Shane Patrick Knowlton v. Warden Jossette Okereke

N.D. Ohio11/13/2025

View on CourtListener

AI Case Brief

Generate an AI-powered case brief with:

📋Key Facts

⚖️Legal Issues

📚Court Holding

💡Reasoning

🎯Significance

Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries

Full Opinion

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHANE PATRICK KNOWLTON, CASE NO. 1:25-cv-1088

Petitioner, DISTRICT JUDGE
CHARLES ESQUE FLEMING
vs.
MAGISTRATE JUDGE
WARDEN JOSSETTE OKEREKE, JAMES E. GRIMES JR.

Respondent.
REPORT &
RECOMMENDATION

Pro se Petitioner Shane Patrick Knowlton has filed a Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2254. Knowlton is in custody at the
Correctional Reception Center and challenges his conviction and sentence in
the case State v. Knowlton, Ashtabula County Court of Common Pleas, Case
No. 2021 CR-355. The Court referred this matter to a Magistrate Judge under
Local Rule 72.2 for the preparation of a Report and Recommendation. For the
following reasons, I recommend that the Court dismiss in part and deny in part
Knowlton’s Petition.
Summary of facts
In habeas corpus proceedings brought by a person under 28 U.S.C. §
2254, factual determinations made by state courts are presumed correct. 28
U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that
presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d
439, 447 (6th Cir. 2012).
The Ohio Court of Appeals for the Eleventh Appellate District

summarized the facts underlying Knowlton’s conviction as follows:
{¶4} Ryan McBride testified that, in July 2021, he
lived with his fiancée, Brittnie Schmidtt. Knowlton
shared children with Schmidtt. McBride and
Knowlton were having “issues” with each other
around that time. On July 23, 2021, McBride sent a
series of six messages to Knowlton through
Facebook Messenger, which included one stating
“Your f***ing hit!”, and described that he had taken
care of Knowlton’s kids. Subsequent to these
messages, Knowlton replied “bye bye.” McBride then
sent a message which stated “Wya [where you at] so
we can settle this like men.” Knowlton replied with
comments that McBride supported the children with
social security and food stamps. He then stated:
“[Y]ou are a pervert and will be dealt with
accordingly. Even if it means I do life in prison ... you
are a b**ch who smacks a woman around. You know
where I’m at.” He then provided an address: “956
West 52nd.” After further discussion, Knowlton
stated: “Come see me. I’m always here,” to which
McBride responded: “I will. Don’t you worry.”
McBride continued “Imma show you. Better hope
you can fight” and “Ain’t no saving you this time.”
The messages concluded with Knowlton stating,
“Well I’m here.”

{¶5} McBride drove to the location provided by
Knowlton, accompanied by two friends, Scott
Lindsay and Justin Nemergut. He described that the
purpose of going to see Knowlton was to engage in a
“fist fight.” When McBride arrived at the address
given by Knowlton, which was alternately referred
to as a “shop” or “garage” and Knowlton’s “house,”
McBride got off of his motorcycle and took his pistol
off of his hip, handing it to Lindsay. He then took off
his shirt, hat, and glasses and began walking toward
Knowlton with his hands down at his side. The two
exchanged insults and profanity. While McBride
approached, Knowlton pulled a gun and pointed it at
McBride. McBride said “this is how we’re really
gonna do it,” and then Knowlton opened fire.
Knowlton hit McBride in the bicep and the shoulder.
McBride turned around, began to flee, and a third
shot hit him in the back, passing through his lung.
He made it past his motorcycle and went to the
ground. Lindsay then handed his gun to him and
McBride tried to shoot back but was unable to fire.
He then started “going in and out” and could not
breathe.

{¶6} McBride indicated that after the shooting, he
told the police he had initially set his gun down on
Lindsay’s motorcycle and had retrieved his gun from
the ground rather than from Lindsay. He described
that he was not clear-headed at the time he spoke
with police as he was in the hospital and on pain
medication.

{¶7} Lindsay and Nemergut testified that they went
with McBride to Knowlton’s garage. Lindsay knew
McBride intended to fist fight Knowlton and
believed McBride contacted him to make sure he
“didn’t get jumped or anything.” Nemergut was
aware McBride intended to confront someone. Once
the three men arrived at Knowlton’s address,
McBride took his pistol off and asked Lindsay to hold
it and “took his shirt off to fight.” Lindsay observed
Knowlton fire shots from across the street. He saw
McBride was shot, grabbed him, and dragged him
out of the road. Nemergut testified that Knowlton
was on the garage property while firing and McBride
was standing in the road by his motorcycle.
Nemergut indicated that Knowlton fired three shots,
the gun jammed, he fired a few more, the gun
jammed again, and more shots were fired.

{¶8} After the shooting began, Lindsay ran to his
motorcycle to retrieve McBride’s gun, gave it to him,
but then told him not to shoot. Around that time,
Knowlton left the scene. Lindsay subsequently
threw the gun in the nearby grass because he was a
felon who could not be in possession of a gun. He
initially lied to police about McBride handing him
the gun because he did not want to get in trouble.
Lindsay stated that McBride had not pointed a gun
at Knowlton before the shooting began and McBride
did not enter onto the property where Knowlton was
located, explaining that McBride “never made it” to
“that side of the street.”

{¶9} Jerry Wheatley was visiting with Knowlton on
July 23 and, during that time, Knowlton told him he
“probably didn’t want to hang out very long.” While
the two men were talking, Wheatley saw
motorcycles pulling up “quickly.” He saw McBride
get off of his bike, take off his shirt, pull a gun from
his pants, and hand it to a man who arrived with
him, all of which occurred before McBride got close
to Knowlton. Knowlton and McBride began yelling
and McBride and his friends approached the shop.
Wheatley dove behind a van and shots were fired.
He heard about five or six shots and observed that
Knowlton’s gun jammed. Wheatley did not see
anyone with McBride pointing a gun at Knowlton.

{¶10} After responding to the scene, Detective
Wesley Burns of the Ashtabula City Police
Department recovered two casings from the
driveway area where Knowlton had been located.
Officer Ryan White found McBride’s firearm in a
bush in the vicinity of the shooting. Knowlton was
not present when police arrived at the scene.

{¶11} Avery Ellis, a friend of Knowlton’s father who
was present during the shooting, testified for the
defense. He saw McBride and the others arrive on
motorcycles, coming in “fast * * * with a purpose it
would seem.” McBride was yelling and ripped off his
hat, glasses, and shirt, and headed toward
Knowlton. He saw what he “assumed * * * was a
gun” in McBride’s waistband. He observed Knowlton
fire from the middle of the driveway in front of the
building and did not hear Knowlton make any
threats. He indicated that the whole incident lasted
about 30 seconds. He testified that Nemergut had a
gun and “they were shooting back.”

State v. Knowlton, No. 2023-A-0013, 2023 WL 6807193, at *1–2 (Ohio Ct. App.
Oct. 16, 2023).
Procedural background
Trial court proceedings
In August 2021, an Ashtabula County Grand Jury indicted Knowlton on
one count: felonious assault, in violation of Ohio Revised Code §
2903.11(A)(2)/2903.11(D)(1)(a), with a three-year firearm specification. Doc.
15-1, at 6 (Exhibit 1).1 At his arraignment, the court appointed Knowlton
counsel and Knowlton entered a plea of not guilty. Id. at 8 (Exhibit 2).
In November 2022, Knowlton filed a request for the court to approve the
hiring of investigator Tom Pavlish to assist with witness interviews. Doc. 15-

1, at 9 (Exhibit 3). The trial court granted the request. Id. at 13 (Exhibit 4).
In December 2022, Knowlton filed a notice that he intended to offer
evidence of self-defense. Doc. 15-1, at 14 (Exhibit 5). He also filed a motion
asking the court to order that five police interviews of witnesses be transcribed,
id. at 16 (Exhibit 6), which the trial court granted, id. at 19. (Exhibit 7).
The case proceeded to a jury trial. The jury returned a verdict finding
Knowlton guilty as charged in the indictment. Doc. 15-1, at 20–21 (Exhibit 8).

In February 2023, the trial court sentenced Knowlton to an indefinite sentence

1 In this report and recommendation, all of the citations to the docket refer
to the ECF document and page number shown at the top of the page.
of four years minimum and six years maximum on the felonious assault charge,
to be served consecutively to and after the mandatory three-year firearm
specification, for a total of seven to nine years in prison. Id. at 22–23 (Exhibit

9).
Direct appeal
In March 2023, Knowlton filed in the Ohio court of appeals a timely
notice of appeal. Doc. 15-1, at 48 (Exhibit 14). In his brief, Knowlton, through
new counsel, raised the following assignment of error:
The trial court erred to the prejudice of the
Defendant-Appellant when it returned a verdict of
guilty against the manifest weight of the evidence.2

Doc. 15-1, at 61 (Exhibit 15). On October 16, 2023, the Ohio court of appeals
affirmed the trial court’s judgment. Id. at 78–87 (Exhibit 17).
Knowlton, pro se, timely appealed to the Ohio Supreme Court. In his
memorandum in support of jurisdiction, Knowlton set forth the following
proposition of law:
The conviction of Felonious Assault is against the
manifest of weight due to Appellant’s claim of self-
defense.

Doc. 15-1, at 97 (Exhibit 19). On February 6, 2024, the Ohio Supreme Court
declined under its rule of practice 7.08(B)(4) to accept jurisdiction of
Knowlton’s appeal. Id. at 115 (Exhibit 20).

2 In this report and recommendation, Knowlton’s grounds for relief are
reproduced as written.
Ohio Appellate Rule 26(B) application to reopen direct appeal
On November 28, 2023, Knowlton filed in the Ohio court of appeals a pro
se Ohio Appellate Rule 26(B) application to reopen his direct appeal. Doc. 15-

1, at 116 (Exhibit 21). In his application, Knowlton alleged that his appellate
counsel was ineffective for failing to raise the following assignments of error:3
1. The trial court erred in failing to instruct the jury
on the offense of aggravated assault, as a lesser
included offense of felonious assault when evidence
was present of serious provocation and actual
sudden passion and fit of rage.

