United States District Court, N.D. Ohio, Eastern Division
Jeronique D. Cunningham, Petitioner,
Tim Shoop, Warden, Respondent.
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN CHIEF JUDGE
Court denied Petitioner Jeronique Cunningham's petition
for writ of habeas corpus on December 7, 2010. (Doc. 157.) On
appeal of that judgment, the Sixth Circuit Court of Appeals
concluded that one of Cunningham's claims, juror bias,
was unexhausted and it remanded the case to this Court
“to determine whether it is appropriate to
stay-and-abey the petition while Cunningham returns to state
court to exhaust this claim.” Cunningham v.
Hudson, 756 F.3d 477, 479 (6th Cir. 2014) (per curiam).
This Court then stayed this case and held it in abeyance
while Cunningham exhausted the juror-bias claim in state
courts. (Doc. 173.) Cunningham has now exhausted the claim
and filed an amended habeas petition. (Doc. 200.) Respondent
Warden Tim Shoop has filed a supplemental return of writ
(Doc. 201), and Cunningham has filed a traverse. (Doc. 205.)
For the following reasons, the Court DENIES
Cunningham's amended petition.
was convicted and sentenced to death in an Ohio court (Allen
County Court of Common Pleas) for the aggravated murder of
three-year-old Jala Grant and seventeen-year-old Leneshia
Williams. See State v. Cunningham, 105 Ohio St.3d
197, 197-200 (Ohio 2004).
early afternoon of January 3, 2002, Cunningham and his
half-brother, Cleveland Jackson, bought crack cocaine from
Lashane Liles at Liles' apartment in Lima, Ohio.
Id. at 197. Cunningham and Jackson returned to
Liles' apartment that evening, intending to rob him.
Id. When the brothers arrived, Liles was not home,
but several family members and friends were there.
showed up soon after, and Jackson spoke to him about
purchasing drugs while Cunningham watched a movie with two
teenagers in the living room. Id. Cunningham then
ordered the two teenagers into the kitchen, where three
adults and two children - three-year-old Jala and
seventeen-year-old Leneshia - were already gathered.
Id. The teenagers did not immediately comply, so
Cunningham pulled out a gun and struck one in the face with
the gun barrel, breaking his jaw. Id. At that point,
Jackson brandished his gun and aimed it at Liles.
teenagers ran into the kitchen, followed by Cunningham, who
then held the group at gunpoint. Id. at 197-98.
Jackson forced Liles upstairs, where he robbed him of drugs
and money. Id. at 198. Jackson then led Liles
downstairs to the kitchen. Id. The group was ordered
to place their money, jewelry, and watches on the table.
Id. Jackson demanded more money from Liles, and when
Liles told him he had none, Jackson shot him in the back.
Id. Cunningham and Jackson then turned their weapons
on the others, shooting each of them. Id. Jala and
Leneshia both died from gunshot wounds to the head.
Id. The rest survived, though all but one were
seriously injured. Id.
police recovered only five bullets and eight spent shell
casings at the scene and one bullet from a victim's arm.
Id. at 199. The guns were never found. Id.
There was no physical evidence that any of the bullets came
from Cunningham's gun. Id. at 199-200.
was indicted on two counts of aggravated murder for purposely
causing the death of Jayla Grant and Lenishia Williams during
an aggravated robbery; one count of aggravated robbery; and
six counts of attempted murder. (Doc. 192-1 at
34-44.) Each of the aggravated murder counts
contained two death-penalty specifications: one that the
murder was part of a course of conduct to kill or attempt to
kill two or more persons, and another that the murder
occurred during an aggravated robbery and was committed with
prior calculation and design. (Id. at 34-35.)
Firearm and repeat-violent-offender specifications were
attached to all counts except the weapon-under-disability
charge. (Id. at 34-44.) Cunningham entered pleas of
not guilty to all charges. (See Doc. 192-2 at 204.)
18, 2002, after a seven-day trial, a jury found Cunningham
guilty of all charges, the two death-penalty specifications,
and the firearm specifications. (See id. at 204-10.)
