no-
win situation for his counsel during the penalty phase. Under the circumstances, counsels’ strategy
to present some mitigation evidence that neither compromised his innocence nor involved his
family cannot be considered deficient performance.25 The Second District Court of Appeals’
similar conclusion is not unreasonable.
Skatzes argues that his counsel was ineffective nonetheless because his decision to forgo a
more robust mitigation case was not knowing and intelligent.26 The Supreme Court has “never
25 	The Court acknowledges that McCoy was decided well after the penalty phase of Skatzes’ trial. The right it
recognized, however, was borne by the Constitution and is one that trial counsel may have been mindful of or
concerned about during his trial.
26 	George Skatzes’ affidavit states that if he would have understood the importance of the mitigation phase, he
would have permitted his family members to testify. (ECF No. 69-2 at PageID 9083).
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imposed an informed and knowing requirement upon a defendant’s decision not to introduce
[mitigating] evidence.” Fry v. Shoop, 124 F.4th 1019, 1029 (6th Cir. 2025) (quoting Schriro v.
Landrigan, 550 U.S. 465, 479 (2007)). See also Cowans, 624 F. Supp. 2d at 769, aff’d, Cowans,
639 F.3d 241 (rejecting argument that decision to not to present mitigation evidence was not
knowing or voluntary). The record establishes that Skatzes was aware of the gravity of the
proceedings. Noted above, Skatzes explained to the jury during his unsworn statement that the
scope of the mitigation case was at his direction and based on his desire to protect his family
members. (ECF No. 74-16 at PageID 20100-102, 20128).
Discussed above, Skatzes’ allegations that his counsel made little or no efforts to obtain
his background records is belied by the record and without merit. Dr. Smalldon criticized the
efforts made by Skatzes’ counsel to gather and obtain records. (Id. at PageID 9044). But Skatzes
has not produced the records for the Court’s independent review, and Dr. Smalldon’s opinion is
not informed with the knowledge of which records trial counsel had in their possession or whether
a strategic reason was made not to use those records at the penalty phase.27 Nothing about the
information that Dr. Smalldon describes in the reviewed records suggests the jury would have
entered life sentences had those records been used by counsel.
Skatzes also argues that his counsels’ performance was deficient because they failed to
adequately use an expert psychologist to explain his antisocial personality disorder. But Skatzes’
trial counsel retained expert psychologist Dr. Eisenberg, who believed his evaluation would be
unhelpful. “It is not unreasonable for counsel, untrained in the field of mental health, to rely on the
professional opinions of experts.” White v. Plappert, 131 F.4th 465, 488 (6th Cir. 2025) (citation
modified). The same conclusion applies to Skatzes’ suggestion that his counsel should have known
27 	The Court acknowledges and has considered the affidavit from Martha Phillips, which generally describes
the standards of practice for a mitigation specialist. (ECF No. 69-1 at PageID 9004-07).
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about the functional brain impairment diagnosed by Dr. Smalldon. “[I]f a ‘trained psychologist’
did not detect any evidence of a particular mental defect, counsel’s not detecting the same is not
‘an objectively unreasonable mistake.’” Id. (quoting Campbell v. Coyle, 260 F.3d 531, 555 (6th
Cir. 2001)). “It was not unreasonable for defense counsel to rely on an expert’s lack of suggestions
that defendant had ‘organic brain damage’ or ‘required any additional mental health testing.’” Id.
(quoting Clark v. Mitchell, 425 F.3d 270, 285 (6th Cir. 2005)).
Skatzes also fails to show that his counsel was deficient for failing to retain a prison culture
expert, the defaulted part of Ground Eleven. Dr. Bartollas’ affidavit only discusses duress in
connection with the Vallandingham murder (ECF No. 69-1 at PageID 8926-8927), for which
Skatzes received a life sentence, and does not specifically mention how duress played a role in
Skatzes’ participation in the murders of Elders and Sommers.
For these reasons, the Second District Court of Appeals’ conclusion that counsels’
performance was not deficient was neither contrary to nor an unreasonable application of
Strickland.
The Court likewise rejects Skatzes’ argument that the Second District was unreasonable
when it concluded that he was not prejudiced. To prevail on the prejudice prong, Skatzes must
show that “all reasonable judges would find that (a) this evidence was different in kind and degree
from the evidence presented at trial, (b) the jury would have found that the evidence diminished
[Skatzes’] moral culpability, and (c) there’s a ‘substantial likelihood’ a juror would have concluded
that the mitigating evidence outweighed the aggravating evidence.” White, 131 F.4th at 492
(quoting Shinn v. Kayer, 592 U.S. 111, 121 (2020); Hill v. Mitchell, 400 F.3d 308, 319 (6th Cir.
2005); Williams, 529 U.S. at 398; Bobby v. Van Hook, 558 U.S. 4, 20 (2009)) (citation modified).
Skatzes has not made this showing.
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Skatzes fails to show how the evidence he offers in support of Ground Eleven would have
diminished his moral culpability in the eyes of the jury for the aggravated murders of Elder and
Sommers.28 He has not shown how the mitigators “impaired his ability to appreciate the
wrongfulness of his conduct or to conform his conduct to the law at the time of the murder.” Shinn,
592 U.S. at 122 (holding no prejudice when petitioner failed to make such showing). Skatzes’ lay
witnesses offered evidence about his childhood that the Second District described as “far from
idyllic,” but insufficient to establish prejudice. State v. Skatzes, 2008-Ohio-5387, ¶ 95 (copy at
state court record, ECF No. 70-7 at PageID 10932). The details of Skatzes’ background are indeed
less than ideal, but a fair-minded jurist could conclude there’s no reasonable probability the jury
would find them mitigating.29
Also, absent is any expert testimony about how the diagnosis of “mild right fronto-parietal
hypometabolism and mild left parietal hypometabolism” diminishes Skatzes’ moral culpability for
the Elder or Sommers murders. (ECF No. 69-2 at PageID 9095). In the notable Supreme Court
opinions on penalty phase ineffective assistance of counsel claims, the evidence of organic brain
28 	As for the defaulted part of Ground Eleven, even if Dr. Bartollas would have extended his general opinions
about prison culture to the murders of Elder and Sommers, his testimony about the duress Skatzes experienced during
the riot would have been cumulative of other trial testimony and the Court finds it hard to believe that his opinion on
the matter would have had any impact on the jury’s verdict.
29 	The Second District concluded that the evidence offered by Skatzes about his history and background was
“much less egregious than the incidents endured by Wiggins.” (ECF No. 70-7 at PageID 10932). The magnitude of
the evidence Skatzes offers is in fact not comparable to Wiggins v. Smith, 519 U.S. 510 (2003). In Wiggins, the
Supreme Court described the mitigation evidence that Wiggins’ counsel failed to investigate and present as:
“petitioner’s mother, a chronic alcoholic, frequently left Wiggins and his siblings home alone for days, forcing them
to beg for food and to eat paint chips and garbage. Mrs. Wiggins’ abusive behavior included beating the children for
breaking into the kitchen, which she often kept locked. She had sex with men while her children slept in the same bed
and, on one occasion, forced petitioner’s hand against a hot stove burner -- an incident that led to petitioner’s
hospitalization. At the age of six, the State placed Wiggins in foster care. Petitioner’s first and second foster mothers
abused him physically, and the father in his second foster home repeatedly molested and raped him. At age 16,
petitioner ran away from his foster home and began living on the streets. He returned intermittently to additional foster
homes, including one in which the foster mother’s sons allegedly gang-raped him on more than one occasion. After
leaving the foster care system, Wiggins entered a Job Corps program and was allegedly sexually abused by his
supervisor.” Wiggins, 539 U.S. at 516–517 (citation modified).
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damage was accompanied by expert testimony tying the damage to the petitioner’s crime. See
Rompilla v. Beard, 545 U.S. 374 (2005) (“Rompilla’s problems relate back to his childhood, and
were likely caused by fetal alcohol syndrome [and that] Rompilla’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the law was substantially impaired at the
time of the offense.”); Porter v. McCollum, 558 U.S. 30, 36 (2009) (“Dr. Dee concluded that Porter
suffered from brain damage that could manifest in impulsive, violent behavior. At the time of the
crime, Dr. Dee testified, Porter was substantially impaired in his ability to conform his conduct to
the law and suffered from an extreme mental or emotional disturbance….”); Sears v. Upton, 561
U.S. 945, 949 (2010) (“Evidence produced during the state postconviction relief process also
revealed that Sears suffered significant frontal lobe abnormalities. Two different psychological
experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e.,
problems with planning, sequencing and impulse control, —as a result of several serious head
injuries he suffered as a child.”). Skatzes fails to “provide any real link” between any of his offered
mitigating factors and his crimes. White v. Plappert, 131 F.4th 465, 495 (6th Cir. 2025) (quoting
Thornell v. Jones, 602 U.S. 154, 165–168 (2024)).