2. Ineffective assistance of trial counsel.

3. Prosecutorial misconduct violated the protections
afforded by the Fifth, Sixth and Fourteenth
Amendments to The United States Constitution as
well as Article 1, Section 10 of the Ohio Constitution.

Id. at 118–22 (Exhibit 21). On January 24, 2024, the Ohio court of appeals
overruled Knowlton’s application to reopen. Id. at 172–80 (Exhibit 22).
Knowlton filed a motion for leave to file a motion for reconsideration and
en banc review. Doc. 15-1, at 181, 184 (Exhibits 23 & 24). On March 14, 2024,
the Ohio court of appeals granted Knowlton’s motion for leave but then
overruled his motion for reconsideration and en banc review. Id. at 190–93
(Exhibit 25).

3 A Rule 26(B) application to reopen is the method to raise ineffective
assistance of appellate counsel. See Ohio App. R. 26(B)(1). An application must
be filed “within ninety days from journalization of the appellate judgment [on
direct appeal] unless the applicant shows good cause for filing at a later time.”
Id.
Knowlton appealed to the Ohio Supreme Court. Doc. 15-1, at 194
(Exhibit 26). In his memorandum in support of jurisdiction, Knowlton set forth
the following propositions of law:

1. “Whether the Appellate Court erred when
reviewing Appellant’s Application to Reopen
pursuant to App. R. 26(B) when it decided the merits
of the issues presented rather than if a ‘genuine
issue’ as to a ‘colorable claim’ of ineffectiveness of
Appellate counsel existed by requiring Appellant to
conclusively establish success of the issues
presented.”

2. “The prosecutor’s conduct violated the Appellants
due process clause of the Fifth and Fourteenth
Amendments to the U.S. Constitution.”

3. “The trial court erred in failing to instruct the jury
on the offense of aggravated assault, as a lesser
included offense of felonious assault when evidence
was present of serious provocation and actual
sudden passion and fit of rage.”

4. “The ineffective assistance of trial counsel violated
the Appellant’s Fifth, Sixth and Fourteenth
Amendments to the U.S. Constitution.”

Id. at 201–09 (Exhibit 27). On May 28, 2024, the Ohio Supreme Court declined
under its rule of practice 7.08(B)(4) to accept jurisdiction of Knowlton’s appeal.
Id. at 222 (Exhibit 28). Knowlton filed a motion for reconsideration, id. at 223
(Exhibit 29), which the Ohio Supreme Court denied, id. at 227 (Exhibit 30).
Post-conviction motions
On April 8, 2024, Knowlton filed a request for leave to file a motion for
new trial, stating that his incarceration prevented him from obtaining “newly
discovered evidence,” including an affidavit by Thomas Knox. Doc. 15-1, at 228
(Exhibit 31). A week later, Knowlton filed a “petition to vacate and/or set aside
judgment of conviction and/or sentence.” Id. at 233 (Exhibit 32). In his petition,
Knowlton raised the following claims:

1. The defendant’s Constitutional rights to due
process afforded by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution were
violated by the ineffective assistance of trial counsel.

2. Detective Howell manufactured, fabricated and/or
introduced erroneous information to the
prosecution’s key witnesses.

3. The prosecutor knowingly used false and/or
perjured testimony to misled the jury.

4. The prosecutor committed a Brady violation by
withholding exculpatory evidence showing perjury.

5. Direct Appeal counsel was ineffective for failing to
fully investigate this case before filing the appellate
brief in direct appeal violated the defendant’s Sixth
and Fourteenth Amendment rights.

6. Trial counsel was ineffective for failing to provide
or review with the defendant any written report
from the private investigator hired by the defense.

7. Trial counsel was ineffective for failing to ensure
successful service of subpoena to ensure defense
witness Thomas Knox was present during trail or
securing deposition.

8. The trial court erred by failing to instruct the jury
on the inferior offense of Aggravated Assault where
serious provocation was present.

9. Trial counsel was ineffective for failing to
investigate a second firearm recovered near the
crime scene.
10. The prosecution violated the defendant’s right to
remain silent.

11. The prosecution violated the ban on the “Golden
Rule” argument thus violating the defendant’s right
to a fair trial and due process of law, Fifth, Sixth and
Fourteenth Amendments.

Id. at 245–85 (Exhibit 32). On May 20, 2024, the trial court overruled
Knowlton’s post-conviction petition and his motion for a new trial.4 Id. at 288–
92 (Exhibit 33).
Knowlton appealed to the Ohio court of appeals. Doc. 15-1, at 293
(Exhibit 34). In his brief, he raised the following assignments of error:
1. The trial court deprived Appellant of his right to
due process under the Fourteenth Amendment by
failing to make adequate findings of fact and
conclusions of law before denying Appellant’s
Petition for Post-Conviction Relief Motion as
required by R.C. 2953.21.

2. The trial court erred by failing to hold a hearing
on the Appellant’s Petition for Post-Conviction
Relief.

3. The trial court abused its discretion by denying
defendant’s motion for leave to file a motion for new
trial without a hearing.

4. The defendant’s Constitutional rights to due
process afforded by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution were
violated by the ineffective assistance of trial counsel.

5. The defendant’s Constitutional rights to due
process afforded by the Fifth, Sixth and Fourteenth

4 The trial court also denied Knowlton’s then-pending motions to compel
disclosure, appoint him counsel, provide an expert, and hold an evidentiary
hearing. Doc. 15-1, at 291–92.
Amendments to the United States Constitution were
violated by the prosecutorial misconduct.

6. The trial court erred by failing to instruct the jury
on the inferior offense of Aggravated Assault where
serious provocation was present.

Doc. 15-1, at 317–34 (Exhibit 35). The State filed an opposition brief, id. at 338
(Exhibit 36), and Knowlton filed a reply, id. at 359 (Exhibit 37). On December
16, 2024, the Ohio court of appeals affirmed the trial court’s judgment. Id. at
395–411 (Exhibit 38).
On December 31, 2024, Knowlton filed a motion for reconsideration and
en banc review, which the Ohio court of appeals overruled. Id. at 413, 420
(Exhibits 39 & 40). Knowlton did not appeal.
Federal habeas corpus petition
Knowlton states that on May 19, 2025, he placed in the prison mailbox
his federal habeas corpus petition under 28 U.S.C. § 2254.5 Doc. 1. In his
petition, he raises the following grounds for relief:
Ground one: The conviction of Felonious Assault is
against the manifest of weight due to Appellant’s
claim of self-defense.

Ground two: The trial court erred by failing to
instruct the jury on the inferior offense of
Aggravated Assault where serious provocation was
present.

Ground three: Ineffective assistance of trial
counsel violated the defendant’s U.S. Sixth and

5 A petition is deemed filed when a petitioner places it the prison mailing
system. Houston v. Lack, 487 U.S. 266, 270 (1988).
Fourteenth Amendment Right to effective
assistance of counsel.

Ground four: Prosecutorial misconduct violated
the protections afforded by the Fifth, Sixth and
Fourteenth Amendments to The United States
Constitution as well as Article 1, Section 10 of the
Ohio Constitution.

Ground five: Ineffective assistance of appellate
counsel violated the defendant’s U.S. Sixth and
Fourteenth Amendment Right to effective
assistance of counsel.

Doc. 1, at 6–17. The Warden filed a Return of Writ, Doc. 15, and Knowlton filed
a traverse, Doc. 26. Also pending is Knowlton’s Motion for leave to expand the
record, Doc. 25, which the Warden has opposed, Doc. 27.
Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain
procedural requirements to have their claims reviewed in federal court. Smith
v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural
barriers, such as statutes of limitations and rules concerning procedural
default and exhaustion of remedies, operate to limit access to review on the
merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381
(2001). Although procedural default is sometimes confused with exhaustion,
exhaustion and procedural default are distinct concepts. Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state
remedies are “still available at the time of the federal petition.” Id. (quoting
Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies
are no longer available, procedural default rather than exhaustion applies. Id.
Exhaustion

A federal court may not grant a writ of habeas corpus unless the
petitioner has exhausted all available remedies in state court. 28 U.S.C. §
2254(b)(1)(A). A state defendant with federal constitutional claims must fairly
present those claims to the state courts before raising them in a federal habeas
corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher

v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have
jurisdiction to consider a claim in a habeas petition that was not ‘fairly
presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877
(6th Cir. 2003)). A constitutional claim for relief must be presented to the
state’s highest court to satisfy the fair presentation requirement. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Hafley v. Sowders, 902
F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the

factual and legal underpinnings of the claims to the state courts. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner
must present his claim to the state courts as a federal constitutional issue—
not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984).
Procedural default
Procedural default may occur in two ways. Williams, 460 F.3d at 806.
First, a petitioner procedurally defaults a claim by failing “to comply with state

procedural rules in presenting [the] claim to the appropriate state court.” Id.
In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors
when determining whether a claim is barred on habeas corpus review due to a
petitioner’s failure to comply with a state procedural rule: whether (1) there is
a state procedural rule applicable to the petitioner’s claim and whether the
petitioner failed to comply with that rule; (2) the state court enforced the

procedural rule; (3) the state procedural rule is an adequate and independent
state ground on which the state can foreclose review of the federal
constitutional claim; and (4) the petitioner can demonstrate cause for failing to
follow the rule and actual prejudice by the alleged constitutional error. 785
F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the
petitioner’s failure to comply with the procedural rule, the state court declines
to reach the merits of the issue, and the state procedural rule is an independent

and adequate grounds for precluding relief, the claim is procedurally
defaulted.”) (citing Maupin, 785 F.2d at 138).
Second, “a petitioner may procedurally default a claim by failing to raise
a claim in state court, and pursue that claim through the state’s ‘ordinary
appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,
526 U.S. at 847). “If, at the time of the federal habeas petition, state law no
longer allows the petitioner to raise the claim, the claim is procedurally
defaulted.” Id. While the exhaustion requirement is satisfied because there are
no longer any state remedies available to the petitioner, see Coleman v.

Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal
claims considered in the state courts constitutes a procedural default of those
claims that bars federal court review, Williams, 460 F.3d at 806.
To overcome a procedural bar, petitioners must show cause for the
default and actual prejudice that resulted from the alleged violation of federal
law that forms the basis of their challenge, or that there will be a fundamental

miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at
750.
Merits review
If a state’s courts adjudicated the merits of a claim, a habeas petitioner
may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish
one of two predicates. To establish the first predicate, the petitioner “must
identify a ‘clearly established’ principle of ‘Federal law’ that” has been

established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,
231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must
then show that state’s court’s adjudication “was contrary to,” or “involved an
unreasonable application of” that “clearly established” precedent. 28 U.S.C. §
2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232.
To establish the second predicate, the petitioner must show that the
state’s court’s adjudication “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(2).
“Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached by the
[United States Supreme] Court on a question of law or” based on “a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13
(2000). “Under the ‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct governing legal
principle from th[e] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application
of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely
wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419
(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).
“[A] ‘clearly established’ principle of ‘Federal law’ refers to the

“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at
231 (quoting White, 572 U.S. at 419). A state court is not required to cite
Supreme Court precedent or reflect an “awareness” of Supreme Court cases,
“so long as neither the reasoning nor the result of the state-court decision
contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v.
Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not
addressed the petitioner’s specific claims, a reviewing district court cannot find
that a state court acted contrary to, or unreasonably applied, Supreme Court
precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70,

77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for
instances in which a state court unreasonably applies this Court’s precedent;
it does not require state courts to extend that precedent or license federal
courts to treat the failure to do so as error.”).
In determining whether the state court’s decision involved an
unreasonable application of law, the Court uses an objective standard.

Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks
merit precludes federal habeas review so long as ‘fair-minded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state
prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-
minded disagreement.” Harrington, 562 U.S. at 103.
Discussion
Ground one is not cognizable.

In ground one, Knowlton alleges that his conviction is against the
manifest weight of the evidence “due to [his] claim of self-defense.” Doc. 1, at
6. 24. The Warden argues that ground one is not cognizable for two reasons,
and that, alternatively, it would fail on the merits. Doc. 15, at 12–20.
Federal habeas corpus is available only on “behalf of a person in custody

… in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. §2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (a federal habeas
court does not “reexamine state-court determinations on state-law questions”);
Engle v. Isaac, 456 U.S. 107 (1982). A manifest-weight claim is not cognizable
on federal habeas review “because it is a state-law argument.” Thomas v.
Taskila, 2023 U.S. App. LEXIS 30660, at *17 (6th Cir. Nov. 16, 2023); Jaeger

v. Wainwright, No. 1:19-cv-2853, 2023 WL 6554265, at *22 (N.D. Ohio Sept. 1,
2023) (“It is well-established manifest weight of the evidence claims are not
cognizable on federal habeas review”) (citing and discussing cases), report and
recommendation adopted, 2023 WL 6282944 (N.D. Ohio Sept. 27, 2023).
Knowlton argues that his manifest-weight claim is cognizable because
the Ohio court of appeals’ finding that his conviction was supported by the
manifest weight of the evidence “must necessarily include a finding of

sufficiency.” Doc. 26, at 36 (citing Nash v. Eberlin, 258 F. App’x 761, 764–65
(6th Cir. 2007)). And a sufficiency-of-the-evidence claim is cognizable on
federal habeas review. It is true that in Nash, the Sixth Circuit liberally
construed the pro se petitioner’s state-law, manifest-weight claim as a
sufficiency-of-the-evidence claim, and therefore found that it was properly
before the court for federal habeas review, because “the state court’s decision
on the manifest weight of the evidence subsumed a decision on the sufficiency
of the evidence.” 258 F. App’x at 764 n.4.
But even if this Court were to liberally construe Knowlton’s manifest-

weight claim as a sufficiency-of-the-evidence claim, the claim would still be not
cognizable. This is so because ground one is based on Knowlton’s claim of self-
defense. Doc. 1, at 6, 24–25; Doc. 26, at 36–56. And a sufficiency of self-defense
evidence is not a cognizable claim. As the Sixth Circuit has explained:
the Ohio Supreme Court held that the amendments
to Ohio’s self-defense statute “did not eliminate the
defendant’s burden of production regarding a claim
of self-defense.” State v. Messenger, 216 N.E.3d 653,
660 (Ohio 2022). The court emphasized that the
amended self-defense statute did not change the
elements of any offense: “Self-defense remains an
affirmative defense in Ohio, and an affirmative
defense is not an element of a crime.” Id. at 659. The
court concluded that “the sufficiency-of-the-evidence
standard of review applies to [the defendant’s]
burden of production” regarding a self-defense claim
while the prosecution’s “new burden of disproving
the defendant’s self-defense claim beyond a
reasonable doubt” is subject to review under the
manifest-weight-of-the-evidence standard. Id. at
660.

“[T]he Due Process Clause requires the prosecution
to prove beyond a reasonable doubt all of the
elements included in the definition of the offense of
which the defendant is charged,” but “[p]roof of the
nonexistence of all affirmative defenses has never
been constitutionally required.” Patterson v. New
York, 432 U.S. 197, 210 (1977). “[T]he due process
‘sufficient evidence’ guarantee does not implicate
affirmative defenses, because proof supportive of an
affirmative defense cannot detract from proof
beyond a reasonable doubt that the accused had
committed the requisite elements of the crime.”
Caldwell v. Russell, 181 F.3d 731, 741 (6th Cir.
1999), abrogated on other grounds as recognized by
Mackey v. Dutton, 217 F.3d 399, 406 (6th Cir. 2000).
Because self-defense remains an affirmative defense
under Ohio law, the prosecution’s alleged failure to
present sufficient evidence to disprove that Smith
acted in self-defense or in defense of another did not
raise a constitutional concern. Smith’s manifest-
weight-of-the-evidence argument likewise presented
a state-law issue that is not cognizable on federal
habeas review. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); Nash v. Eberlin, 258 F. App’x 761, 764
n.4 (6th Cir. 2007). Given that Smith’s arguments
about her affirmative defenses did not raise a
constitutional issue, reasonable jurists could not
debate the district court’s rejection of her first three
grounds for relief.

Smith v. Smith, No. 24-3251, 2024 WL 4287901, at *3 (6th Cir. July 2, 2024),
cert. denied sub nom. Smith v. Olds, No. 24-5652, 2024 WL 4874711 (U.S. Nov.
25, 2024); see also Smith v. United States, 568 U.S. 106, 110 (2013) (“While the
Government must prove beyond a reasonable doubt ‘every fact necessary to
constitute the crime with which [the defendant] is charged,’ ‘[p]roof of the
nonexistence of all affirmative defenses has never been constitutionally
required.’”)) (internal citations omitted). So any sufficiency claim that this
Court were to liberally construe would be not cognizable.
Knowlton, for the first time in his traverse, asserts that he “first …
argues whether or not the State presented sufficient evidence that he shot
Ryan McBride.” Doc. 26, at 37, 76. But Knowlton did not say this in his
petition—he only stated that he was challenging the manifest weight of his
self-defense claim. Doc. 1, at 6, 24. Knowlton is not permitted to raise a new
claim in his traverse. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2000)
(claims raised for the first time in a traverse are improper); see Rice v. Warden,
Warren Corr. Inst., 786 F. App’x 32, 38 (6th Cir. 2019). Furthermore, Knowlton

only raised on direct appeal a manifest-weight argument as to his self-defense
claim, Doc. 15-1, at 61, and this is what the Ohio court of appeals considered,
see Knowlton, 2023 WL 6807193, at *2. So any purported sufficiency-of-the-
evidence claim regarding whether Knowlton shot McBride would be
procedurally defaulted, even if this Court were to (twice) liberally construe
ground one. See Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (“Ohio

courts have consistently held that claims that can be adjudicated based on facts
in the record can only be presented on direct appeal”) (citing State v. Lentz, 639
N.E.2d 784, 785 (Ohio 1994)).
Portions of ground five are procedurally defaulted and the
remainder fails on the merits6

In ground five, Knowlton argues that appellate counsel was ineffective
for failing to raise, on direct appeal, three claims: (1) the trial court erred in
“failing to instruct the jury on aggravated assault, as a lesser included offense
of felonious assault when evidence was present of serious provocation and
actual sudden passion and fit of rage”; (2) ineffective assistance of trial counsel
for failing to do fourteen things; and (3) eight instances of prosecutorial
misconduct. Doc. 1, at 31–33.

6 For convenience, I discuss Knowlton’s grounds out of chronological
order.
A successful ineffective-assistance claim requires a petitioner to
demonstrate that: (1) “counsel’s performance was deficient”; and (2) “the
deficient performance prejudiced the defense.” Jones v. Bradshaw, 46 F.4th

459, 487–88 (6th Cir. 2022) (quoting Strickland v. Washington, 466 U.S. 668,
687 (1984)). “The first prong is satisfied when a petitioner ‘show[s] that counsel
made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’” Jones, 46 F.4th at 487
(quoting Strickland, 466 U.S. at 694). “The second prong is satisfied when the
petitioner ‘show[s] that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”
Jones, 46 F.4th at 487–88. “‘A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’” Jones, 46 F.4th at 488 (quoting
Strickland, 466 U.S. at 694). The combined effect of Strickland and 28 U.S.C.
§ 2254(d) is “‘doubly deferential’” review. Cullen v. Pinholster, 563 U.S. 170,
190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “When
2254(d) applies, the question is not whether counsel’s actions were reasonable,”

but “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at 105; Foust v. Houk,
655 F.3d 524, 533–34 (6th Cir. 2011). “Or, in more concrete terms, a federal
court may grant relief only if every ‘“fairminded juris[t]”’ would agree that every
reasonable lawyer would have made a different decision.” Dunn v. Reeves, 594
U.S. 731, 739–40 (2021) (quoting Harrington, 562 U.S. at 101).
The Strickland standard applies to ineffective assistance of appellate
counsel claims. Smith v. Robbins, 528 U.S. 259, 285 (2000). So Knowlton must
show that appellate counsel’s assistance was objectively unreasonable and a

reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Id. “Counsel’s failure to raise an
issue on appeal could only be ineffective assistance if there is a reasonable
probability that inclusion of the issue would have changed the result of the
appeal.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). Appellate
counsel is not obligated to advance every possible argument on appeal, Jones

v. Barnes, 463 U.S. 745, 750–54 (1983), nor is counsel ineffective for failing to
raise an issue that lacks merit, Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001) (“[B]y definition, appellate counsel cannot be ineffective for a failure to
raise an issue that lacks merit”).
With these principles in mind, I discuss each of Knowlton’s ineffective-
assistance-of-appellate-counsel claims in turn.
1. Appellate counsel’s failure to raise the trial court’s failure to include
an aggravated-assault jury instruction.