After a penalty hearing, the trial court sentenced Cunningham
to death on the aggravated murder charges consistent with the
jury's recommendation. (Id. at
211-25.)Cunningham's convictions and sentences
were affirmed on direct appeal. See Cunningham, 105
Ohio St.3d at 224.
filed a timely petition for post-conviction relief in the
trial court in August 2003. (Doc. 192-4 at 45-453
(Post-Conviction Petition).) Among other claims, he asserted
that one of the jurors was biased, violating his
constitutional right to a fair and impartial jury.
(Id. at 83-86.) He argued that Nichole Mikesell, the
foreperson of the jury, had obtained negative information
about him from colleagues at the social-services agency where
she worked at the time of the trial. (Id. at 85.) To
support this claim, he attached a summary of an interview
with Mikesell that an investigator for Cleveland Jackson had
conducted after the trial. (Id. at 310-11 (Ex. R to
Post-Conviction Petition).) The investigator reported that
Mikesell called Cunningham “an evil person” with
“no redeeming qualities.” (Id. at 311.)
He also wrote that she told him that “some social
workers worked with Jeronique in the past and were afraid of
him, ” and that “if you observe one of the veins
starting to bulge in his head, watch out and stay away
because he might try to kill you.” (Id.)
trial court denied Cunningham's post-conviction petition
without allowing discovery or an evidentiary hearing. (Doc.
192-5 at 8-30.) The state appellate court affirmed. State
v. Cunningham, No. 1-04-19, 2004 WL 2496525 (Ohio Ct.
App. Nov. 8, 2004). The Ohio Supreme Court denied
discretionary review. State v. Cunningham, 105 Ohio
St.3d 1464 (2005).
Initial Federal Habeas Proceedings
October 2006, Cunningham filed a petition for a writ of
habeas corpus in this Court, asserting fourteen claims for
relief. (Doc. 19.) The case originally was assigned to Judge
Peter Economus who referred the matter to Magistrate Judge
McHargh for “limited delegation.” His first claim
included his allegations of juror bias based on
Mikesell's knowledge of extra-judicial information about
Cunningham. (Doc. 19-2 at 1-6.)
April 2008, Cunningham requested discovery, including
documents and depositions related to his juror-bias claim.
(Doc. 79 at 2-3.) In June 2008, Judge Economus granted
Cunningham leave to depose Mikesell, the other seated and
alternate jurors, Mikesell's co-workers at the Allen
County Children's Services, and Jackson's
investigator. (Doc. 86 at 12.) In August 2008, Cunningham
requested, and was granted, funds to employ an investigator.
(Docs. 91, 92.)
fall of 2008, Cunningham acquired affidavits from two jurors,
Staci Freeman and Roberta Wobler. (Doc. 104-1 (Freeman Aff.);
Doc. 103-1 (Wobler Aff.).) Neither Freeman nor Wobler
recalled hearing Mikesell discuss the negative information
about Cunningham at issue in Cunningham's petition.
(See Doc. 104-1 at 2.) But, both women averred that
Mikesell mentioned knowing the families of the victims of the
crime. (Id.; Doc. 103-1 at 1.) Freeman stated:
At one point during the jury deliberations, I had problems
with the apparent fact that all the ballistic evidence
pointed to a 9mm automatic pistol and not the revolver
[allegedly belonging to Cunningham]. I expressed my opinion
and Nichole Mikesell responded that, You don't
understand. I know the families of the people that were shot
in the kitchen. The families know me and I am going to have
to go back and see them. These families are my clients. I
interpreted Mikesell's comments as pressure to vote
(Doc. 104-1 at 1-2.) Wobler averred that Mikesell
stated that she knew of the families of the victims from
Family Services[.] One young woman on the jury was adamant
that Jeronique was not guilty. Mikesell told the young woman
and the jury that the young woman did not have to work in the
(Doc. 103-1 at 1-2.)
counsel deposed Mikesell in January 2009. (Doc. 188-1
(Mikesell Dep.).) She testified that she did not speak to
social workers about Cunningham at the time of the trial, but
that she did look at his file after the trial concluded.
(Id. at 118.) During the deposition, counsel asked
Mikesell if she knew any of the victims. (Id. at
119.) Respondent's counsel objected on the ground that
the question was beyond the scope of the claim, and the
federal magistrate judge presiding over the deposition
sustained the objection. (Id. at 120.)
March 2009, Cunningham moved for, and Judge Economus granted,
leave to amend his juror-bias claim to add the allegations
that Mikesell was biased because she knew the victims'
families, considered them her clients, and would ultimately
have to face them in the community. (Docs. 111, 120.)
