Ludwick v. Warden, Chillicothe Correctional Institution

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
AARON D. LUDWICK,
Petitioner, 	: 	Case No. 1:24-cv-51
- vs - 	District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
TIM SHOOP, Warden, Chillicothe
Correctional Institution,
:
Respondent.
DECISION AND ORDER ON MOTION TO EXPAND THE RECORD
This habeas corpus case is before the Court on Petitioner’s Second Motion to Expand the
Record. 	(Doc. 42.) 	Magistrate Judge Michael R. Merz has denied that Motion, and Petitioner
filed Objections. (Docs. 53, 56.)
A district court reviews a magistrate judge’s decisions on non-dispositive matters for clear
error as to factual findings and de novo as to conclusions of law. 28 U.S.C. § 636(b)(1)(A). Having
reviewed the Magistrate Judge’s Decision and Order under that standard, the Court overrules
Petitioner’s Objections.
Motions to Expand the Record
Petitioner has twice moved to expand the record. 	(Docs. 11, 42.) 	The first request was
denied by Chief Magistrate Judge Stephanie Bowman on the basis of Cullen v. Pinholster, 563
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 1 of 7 PAGEID #: <pageID>

2
U.S. 170, 180–181 (2011). 1 (Doc.. 27, PageID 1348.) Petitioner filed Objections, but the Court
overruled the Objections on the basis of Pinholster. 	(Docs. 28, 29, 30.)
Petitioner’s second request to expand the record was made June 30, 2025, barely a month
after the Court had denied his first request. (Doc. 42.) Magistrate Judge Merz denied the second
request on the basis of the law-of-the-case doctrine. (Doc. 53.) Petitioner’s Objections are now
before the Court. (Doc. 56.)
Law-of-the-Case Doctrine
Petitioner Ludwick objects that the Magistrate Judge misapplied the law-of-the-case
doctrine in two respects. First, Petitioner asserts that the Magistrate Judge erred in applying the-
law-of-the-case doctrine to his request to expand the record to include an audio recording of a
conversation between the victim and her mother purportedly submitted into the state court record
on August 5, 2021. (Doc. 56, PageID 1703). Petitioner is correct that he did not request this audio
recording in his first request to expand the record. 	Its exclusion was not at issue before Judge
Bowman, and it is not covered by the law-of-the-case doctrine. Rather than remanding this issue
to the Magistrate Judge, however, the Court will decide it directly.
As Petitioner describes this item in his second request, it consists of
the video of a conversation between N.L. and her mother. Entered
into the trial court docket on Aug. 5, 2021, additional discovery (by
state), within the document item (C)(1) Audio conversation between
victim and mother -attached. ECF 6 PageID 70; Appendix item I.
(Doc. 42, PageID 1549). The state court record indicates that filings about discovery were made
in Ludwick’s criminal trial proceedings on August 5, 2021. (Doc. 6, PageID 70.) Petitioner now
provides a copy of a notice by the Highland County Prosecutor disclosing to the defense as an item
1 The magistrate judge reference in this case was transferred to Magistrate Judge Merz on May 22, 2025.
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 2 of 7 PAGEID #: <pageID>

3
discovery “Audio of conversation between victim and mother – attached.” 	(Doc. 42, PageID
1558.) This filing indicates that the prosecutor had an audio recording she intended to use at trial.
Respondent explained as follows in response to the second request to expand the record:
Prosecutor Anneka Collins reports that, to the contrary, the Notice
of “Additional Discovery” that Ludwick provided as Exhibit 1 to his
Motion to Expand (ECF 42, PageID 1558) was filed in the trial court
as notice of the discovery that was provided to Ludwick’s trial
counsel. No recording was “attached” and filed in the criminal case.
Rather, only the cover page of discovery provided to the defense is
filed to memorialize the discovery provided to Ludwick’s defense
attorney, which included the recording. In sum, no recording
between the victim and her mother was filed in this case. Rather, it
was provided to Ludwick’s trial counsel in discovery.
(Doc. 45, PageID 1608.) 	Petitioner provides no evidence to the contrary. 	The notice
proves, at most, that his attorney received the audio recording in discovery, but not that it was
introduced in evidence at trial or included in the record on appeal. 	It merely records the
prosecutor’s compliance with her obligation to provide discovery under Ohio R. Crim. P. 16.
Petitioner did not submit the audio recording to the state courts in his post-conviction proceedings
either. Because this audio recording was not before the last state court to render a decision on the
merits, its consideration here is precluded by Pinholster, as discussed in the next section.
Petitioner’s request to expand the habeas record to include this audio recording is denied.
Petitioner raises a second objection concerning the application of the law-of-the-case
doctrine. He argues that “[t]he law of the case regarding the merits and therefore expansion of the
record is the law that the State Appellate Court adopted.” (Doc. 56, PageID 1705.) As a general
principle, the law-of-the-case doctrine precludes reconsideration of issues that were expressly or
impliedly decided at an earlier stage of the same case by the same or a superior court. See Arizona
v. California, 460 U.S. 605, 618 (1983); United States v. Moored, 38 F.3d 1419, 1421–1422 (6th
Cir. 1994). 	This is not the same “case” for purposes of the doctrine as the criminal case that
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 3 of 7 PAGEID #: <pageID>