Knowlton argues that appellate counsel was ineffective for failing to
raise, on direct appeal, a claim that the trial court erred when it failed to
include a jury instruction for aggravated assault. Doc. 1, at 31–32. Knowlton
raised this claim in his Rule 26(B) application to reopen. Doc. 15-1, at 118. The
Ohio court of appeals considered this claim as follows:
The Ohio Supreme Court has adopted the two-prong
analysis set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as
the appropriate standard to assess whether an
appellant has raised a “genuine issue” as to the
ineffectiveness of appellate counsel in an application
to reopen an appeal. State v. Reed, 74 Ohio St.3d
534, 535, 660 N.E.2d 456 (1996). “To show ineffective
assistance,” the appellant “must prove that his
counsel [was] deficient for failing to raise the issues
that he now presents and that there was a
reasonable probability of success had they presented
those claims on appeal.” State v. Tenace, 109 Ohio
St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5.

***

In his first error, Knowlton argues that appellate
counsel was ineffective for failing to argue that the
lower court should have given a “lesser included”
instruction on aggravated assault. Knowlton was
charged and convicted of felonious assault and no
instruction for aggravated assault was sought or
given to the jury.

As the Ohio Supreme Court explained in State v.
Deem, 40 Ohio St.3d 205, 533 N.E. 2d 294 (1988),
aggravated assault is an offense of an inferior degree
to felonious assault rather than a lesser included
offense, since “its elements are identical to those of
felonious assault, except for the additional
mitigating element of serious provocation.” Id. at
210-211. In a trial for felonious assault, where the
defendant presents sufficient evidence of serious
provocation, an instruction on aggravated assault
must be given to the jury. Id. at paragraph four of
the syllabus.

A two-part inquiry is conducted when analyzing
whether there is sufficient evidence of provocation.
First, “an objective standard must be applied to
determine whether the alleged provocation is
reasonably sufficient to bring on a sudden passion or
fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201,
694 N.E.2d 1328 (1998). Provocation must be
sufficient to arouse the passions of an ordinary
person beyond the power of his or her control.” State
v. Shane, 63 Ohio St.3d 630, 635, 590 N.E.2d 272
(1992). “If the objective standard is met, the inquiry
shifts to a subjective standard, to determine whether
the defendant in the particular case ‘actually was
under the influence of sudden passion or in a sudden
fit of rage.’” (Citations omitted.) State v. Hale, 11th
Dist. Portage No. 2007-P-0015, 2007-Ohio-6244,
¶66.

Knowlton argues that there was sufficient evidence
of serious provocation because there were
“allegations of inappropriate behavior between the
victim and [Knowlton’s] * * * daughters.” While the
record did contain references to Knowlton’s belief
that McBride, who was dating Knowlton’s former
girlfriend, had harmed his children in some manner,
the record does not indicate that this suspicion
caused a “sudden passion or fit of rage.” The text
message exchange which precipitated the
confrontation was initiated by McBride. McBride
sent a series of text messages to Knowlton, stating
“And for you to talk like someone is touching your
kids you got me all the way f***ed up” and indicating
that McBride was caring for Knowlton’s kids.
Knowlton initially responded, “Bye bye.” He
subsequently stated that his child learned to kiss
since McBride was in the home. Knowlton did not
respond with shock to McBride’s message but,
instead, his messages indicated that Knowlton had
not just learned this information at or around the
time he shot McBride. Further, although Knowlton
argues that he acted in a sudden fit of passion, he
did not seek out McBride to harm him. Rather,
McBride was the one who suggested they “settle this
like men.”

Knowlton alleges that, although there was a period
of time between his learning of the alleged abuse and
the assault, his rage was reignited when McBride
came to confront him. However, there was no
discussion of the allegations during the physical
confrontation. If anything, it appears that the men
both had a plan to engage in a fight with Knowlton
providing McBride his location. “Mutual combat”
has been found to be a “‘classic example’ of serious
provocation.” State v. Spencer, 2018-Ohio-641, 105
N.E.3d 418, ¶ 18 (12th Dist.), citing Shane at 635.
However, mutual combat has not been found
applicable where both parties were not engaging in
a fight while armed with deadly weapons. State v.
James, 2d Dist. Montgomery No. 28892, 2021-Ohio-
1112, ¶ 15 (“This may have been a consensual fight,
but it was not on equal terms, and only James had a
weapon.”). The facts in the present matter
demonstrated McBride did not have his weapon on
him during the altercation.

Given the limited evidence to support a finding that
Knowlton was acting in a sudden passion or fit of
rage, we do not find error in the trial court’s failure
to give such instruction or ineffectiveness by trial
counsel for failing to seek such instruction. As this
court has observed “in most cases, an aggravated
assault instruction is incompatible with instructions
on self-defense, so that both cannot be given
together.” State v. Beaver, 119 Ohio App.3d 385, 397,
695 N.E.2d 332 (11th Dist. 1997). It is evident from
a review of the trial transcript that defense counsel
chose to focus on a strategy of pursuing self-defense
in the present matter.

Doc. 15-1, at 172–76.
As an initial matter, Knowlton argues that the Ohio court of appeals
applied “an incorrect [Rule 26(B)] standard” when it evaluated his application.
Doc. 25, at 68–69 (citing Rule 26(B)’s two-step process and State v. Leyh, 185
N.E.3d 1075 (Ohio 2022)). In Leyh, the Ohio Supreme Court reiterated that
there is a two-step process for evaluating Rule 26(B) applications. 185 N.E.3d
at 1079. First, the court considers whether the application has shown “a
‘genuine issue’ as to whether there is a ‘colorable claim’ of ineffective assistance
of appellate counsel.” Id. If not, the court denies the application. Id. If so, the
court grants the application and “the matter proceeds to the second stage” and

treated “as if it were an initial direct appeal with briefing and oral argument.”
Id. at 1079–80.
Knowlton complains that the Ohio court of appeals in his case
erroneously decided his application at the first step.7 Doc. 26, at 68, 150. And
so, Knowlton submits, the appellate decision is not a merits-based decision
entitled to AEDPA deference and his claims should be reviewed de novo. Id. at

69; Doc. 1, at 21–23. But the fact that the Ohio court of appeals decided
Knowlton’s claim at the first step is still a merits decision entitled to AEDPA
deference.8 See e.g., Wolters v. Smith, No. 24-3970, 2025 WL 1312141, at *4
(6th Cir. Apr. 25, 2025) (explaining that the Ohio court of appeals’ rejection of
the petitioner’s Rule 26(B) application at the first step was a merits decision
entitled to deference; “the Ohio Court of Appeals plainly reviewed Wolters’s

7 To the extent that Knowlton asserts that the Ohio court of appeals
incorrectly applied it’s Rule 26(B) standard, such a claim would be not
cognizable. See Wolters v. Smith, No. 24-3970, 2025 WL 1312141, at *4 (6th
Cir. Apr. 25, 2025).

8 The case Knowlton cites in support involved a procedurally defaulted
claim that the state court didn’t address on the merits. Doc. 25, at 69 (citing
McKee v. Hart, No. 5:16-cv-410, 2017 LEXIS 83044, at *20 (E.D. Ky. Apr. 6,
2017) (applying de novo review to a claim that the state courts did not consider
on the merits)). Here, the Ohio court of appeals evaluated Knowlton’s
ineffective-assistance-of-appellate-counsel claim, so AEDPA deference applies
to the Ohio court of appeals’ decision.
claims on the merits, and his challenges to Ohio procedure are ‘not cognizable
in federal habeas review.’”) (citation omitted); Ludwick v. Warden, Chillicothe
Corr. Inst., No. 1:24-cv-51, 2025 WL 1446906, at *2 (S.D. Ohio May 20, 2025)

(finding that the Ohio court of appeals’ denial of the petitioner’s Rule 26(B)
application to reopen at the first step of that state procedure “was a merits
determination.”); see Haliym v. Mitchell, 492 F.3d 680, 693 (6th Cir. 2007) (“we
conclude that an Ohio court’s finding that there is ‘no genuine issue,’ which
denies the Murnahan application at stage one of the two stage procedure, is a
determination on the merits”). Accordingly, the Ohio court of appeals’ decision

is entitled to AEPDA deference.9
Knowlton argues that there was evidence of “serious provocation” and
“a reasonable probability that the jury could have found provocation” that
would have entitled him to an aggravated assault instruction. Doc. 26, at 28,
32. For his serious provocation argument, Knowlton says that “discovering a
spouse in the act of adultery” is a “classic example[] of serious provocation.” Id.
at 28. He claims that he discovered such an act of adultery between his children

and McBride. Id. at 29–30. Aside from the fact that neither of these individuals
are Knowlton’s spouses, the Ohio court of appeals found that any provocation
that Knowlton may have experienced due to his belief regarding these matters

9 Even so, Knowlton’s claim would also fail under de novo review.
occurred well in advance of his shooting McBride.10 Doc. 15-1, at 174–75.
Knowlton concedes that “a cooling off period may have elapsed,” but contends
that “the fire would have become rekindled the moment the face-to-face

encounter took place.” Doc. 26, at 30–31. The Ohio court of appeals considered
this argument and rejected it, finding that “there was no discussion of the[se]
allegations during the physical confrontation.” Id. at 175. Knowlton cites
transcribed police interviews with the witnesses and references testimony at
trial, Doc. 26, at 30–32, but neither of these items show that any rage regarding
Knowlton’s children was “reignited” in Knowlton just before his confrontation

with McBride. “Past incidents or verbal threats do not satisfy the test for
reasonably sufficient provocation when there is sufficient time for cooling off.”
State v. Ortiz, No. 2015CA00098, 2016 WL 530659, at *8 (Ohio Ct. App. Feb.
1, 2016) (citing State v. Huertas, 553 N.E.2d 1058, 1068–1069 (Ohio 1990) and
State v. Pierce, 414 N.E.2d 1038 (Ohio 1980)).
Knowlton points out that the Ohio court of appeals found that he entered
into “mutual combat” with McBride, which “alone would establish serious

provocation.” Id. at 29. But the Ohio court of appeals explained that “mutual
combat has not been found applicable where,” as here, “both parties were not
engaging in a fight while armed with deadly weapons.” Doc. 15-1, at 175. The
court noted that the facts “demonstrated McBride did not have his weapon on