Cunningham also requested an evidentiary hearing, which Judge
Economus denied, although he permitted Cunningham to depose
jurors Freeman and Wobler on this issue. (Doc. 120 at 5-6.)
and Wobler were deposed in October 2009. Freeman testified
that during guilt-phase deliberations, Mikesell
“stat[ed] that she dealt with the victims and their
families, they knew who she was, and that if she would find
him not guilty that she would have to deal with them and
that's just something she didn't want to have to deal
with because they knew who she was.” (Doc. 137-1
(Freeman Dep.) at 60.) When asked how this remark impacted
her deliberations, Freeman testified that she “felt
pressured, ” and “as the last one holding out,
[she] felt that [she] was up against a wall, and [Mikesell]
was very domineering and so I just . . . You know I regret, I
shouldn't have, but I voted guilty.” (Id.
at 11.) Mikesell's comment, she said, “should never
have been made . . . .” (Id.) Wobler testified
at her deposition that, “at the very end of the
deliberations [Mikesell] stated she may in the future be
working with the families under the Welfare Job and Family
Services where she worked, ” but “not that she
had been.” (Doc. 136-1 (Wobler Dep.) at 5-6.) She
denied, however, that the comment had any impact on her
deliberations (Id. at 6) or that anyone forced her
to recommend the death penalty (Id. at 13).
requested and was granted leave to amend his petition in
November 2009 and again in March 2010 to include the
allegations about Mikesell that he uncovered in the
depositions. (Docs. 129, 141.) In March 2010, Respondent
moved to strike the Freeman and Wobler depositions on the
ground that Cunningham did not diligently seek information
about the victims' families in state court. (Doc. 142.)
Judge Economus denied the motion (Doc. 155), finding that
Cunningham had exercised due diligence in state courts in
attempting to develop the claim's factual basis through
requests for discovery and an evidentiary hearing, though the
state trial court denied those requests. (Id. at 3.)
case was then assigned to this Court which, in December 2010,
denied Cunningham's petition. (Doc. 157.) Regarding the
juror-bias claim based on Mikesell's relationship with
the victims' families, the Court concluded that the claim
was unexhausted and procedurally defaulted because Cunningham
had not presented it to the state courts, but that even
“[i]f the Court were to consider the testimony, it
would find this claim to be without merit.”
(Id. at 31-32.) It found that the deposition
testimony of jurors Wobler and Freeman demonstrated that
“they were not forced to convict Cunningham. Even
though Freeman stated that she felt pressured, it was because
she was the only one holding out, and she was not happy that
Mikesell, as jury foreperson, was controlling the situation.
Usually, a foreperson controls the jury.” (Id.
appealed that judgment, and the Sixth Circuit granted a
certificate of appealability on seven claims, including
whether the presence of the jury foreperson deprived
Cunningham of a fair trial. See Cunningham v.
Hudson, 756 F.3d 477, 481 (6th Cir. 2014). In June 2014,
the circuit court issued a per curiam opinion addressing
Cunningham's claim of juror bias based on Mikesell's
relationship with the families of the murder victims. The
court concluded that this claim was unexhausted but not
procedurally defaulted, because Cunningham still could raise
it in a motion for a new trial or a second petition for
post-conviction relief in the Ohio state courts. Id.
at 485. The court further found that Cunningham had good
cause for his failure to exhaust the claim because he did not
become aware of the factual basis for this claim until he
conducted discovery in this Court, and Respondent had not
demonstrated that this Court's finding that Cunningham
exercised due diligence in attempting to develop the factual
basis of this claim was clearly erroneous. Id. at
486. Finally, it determined that the juror-bias claim was
“not plainly meritless, ” as “evidence of
[Mikesell's] alleged relationship with the families of
the victims raises grave concerns about her impartiality . .
. .” Id. at 486-87. The court framed the issue
raised by this claim as: “did Mikesell have a
relationship with the families of the victims, and if so, was
she improperly biased or influenced by that relationship and
her knowledge that she would have to face them and work in
the community after the trial was over?” Id.
at 486. The court, therefore, vacated this Court's
judgment denying Cunningham's petition and remanded the
petition to this Court “to determine whether it is
appropriate to stay-and-abey the petition while Cunningham
returns to state court to exhaust this claim.”