Even if all the mitigating evidence was presented to the jury, there is no substantial
likelihood that the jury would have changed its mind. “When assessing the prejudicial impact of
counsel’s failure to introduce mitigating evidence, we must “keep in mind the State’s evidence on
the other side of the scale.” White, 131 F.4th at 495 (quoting Caudill v. Conover, 881 F.3d 454,
464 (6th Cir. 2018)). During the penalty phase closing argument, the state argued four aggravating
circumstances: (1) Skatzes’ status as a prisoner in an Ohio detention center, (2) Skatzes’ previous
conviction of aggravated murder, (3) Skatzes killed two people as part of a course of conduct, and
(4) Skatzes committed the murders while “committing or attempting to commit, or fleeing
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immediately after committing, or attempting to commit a kidnapping.” (ECF No. 74-16 at PageID
20136-20139). The state challenged Skatzes’ contention that he would not be a violent man in
prison, pointing to an incident where he stabbed another inmate for taking his property and his
membership in the Aryan Brotherhood. (Id. at PageID 20143). The state also challenged Skatzes’
contention that he would be a positive influence in prison, arguing he had solicited Snodgrass to
kill Elder. (Id. at PageID 20144). The state also disagreed with Skatzes’ position that his efforts to
assist the guards during the riot should be considered mitigating, arguing that it was done out of
self-interest. (Id.).
A more robust mitigation case would have, no doubt, resulted in a more robust response
from the state. Additional defense witnesses touting Skatzes’ virtues or disadvantages would have
provided the state with ample opportunity to remind the jury of the gruesome details of the Elder
and Sommers murders. The jury would have been reminded that Skatzes recruited a younger
member of the Aryan Brotherhood to stab Elder to death and praised him afterward. (ECF No. 74-
4 at PageID 18395-18403). The jury would have also been reminded that Sommers met his end
after he was lured to L-7 where Skatzes beat him to death with a baseball bat. (ECF No. 74-5 at
PageID 18492-18493). A more robust mitigation case may have also provided the state with an
opportunity to explore the unfavorable information about Skatzes’ history and character uncovered
by Dr. Smalldon.
Skatzes has offered extra evidence about the disadvantaged circumstances of his
upbringing and his diagnosis of mild functional brain impairment. But he has failed to demonstrate
that this evidence would have diminished his moral culpability so much so that it would have
overcome the aggravating circumstances on the other side of the scale. A reasonable judge could
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find that the extra evidence did not have a substantial likelihood of changing the jury’s death
penalty verdicts.
The Second District’s decision dismissing Ground Eleven was neither contrary to nor an
unreasonable application of federal law. Ground Eleven is dismissed for lack of merit.
Ground Twelve
In Ground Twelve, Skatzes contends that the trial court erred when instructing the jury on
“conspiracy,” and “principal offender.” (Petition, ECF No. 25 at PageID 314-18). Skatzes raised
Ground Twelve on direct appeal (Appellant’s Brief, ECF 67-3 at PageID 4014-17, 4102) and then
to the Supreme Court Ohio (Appellant’s Brief, ECF No. 67-7 at PageID 5313-14, 5390-95, 5412-
13), which entered the last reasoned opinion:
{¶ 57} In propositions of law VIII and IX, Skatzes contends that the trial court’s
instructions on [] conspiracy were inadequate. Again, Skatzes’s failure to object to
[the] instruction waived all but plain error. Underwood, 3 Ohio St.3d 12, 3 OBR
360, 444 N.E.2d 1332, syllabus.
***
{¶ 59} Here, and in proposition of law IX, Skatzes asserts that the court’s
instruction on conspiracy was error. The trial transcript indicates that the court
stated, “You may not find * * * that the defendant conspired with others to commit
an offense unless you find beyond a reasonable doubt that a substantial overt act in
furtherance of such conspiracy is proved to have been done by him or by a person
with whom he conspires, and that such an act wasn’t performed subsequent to the
defendant’s entrance into the conspiracy.” (Emphasis added.) This instruction is
plainly illogical. On its face, it required the jury to find Skatzes culpable only if his
overt actions in furtherance of the conspiracy actually occurred before his
involvement in the conspiracy.
{¶ 60} The record, however, contains copies of the written instructions provided to
the jury during deliberations, and these written instructions correctly stated the law,
using “was” instead of “wasn’t.” In addition, the trial court directed the jurors not
to take notes during its charge because they would have a copy of the instructions
in the jury room during deliberations.
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{¶ 61} Even assuming that the court misstated the instruction, we find that any such
error did not affect the outcome of Skatzes’s trial. Not only did the written
instructions correctly state the law on conspiracy, the trial court encouraged the jury
to rely upon the written instructions during deliberations. Moreover, given the
jury’s detection of a conflict between “a” and “the” in the jury instruction and
verdict form discussed in proposition of law XIII, infra, the jury likely would have
noticed a conflict in logic between the oral and written instructions and would have
requested a clarification had they been confused. No outcome-determinative error
occurred. We reject propositions of law VIII and IX.
***
{¶ 66} In proposition of law XII, Skatzes raises a number of other alleged errors in
the trial-phase jury instructions and asserts that these errors, both individually and
cumulatively, warrant a reversal. Skatzes’s failure to object to any of the claimed
instructional errors waived all but plain error. State v. Underwood, 3 Ohio St.3d 12,
3 OBR 360, 444 N.E.2d 1332, syllabus. We find no plain error in any of the 12
instructional errors raised by Skatzes.
***
{¶ 78} Skatzes asserts that the trial court erred in defining “principal offender” as
“one who has hands-on involvement in a homicide.” This court has held that
“principal offender” means “actual killer,” State v. Penix (1987), 32 Ohio St.3d
369, 371, 513 N.E.2d 744, or “one who personally performs every act constituting
the offense” of aggravated murder, State v. Getsy (1998), 84 Ohio St.3d 180, 197,
702 N.E.2d 866, or “one who directly caused the death.” State v. Stallings (2000),
89 Ohio St.3d 280, 292, 731 N.E.2d 159. The court of appeals agreed with Skatzes
that “hands-on involvement” was not specific enough but held that it did not
constitute plain error. We agree. The instruction pertained only to the Sommers
murder. Skatzes claimed that he was not present for Sommers’s murder and first
learned of it after the riot when he was in Mansfield. The state’s evidence, however,
established that Skatzes was an active participant in the Sommers murder. The error
in the instruction was harmless because the evidence at trial showed that Skatzes
was an actual killer of Sommers. See State v. Chinn (1999), 85 Ohio St.3d 548,
559–560, 709 N.E.2d 1166.
Skatzes, 104 Ohio St. 3d at 206–07–39.
Respondent argues that Ground Twelve is procedurally defaulted because Skatzes’ trial
counsel failed to contemporaneously object to the jury instructions at trial. (Return of Writ, ECF
No. 31 at PageID 505-506). The record reflects that the Supreme Court of Ohio enforced Ohio’s
contemporaneous objection rule and reviewed Ground Twelve for plain error only. (ECF No. 67-
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10 at PageID 6787). Ohio’s contemporaneous objection rule is an adequate independent state
procedural rule entitled to be honored in habeas. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th
Cir. 2012) (citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006)); Goodwin v. Johnson, 632
F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Goodwin v.
Johnson, 632 F.3d 301, 315 (6th Cir. 2011). Accordingly, Ground Twelve is procedurally
defaulted.
Skatzes 	argues 	that 	the 	procedural 	default 	is 	excused 	due 	to 	his 	trial 	counsels’
ineffectiveness for failing to object.30 (Traverse, ECF No. 42 at PageID 834). Attorney neglect,
ignorance, or inadvertence does not constitute cause to excuse a procedural default unless
counsel’s performance was constitutionally deficient under Strickland, 466 U.S. 668. Coleman,
501 U.S. at 752–755; Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). Besides cause, a petitioner
must also show actual prejudice as a result of the claimed constitutional error, i.e., that the
constitutional errors worked to his “actual and substantial disadvantage, infecting the entire trial
with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). If there
is strong evidence of the petitioner’s guilt and a lack of evidence for his claim, the actual prejudice
requirement is not satisfied. Id. at 172; Rust, 17 F.3d at 161–62. For the reasons discussed below,
the Court finds that Skatzes’ claim of ineffective assistance of counsel fails on Strickland’s
prejudice prong and thus does not excuse his procedural default.31 At any rate, also discussed
below, even if not procedurally defaulted, Ground Twelve would fail on the merits.
30 	Skatzes also asserts his actual innocence as an excuse (Traverse, ECF No. 42 at PageID 834), the merits of
which are addressed and denied in connection with his procedural and substantive claims.
31 	See Ege v. Yukins, 485 F.3d 364, 379 n.7 (6th Cir. 2007) (reviewing an ineffective assistance claim de novo
as cause to overcome procedural default but applying AEDPA deference when reviewing it as an independent claim).