10 In his affidavit, Knowlton concedes that his first “concern” about
McBride’s interactions with Knowlton’s children occurred in late June 2021,
about a month before the shooting incident. Doc. 25-1, at 1–3.
him during the altercation.” Id. Knowlton has not in his Petition or Traverse
challenged this finding by the Ohio court of appeals.
In his motion to expand the record, Knowlton asserts that he can show

that “McBride possessed a firearm when Knowlton shot him.” Doc. 25, at 2. In
support, he cites McBride’s transcribed police interview, which he attached to
his motion. Id. But because the Ohio court of appeals adjudicated this claim on
the merits, the Court is limited to the evidence that was presented to the state
court. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (citing 28 U.S.C. §
2254(e)(2)). And Knowlton didn’t present McBride’s transcript in his Rule

26(B) application to reopen, so the Court can’t consider it. See Pinholster, 563
U.S. at 186.
Even so, McBride’s transcribed police interview doesn’t show that
McBride “possessed a firearm when Knowlton shot him”; it indicates
otherwise. See Doc. 25-2, at 5, 9–12. So even if the Court did consider this
evidence, Knowlton hasn’t shown that there was any evidence, let alone
sufficient evidence, of serious provocation to warrant an inferior-degree jury

instruction. See also, e.g., State v. Murray, 2019 WL 7670102, at *7 (Ohio Ct.
App. Dec. 30, 2029) (finding that the court did not err by not giving an
aggravated-assault instruction on a felonious-assault charge; “[a]n instruction
on a lesser-included offense is not warranted every time ‘some evidence’ is
presented to support the lesser offense.”) (citing State v. Shane, 590 N.E.2d
272, 275 (1992)). And because Knowlton hasn’t shown that the Ohio court of
appeals’ decision on this issue was unreasonable, he hasn’t shown that the
appellate court’s rejection of his ineffective-assistance-of-appellate-counsel
claim for failing to raise on direct appeal this trial-court-error claim was

unreasonable. See Jones, 463 U.S. at 750–54 (Appellate counsel is not obligated
to advance every possible argument on appeal); Greer, 264 F.3d at 676 (counsel
is not ineffective for failing to raise an issue that lacks merit; “[B]y definition,
appellate counsel cannot be ineffective for a failure to raise an issue that lacks
merit”).
2. Appellate counsel’s failure to raise an ineffective-assistance-of-trial-
counsel claim for trial counsel’s failure to do fourteen things.

In his petition, Knowlton argues that appellate counsel was ineffective
for failing to raise on direct appeal an ineffective-assistance-of-counsel claim
for trial counsel’s failure to do fourteen things. Doc. 1, at 32–33.
a. Six of the fourteen items are procedurally defaulted
In his Rule 26(B) application to reopen, Knowlton only listed the first
eight of the fourteen things that he argues that trial counsel should have done.
Doc. 15-1, at 121. This means that the remaining six items that Knowlton
added to his petition, Doc. 1, at 33, ¶¶(i)–(n), are procedurally defaulted.11 See

11 The added six items are: “[f]ailed to admit into evidence the transcribed
police interviews of Justin Nemergut and Scott Lindsay”; “[f]ailed to object to
the prosecution witness bolstering”; “[f]ailed to fully investigate this case”;
“[f]ailed to interview potential witness (State or Defense)”; “failing to
investigate a second firearm recovered near the crime scene”; “failed to request
mistrial after the State’s witnesses were identified conversing prior to and
during testimony”; and “[c]umulative effect of trial counsel’s errors.” Doc. 1, at
33.
Wong v. Money, 142 F.3d 313, 321–22 (6th Cir. 1998) (ineffective assistance of
counsel claim based on different reasons than those alleged in state court is
procedurally defaulted).

Knowlton asserts that he had asked appellate counsel to raise certain
claims. Doc. 26, at 150. To the extent that this could be construed as cause to
excuse his procedural default, it would fail because the claims that he asked
appellate counsel to raise did not include the six procedurally defaulted claims.
See Doc. 21, at 291 (Knowlton’s proposed direct-appeal brief that he states he
sent to appellate counsel).

Elsewhere in his Traverse, Knowlton complains that the 10-page brief-
limit for Rule 26(B) applications to reopen limited his ability to develop the
state court record for his claims. Doc. 25 at 67. But he hasn’t shown that this
prevented him from raising these procedurally defaulted issues. See Seymour
v. Walker, 224 F.3d 542, 551 (6th Cir. 2000) (“[T]he [state-court’s] page limit
[rule] ‘merely limited the manner in which [Seymour] could present [her]
arguments; it did not wholly prevent [her] from presenting them.’”). Indeed,

the ten-page limit is “exclusive of affidavits and parts of the record,” Ohio App.
R. 26(B)(4), which Knowlton could have, and did, include in his application, see
Doc. 15-1, at 127–71. Knowlton has not shown cause to excuse the procedural
default of these six ineffective-assistance-of-appellate-counsel claims.
Knowlton asserts that he can show actual innocence to excuse any
procedural defaults. Doc. 26, at 8. He contends that his actual innocence is
based on Ohio’s self-defense law, “which renders his conduct non-criminal.” Id.
at 9. But “‘actual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). And “[t]he

Sixth Circuit has consistently determined that defenses based on justification
or excuse relate to legal innocence, not factual innocence.” Taylor v. Huss, No.
1:20-cv-1233, 2024 WL 4163376, at *7 (W.D. Mich. Sept. 12, 2024) (collecting
cases), certificate of appealability denied, 2025 WL 2743905 (6th Cir. Apr. 11,
2025); see Bushner v. Bracy, No. 17-3553, 2017 WL 9480312, at *3 (6th Cir.
Dec. 11, 2017) (“Bushner’s claim that he shot the victim in self-defense … goes

to his legal, rather than factual, innocence.”). Knowlton argues that the law
described above holding that self-defense is legal, not factual, innocence is “in
conflict with other districts.” Doc. 26, at 9-10 (citing cases). But none of the
cases Knowlton cites are from the Sixth Circuit, and the cases within the Sixth
Circuit are more persuasive.12 Knowlton writes that “Ohio’s self-defense laws

12 Taylor v. Huss cited the following cases in support:

Fuller v. Morrison, No. 21-2704, 2022 WL 2719644, at *2 (6th Cir. Mar. 25,
2022) (concluding that an attack on a conviction based on the petitioner’s
mental health diagnoses and their impact on intent did not amount to a claim
of factual innocence); Arellano v. Howard, No. 21-1024, 2021 WL 5499487, at
*4 (6th Cir. Aug. 23, 2021) (concluding that a petitioner’s challenge to a
conviction for shooting her husband under a claim of legal justification relates
to “legal” innocence, not factual innocence); Bushner v. Bracy, 17-3553, 2017
WL 9480312, at *3 (6th Cir. Dec. 11, 2017) (concluding that a claim of self-
defense—which is a claim of justification—“goes to [the petitioner’s] legal,
rather than factual, innocence”); Stewart v. Harry, 17-1494, 2017 WL 9249946,
at *2 (6th Cir. Nov. 21, 2017) (concluding that it was beyond debate that a
claim of innocence based on self-defense is a claim of legal innocence, not
factual innocence); Bacon v. Klee, No. 15-2491, 2016 WL 7009108, at *8 (6th
have recently changed and continue to evolve,” Doc. 26, at 10, but doesn’t
explain why the changes in Ohio law should necessitate in change in the
determination of whether a self-defense claim goes to actual innocence.

In any event, in order to show that he suffered a fundamental
miscarriage of justice such that his is “an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is
actually innocent,” Murray v. Carrier, 477 U.S. 478, 496 (1986), Knowlton must
provide “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial,” see Schlup v. Delo, 513 U.S. 298, 324 (1995). In support of
his actual innocence claim, Knowlton rehashes the testimony and evidence
presented at trial and provides his interpretation of events. Id. at 11–28. This
is not new reliable evidence that was not presented at trial. See Schlup, 513
U.S. at 324. In his motion to expand the record, Knowlton says that the
transcribed police interview of McBride is “essential” to his actual innocence
claim because it shows that “McBride possessed a firearm when Knowlton shot

him.” Doc. 25, at 2. But McBride’s transcribed interview does not show this.
See Doc. 25-2, at 5, 7, 9–12 (McBride stating that he arrived at the scene with
his gun in his waistband, and before walking towards Knowlton he pulled the

Cir. Nov. 30, 2016) (same); Harvey v. Jones, 179 F. App’x 294, 298–99 (6th Cir.
2006) (concluding that the petitioner’s claim of justification rested upon legal
innocence, not factual innocence and citing cases).

2024 WL 4163376, at *7.
gun out and placed it on his friend’s motorcycle). This is the same testimony
that McBride gave at trial. See Doc. 15-2, at 138. Knowlton’s self-serving
affidavit recounting events differently from the accounts of others at trial, Doc.