Id. at 479.
parties then briefed the matter (Docs. 169, 171, 172), and
this Court granted Cunningham's request to stay this
matter and hold it in abeyance until he exhausted his claim
in state courts (Doc. 173). In evaluating Cunningham's
request to stay these proceedings under federal law and
procedural rules, the Court observed that “Cunningham
[had] not engaged in abusive litigation tactics or
intentional delay[, ]” but had “diligently sought
to develop the factual basis of this claim in both state and
federal court.” (Doc. 173 at 6.)
State-Court Proceedings Following Remand
December 2014, Cunningham filed in the state trial court a
second-in-time petition for post-conviction relief, a motion
for leave to file a delayed motion for a new trial, and a
motion for funds to employ an investigator. (Doc. 188-1 at
31-138 (Post-Conviction Petition); Doc. 209-1 at 4-10 (Motion
for Funds), 11-115 (New-Trial Motion).) In both the
post-conviction petition and delayed motion for new trial, he
asserted a single claim of juror bias based on both
Mikesell's alleged extra-judicial information about him
and her alleged relationship with the victims' families.
(Doc. 188-1 at 38-40; Doc. 209-1 at 14-17.) He also requested
discovery. (Doc. 188-1 at 31; Doc. 209-1 at 17.) As support,
he submitted the 2003 affidavit of Jackson's
investigator, who interviewed the jurors after the trial,
with the attached report; the 2008 Freeman and Wobler
affidavits; the 2009 depositions of Freeman and Wobler; and
the 2009 deposition of Mikesell. (See Doc. 188-1 at
42; Doc. 209-1 at 19 (lists of exhibits).) The State
responded to Cunningham's post-conviction petition and
motions, and moved to dismiss the petition and new-trial
motion. (Doc. 188-1 at 150-82.)
September 2015, the trial court denied the post-conviction
petition and motion for leave to file a delayed motion for a
new trial without permitting discovery or an evidentiary
hearing; denied the motion for funds to employ an
investigator; and granted the State's motion to dismiss.
(Id. at 223-38.) Cunningham appealed the trial
court's judgment to the state appellate court. (Doc.
188-2 at 7.) The court of appeals affirmed the ruling in May
2016. (Id. at 159-83.) Cunningham appealed that
judgment to the Ohio Supreme Court (Id. at 187-88),
which declined jurisdiction in July 2017 (Doc. 188-3 at 96).
Reinstated Federal Habeas Proceedings
returned to this Court in November 2017. (See Doc.
187.) He filed an “Amended Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus” in July 2018.
(Doc. 200.) Therein, he reasserts the first claim for relief
in his original habeas petition, captioned: “The state
court determinations that errors in jury selection did not
deprive Mr. Cunningham of a fair trial and sentencing
proceeding rest on unreasonable determination of facts, are
contrary to, or an unreasonable application of law.”
(Doc. 200-1 at 6 (capitalization altered).) He expands upon
his analysis of his allegations related to juror
Mikesell's relationship with the victims' families.
(Id. at 12-22.) Claims for relief 2 through 14 of
Cunningham's amended petition are nearly identical to his
filed a “Supplemental Return of Writ to Amended
Petition” in October 2018 (Doc. 201), and Cunningham
filed a “Traverse” in June 2019. (Doc. 205.)
Cunningham also filed a motion for discovery (Doc. 206),
which Respondent opposed (Doc. 207).
Scope of Remand
preliminary matter, the parties dispute the scope of the
Sixth Circuit's remand. Cunningham argues that the
circuit court made its mandate “clear” when it
stated at the beginning of its opinion: “[W]e vacate
the district court's judgment and remand the petition to
the district court to determine whether it is appropriate to
stay-and-abey the petition while Cunningham returns to state
court to exhaust this claim.” (Doc. 205 at 3 (quoting
Cunningham, 756 F.3d at 479).) He asserts that
through this language, the court vacated this Court's
entire judgment denying his petition, and the Court must now
reconsider all of his claims, taking into account the
“significant legal developments” in habeas law
since the allegedly vacated judgment was issued nearly nine
years ago. (Id. at 3-4.)