Skatzes was not prejudiced by his counsels’ failure to object to the “conspiracy” instruction because the jury could
not have been misled about the correct interpretation of the law under the circumstances. He was not prejudiced by
counsels’ failure to object to the “principal offender” instruction because under Ohio law, the evidence offered about
Skatzes’ participation in Sommers’ homicide fits the correct definition of “actual killer.”
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With specific regard to a habeas challenge to jury instructions, a petitioner has a
particularly heavy burden: “In a habeas proceeding, allegedly improper jury instructions must be
shown to have infected the accused’s trial to such a degree as to constitute a clear violation of due
process. The petitioner must show more than that the instructions are undesirable, erroneous, or
universally condemned.” Wood v. Marshall, 790 F.2d 548, 551 (6th Cir. 1986); Coe v. Bell, 161
F.3d 320, 329 (6th Cir. 1998). The Supreme Court has made clear that “not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.”
Middleton v. McNeil, 541 U.S. 433, 437 (2004). “‘[A] single instruction to a jury may not be judged
in artificial isolation but must be viewed in the context of the overall charge.’” Boyde v. California,
494 U.S. 370, 378 (1990) (quoting Cupp, Id. at 146–147). “To warrant habeas relief, ‘jury
instructions must not only have been erroneous, but also, taken as a whole, so infirm that they
rendered the entire trial fundamentally unfair. The burden is even greater than that required to
demonstrate plain error on appeal.’” Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir. 2001) (quoting
Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir. 2000)).
Skatzes has not met this standard.
(a) Conspiracy
Skatzes argues that the oral instructions misread Ohio law on “conspiracy.” The transcript
recorded that the trial judge said the following:
You may not find the defendant, that the defendant conspired with others to commit
an offense unless you find beyond a reasonable doubt that a substantial overt act in
furtherance of such a conspiracy is proved to be done by him or by a person with
whom he conspires, and that such an act wasn’t performed subsequent to the
defendant’s entrance into the conspiracy.
(ECF No. 74-13 at PageID 19853-19854) (emphasis added). Skatzes argues that the instruction
should have read “was performed subsequent to…” and the erroneous oral instruction violated his
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due process rights because it reduced the state’s burden of proof. (Traverse, ECF No. 42 at PageID
835-839).
To begin, the Court rejects Skatzes’ argument that his claim is subject to automatic reversal
under Stromberg v. People of State of Cal., 283 U.S. 359 (1931). The Supreme Court has described
the scenario in Stromberg:
There, the jury returned a general verdict of guilty against an
appellant charged under a California statute making it an offense
publicly to display a red flag (a) as a sign, symbol or emblem of
opposition to organized government, (b) as an invitation or stimulus
to anarchistic action, or (c) as an aid to propaganda that is and was
of a seditious character. This Court held that clause (a) was
unconstitutional 	as 	possibly 	punishing 	peaceful 	and 	orderly
opposition to government by legal means and within constitutional
limitations. The Court held that, even though the other two statutory
grounds were severable and constitutional, the conviction had to be
reversed, because the verdict did not specify the ground upon which
it rested. As there were three purposes set forth in the statute, and
the jury was instructed that their verdict might be given with respect
to any one of them, independently considered, it is impossible to say
under which clause of the statute the conviction was obtained. If any
one of these clauses, which the state court has held to be separable,
was invalid, it cannot be determined upon this record that the
appellant was not convicted under that clause. The necessary
conclusion from the manner in which the case was sent to the jury
is that, if any of the clauses in question is invalid under the Federal
Constitution, the conviction cannot be upheld.
Bachellar v. Maryland, 397 U.S. 564, 570–71 (1970). Skatzes’ case is distinguishable and not
controlled by Stromberg. Reversal was required in Stromberg because there was no way to know
whether the defendant was convicted under a constitutional or unconstitutional section of the
statute. The alleged error in Skatzes’ case involves a single instruction on a single legal theory—
conspiracy, and the trial court’s substitution of an incorrect word during the oral reading of the
instruction. Skatzes fails to point to Supreme Court authority that calls for automatic reversal under
these circumstances.
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Considering the jury instructions as a whole, there is no reasonable likelihood that the jury
was misled by the putative misreading of the conspiracy instruction. The jury was first instructed:
In order to find the defendant conspired, you must find beyond a reasonable doubt
that on or about the dates charged, the defendant with purpose to commit
aggravated murder or kidnapping, either, one, planned with another person or
persons the commission of such an offense or, two, agreed with another person or
persons that that one or more of them would engage in conduct which facilitated
commission of such an offense.
(ECF No. 74-13 at PageID 19853). Then, the jury was instructed that they must find beyond a
reasonable doubt that overt act in furtherance of the conspiracy “wasn’t performed subsequent to
the defendant’s entrance into the conspiracy.” (ECF No. 74-13 at PageID 19854) (emphasis
added).
The Ohio Supreme Court found that there was no outcome determinative error because the
misread instruction was “plainly illogical,” and the jury received a correct instruction in the written
copy. Skatzes, 104 Ohio St. 3d at 207. As noted by the Ohio Supreme Court, the oral instruction
would require the jury to find an overt act in furtherance of a conspiracy that had not happened
yet. This is a result that “makes no conceivable sense.” Middleton v. McNeil, 541 U.S. 433, 438
(2004).
The Court finds it hard to believe that the jury recalled and applied a single misstated word
in an oral instruction that spanned forty-three transcript pages. Nor does it follow that the jury
would have applied that word in a way that simply made no sense. The Ohio Supreme Court’s
dismissal of Ground Twelve was not unreasonable. This is especially true when the evidence at
trial established that Skatzes himself engaged in an overt act in furtherance of the Vallandingham
conspiracy when he delivered the co-conspirators ultimatum to the state, and in furtherance of the
Elder conspiracy when he recruited Snodgrass and accompanied him to the scene. Both acts
occurred after the conspiracy was formed and these points were argued by the prosecutor during
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closing argument. (ECF No. 74-12 at PageID 19718, 19707). See Middleton v. McNeil, 541 U.S.
433, 438 (2004) (holding that it is not improper to consider prosecutor’s argument when
considering whether jury instruction violated due process).
(b) Principal Offender
Skatzes next argues that he is entitled to habeas relief because the jury was improperly
instructed on “principal offender.” As explained in Ground Four, the state advanced a theory that
Skatzes was the “principal offender” in David Sommers’ murder. (Petition, ECF No. 25 at PageID
273-274). The jury was instructed on the specifications attendant to the David Sommers’
aggravated murder charge, including Specification Number 3:
Before you can find the defendant guilty of Specification Number 3, you must find
that the State has proved beyond a reasonable doubt that the defendant purposely
caused the death of David Sommers while committing, or attempting to commit, or
fleeing immediately after committing or attempting to commit kidnapping, and
either the offense or the offender was a principal offender in the commission of the
aggravated murder or, if not a principal offender, committed the aggravated murder
with prior calculation and design.
Principal offender is one who has hands-on involvement in the homicide.
(ECF No. 74-13 at PageID 19875). The Ohio Supreme Court found that the instruction was “not
specific enough” under Ohio law, which defines principal offender as an “actual killer,” but the
instruction did not constitute plain error because the evidence showed that Skatzes was an “actual
killer of Sommers.” Skatzes, 104 Ohio St. 3d at 210.
Skatzes argues that the instruction violated his due process rights. Specifically, he argues
that the coroner’s testimony showed that he did not administer the final death blow to David
Sommers, and he was therefore not the “principal offender.” (Traverse, ECF No. 42 at PageID
841-42). Skatzes made this same argument in his direct appeal to the Supreme Court of Ohio: that
there could only be one “principal offender” under the circumstances. (Appellant Brief, ECF No.
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67-7 at PageID 5515). The court rejected this interpretation of Ohio law when it concluded that
the evidence at trial showed he was “an actual killer of Sommers.” Skatzes, 104 Ohio St. 3d at 210.
(emphasis added). This court is bound to defer to the Ohio Supreme Court’s interpretation of state
law. “A state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703
F.2d 959, 962 (6th Cir. 1983)); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state court determinations on state law
questions.”).
Skatzes has failed to show that the jury instructions were so infirm that they rendered his
entire trial fundamentally unfair. Nor has he shown that the Supreme Court of Ohio’s dismissal of
his claim was contrary to or an unreasonable application of federal law. Even if Ground Twelve
were not procedurally defaulted, it would be dismissed for lack of merit.
Ground Thirteen
In Ground Thirteen, Skatzes contends that the trial court violated his due process rights by
admitting prejudicial testimony from Roger Snodgrass. (Petition, ECF No. 25 at PageID 318-328).
