Opinion
Case No. 3:05-cv-205.
August 16, 2006
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY
This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 35) to the Magistrate Judge's Report and Recommendations recommending that the Court grant in part and deny in part Petitioner's application for a certificate of appealability. The General Order of Reference for the Dayton location of court permits the Magistrate Judge to reconsider decisions or reports and recommendations when objections are filed.
Ground One: Biased Judge
In his first ground for relief, Petitioner claimed that he was tried by a biased judge. This ground for relief was dismissed as procedurally defaulted and the Magistrate Judge recommended no certificate of appealability on this ground because Petitioner cited no law suggesting reasonable jurists would disagree with that conclusion.
Petitioner objects that it would have been futile to object in the state court system because that system is only interested in defending itself. To the contrary, Ohio has a well-established system for disqualifying biased judges by application to the Chief Justice. Just this month Chief Justice Moyer issued an opinion disqualifying all of the sitting judges of one of the counties on grounds of bias. Applying for recusal under Ohio's judicial disqualification system is not a futile gesture.
Petitioner also objects that plain error can always be noticed on appeal, but this Court does not sit to conduct plain error review of Ohio trial court decisions.
Petitioner claims he raised the issue of judicial bias in his other pending case, Inskeep v. Peoples' Savings Bank, 3:03-cv-139, which is true. He goes on to claim that Judge Rice in that case has found Judge Wilson's trial behavior to be "most egregious." Judge Rice has made no such finding.
Ground Two: Insufficient Evidence
Although the Report recommends granting a certificate of appealability on Ground Two, Petitioner uses his Objections as an occasion to complain that the Magistrate Judge "for unexplained reasons" did not conduct the investigation of Champaign County requested by Petitioner. That decision was in fact explained. See Doc. No. 15.
Grounds Three, Four, Five, Six, and Seven
Judge Rose found these five grounds for relief procedurally defaulted on the following analysis:
Grounds Three, Four, Five, Six and Seven are all issues regarding Inskeep's trial and do not pertain to ineffective assistance of appellate counsel. [footnote omitted] However, Rule 26(B) is for bringing ineffective-assistance-of-appellate-counsel claims. "The Ohio Supreme Court has expressly held that a 26(B) application is not intended to give a criminal defendant a new appeal or a chance to add assignments of error not previously raised." (Report and Recommendations Doc. #20 p. 8 (citing State v. Reddick, 647 N.E.2d 784, 786 (1995)).
(Entry and Order, Doc. No. 26, at 3.) In his original motion papers seeking appealability, Petitioner presented no authority disagreeing with this conclusion.
In an attempt to show in his Objections that the meaning of Ohio App. R. 26 is debatable among reasonable jurists, Petitioner cites Eads v. Morgan, 298 F. Supp. 2d 698 (N.D. Ohio 2003), in which Magistrate Judge Baughman expressed the opinion that it was unsettled whether a Rule 26 application was a collateral proceeding or part of direct appeal and certified that question to the Ohio Supreme Court. It was that question which the Ohio Supreme Court answered in Morgan v. Eads, 104 Ohio St. 3d 142, 818 N.E. 2d 1157 (2004).
In attempting to distinguish his own case from all other reported cases under Ohio App. R. 26, Petitioner emphasizes that his application was timely and all other reported cases involve untimely applications. The distinction is immaterial to the point made by Judge Rose. Ohio App. R. 26 is a mechanism to allow an appellant to litigate in the state courts an allegation of ineffective assistance of appellate counsel. As the Ohio Supreme Court decided in State v. Reddick, 72 Ohio St. 3d 88, 647 N.E.2d 784 (1995), the purpose and effect is not to allow an appellant a second chance to raise new assignments of error, but only to allow him or her a chance to have the appellate court decide whether it was ineffective assistance of counsel to fail to argue certain assignments of error on the first appeal of right. The Court of Appeals expressly decided that it was not ineffective assistance of counsel for Petitioner's direct appeal counsel to fail to raise the proposed new assignments of error which were included in his 26(B) application. (See Decision and Entry, Exhibit 20 to Return of Writ, Doc. No. 13.)
Petitioner argues that this Court is entitled to review the reasonableness of a state appellate court's denial of reopening (Objections, Doc. No. 35). Insofar as that means that this Court can adjudicate in habeas corpus a constitutional claim of ineffective assistance of counsel which has been properly exhausted in the state courts, Petitioner is correct. But he has not sought to litigate that claim here. Instead he argued in his Traverse (Doc. No. 14-3) that the underlying claims were preserved for habeas review by including them in his 26(A) and (B) applications. That is simply not the same as requesting this Court to decide if the Court of Appeals' denial of those applications was an unreasonable application of clearly established federal law.
"The State's claim that issues C, D, E, F, and G were not raised on direct appeal and are therefore procedurally barred is false and disingenuous because for appeal purposes both direct appeal and a timely filing of a 26B or 26A motion are functionally equivalent."
Petitioner concludes his argument on these grounds for relief by stating "The Big Question is as follows: Would failure of the state to appoint an attorney for an applicant unrepresented during the stage or step 2 of Ohio R. App. P. 26(B) proceedings be cause for a successful habeas petition?" While that is an interesting question, it is not presented by this case because the Ohio App. R. 26(B) application never reached stage 2. That stage is set out in Ohio App. R. 26(B)(7) — "If the application is granted, the case shall proceed as on an initial appeal. . . ." Petitioner's application for reopening was never granted.
Grounds Eight and Nine
While Petitioner seeks a certificate of appealability on Grounds Eight and Nine, he makes no response to the point made in Judge Rose's Decision that he never objected to denial of these claims on the merits. The Objections merely reargue the merits and say nothing about why Petitioner was entitled to ignore the original Report and Recommendations.
Conclusion
It is again respectfully recommended that a certificate of appealability be granted in the second ground for relief and otherwise denied.