for his part, notes the circuit court explained that it was
“address[ing] only” Cunningham's claim of
juror bias based on Mikesell's alleged relationship with
the murder victims' families and her resulting
impartiality. The Sixth Circuit specifically determined that
the juror-bias claim was not plainly meritless because of
evidence of “Mikesell's alleged relationship with
the families of the victims...” Cunningham,
756 F.3d at 486. In finding the claim was unexhausted but
neither procedurally defaulted nor plainly meritless, it
remanded the petition to this Court for a stay-and-abeyance
determination. (Doc. 201 at 25-30.) He maintains that the
“law of the case” doctrine dictates that this
Court should review only the juror-bias claim at issue in the
Sixth Circuit's opinion and decline to reconsider its
prior ruling on Cunningham's other claims. (Id.)
doctrine of law of the case provides that findings made at
one point in litigation become the binding law of the case
for subsequent stages of that same litigation.
United States v. Moored, 38 F.3d 1419, 1421
(6th Cir. 1994) (citing United States v. Bell, 988
F.2d 247, 250 (1st Cir. 1993)). A related theory is the
mandate rule, which “requires lower courts to adhere to
the commands of a superior court.” Id. (citing
Bell, 988 F.2d at 251).
Therefore, “[u]pon remand of a case for further
proceedings after a decision by the appellate court, the
trial court must ‘proceed in accordance with the
mandate and the law of the case as established on
appeal.' The trial court must ‘implement both the
letter and the spirit of the mandate, taking into account the
appellate court's opinion and the circumstances it
Id. (quoting United States v. Kikumura, 947
F.2d 72, 76 (3d Cir. 1991) (citations omitted)).
courts have broad discretion to issue either a general or
limited remand. United States v. Campbell, 168 F.3d
263, 265 (6th Cir. 1999) (citing 28 U.S.C. § 2106).
General remands “give district courts authority to
address all matters as long as remaining consistent with the
remand.” Id. Limited remands, on the other
hand, “explicitly outline the issues to be addressed by
the district court and create a narrow framework within which
the district court must operate.” Id.
“Traditionally, the mandate rule instructs that the
district court is without authority to expand its inquiry
beyond the matters forming the basis of the appellate
court's remand.” Id.
scope of a remand is ascertained by “examining the
entire order or opinion, to determine whether and how the
court of appeals intended to limit a remand.” Scott
v. Churchill, 377 F.3d 565, 570 (6th Cir. 2004). When
confronted with a remanded case, a district court must
“determin[e] what part of this court's mandate is
intended to define the scope of any subsequent proceedings.
The relevant language could appear anywhere in an opinion or
order, including a designated paragraph or section, or
certain key identifiable language.” Campbell,
168 F.3d at 266-67 (footnote omitted). Individual paragraphs
and sentences, however, must not be read out of context.
Id. at 267.
the Sixth Circuit's opinion indicates that its remand was
limited in scope. The court explicitly stated the limited
purpose of the opinion: to order consideration of a stay and
abeyance so that Cunningham could exhaust in state court a
claim that the circuit court found was neither procedurally
defaulted nor plainly meritless. And it clearly identified
the action this Court was to take: “[W]e remand
Cunningham's mixed habeas petition to the district court
to determine whether state-and-abeyance is
appropriate.” Cunningham, 756 F.3d at 487.
Consistent with that limited objective, the circuit court
vacated this Court's judgment to allow for further
consideration of the juror-bias claim.
to that limited remand, this Court determined that
stay-and-abeyance was appropriate while Cunningham exhausted
the juror-bias claim. (Doc. 173.) As those state-court
proceedings are complete, this Court will review the
now-exhausted claim of juror bias based on Mikesell's
alleged relationship with the families of the murder victims.