Skatzes asserted Ground Thirteen in state court on direct appeal. (Appellant’s Brief, ECF No. 67-
7 at PageID 5315, 5419-21; 5321, 5494-98). The Ohio Supreme Court issued the last reasoned
decision:
{¶ 82} In proposition of law XIV, Skatzes argues that the trial court erred in
allowing inmate Snodgrass to testify that the Aryan Brotherhood had agreed with
the Muslims regarding the treatment of white inmates during the riot. Snodgrass
was not certain that it was Skatzes from whom he had heard about the alleged
agreement.
{¶ 83} Snodgrass testified that he had killed inmate Elder under orders from
Skatzes and that Muslim inmate Lucky Roper had talked with Skatzes in the gym
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prior to the Elder murder and had watched the Elder killing along with Skatzes.
When the prosecutor asked Snodgrass why he and Skatzes had been involved in
this murder with a Muslim, Snodgrass replied that, according to Jason Robb, the
Aryan Brotherhood had made a pact with the Muslims. Snodgrass stated that
Skatzes had explained the pact to him: “[N]o more white guys were going to be
killed in that riot, without sanctions from the AB, * * * that if the [white guys] were
to be killed, they were goin’ to be killed by their own kind or at least given that
opportunity.” Snodgrass then equivocated and said he might have heard this from
Robb or another Aryan leader.
{¶ 84} Skatzes claims that this testimony about the pact was inadmissible. The
testimony was not inadmissible under Evid.R. 404(B), because the testimony did
not refer to any prior crime, wrong, or act. If the statement was made by Skatzes,
the testimony was admissible under Evid.R. 801(D)(2)(a) as an admission or
statement. If the statement was not made by Skatzes, but instead by Robb or another
Aryan leader, as Snodgrass conceded was possible, then the statement was
admissible under Evid.R. 801(D)(2)(e), as a statement made by a co-conspirator of
a party during the course and in furtherance of the conspiracy. We reject proposition
of law XIV.
***
{¶ 129} In proposition of law XXXV, Skatzes alleges error in the trial court’s
admission of State Exhibit 334, a document purporting to be the by-laws of the
Aryan Brotherhood. He contends that the state did not lay a proper foundation for
the document and, therefore, that the document was hearsay. Skatzes also alleges
that the government shifted the burden of proof to him to show that he had no
knowledge of the by-laws.
{¶ 130} Inmate Snodgrass testified that the by-laws were written by inmate Tramp
Johnson and given to inmate Bocook, who then gave them to Snodgrass after the
takeover. Among other things, the by-laws defined a “traitor” as one who
abandoned a “Brother in the middle of a conflict or potentially violent conflict” and
that failure of a member to promptly heed a “Call to Arms” would be considered a
“traitorous act.” Snodgrass stated that being “deemed a traitor” meant you would
be killed. Snodgrass also stated that the by-laws were in effect during the takeover.
{¶ 131} Snodgrass properly identified the by-laws pursuant to Evid.R. 901(B)(1),
and his testimony was sufficient to support a finding that the document was what
he claimed it to be. Snodgrass also testified that all Aryan Brotherhood members
had to learn about and accept the by-laws as part of becoming a member. This
testimony supported the inference that Skatzes knew about the by-laws at the time
of the riot, and it did not unfairly shift the burden of proof to him to disprove his
knowledge of them.
{¶ 132} Moreover, the by-laws were not hearsay under Evid.R. 801(B) because the
document containing the by-laws was not offered for the truth of the matter
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asserted. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at
¶ 58–60. “Statements offered as evidence of commands or threats or rules directed
to the witness, rather than for the truth of the matter asserted therein, are not
hearsay.” United States v. Bellomo (C.A.2, 1999), 176 F.3d 580, 586, citing United
States v. Stratton (C.A.2, 1985), 779 F.2d 820, 830. We reject proposition[] of
law…XXXV.
Skatzes, 104 Ohio St. 3d at 210–12–43.
Respondent argues that Ground Thirteen should be dismissed as procedurally defaulted
because Skatzes failed to fairly present it to the Ohio state courts. (Return of Writ, ECF No. 31 at
PageID 514-518). Specifically, Respondent argues that Skatzes presented Ground Thirteen to the
state courts as a violation of Ohio evidentiary rules and not as a federal due process claim. (Id.).
In response, Skatzes points to his appellate brief and argues that his claim was fairly presented.32
(Traverse, ECF No. 42 at PageID 847-850).
The first part of Ground Thirteen concerning Snodgrass’ testimony about the pact between
the Aryan Brotherhood and the Muslims appears in Skatzes’ brief to the Supreme Court of Ohio
as Proposition of Law No. 14. (Appellant’s Brief, ECF No. 67-7 at PageID 5315, 5419-5421).
Federal law is merely referenced in the heading describing the proposition of law:
Proposition of Law No. 14: A witness may testify to what the witness has seen and
heard but not about what another person said. A witness testified about what
another person had said. The defendant’s rights under the Rules of Evidence or
Compulsory Process, the Due Process Clause, or the Confrontation Clause of the
Ohio Constitution, art 1§ 16, and the United States Constitution, amend V, VI, VIII,
& XIV were violated.
(Id. at 5419). Skatzes’ brief on Proposition of Law No. 14 solely discusses Ohio law and does not
argue how his due process rights were violated or cite any federal cases. (Id. at PageID 5419-
5421). This is not enough to preserve the claim for federal habeas review.
32 	Skatzes also asserts his actual innocence as an excuse (Traverse, ECF No. 42 at PageID 854-855), the merits
of which are addressed and denied in connection with his procedural and substantive claims.
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“To escape procedural default, claims that the rights to due process and to a fair trial have
been violated must of themselves be fairly presented, rather than functioning as catchall language
appearing within the presentation of other non-constitutional arguments.” Blackmon v. Booker,
394 F.3d 399, 400–401 (6th Cir. 2004). A petitioner’s “naked assertion” in his brief headings and
conclusions that his rights to a fair trial and due process were violated was insufficient to constitute
fair presentment where the petitioner “failed to develop any cogent arguments regarding those
rights beyond the naked assertion that they were violated.” Id; Olson v. Little, 604 F. App’x 387,
401–02 (6th Cir. 2015) (reference to fair trial in state court brief insufficient to avoid procedural
default); Onon v. Woods, 2014 WL 12971929, at *2 (6th Cir. Nov. 14, 2014) (reference to United
States Constitutional Amendments without analysis insufficient to avoid procedural default).
The Court reaches the opposite conclusion for the second part of Ground Thirteen
concerning the Aryan Brotherhood by-laws. Skatzes presented this part of Ground Thirteen to the
Supreme Court of Ohio as Proposition of Law No. 35. (Appellant’s Brief, ECF No. 67-7 at PageID
5321, 5494-98). Skatzes argued that the introduction of the by-laws shifted the burden of proof to
him and he cited two United States Supreme Court cases for the proposition that the state bore the
burden of proof. (Id. at PageID 5497-5498). This was enough to put the Supreme Court of Ohio
on notice that Skatzes was asserting a federal claim. See Whiting v. Burt, 395 F.3d 602, 613 (6th
Cir. 2005) (fair presentment includes “reliance upon federal cases employing constitutional
analysis”).
Notwithstanding Skatzes’ partial default of Ground Thirteen, the Court finds that it lacks
merit in its entirety. The Sixth Circuit has described the rigorous standard for habeas review of
state court evidentiary decisions:
[F]ederal habeas courts review state court evidentiary decisions only
for consistency with due process. A state court evidentiary ruling
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will be reviewed by a federal habeas court only if it were so
fundamentally unfair as to violate the petitioner’s due process rights.
Moreover, such rulings are usually not to be questioned in a federal
habeas corpus proceeding. Even if errors are made in the application
of state law, such errors ... especially with regard to the admissibility
of evidence, are usually not cognizable in federal habeas corpus. If
a ruling is especially egregious and results in a denial of fundamental
fairness, it may violate due process and thus warrant habeas relief.
Importantly, however, as a general matter, state-court evidentiary
rulings cannot rise to the level of due process violations unless they
offend some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental. Ultimately,
states have wide latitude with regard to evidentiary matters under
the Due Process Clause.
Wilson v. Sheldon, 874 F.3d 470, 475–76 (6th Cir. 2017) (citation modified).
At trial, the prosecutor asked Snodgrass if Skatzes ever explained to him why Lucky Roper
was part of the murder of Earl Elder. (ECF No. 74-4 at PageID 18404). Snodgrass responded,
“well from my understanding, a pact was made with the Muslims.” (Id.). The defense objected.
(Id.). Snodgrass continued,
Jason Robb told me a pact was made with the Muslims…when George told me no
more white guys were going to be killed in that riot, without sanctions from the AB,
that if they were going to be killed, they were goin’ to be killed by their own kind
or at least be given that opportunity…
(Id.). Snodgrass then said that he could not be sure that Skatzes made the comment, and it could
have been Jason Robb. (Id. at PageID 18404-18405).