25-1, is not sufficient. See McCray v. Vasbinder, 499 F.3d 568, 573 (6th Cir.
2007) (commenting that a self-serving affidavit is not sufficient evidence to
show actual innocence).
Knowlton speculates that the private investigator hired by trial counsel,
Tom Pavlish, was not actually hired and identifies a letter in which Pavlish
responded to Knowlton’s inquiry and stated, “your file has been purged. I do

not have any material on your case.” Doc. 25, at 2; Doc. 24-4. Knowlton also
cites a letter from his trial counsel stating that the public defender’s office “will
not provide you with any Affidavit regarding Mr. Pavlish’s investigation.” Doc.
25, at 3; Doc. 25-5. These items do not show actual innocence. Finally,
Knowlton claims that McBride’s medical records, which Knowlton does not
have and which he has never seen, will show that he did not shoot McBride in
the back. Doc. 25, at 3–4. Knowlton’s speculation as to what McBride’s medical

records show is not evidence of actual innocence.
b. The remaining eight items fail on the merits
This leaves the remaining eight items Knowlton listed in his petition
which, he claims, show trial counsel’s ineffectiveness that appellate counsel
failed to raise. These items are as follows:
(a) Failing to request the jury instruction for a lesser
included/ inferior offense of aggravated assault for
felonious assault when at trial, evidence of
provocation was present. And failing to object to the
jury instructions.
(b) Failure to object to hearsay witness testimony of
bullet entry and exit wounds when no
medical/forensic/expert testimony or evidence was
presented.
(c) Failed to ensure defense witness Thomas Knox
was properly served by subpoena or deposition prior
to trial.
(d) Failure to request continuance to ensure defense
witness was present for trial when subpoena return
service was not filed with the court.
(e) Failed to consistently object to prosecutor’s
questions and comments regarding defendant’s
Fifth Amendment right to remain silent and other
improper comments.
(f) Failed to provide or allow defendant to review
Transcribed Recorded Police Interviews before trial,
and photos which were provided with discovery.
(g) Failed to object to evidence admitted without
proper authentication.
(h) Failed to subpoena/investigate victim’s medical
records.

Doc. 1, at 23–33, Doc. 15-1, at 121. The Ohio court of appeals considered and
rejected these claims as follows:
In his second alleged error, Knowlton raises various
complaints with representation by trial counsel.
First, Knowlton argues that trial counsel erred by
failing to object to “hearsay witness testimony”
regarding the bullet entry and exit wounds in the
absence of expert testimony. Knowlton, however,
references McBride’s and Lindsay’s testimony
describing the gunshot wounds suffered by McBride.
This is not hearsay but admissible testimony
regarding their observations.

To the extent that Knowlton contends counsel
should have presented expert testimony relating to
the nature of the wounds and whether the injuries
supported his claim of self-defense, we will not
second-guess trial counsel as to this issue. There was
consistent testimony from multiple witnesses
regarding the details of where the shots hit and the
direction in which Knowlton was firing. It is
reasonable to conclude that counsel determined
there was no relevant expert testimony available or
that such testimony may contradict the self-defense
claim. “[I]t is generally a legitimate trial strategy for
defense counsel not to present expert testimony * *
* because such an expert might uncover evidence
that further inculpates the defendant.” (Citation
omitted.) State v. Craig, 11th Dist. Lake No. 2021-L-
023, 2022-Ohio-2200, ¶ 14.

We also find no merit to Knowlton’s claim that
counsel was ineffective for the failure to seek
admission of medical records. He does not
demonstrate how such records would have proven he
acted in self-defense. Courts have declined to
second-guess trial counsel’s strategic decision in
relation to the admission of medical records where
the defendant failed to demonstrate “why the
records were necessary or how the result of the trial
was unreliable or unfair because the records were
not admitted.” State v. Vales, 2020-Ohio-245, 143
N.E.3d 577, ¶ 43 (5th Dist.).

Knowlton next argues that trial counsel was
ineffective by failing to ensure a defense witness was
subpoenaed and to seek a continuance to allow his
appearance. The record does not establish what
testimony this witness would have offered or how it
would have impacted the defense. “The mere failure
to subpoena witnesses is not a substantial violation
of an essential duty to a client in the absence of [a]
showing that [the] testimony * * * would have
assisted the defense.” (Citation omitted.) State v.
Heald, 11th Dist. Lake Nos. 2021-L-111 and 2021-L-
112, 2022-Ohio-2282, ¶ 30.

Knowlton raises other arguments which he fails to
support with additional argumentation: counsel did
not provide certain evidence to him or object to
evidence that was not authenticated. Pursuant to
App.R. 26(B)(2)(d), the defendant must indicate the
basis for allegations of how counsel was deficient as
well as demonstrate the manner in which this
prejudicially affected the outcome of the appeal.” In
the absence of argumentation in support of these
alleged errors, we decline to find they have merit.

Doc. 15-1, at 176–77. The Ohio court of appeals had rejected Knowlton’s
ineffectiveness claim related to the lesser-degree jury instruction when it
rejected Knowlton’s claim of trial-court error, id. at 175, discussed above. And
for the same reasons discussed above, Knowlton’s appellate-counsel-
ineffectiveness claim for failing to raise an ineffectiveness-of-trial-counsel
claim for failing to object to the lack of a lesser-degree instruction or to request
such an instruction fails on the merits.
As for Knowlton’s claim regarding trial counsel’s failure to object to
“hearsay witness testimony of bullet entry and exit wounds when no
medical/forensic/expert testimony or evidence was presented,” Knowlton
continues to insist, with no evidence in support, that McBride’s medical records
would have shown that he was not shot in the back. Doc. 25, at 111. Knowlton
argues that only two shots were fired, and that the shot that hit McBride in
the shoulder exited his back. Id. But Knowlton has not shown that the Ohio
court of appeals’ decision on this issue was unreasonable. He has not shown
that the witness testimony was hearsay such that counsel should have objected
to it. And the Ohio court of appeals’ statement that counsel’s failure to present
expert testimony on the gunshot wounds is legitimate trial strategy not to be
second-guessed, Doc. 15-1, at 176, is not an unreasonable application of
Supreme Court precedent. See, e.g., Davis v. Carpenter, 798 F.3d 468, 473 (6th
Cir. 2015) (“The Supreme Court has never reached the specific question[] …
[of] how hard” an attorney must try to obtain an expert); see Dovala v. Baldauf,

No. 20-4222, 2021 WL 3732338, at *7 (6th Cir. Aug. 24, 2021) (“Strickland does
not require a defense attorney to present an expert,” and “the [Supreme] Court
endorsed … an alternative to expert-testimony: cross-examination, ‘the
greatest legal engine ever invented for the discovery of truth’”) (quoting
California v. Green, 399 U.S. 149, 158 (1970)).
Next, and relatedly, Knowlton argues that trial counsel was ineffective

for failing to “subpoena/investigate victim’s medical records.” Doc. 26, at 112,
119. He claims that this evidence, which he does not have and has not seen,
would have shown that McBride was shot twice, not three times as McBride
had testified. Id. at 112, 119–20; Doc. 15-2, at 140–41. But Knowlton has not
shown that this is so—he only speculates what the medical records would have
shown. In fact, the evidence that Knowlton seeks to include in the record shows
that trial counsel had seen the medical records and that they showed that

McBride was shot three times. See Doc. 25-5 (letter from the public defender’s
office to Knowlton stating, “We cannot provide you with copies of medical
records for Mr. McBride due to HIPAA regulations. However, we reviewed the
medical records and can confirm Mr. McBride suffered three (3) gunshot
wounds.”). Even Knowlton himself did not state in his affidavit, which he also
seeks to include in the record, that he only shot McBride twice and not three
times. See Doc. 25-1. All told, Knowlton has not shown that it was
unreasonable for the Ohio court of appeals to defer to trial counsel’s strategic
decisions. See Strickland, 466 U.S. at 689 (a court “must indulge [the] strong

presumption” that counsel “made all significant decisions in the exercise of
reasonable professional judgment.”); Pinholster, 563 U.S. at 196 (“[t]he Court
of Appeals was required not simply to ‘give [the] attorneys the benefit of the
doubt,’ but to affirmatively entertain the range of possible ‘reasons Pinholster’s
counsel may have had for proceeding as they did’”) (citation omitted).
Knowlton claims that trial counsel was ineffective for “[f]ail[ing] to

ensure defense witness Thomas Knox was properly served by subpoena or
deposition prior to trial” and “to request continuance to ensure defense witness
was present for trial.” Doc. 1, at 32. Knowlton cites cases which found that trial
counsel was ineffective for failing to pursue witnesses at trial, but his summary
of these cases shows that they involved witnesses who would have corroborated
the defendant’s story or provided exculpatory testimony. Doc. 26, at 113–14.
Here, as the Ohio court of appeals observed, Knowlton does not say what Knox

would have said. Doc. 15-1, at 177. So Knowlton has not shown that trial
counsel was ineffective for failing to pursue Knox as a witness. And he hasn’t
shown that the Ohio court of appeals’ finding was contrary to or represents an
unreasonable application of Supreme Court precedent. Doc. 15-1, at 177; see
Johnson v. Sloan, No. 5:18-cv-1846, 2020 WL 9813446, at *11 (N.D. Ohio Jan.
15, 2020) (“The decisions of ‘whether to call a witness and how to conduct a
witness’ testimony are classic questions of trial strategy.’”) (quoting Rayborn
v. United States, 489 F. App’x 871, 878 (6th Cir. 2012)), report and
recommendation adopted, 2021 WL 2187965 (N.D. Ohio May 28, 2021); see

Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) (“In the absence of any
evidence showing that [the uncalled witnesses] would have offered specific
favorable testimony, Tinsley cannot show prejudice from counsel’s strategy
recommendation not to introduce this evidence.”).
Knowlton also complains that trial counsel “[f]ailed to provide or allow
defendant to review Transcribed Recorded Police Interviews … and photos”