The Court will not revisit Cunningham's other claims, as
it “is without authority to expand its inquiry beyond
the matters forming the basis of the appellate court's
remand.” Campbell, 168 F.3d at 265. The Court,
therefore, repeats and incorporates herein its judgment of
December 7, 2010 (Doc. 157), as to Cunningham's remaining
claims in his claim for relief 1 and his claims for relief 2
Cunningham's Claim of Juror Bias
amended petition, Cunningham asserts that during the
jury's deliberations, the jury foreperson, Nichole
Mikesell, told her fellow jurors that she knew the families
of the victims, they were her clients at the Allen County
Children's Services, and she pressured the jurors to
convict Cunningham and sentence him to death “to spare
her the negative reactions from the victims' family
members.” (Doc. 200-1 at 12-14.) Cunningham notes that
Mikesell did not divulge this alleged relationship during
voir dire. (Id. at 8.) He bases his claim
on information gleaned from the affidavits and depositions of
two jurors, Staci Freeman and Roberta Wobler, taken in 2008
and 2009. (See Doc. 103-1 (Wobler Aff.); Doc. 104-1
(Freeman Aff.); Doc. 136-1 (Wobler Dep.); Doc. 137-1 (Freeman
argues that this claim is procedurally defaulted and barred
from federal habeas review. The default occurred, he asserts,
when Cunningham returned to state court to raise it for the
first time and the state courts rejected his second-in-time
petition for post-conviction relief as untimely and
successive under Ohio's statutory post-conviction relief
scheme, and his motion for leave to file a delayed motion for
a new trial as failing to meet the requirements of Ohio's
procedural rules. (Doc. 201 at 10-17.)
default occurs when a habeas petitioner fails to obtain
consideration of a federal constitutional claim by state
courts because he or she failed to comply with a state
procedural rule that prevented the state courts from reaching
the merits of the petitioner's claim. See, e.g.,
Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977);
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006). In determining whether a claim is procedurally
defaulted and barred from consideration on federal habeas
review, the federal court looks to the last state court
rendering a reasoned opinion on that claim. Ylst v.
Nunnemaker, 501 U.S. 797, 805 (1991).
state court declines to address a prisoner's federal
claim because the prisoner has failed to meet a state
procedural requirement, federal habeas review is barred as
long as the state judgment rested on “independent and
adequate” state procedural grounds. Coleman v.
Thompson, 501 U.S. 722, 729 (1991). To be independent, a
state procedural rule and the state courts' application
of it must not rely in any part on federal law. Id.
at 732-33. To be adequate, a state procedural rule must be
“‘firmly established' and ‘regularly
followed'” by the state courts at the time it was
applied. Beard v. Kindler, 558 U.S. 53, 60-61
Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the
Sixth Circuit established this now familiar test to be
followed when the state argues that a habeas claim is
defaulted because of a prisoner's failure to observe a
state procedural rule:
First, the federal court must determine whether there is a
state procedural rule that is applicable to the
petitioner's claim and whether the petitioner failed to
comply with that rule. Second, the federal court must
determine whether the state courts actually enforced the
state procedural sanction - that is, whether the state courts
actually based their decisions on the procedural rule. Third,
the federal court must decide whether the state procedural
rule is an adequate and independent state ground on which the
state can rely to foreclose federal review of a federal
constitutional claim. Fourth, if the federal court answers
the first three questions in the affirmative, it would not
review the petitioner's procedurally defaulted claim
unless the petitioner can show cause for not following the
procedural rule and that failure to review the claim would
result in prejudice or a miscarriage of justice.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001)
(citing Maupin, 785 F.2d at 138) (further citations
decision. Here, the state appellate court which was the
last state court to consider Cunningham's juror-bias
claim based on Mikesell's alleged relationship with the
victims' families, upheld the trial court's dismissal
of Cunningham's post-conviction petition. (Doc. 188-2 at
165-75.) It explained that when Cunningham filed his
second-in-time petition in December 2014, Ohio's
statutory post-conviction relief scheme required that
petitions in capital cases be filed within 180 days after the
trial transcript is filed in the Ohio Supreme Court.
(Id. at 165-66 (citing Ohio Rev. Code §
2953.21(A)(2)).) Otherwise, trial courts “lack[ed]
jurisdiction to entertain” untimely or successive
petitions, unless the petitioner established that one of two
exceptions applied: either (1) he was “unavoidably
prevented from discovering the facts necessary for the claim
for relief”; or (2) the claim was based on a new and
retroactive federal or state right recognized by the United
States Supreme Court. (Id. at 166-67 (citing Ohio
Rev. Code § 2953.23(A)(1)(a)).) A defendant “is
‘unavoidably prevented' from the discovery of facts
if he had no knowledge of the existence of those facts and
could not have, in the exercise of reasonably diligence,
learned of their existence” before the filing deadline
for post-conviction petitions. (Id. at 170)
(citations omitted). If the petitioner ...