The Ohio Supreme Court found that Snodgrass’ testimony was admissible under Ohio’s
evidence rules. To the extent Skatzes argues that this ruling is an incorrect interpretation of Ohio
law, the claim is non-cognizable in federal habeas review. The extraordinary remedy of habeas
corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court
explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly
admitted or improperly excluded under state law “is no part of the federal court’s habeas review
of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court
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determinations on state-law questions.” Id. at 67–68. Rather, “[i]n conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.” Id. at 68. State courts are the final arbiters of state law, and the federal courts
will not intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
Skatzes’ argument that Snodgrass’ testimony violated due process also fails. To obtain
habeas relief based on an allegedly improper evidentiary ruling, a petitioner must identify a
Supreme Court case establishing a due process right with regard to the specific kind of evidence
at issue. Stewart v. Winn, 967 F.3d 534, 538 (6th Cir. 2020). Skatzes fails to identify any clearly
established Supreme Court precedent that would preclude admission of Snodgrass’ testimony
about the pact. Moreover, considering that the Supreme Court of Ohio concluded that the evidence
was properly admitted and the fact that Snodgrass conceded that he was unsure if Skatzes made
the remarks, Skatzes fails to demonstrate that his due process rights were denied.
The second part of Ground Thirteen concerning Snodgrass’ testimony regarding the
admission of the Aryan Brotherhood by-laws also fails. Snodgrass identified the bylaws of the
Aryan Brotherhood and testified that they were written by Tramp Johnson. (ECF No. 74-5 at
PageID 18512-18513). Snodgrass testified that Skatzes was a captain in the Aryan Brotherhood
and the by-laws were in effect at the time of the riot. (Id.). He pointed out that according to the by-
laws it was the duty of a member of the Aryan Brotherhood to follow orders during wartime. (Id.
at PageID 18514).
The Ohio Supreme Court found that Snodgrass’ testimony “supported the inference that
Skatzes knew about the by-laws at the time of the riot, and it did not unfairly shift the burden of
proof to him to disprove his knowledge of them.” Skatzes, 104 Ohio St. 3d 195, ¶ 131 (copy at
state court record, ECF No. 67-10 at PageID 6296). Skatzes now argues that the admission of the
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by-laws violated his due process rights because it allowed the jury to infer that, as a member of
the Aryan Brotherhood, his interaction with Muslims during the riot was evidence of a conspiracy.
(Traverse, ECF No. 42 at PageID 862-863).
Like the first part of Ground Thirteen, Skatzes cannot point to a United States Supreme
Court case holding that the admission of the by-laws under the circumstances rendered his trial
fundamentally unfair. More to the point, other evidence introduced at trial established that the
Aryan Brotherhood’s interaction with the Muslims during the riot was unusual and contrary to the
organization’s philosophy. Roger Snodgrass testified that it was strange to see leaders from the
Muslims and Aryan Brotherhood meeting three weeks before the riot and twice on the day of the
riot because “they did not mix well.” (ECF No. 74-4 at PageID 18364, 18368, 18369). When David
Lomache saw the Aryan Brotherhood and the Muslims conferring in the L-3 dayroom after the
start of the riot, he described the situation as “unusual” and “not normal” because they stayed apart.
(ECF No. 73-18 at PageID 16417-16418).
Skatzes testified that he joined the Aryan Brotherhood to oppose cell integration and
because the large number of new black inmates was threatening to the white inmates. (ECF No.
74-9 at PageID 19324-19329). According to Skatzes, some members of the Aryan Brotherhood
were white supremacists, there were different levels of extremism, but he believed that the white
man should “band together and stand up because it is his ass out there.” (ECF No. 74-10 at PageID
19449-19450). From this evidence the jury could have reasonably inferred that Skatzes’
collaboration with the Muslims was a deviation from the norm and confirmed a conspiracy.
Even so, a conviction under a theory of conspiracy required the prosecution to prove:
…beyond a reasonable doubt that on or about the dates charged, the defendant with
purpose to commit aggravated murder or kidnapping, either, one, planned with
another person or persons that one or more of them would engage in conduct which
facilitated the commission of the offense, or two agreed with another person or
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persons that one or more of them would engage in conduct which facilitated the
commission of such an offense.
(ECF No. 74-13 at PageID 19868-71). The jury did not need to believe that Skatzes knew about
or subscribed to the by-laws to find him guilty because there was evidence that Skatzes acted in
concert with others to facilitate the murders of Vallandingham and Elder.
Accordingly, even if the first part of Ground Thirteen were not procedurally defaulted, it
would be dismissed for lack of merit. The second part of Ground Thirteen is likewise without merit
and is dismissed.
Ground Fourteen
In Ground Fourteen, Skatzes contends that his due process rights were violated because the
trial court admitted evidence of two murders for which he was not charged, Pop Svette and Albert
Steano. (Petition, ECF No. 25 at PageID 321-24). Ground Fourteen also alleges that Skatzes’ due
process rights were violated because Kenneth Jenkins testified that Skatzes threatened him during
their incarceration together after the riot. (Id. at PageID 322). Skatzes raised Ground Fourteen on
direct appeal, labeled as Propositions of Law No. 28 and 29, to the Ohio Supreme Court. (ECF
No. 67-7 at PageID 5319, 5461-65; 5320, 5466-69). The Ohio Supreme Court denied Skatzes’
appeal:
{¶ 	108} 	In 	proposition 	of 	law 	XXVIII, 	Skatzes 	contends 	that 	the 	state’s
introduction of evidence of other acts he had committed violated Evid.R. 404(B)
and R.C. 2945.59. Skatzes’s failure to object to the other-acts testimony waives any
error on appeal. State v. Bays (1999), 87 Ohio St.3d 15, 26–27, 716 N.E.2d 1126.
Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show he acted in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
{¶ 109} Most of the evidence Skatzes cites involved uncharged acts during the riot,
such as destroying property, disciplining inmates by violence, and involvement in
the 	Aryan 	Brotherhood. 	Evidence 	of 	Skatzes’s 	involvement 	in 	the 	Aryan
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Brotherhood was offered to show his leadership role during the takeover, which
bore directly upon the crimes with which he was charged. Compare State v. Sanders
(2001), 92 Ohio St.3d 245, 256–257, 750 N.E.2d 90 (evidence of bad acts by other
inmates admissible to show defendant’s leadership role).
{¶ 110} Evidence about Skatzes’s involvement in a hunger strike and stopping up
toilets at Mansfield Correctional Institution after the takeover had ended should
have been excluded under Evid.R. 404(B). Nevertheless, evidence on these
relatively minor incidents did not prejudice Skatzes and was harmless. See Robb,
88 Ohio St.3d at 69, 723 N.E.2d 1019; State v. Gumm (1995), 73 Ohio St.3d 413,
426, 653 N.E.2d 253. We reject proposition of law XXVIII.
{¶ 111} In proposition of law XXIX, Skatzes complains that the trial court admitted
testimony of bad acts by other inmates in the riot. Skatzes asserts that such evidence
should have been excluded under Evid.R. 403 and 404(B). Skatzes lists a number
of acts committed by others that he claims should not have been admitted through
a conspiracy theory.
{¶ 112} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 31 OBR 375, 510
N.E.2d 343, paragraph two of the syllabus. Arguments similar to those raised by
Skatzes were raised and rejected in Robb, 88 Ohio St.3d at 68–69, 723 N.E.2d 1019,
and in Sanders, 92 Ohio St.3d at 256–257, 750 N.E.2d 90. The evidence in this case
helped prove that prison gang leaders, including Skatzes, conspired over 11 days to
seize and control L-complex, settle old scores, engage in assaults, take hostages,
and commit murders.
{¶ 113} The prosecutor was entitled to present evidence about the context of the
alleged crimes to make the actions of the participants understandable to the jurors.
Skatzes did not commit his crimes in a vacuum, and the prosecution was not
required to proceed as if he had. The trial court, as in Robb, had wide latitude to
permit evidence as to how the riot began and unfolded, the rules and procedures
established by the gangs during the riot, how infractions were dealt with, and the
ways in which the relationships between the gangs and their members affected the
events that occurred.
{¶ 114} This information was relevant to the offenses that Skatzes committed, the
biases of the various witnesses, and the reasons that they behaved the way they did.
Given the prison-inmate culture and the gang loyalty demonstrated by gang
members, much of this testimony would not be within the knowledge or experience
of the average juror. The trial court could have reasonably concluded that the
probative value of this evidence outweighed the danger of unfair prejudice or
confusion of issues. The evidence was relevant and thus was admissible under
Evid.R. 403. We reject proposition of law XXIX.
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Skatzes, 104 Ohio St. 3d at 217–47.