“before trial” and “[f]ailed to object to evidence admitted without proper
authentication.” Doc. 1, at 31. The Ohio court of appeals summarily rejected
these claims because Knowlton failed to provide argument in support. Doc. 15-
1, at 177. In his Traverse, Knowlton argues in support of these claims. Doc. 26,
at 117–19. But he hasn’t shown that these claims have merit. His assertion
that trial counsel failed to object to the messages as not having been
authenticated and that there was “no showing that … Knowlton was actually

involved in the conversation,” id. at 118–19, fails because Knowlton has not
claimed that he wasn’t involved in the conversation. Indeed, Knowlton relied
at trial—and in his habeas petition—on these text messages to support his self-
defense theory. See, e.g., Doc. 15-2, at 349, 380–81; Doc. 26, at 29. Knowlton
complains that counsel failed to timely provide him with transcripts of police
interviews. Doc. 26, at 117–18. But he hasn’t shown that counsel was
ineffective in these matters, and he hasn’t explained why having seen the
police-interview transcripts would have changed anything.
Finally, the Ohio court of appeals did not expressly rule on Knowlton’s

claim that appellate counsel was ineffective for failing to argue on appeal that
trial counsel was ineffective for failing to “consistently object to prosecutor’s
questions and comments regarding defendant’s Fifth Amendment right to
remain silent and other improper comments.” Doc. 1, at 32, ¶(e). In his Rule
26(B) application to reopen, Knowlton didn’t identify what the comments were
and when they occurred; he only wrote, “although defense counsel did object to

one comment regarding defendants right to remain silent, several other
instances before and after were not objected to.” Doc. 15-1, at 122. This vague
reference can reasonably be read into the Ohio court of appeals’ final
paragraph in which it rejected “other arguments” Knowlton raised “which he
fails to support with additional argumentation.” Doc. 15-1, at 177. Moreover,
the Ohio court of appeals considered and rejected Knowlton’s claim that
appellate counsel was ineffective for failing to raise on direct appeal issues of

prosecutorial misconduct, which I discuss below. And for the same reasons, I
recommend to the Court that the Ohio court of appeals’ finding on this issue
was not unreasonable, such that appellate counsel could not be said to have
been ineffective for failing to raise an ineffectiveness-of-trial-counsel claim for
failing to object to the prosecutor’s comments. See Greer, 264 F.3d at 676 (“[B]y
definition, appellate counsel cannot be ineffective for a failure to raise an issue
that lacks merit”).
3. Appellate counsel’s failure to raise a prosecutorial misconduct claim
based on eight things

In his petition, Knowlton argues that appellate counsel was ineffective
for failing to raise on direct appeal a prosecutorial misconduct claim for eight
things that the prosecutor did or said, including that the prosecution
committed a Brady violation13 by withholding evidence. Doc. 1, at 33. But in
his Rule 26(B) application to reopen, Knowlton did not claim that the
prosecutor committed a Brady violation. Doc. 15-1, at 122–25. So Knowlton has
procedurally defaulted any Brady-based ineffective assistance claim. See
McMeans, 228 F.3d at 681 (A claim is only considered fairly presented when
the petitioner asserts both the factual and legal bases for that claim to the state

courts). Nor did Knowlton claim in his Rule 26(B) application that the
prosecutor committed misconduct when he “deliberately elicited, and then
failed to correct, false and misleading testimony from the State’s key
witnesses” about whether McBride handed the gun to Lindsay, Doc. 26, at 136–
40, and allowed McBride to testify that he was shot three times, including once
in the back, id. at 141–45. Knowlton also hadn’t raised a “Golden Rule” claim.14

13 See Brady v. Maryland, 373 U.S. 83 (1963).

14 A “Golden Rule” “violation occurs when the prosecutor ‘urges jurors to
identify individually with the victims with comments like “it could have been
you” the defendant [harmed] or “‘it could have been your children.”’” United
States v. Al-Maliki, 787 F.3d 784, 795 (6th Cir. 2015) (citation omitted).
Id. at 147; see Doc. 15-1, at 122–25. These claims, too, are procedurally
defaulted. See McMeans, 228 F.3d at 681.
Knowlton has not alleged cause to excuse this procedural default. To the

extent he claims that the 10-page brief-limit for Rule 26(B) applications to
reopen limited his ability to develop the state court record for his claims, Doc.
25 at 67, such an argument would fail, see Seymour, 224 F.3d at 551; Ohio App.
R. 26(B)(4). And as discussed above, Knowlton has not shown actual innocence
to excuse the procedural default.
This leaves the ineffective-assistance-of-appellate-counsel claims for

failing to raise on direct appeal instances of prosecutorial misconduct that
Knowlton did raise. When reviewing a claim of prosecutorial misconduct, “[t]he
relevant question is whether the prosecutor’s comments ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637 (1974)). The reviewing court’s focus in a claim of
prosecutorial misconduct is “the fairness of the trial, not the culpability of the

prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). The Ohio court of
appeals considered Knowlton’s claims as follows:
In his third alleged error, Knowlton argues that
appellate counsel should have raised various issues
relating to prosecutorial misconduct. “In a claim of
prosecutorial misconduct, we determine (1) whether
the prosecutor’s remarks were improper, and if so,
(2) whether the remarks prejudicially affected the
appellant’s substantial rights.” State v. Nixon, 11th
Dist. Portage No. 2023-P-0001, 2023-Ohio-4871, ¶
154. “An improper comment does not affect a
substantial right of the accused if it is clear beyond
a reasonable doubt that the jury would have found
the defendant guilty even without the improper
comments.” (Citation omitted.) Id.

First, Knowlton asserts that the State incorrectly
indicated McBride had a concealed carry permit
while he testified to the contrary. The prosecutor
was mistaken in this assertion but McBride’s
testimony clarified this issue. Further, there is
nothing to indicate this mistake impacted the
conviction. McBride’s possession of a CCW license is
inconsequential to the circumstances of the shooting
and Knowlton’s claim that he acted in self-defense.

Knowlton also argues that the State improperly
injected its opinion into closing argument by
comparing the conflict between the two men to a
junior high fight. He fails to demonstrate how this
comment constituted misconduct. Similarly, as to
the prosecution’s statement that the record proved
beyond a reasonable doubt that Knowlton did not act
in self-defense, Knowlton does not cite authority
demonstrating how this was improper. See State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 160 (prosecution’s statement that the
evidence proved the offense beyond a reasonable
doubt was not improper).

Knowlton also takes issue with the State’s
comments about a witness, Lindsay, testifying
honestly. It has been held that “[c]ommenting on the
truthfulness of a witness is not proper.” State v.
Clay, 181 Ohio App.3d 563, 2009-Ohio-1235, 910
N.E.2d 14, ¶ 45 (8th Dist.). The statements, viewed
in context, indicated that Lindsay was honest in
admitting his past felony charges in relation to his
desire to not be found in possession of a firearm.
Even presuming the prosecutor improperly spoke to
Lindsay’s honesty in this regard, the record does not
indicate the statements impacted the outcome of the
trial, as they related to the recovery of the gun
rather than the facts surrounding the incident itself
and whether Knowlton acted in self-defense. See
State v. Taylor, 2d Dist. Greene No. 2018-CA-9,
2019-Ohio-142, ¶ 67 (the defendant’s substantial
rights were not prejudicially affected by the
prosecutor’s comments when the jury would have
found him guilty absent such remarks).

Knowlton also takes issue with the prosecutor’s
statement, in closing argument, that, if the law
allowed Knowlton to claim self-defense merely
because McBride brough a gun to the location of the
shooting, it would lead to “a whole bunch of
shootings.” An objection to this comment was
sustained. Again, Knowlton does not advance an
argument that demonstrates this impacted his
substantial rights. The jury was instructed correctly
on the law relating to self-defense and, as noted in
this court’s opinion, the facts supported the jury’s
conclusion that Knowlton did not demonstrate self-
defense.

Knowlton also argues that the prosecutor misled the
jury by inquiring of a witness regarding only certain
text messages between McBride and Knowlton.
There is nothing to indicate that this constituted
misconduct. Although there were some messages in
the exhibit that may not have been referenced by the
prosecutor, these messages were not relevant to the
dispute leading to the assault and the State was not
required to ask questions to the witnesses regarding
every message.

Finally, Knowlton argues that the prosecutor
committed misconduct by making comments about
his failure to speak to police or give testimony. The
prosecutor made comments about the difficulty
police had in getting in contact with Knowlton and
that they did not speak with him. The prosecutor
further stated that there was a lack of evidence to
explain why Knowlton shot McBride and that no one
could testify as to Knowlton’s thoughts or feelings. It
was well-settled that a prosecutor may not comment
on a defendant’s failure to testify. Griffin v.
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d
106 (1965). To the extent that the prosecution
commented on Knowlton’s failure to offer evidence
to prove intent and/or self-defense, “the prosecution
is entitled to comment on defendant’s failure to offer
evidence.” State v. Vaughn, 11th Dist. Ashtabula No.
2018-A-0045, 2019-Ohio-268, ¶ 37. To the extent
that the prosecutor’s comments related to
Knowlton’s failure to give a statement to police
and/or failure to testify, the record demonstrates
that the court properly instructed the jury not to
consider this. It instructed the jury, during the
testimony, that it “will disregard any statement
made by the prosecuting attorney regarding the
Defendant communicating with or speaking with
law enforcement, and you will not consider that for
any purpose whatsoever” and, further, during
closing arguments, that “the fact that the Defendant
did not testify must not be considered for any
purpose.” Given the nature of the comments and the
curative instructions, we do not find that the
statements prejudiced Knowlton or resulted in his
conviction. See State v. Fitzgerald, 11th Dist.
Portage No. 2003-L-084, 2004-Ohio-6173, ¶ 50 (“the
alacrity with which the court issued its curative
instruction functioned to further lessen the
possibility of prejudice”); State v. Smith, 2d Dist.
Montgomery No. 29597, 2023-Ohio-4565, ¶ 139
(“[w]e presume that the jury followed” instructions
not to consider the defendant’s failure to testify for
any purpose).

For the foregoing reasons, Knowlton’s Application to
Reopen Appeal is overruled.

Doc. 15-1, at 177–80.
Knowlton reiterates his arguments in support of this claim, see Doc. 26,
127–49, 153–54, but he has not shown that any portion of the Ohio court of
appeals’ decision on this claim was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). To start, the Ohio court of
appeals correctly considered the prosecutor’s remarks within the context of the
trial. Doc. 15-1, at 177–80; see Stermer v. Warren, 959 F.3d 704, 726 (6th Cir.