4
proceeded through appeal and post-conviction proceedings in the Ohio state courts, although it is
certainly the same controversy. 	The Court will not overturn the Decision and Order of the
Magistrate Judge on the basis of purported misapplication of the law-of-the-case doctrine.
Application of Cullen v. Pinholster
Both Magistrate Judges have denied Petitioner’s requests to expand the record based on
Cullen v. Pinholster, 563 U.S. 170 (2011). 	The Court adopted that position in overruling
Petitioner’s Objections to Magistrate Judge Bowman’s denial of the first request and does so again
now in denying the second request. As the Sixth Circuit has held, Pinholster bars a federal court
“from admitting new evidence upon which to assess the reasonableness of a state court’s
constitutional analysis.” Upshaw v. Stephenson, 97 F. 4th 365, 372 (6th Cir. 2024) (quoting
Mitchell v. Genovese, 974 F.3d 638, 647 (6th Cir. 2020)).
Petitioner relies on what he describes as the conditional clause in Pinholster. The district
court’s review of constitutional claims under 28 U.S.C. § 2254(d)(1) is limited to the state court
record only “[i]f an application includes a claim that has been adjudicated on the merits in State
court proceedings.” 563 U.S. at 181. He argues that his case was not decided on the merits by the
Ohio appeals court, relying on Ohio v. Leyh, 166 Ohio St.3d 365 (2022), so this Court’s review is
not limited to the state court record. In so arguing, Petitioner misunderstands Leyh and how the
Ohio appeals court applied Leyh in his case.
In Leyh, the Ohio Supreme Court held that courts adjudicating ineffective assistance of
appellate counsel claims under Ohio Rule of Appellate Procedure 26(B) must follow a two-step
process:
[T]he two-stage procedure prescribed by App.R. 26(B) requires that
the applicant seeking permission to reopen his direct appeal show at
the first stage that there is at least a genuine issue—that is, legitimate
grounds—to support the claim that the applicant was deprived of the
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 4 of 7 PAGEID #: <pageID>

5
effective assistance of counsel on appeal. See App.R. 26(B)(5). If
that showing is made and the application is granted, the applicant
must then establish at the second stage the merits of both the direct
appeal and the claim of ineffective assistance of appellate counsel.
See App.R. 26(B)(9).
Leyh at ¶ 25. 	The Ohio appeals court decided Petitioner’s ineffective assistance of appellate
counsel claims at the first stage of the process prescribed in Leyh. This does not mean it did not
consider the merits of Ludwick’s ineffective assistance of appellate counsel claim. 	The Ohio
appeals court found its duty at the first stage of the Leyh process to be undertaking “a substantive
review of the claim.” (Doc. 6, PageID 270.) It completed that task and found that Ludwick “failed
to demonstrate any genuine issue as to whether there is a colorable claim of ineffective appellate
counsel.” 	(Id.) 	It denied reopening the appeal on that substantive basis as opposed to any
procedural basis. There are of course many procedural bases on which a Rule 26(B) application
can properly be denied. The one most frequently seen in habeas corpus cases in this Court is a
failure to file within the time limits prescribed by Rule 26(B). 	The Ohio appeals court did not
deny Ludwick’s Rule 26(B) application on any procedural basis, but on its preliminary review of
the merits.
The Rule 26(B) process prescribed in Leyh is parallel to many processes in the criminal
law. 	In deciding whether to indict, for example, the grand jury determines whether there is
probable cause to believe a defendant committed the crime charged. 	The same probable cause
standard applies to preliminary hearings in both state and federal court. The fact that an Ohio
appellate court must ultimately decide if a Rule 26(B) application has merit does not mean that a
decision to deny the application on substantive grounds—no colorable issue of ineffective
assistance of appellate counsel—at the first stage is not on the merits.
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 5 of 7 PAGEID #: <pageID>

6
Moreover, the only issue in a Rule 26(B) application is whether a defendant received
ineffective assistance of appellate counsel. Filing a Rule 26(B) application presents only that issue
to the court of appeals, not all the other issues on which a defendant claims trial court error. A
Rule 26(B) application preserves for habeas review only the ineffective assistance of appellate
counsel arguments, not the underlying substantive arguments. Wogenstahl v. Mitchell, 668 F.3d
307, 338 (6th Cir. 2012) (citing Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001)). The Lott court
explained that permitting an Ohio prisoner to raise a substantive claim in a Rule 26(B) application
“would eviscerate the continued vitality of the procedural default rule; every procedural default
could be avoided, and federal court merits review guaranteed, by claims that every act giving rise
to every procedural default was the result of constitutionally ineffective counsel.” Id.
Ludwick’s position on what the record must include is well summed up in his Objections:
“If the video [of the police interrogation] was NOT HEARD AND EVALUATED by the appellate
Court the ruling was not on the merits. It is that simple.” (Doc. 55, PageID 1706.) It is not that
simple. 	As the Sixth Circuit held in Lott, supra, the right to have the habeas record include
everything the petitioner wishes it included can be lost by any one of a number of procedural
defaults. 	The two items Petitioner Ludwick seeks to add to the record—the audio recording
between the victim and her mother and a video recording of his police interrogation—were never
offered in evidence or included in the appellate record in state court. Pinholster precludes their
addition to the record now.
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 6 of 7 PAGEID #: <pageID>

7
Conclusion
The Petitioner’s Objections (Doc. 56) are OVERRULED, the Magistrate Judge’s Decision
and Order (Doc. 53) is AFFIRMED, and Petitioner’s Second Motion to Expand the Record (Doc.
42) is DENIED in its entirety.
IT IS SO ORDERED.
S/Susan J. Dlott___________
Susan J. Dlott
United States District Judge
Case: 1:24-cv-00051-SJD-MRM Doc #: 65 Filed: 12/10/25 Page: 7 of 7 PAGEID #: <pageID>