Respondent contends that Ground Fourteen is procedurally defaulted because, while
similar to Proposition of Law No. 29 on direct appeal, it contains a different factual basis. (Return
of Writ, ECF No. 31 at PageID 519-520). Skatzes’ brief to the Supreme Court of Ohio references
the improper admission of evidence concerning the murder of Pop Svette. (Appellant’s Brief, ECF
No. 67-7 at PageID 5467). At the same time, his brief failed to include any allegation pertaining
to the murder of Albert Steano or the alleged threat against Kenneth Jenkins (id. at PageID 5461-
5469), rendering these parts of Ground Fourteen procedurally defaulted.33 See McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (“A claim may only be considered ‘fairly presented’
if the petitioner asserted both the factual and legal basis for his claim to the state courts.”);
Williams v. Bagley, 380 F.3d 932, 967 (6th Cir. 2004) (when a petitioner fails to bring a claim on
direct appeal, it would be barred by Ohio’s doctrine of res judicata, and is procedurally defaulted
for purposes of federal habeas review). In any event, as discussed below, even if Skatzes had not
procedurally defaulted part of Ground Fourteen, it would be dismissed for lack of merit.
During Skatzes’ trial, David Lomache testified that he witnessed Pop Svette’s murder.
(ECF No. 73-18 at PageID 16444-45). Lomache testified that he saw Freddie Frakes beat Svette
to death with a baseball bat. (Id.). Lomache also tied Frakes to Aryan Brotherhood leadership when
he testified that Frakes was present in the L-2 unit office when leadership from the Muslims, Black
Gangster Disciples, and Aryan Brotherhood, including Skatzes, discussed killing a correctional
officer. (Id. at PageID 16471-16472). Robert Brookover also testified about Svette’s murder. (ECF
No. 73-24 at PageID 17427-17429). Brookover recounted that he saw Freddie Frakes beat Svette
to death with a baseball bat. (Id. at PageID 12429). Miles Hogan testified that a month before the
33 Skatzes asserts his actual innocence as an excuse (Traverse, ECF No. 42 at PageID 854-55), the merits of which
are addressed and denied in connection with his procedural and substantive claims.
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riot he learned that the Aryan Brotherhood had “a contract out” on Albert Steano and the day the
riot began Robb and Bocook were looking for Steano. (ECF No. 73-20 at PageID 16842-46).
In addition to the testimony about the two murders, Kenneth Hazlett testified that he
witnessed Skatzes, Snodgrass, and Frakes escorting Robert Vallandingham around the cell blocks.
(ECF No. 74-7 at PageID 18761). Kenneth Jenkins testified that while housed at Mansfield
Correctional Institution, he refused to participate in a hunger strike spearheaded by the Aryan
Brotherhood. Jenkins testified he was consequently threatened by Skatzes, who said, “I will deal
with you when I get out, your days are numbered.” (ECF No. 73-23 at PageID 17323-17324).
Skatzes argues that the admission of this testimony violated his due process rights because
“[t]he jury would…consider Skatzes guilty of the uncharged murders of Steano and Svette through
his guilt by association with his Aryan associates.” (Traverse, ECF No. 42 at PageID 859).
Respondent argues that the admission of this evidence was not improper and does not rise to the
level of a constitutional violation because “[e]vidence about meetings, gang relationships, and
crimes committed by others was necessary to put Skatzes’ actions into context and make them
understandable to jurors as to why and how the inmates behaved and made decisions.” (Return of
Writ, ECF No. 31 at PageID 523).
“There is no clearly established Supreme Court precedent which holds that a state violates
due process by permitting propensity evidence in the form of other bad acts evidence ....” Bugh v.
Mitchell, 329 F.3d 496, 512–13 (6th Cir. 2003) (citation modified). “While the Supreme Court has
addressed whether prior acts testimony is permissible under the Federal Rules of Evidence, it has
not explicitly addressed the issue in constitutional terms.” Id. Because there is no Supreme Court
decision holding that the admission of “other acts” evidence violates the Constitution, the state
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court’s conclusion that the evidence was admissible cannot be deemed “contrary to” Supreme
Court precedent under 28 U.S.C. § 2254(d). Id. at 513.
Moreover, the Court finds that the trial court’s admission of the “other bad acts” evidence
was not so fundamentally unfair as to deprive Skatzes of due process. As noted by the Ohio
Supreme Court, the disputed evidence was admissible for the purposes enunciated in Ohio Evid.
R. 404(b).34 The trial court instructed the jury not to use the “other bad acts” evidence to decide
whether Skatzes was a bad person or likely to commit crimes. The jury was also instructed:
If you find that the evidence of other acts are true and that the defendant committed
them or was in complicity with those who did, you may consider the evidence only
for the purpose of deciding whether it proves, one, the defendant’s motive,
opportunity, purpose, preparation, or plan to commit the offenses charged in this
trial; and two, the knowledge of circumstances surrounding the offenses charged in
this trial; three, the identity of the person or persons who committed the offenses in
this trial. That evidence cannot be considered for any other purpose.
(ECF No. 74-13 at PageID 19856-57). The jury is presumed to have followed those instructions.
Bey v. Bagley, 500 F.3d 514, 522 (6th Cir. 2007) (citing Richardson v. Marsh, 481 U.S. 200, 211
(1987)).
For the above reasons, the Court finds that the admission of the “other acts evidence” did
not deprive Skatzes of due process of law. The Ohio Supreme Court’s same conclusion is neither
contrary to nor an unreasonable application of federal law. The parts of Ground Fourteen
concerning the murder of Albert Steano and the alleged threat against Kenneth Jenkins are
procedurally defaulted and all of Ground Fourteen lacks merit.
34 	Because it was not presented (and thus procedurally defaulted in this federal habeas petition), the Supreme
Court of Ohio did not address whether the admission of Jenkins’ testimony about the threat was admissible. It did find
that the admission of testimony about “other acts” at Mansfield Correctional Institution was harmless error. Skatzes,
104 Ohio St. 3d at 217 (copy at state court record, ECF No. 67-10 at PageID 6294). It is unclear whether the Supreme
Court of Ohio would have extended that ruling to the alleged threat by Skatzes against Jenkins. In any event, this
testimony, if not procedurally defaulted, does not rise to the level of a constitutional violation for the same reasons
discussed above.
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Ground Fifteen
In Ground Fifteen, Skatzes alleges that his trial counsel was ineffective in the guilt phase
for failing to object to the jury instructions on “conspiracy” and “principal offender” (addressed in
Ground Twelve, supra), and failing to object to “other bad acts” evidence (addressed in Ground
Fifteen, supra). (Petition, ECF No. 25 at PageID 324-328). Skatzes presented numerous claims of
ineffective assistance of trial counsel to the Supreme Court of Ohio as Proposition No. 50.
(Appellant’s Brief, ECF No. 67-7 at PageID 5545-5586). The Supreme Court of Ohio dismissed
the entire claim, including the sections now labeled as Ground Fifteen:
{¶ 198} In proposition of law L, Skatzes refers to numerous instances where
defense counsel failed to object or act effectively throughout trial. We will discuss
each in turn.
***
{¶ 206} Skatzes argues that counsel failed to object to jury instructions and other
processes at trial. Skatzes cites nothing specific, however, and he admits that
counsel did object to some instructions. Skatzes’s bare assertions establish neither
deficient performance nor prejudice.
***
{¶ 214} Skatzes argues that counsel were ineffective in failing to object to
irrelevant evidence concerning the bad acts of others. Much of this evidence was
properly admitted because it was relevant to the roles of the various gangs in the
riot, to Skatzes’s leadership role, and to the manner in which the gangs wielded
their power. This evidence helped prove the conspiracy that occurred over the
course of takeover. Moreover, because much of this evidence did not implicate
Skatzes in these other crimes, he was not prejudiced by its admission, nor were
counsel ineffective in failing to object to it.
{¶ 215} Skatzes complains that counsel were ineffective for not objecting to
numerous instances of hearsay testimony by Sgt. Hudson and the inmates testifying
on behalf of the state. As stated earlier, counsel were not ineffective in allowing
Hudson to testify as a summary witness. Skatzes claims that it was plain error for
the court to admit testimony about the killing or confinement of inmates disfavored
by gang leaders, the attack on inmate Fryman, and a poem about the Aryan
Brotherhood found in the cell of Aryan leader Freddie Snyder. Skatzes also
complains of inmate opinions that Brookover was a snitch and what should be done
with him and testimony by inmates Snodgrass, Hazlett, and Lomache that was
never tied to Skatzes.
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{¶ 216} Given the lack of evidence tying Skatzes to some of the incidents in
question, defense counsel, in the exercise of their professional judgment, may have
decided that the testimony was harmless or even helpful. A decision to object could
have drawn undue attention to the testimony. Moreover, objections “tend to disrupt
the flow of a trial” and “are considered technical and bothersome.” State v.
Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339. The decisions by defense
counsel not to interrupt appear to reflect “an objective standard of reasonable
representation.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph
two of the syllabus. In any event, the outcome of Skatzes’s trial would not have
been different even if counsel had objected to the evidence cited by Skatzes. The
jury could readily distinguish between evidence that put the takeover in context and
evidence that related to the crimes charged against Skatzes.