2020) (“the remarks must be examined within the context of the trial to
determine whether the prosecutor’s behavior amounted to prejudicial error”)
(quoting United States v. Young, 470 U.S. 1, 12 (1985)).
Knowlton claims that the prosecutor elicited misleading testimony
because (1) McBride did not in fact have a concealed-carry permit and (2) he
didn’t review with McBride all of the text messages sent between Knowlton

and McBride before the shooting. Doc. 26, at 128, 129. The Ohio court of
appeals explained that the prosecutor did not act improperly and, in any event,
these items were irrelevant. Knowlton hasn’t alleged—let alone shown—that
that Ohio court of appeals’ decision was contrary to, or involved an
unreasonable application of, clearly established Supreme Court precedent, or
that it was based on an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d). So, too, with Knowlton’s complaint that the prosecutor during

closing argument likened the fight to boys in junior high school, Doc. 26, at
128; Doc. 15-1, at 178, and the prosecutor’s comments about the self-defense
law, Doc. 26, at 128; Doc. 15-1, at 179. Knowlton argues that the prosecutor
bolstered Lindsay’s testimony when he told the jury that Lindsay was “honest.”
Doc. 26, at 130. But he doesn’t challenge the Ohio court of appeals’ finding that
this statement, taken in context, was “related to the recovery of the gun rather
than the facts surrounding the incident itself and whether Knowlton acted in
self-defense.” Doc. 15-1, at 178; Doc. 15-2, at 372.
Knowlton complains that the prosecutor elicited police officers’

testimony about the officers’ unsuccessful attempts after the shooting to locate
Knowlton to speak to him or investigate. Doc. 26, at 132–33; Doc. 15-2, at 291,
312. He cites Officer Burns’s testimony that Knowlton fled from the police. Doc.
26, at 132. He also cites Officer Allen’s testimony that the day after the
shooting, she visited Knowlton’s father’s house to say that “it would be in
[Knowlton’s] best interest to contact us and … tell us his side of the story.” Id.

see Doc. 15-2, at 291. The prosecutor asked Officer Allen, “And to the best of
your knowledge has that ever happened?” to which Officer Allen answered,
“No.” Id. But the Supreme Court has not held that a prosecutor is barred from
commenting at trial on pre-arrest, pre-Miranda, non-custodial silence. See,
e.g., Salinas v. Texas, 570 U.S. 178, 183 (2013); Jenkins v. Anderson, 447 U.S.
231, 236 n.2 (1980).
Knowlton points out that, during closing argument, the prosecutor told

the jury that “Over the ensuing year and a half, [Officer] Allen told us, she
even went to Shane Knowlton’s father’s house …. Said hey, we really need to
talk to Shane. We’d like to get his side of the story.” Doc. 15-2, at 375. Knowlton
asserts that he “was arrested on July 17, 2022, which is less than one year from
July 23, 2021,” the date of the shooting. Doc. 26, at 133. “Therefore,” Knowlton
contends, “the State argued [he] did not speak with law enforcement while in
custody.” Id. Even if the prosecutor’s comment, which did not explicitly
reference Knowlton’s purported post-arrest silence, could be construed as a
comment on Knowlton’s presumed post-arrest silence, Knowlton’s attorney

promptly objected and the trial court sustained the objection and immediately
provided to the jury a specific curative instruction. Doc. 15-2, at 375–77 (trial
court’s immediate instruction: “Ladies and gentlemen of jury, you will
disregard any statement made by the prosecuting attorney regarding the
Defendant communicating with or speaking with law enforcement, and you
will not consider that for any purpose whatsoever.”). And later, the court again

provided another curative instruction to the jury. Doc. 15-2, at 391
(“statements that were stricken by the Court or which you were instructed to
disregard are not evidence and must be treated as though you never heard
them.”); see Greer v. Miller, 483 U.S. 756, 766 (1987). (“The sequence of events
in this case—a single question, an immediate objection, and two curative
instructions—clearly indicates that the prosecutor’s improper question did not
violate Miller’s due process rights.”) (footnote omitted). So even if the

prosecutor’s statement could be said to have commented on Knowlton’s silence
“while in custody,” the Ohio court of appeals’ finding on this claim was not “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded
disagreement.” Harrington, 562 U.S. at 103.
Knowlton contends that the prosecutor’s comments about the lack of
evidence to show that Knowlton acted in self-defense violated his right to
remain silent. Doc. 26, at 134. But the Ohio court of appeals explained that

“the prosecution is entitled to comment on defendant’s failure to offer
evidence.” Doc. 15-1, at 180 (citing State v. Vaughn, No. 2018-A-0045, 2019 WL
355168, at *4 (Ohio Ct. App. Jan. 28, 2019)); see also State v. Collins, 733
N.E.2d 1118, 1122 (Ohio 2000)). Knowlton has not shown that the Ohio court
of appeals’ finding “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).
All told, Knowlton has not in ground five overcome the “doubly
deferential” standard of review by showing that the Ohio court of appeals’
application of Strickland when reviewing Knowlton’s ineffective-assistance-of-
appellate-counsel claims was unreasonable. See Pinholster, 563 U.S. at 190.
Grounds two and four are procedurally defaulted
In ground two, Knowlton argues that the trial court erred when it failed

to instruct the jury on an inferior offence. Doc. 1, at 8. Ground four is a
prosecutorial misconduct claim based on comments the State made at trial. Id.
at 29–31. The Warden argues that these grounds are procedurally defaulted
because Knowlton should have, but did not, raise them on direct appeal. Doc.
15, at 31.
Grounds two and four are based on the trial court record and should
have been raised on direct appeal. See Buell, 274 F.3d at 349. Because
Knowlton did not raise these claims on direct appeal, they are procedurally

defaulted. See id. (“a petitioner’s failure to raise his claims in Ohio courts is an
adequate and independent state law ground for upholding the petitioner’s
conviction and sentence.”).
Knowlton concedes that he did not give the state courts an opportunity
to evaluate these claims. Doc. 26, at 64. He points out, however, that he filed
an Ohio Appellate Rule 26(B) application to reopen, id., in which he asserted

that appellate counsel was ineffective for failing to raise, on direct appeal,
these claims, Doc. 15-1, at 173. But “bringing an ineffective assistance claim in
state court based on counsel’s failure to raise [on appeal] an underlying claim
does not preserve the underlying claim for federal habeas review because ‘the
two claims are analytically distinct.’” Davie v. Mitchell, 547 F.3d 297, 312 (6th
Cir. 2008) (quoting White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)).
Moreover, while ineffective assistance of appellate counsel can serve as

cause to excuse a procedural default, it can only do so if the ineffective-
assistance-of-appellate-counsel claim is not itself procedurally defaulted and
the court finds that appellate counsel was constitutionally ineffective. See
Edwards v. Carpenter, 529 U.S. 446, 451–53 (2000). Knowlton must show that
his appellate counsel was objectively unreasonable for not raising these claims
on direct appeal and a reasonable probability that, but for his counsel’s
unreasonable failure to do so, Knowlton would have prevailed on appeal. See
Robbins, 528 U.S. at 285–86. The Court conducts de novo review of an
ineffective-assistance-of-counsel claim when determining whether it can serve

as cause to excuse a procedural default. See Chase v. MaCauley, 971 F.3d 582,
592 (6th Cir. 2020) (citing Hall v. Vasbinder, 563 F.3d 222, 236–37 (6th Cir.
2009)).
For all of the reasons explained above in the Court’s evaluation of
ground five, and under de novo review, Knowlton has not shown that appellate
counsel was objectively unreasonable for not raising these claims on direct

appeal and a reasonable probability that, but for his counsel’s unreasonable
failure to do so, Knowlton would have prevailed on appeal. See Robbins, 528
U.S. at 285.
Ground three is procedurally defaulted
Ground three is an ineffective-assistance-of-trial-counsel claim. Doc. 1,
at 9. Knowlton lists fourteen ways in which he believes that trial counsel was
ineffective. Id. at 26–29. He raised all but two of these claims in his post-

conviction petition. See Doc. 15-1, at 245–51, 269–70, 276 (listing all but trial
counsel’s failure to object to unauthenticated text messages and to the
prosecutor’s witness-bolstering). And he failed to raise two of his claims on
appeal to the Ohio court of appeals. See id. at 321–26 (listing all but trial
counsel’s failure to object to the prosecutor’s witness-bolstering and for
counsel’s failure to investigate a second firearm). So these three sub-claims are
procedurally defaulted. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To
provide the State with the necessary ‘opportunity’” to evaluate a claim, “the
prisoner must ‘fairly present’ [the] claim in each appropriate state court”);

Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003) (“[I]ssues …
presented … in a post-conviction relief petition” must be “presented for review
by the Court of Appeals and Ohio Supreme Court.”).
Even worse for Knowlton, he didn’t appeal the Ohio court of appeals’
decision affirming the trial court’s denial of his post-conviction petition to the
Ohio Supreme Court. So he has procedurally defaulted all of the claims that

he raised in his post-conviction petition. See id; see Baldwin, 541 U.S. at 29.
To the extent that Knowlton argues that he also raised the ground-three
claims in his Rule 26(B) application to reopen as a reason that appellate
counsel was ineffective, Doc. 26, at 66–67, such an argument would fail. See
Davie, 547 F.3d at 312 (“[B]ringing an ineffective assistance claim in state
court based on counsel’s failure to raise [on appeal] an underlying claim does
not preserve the underlying claim for federal habeas review because ‘the two

claims are analytically distinct.’”) (citation omitted).
Knowlton argues that he didn’t appeal to the Ohio Supreme Court
because to do so would have been futile. Doc. 26, at 65. But “perceived futility”
cannot constitute cause to excuse a procedural default. See Cvijetinovic v.
Eberlin, 617 F.3d 833, 839 (6th Cir. 2010) (citing, among other cases, Bousley
v. United States, 523 U.S. 614, 623 (1998)). Simply put, Knowlton has not
shown cause to excuse his procedural default. And as explained above, he has
not shown actual innocence to overcome the procedural bar. Ground three is
procedurally defaulted.

Conclusion
For the reasons set forth above, I recommend that Knowlton’s Petition
be dismissed in part and denied in part. Knowlton’s Motion to expand the
record, Doc. 25, is denied.

Dated: November 13, 2025

/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge

OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).

Shane Patrick Knowlton v. Warden Jossette Okereke

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information