***
{¶ 224} We reject proposition of law L.
Skatzes, 104 Ohio St. 3d at 237–38.
Respondent contends that Ground Fifteen is procedurally defaulted. (Return of Writ, ECF
No. 31 at PageID 468-469). Specifically, Respondent argues that Skatzes presented a different
factual basis to the Supreme Court of Ohio. (Id.). Except for the two sub-parts that Skatzes
concedes were not part of his appellate brief (Traverse, ECF No. 42 at PageID 870), the Court
disagrees.
Skatzes contends in Ground Fifteen that his counsel failed to object to: (a) the “conspiracy”
jury instruction, (b) the “principal offender” jury instruction, (c) testimony regarding the murder
of Pop Svette, (d) testimony regarding the murder of Albert Steano, and (e) testimony regarding
an alleged threat made by Skatzes against Kenneth Hazlett. (Petition, ECF No. 25 at PageID 324-
28). Skatzes raised a non-specific claim in the section of his brief to the Ohio Supreme Court
addressing Proposition of Law No. 50 that his counsel failed to object to jury instructions.
(Appellant’s Brief, ECF No. 67-7 at PageID 5555-56). The Ohio Supreme Court mentioned the
vague nature of Skatzes’ arguments, but did not decline to address the claim for lack of specificity,
so the Court will consider (a) and (b) preserved for federal habeas review. Skatzes argued in his
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brief in Proposition No. 50, Section “N,” that his counsel failed to object to “testimony about the
uncharged homicide of Pop Svette.” (Id. at PageID 5566). Thus, (c) is exhausted.
Skatzes concedes that (d) and (e) were not included in his brief to the Ohio Supreme Court
(ECF No. 42 at PageID 870), so those sub-parts of Ground Fifteen are procedurally defaulted.
Williams, 380 F.3d at 967. Even if (d) and (e) were not procedurally defaulted, they would be
dismissed for the same reasons as the rest of Ground Fifteen.
The underlying merits of sub-parts (a) and (b) were addressed in Ground Twelve. Recall,
the Court found that Skatzes was not prejudiced by either jury instruction. The logical conclusion
is that the jury followed the correct written instruction for “conspiracy” instead of the incorrect
oral instruction because the oral instruction was senseless. The Court also found that Skatzes was
not prejudiced by the “principal offender” jury instruction. While the Ohio Supreme Court found
that the preferred instruction would have defined “principal offender” as “actual killer,” Skatzes
was not prejudiced because the evidence supported a conclusion that he was an actual killer of
David Sommers. In Ground Fifteen, the Court addressed the underlying merits of sub-parts (c), (d)
and (e) and concluded that Skatzes was not prejudiced by the admission of the testimony about the
Svette and Steano murders, as well as the threat against Jenkins, because the testimony was
relevant, and the jury was properly instructed on how to consider the evidence for a limited
purpose.
To establish ineffective assistance of counsel, a habeas petitioner must show “that
counsel’s performance was deficient ... [and] that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. Skatzes cannot meet this standard. The Supreme Court
reasonably determined that any error from the jury instructions was harmless. Skatzes, 104 Ohio
St. 3d at 207.
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Moreover, the Ohio Supreme Court determined that the “other acts” evidence was properly
admitted into evidence under Ohio law. Counsel cannot be deemed deficient for failing to make a
meritless argument or a futile objection. Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013); United
States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000). The failure to raise a meritless claim does
not constitute ineffective assistance of counsel. Tackett v. Trierweiler, 956 F.3d 358, 375 (6th Cir.
2020) (citing Mahdi v. Bagley, 522 F.3d 631, 638 (6th Cir. 2008), as amended (July 7, 2008)).
For these reasons, Ground Fifteen, sub-parts (a), (b), and (c) are dismissed for lack of merit.
Sub-parts (d) and (e) are procedurally defaulted and also lack merit.
Ground Sixteen
In Ground Sixteen, Skatzes contends that his appellate counsel were ineffective. (Petition,
ECF No. 25 at PageID 328-336). In Ohio, claims of ineffective assistance of appellate counsel are
not cognizable in a post-conviction petition under Ohio Revised Code § 2953.21 and must be
raised through an application to reopen the direct appeal under Ohio App. R. 26(B). State v.
Murnahan, 63 Ohio St. 3d 60 (1992); Hoffner, 622 F.3d at 504 (6th Cir. 2010). Skatzes filed a
Rule 26(B) application to reopen his appeal with the Second District Court of Appeals arguing that
his direct appeal counsel were ineffective for failing to raise various assignments of error in his
direct appeal. (ECF No. 67-11 at PageID 6399—ECF No. 68-3 at PageID 7391). The Second
District denied the application. (ECF No. 68-3 at PageID 7399-407), holding in pertinent part:
APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A
FAIR TRIAL WERE VIOLATED BY APPELLATE COUNSEL’S FAILURE TO
RAISE PROSECUTOR MISCONDUCT IN IMPROPERLY ARGUING TO THE
JURY 	THAT 	IT 	CONSIDER 	THE 	NON-STATUTORY 	AGGRAVATING
FACTOR THAT WERE APPELLANT NOT SENTENCED TO DEATH HE
WOULD RECEIVE NO PUNISHMENT AND GET A HUGE “FREEBEE” AND
BY APPELLATE COUNSEL’S FAILURE TO RAISE TRIAL COUNSEL’S
INEFFECTIVENESS IN FAILING TO OBJECT TO THIS MISCONDUCT
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Skatzes claims that the prosecutor “goad[ed] jurors to impose a death sentence” by
arguing that imposing a life sentence rather than death would give him a “freebee”
in light of the life sentence he had already been serving at the time of the offense.
In our view, the prosecutor’s comment cannot be accurately described as “goading”
and did not duly inflame the passions of the jury the comment was within the wide
latitude afforded to a prosecutor in closing arguments. Moreover, even if we were
to assume, arguendo, that this comment was improper, we would be wholly
unpersuaded that it affected the outcome of the trial.
The first assignment of error does not warrant reopening.
APPELANT’S CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL WAS VIOLATED BY APPELLATE COUNSEL’S FAILURE TO
RAISE 	TRIAL 	COUNSEL’S 	INEFFECTIVENESS 	ON 	A 	NUMBER 	OF
OCCASIONS
Skatzes points to several instances of alleged ineffectiveness under this assignment
of error, all of which relate to conduct of trial counsel that was not raised on
appeal…Skatzes argues that counsel should have objected to errors in the jury
instructions and to the admission of inmate testimony and evidence of other bad
acts.
…We also fully examined the jury instructions, inmate testimony, and evidence of
other bad acts on direct appeal. We addressed these issues on the merits, and
Skatzes has provided us with no reason for considering them further on reopening.
***
Finally, Skatzes contends that trial counsel did not adequately address the views
expressed by juror Carol Waaland during voir dire with respect to the Aryan
Brotherhood. He claims that appellate counsel was ineffective in failing to pursue
this issue.
Overall, the questioning of Waaland on voir dire showed her to be very open-
minded. When questioned on her feelings about the Aryan Brotherhood, she did
state that she could be fair if Skatzes’ involvement in the Aryan Brotherhood
“didn’t have any direct bearing on what happened.” However, viewed as a whole,
Juror Waaland clearly indicated a willingness to withhold judgment and to be
objective. We also note that, while Skatzes’ involvement in the Aryan Brotherhood
influenced his involvement with the riot, the views of the Aryan Brotherhood did
not play a direct role in the crimes of which he was convicted.
All but one of Skatzes’ victims were white. The one black victim was a corrections
officer, and it was undisputed that Skatzes treated him well during the riot aside
from the fact he was held against his will. For these reasons, appellate counsel was
not ineffective in failing to assign as error trial counsel’s failure to further explore
Waaland’s views on the Aryan Brotherhood.
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(Id. at PageID 7400-04).
Skatzes filed a timely Notice of Appeal to the Ohio Supreme Court. (ECF No. 68-4 at
PageID 7480-7491). Pursuant to a stipulated extension of time, Skatzes’ merit brief was due on
March 30, 2004 (ECF No. 68-4 at PageID 7502-7504), but was filed one day late, on March 31,
2004. (Id. at PageID 7505-7533). On April 6, 2004, the Ohio Supreme Court entered a sua sponte
order striking Skatzes’ brief as untimely in violation of S. Ct. Prac. R. XIV, Section 1(c) and
dismissed the case. (ECF No. 68-5 at PageID 7645).
Skatzes moved for reconsideration (Id. at PageID 7685-93). He explained that his counsel
hired a commercial copy company to prepare his brief and a commercial courier to deliver it to the
Ohio Supreme Court. (Id. at PageID 7688-89). The copy company gave the brief to the courier too
late for it to be timely delivered to the court on March 30, 2004. (Id.). The Ohio Supreme Court
denied Skatzes’ motion for reconsideration. (Id. at PageID 7684).
Skatzes alleges in Ground Sixteen that his appellate counsel was ineffective for failing to
raise on direct appeal: prosecutorial misconduct for arguing during the penalty phase that imposing
a life sentence rather than death would give him a “freebee,” and subsequent ineffective assistance
of trial counsel for failing to object, ineffective assistance of trial counsel for failing to challenge
Juror Carol Waaland over her views on the Aryan Brotherhood, prosecutorial misconduct for
prejudicial use of “other bad acts” evidence, ineffective assistance of trial counsel for failing to
object to “other bad acts” evidence, and ineffective assistance of trial counsel for failing to object
to jury instructions on “conspiracy.” (Petition, ECF No. 25 at PageID 328-36). That said, Ground
Sixteen is procedurally defaulted.35
35 	It is not inappropriate for the Court to raise a procedural default defense sua sponte. Smith v. State of Ohio
Dep’t of Rehab. & Corr., 463 F.3d 426, 431–32 (6th Cir. 2006). Respondent raised procedural default as a defense,
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Ohio S. Ct. Prac. R. XIV, Section 1(c) is an independent and adequate state ground,
sufficient to bar federal habeas review. Shorter v. Ohio Dep’t of Rehab. & Corr., 180 F.3d 723
(6th Cir. 1999). The Ohio Supreme Court enforced this rule when it dismissed Skatzes’ Rule 26(B)
application for an untimely brief and later denied reconsideration. Ineffective assistance of counsel
is unavailable for “cause and prejudice” because “a petitioner cannot claim constitutionally
ineffective assistance of counsel” in proceedings in which “[t]here is no constitutional right to an
attorney.” McClain v. Kelly, 631 F. App’x 422, 429 (6th Cir. 2015) (citing Coleman, 501 U.S. at
752). “A Rule 26(B) application is a collateral challenge to which petitioners do not have the right
to assistance of counsel.” Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003); McClain, 631 F.
App’x at 429–30.
Nor can Skatzes successfully argue that the error of the commercial copy company
constituted “‘an objective factor external to the defense [that] impeded counsel’s efforts to comply
with the State’s procedural rule.’” Coleman, 501 U.S. at 753. In Shorter, the Sixth Circuit
concluded that cause had not been demonstrated for failure to comply with Ohio S. Ct. Prac. R.
XIV, Section 1(c) based on the tardiness of the Postal Service, since counsel could have hand-
delivered the brief to the clerk of the Ohio Supreme Court himself. Shorter, 180 F.3d at 726.
In addition to the procedural default, the Court finds that Ground Sixteen lacks merit. The
Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v.
Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of appellate counsel, the
court must assess the strength of the claim that counsel failed to raise. Henness v. Bagley, 644 F.3d
308 (6th Cir. 2011) (citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008), as amended on
but on different grounds (Return of Writ, ECF No. 31 at PageID 472-473) and Skatzes asserts his actual innocence as
an excuse (Traverse, ECF No. 42 at PageID 880-881), the merits of which are addressed and denied in connection
with his procedural and substantive claims.
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denial of reh’g and reh’g en banc (Feb. 25, 2009)). Counsel’s failure to raise an issue on appeal
amounts to ineffective assistance only if a reasonable probability exists that inclusion of the issue
would have changed the result of the appeal. Id. (citing Wilson)). The attorney need not advance
every argument, regardless of merit. Jones v. Barnes, 463 U.S. 745, 751–752 (1983) (“Experienced
advocates since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”).
Effective appellate advocacy is rarely characterized by presenting every non-frivolous argument
which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003); Williams v. Bagley, 380
F.3d 932, 971 (6th Cir. 2004). See Smith v. Murray, 477 U.S. 527 (1986). “Only when ignored
issues are clearly stronger than those presented will the presumption of effective assistance of
[appellate] counsel be overcome.” Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017) (quoting
Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008)).
Skatzes’ appellate counsel raised sixty-two assignments of error in a two-hundred eighteen-
page brief on direct appeal. (Appellant’s Brief, ECF No. 67-2 at PageID 3970-3988). The
assignments of error encompassed a wide range of issues throughout both stages of the trial. The
assignments of error challenged the sufficiency of the evidence and issues pertaining to co-
conspirator testimony, which the state almost exclusively relied on to establish the elements of the
three aggravated murders. These assignments of error, unquestionably, had a stronger chance of
overcoming harmless error review than the omitted ones Skatzes mentions in Ground Sixteen.
Skatzes also fails to demonstrate that the omitted errors would have been successful on
appeal. Indeed, on direct appeal the Ohio Supreme Court rejected Skatzes’ argument that testimony
about the uncharged murders was inadmissible and the jury instructions on conspiracy were
prejudicial. (See Ground Twelve, Ground Fifteen, supra). When addressing his Rule 26(B)
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application, the Second District Court of Appeals determined that the rest of the omitted errors
were without merit. As the last reasoned decision, this Court is bound to defer to that conclusion.
Skatzes procedurally defaulted Ground Sixteen by failing to timely file his brief with the
Ohio Supreme Court. Even if Ground Sixteen were properly before the Court it would be dismissed
for lack of merit because the Second District Court of Appeal’s application of Strickland was not
unreasonable.
Ground Seventeen
In Ground Seventeen, Skatzes contends his death sentence violates the 8 th Amendment and
the Due Process Clause because he suffers from “serious mental illness.” (Petition, ECF No. 25 at
PageID 336-338). Skatzes raised Ground Seventeen on direct appeal to the Ohio Supreme Court
as Proposition of Law No. 40 (Appellant’s Brief, ECF No. 67-10 at PageID 5644-53), which was
dismissed:
{¶ 180} In proposition of law LX, Skatzes contends that the record establishes that
he may suffer from a serious mental illness. Skatzes asserts that we should extend
the decision in Atkins v. Virginia (2002), 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335, prohibiting execution of mentally retarded persons, to those who suffer from
serious mental illness. Nothing in the 6,000–plus pages of transcript and record
establishes that Skatzes suffers from a serious mental illness. Skatzes has not
presented any evidence bearing on his mental health. None of the assertions that
Skatzes was “paranoid” or referred to as “Crazy George” create a genuine issue as
to whether Skatzes has a mental illness that warrants consideration as part of his
sentencing. We reject proposition of law LX.
Skatzes, 104 Ohio St. 3d at 229.
In support of Ground Seventeen, Skatzes relies on lay witness opinion about his mental
state, Dr. Smalldon’s diagnosis of depressive disorder and dementia, and Dr. Scharre’s diagnosis
of functional brain impairment. (Petition, ECF No. 25 at PageID 337-338). He also cites the United
States Supreme Court opinions, Atkins, 536 U.S. at 335 and Roper v. Simmons, 543 U.S. 551
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(2005), as authority for the proposition that his mental illness renders his death sentence a violation
of the Constitution.
Atkins prohibits the execution of the intellectually disabled and Simmons prohibits the
execution of juveniles. In Franklin v. Bradshaw, the Sixth Circuit noted, “no authorities have
extended…Atkins, and Simmons to prohibit the execution of those with mental illnesses,” Franklin
v. Bradshaw, 695 F.3d 439, 455 (6th Cir. 2012). See also Mundt v. Jenkins, No. 2:17-CV-773,
2024 WL 1859867, at *39 (S.D. Ohio Apr. 29, 2024) (“the Supreme Court has not ruled on the
proposition that execution of the severely mentally ill violates the Eighth Amendment.”). Skatzes
acknowledges, “no case law currently stands for the proposition that the execution of a mentally
ill individual violates the Eighth Amendment,” but argues that the existing authority should be
extended to him because “the trajectory of Eighth Amendment jurisprudence and societal
developments support such a finding.” (Traverse, ECF No. 42 at PageID 895).
“It is not an unreasonable application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely established by the Supreme Court.”
Harrington, 562 U.S. at 101. Perhaps, in the appropriate posture, arguments against executing the
seriously mentally ill will someday prevail. But this Court sitting in federal habeas review is bound
by the limitations of AEDPA, which requires deference to the Ohio Supreme Court’s reasonable
decision, which declined to extend Atkins to Skatzes and concluded that the record fails to
substantiate Skatzes’ claim of mental illness.
For these reasons, Ground Seventeen is dismissed for lack of merit.
CONCLUSION
Having found no error entitling Skatzes to habeas corpus relief, his Petition for a writ of
habeas corpus must be dismissed with prejudice. 	The Clerk will enter judgment accordingly.
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CERTIFICATE OF APPEALABILITY
A certificate of appealability may issue only if a petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard
by demonstrating that jurists of reason could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When a
habeas corpus petition is denied on procedural grounds, the petitioner must show “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Skatzes has failed
to meet this standard and the Court will not enter a certificate of appealability.
December 10, 2025.
s/ Michael R. Merz
United States Magistrate Judge
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