Opinion
Case No. C-2-04-006.
April 1, 2005
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's traverse, and the exhibits of the parties.
I. SUMMARY
This case involves petitioner's September 17, 2001, convictions after a jury trial in the Delaware County Court of Common Pleas on breaking and entering, theft, receiving stolen property, and possession of burglary tools. Petitioner raises in this federal habeas corpus petition various claims of ineffective assistance of appellate counsel, which claims were presented in a delayed application for reopening his direct appeal pursuant to Ohio's Appellate Rule 26(B). Petitioner also asserts that he was denied due process and equal protection when the state appellate court denied his application for failure to show good cause for the untimely filing. For the reasons that follow, the Magistrate Judge concludes that petitioner has established cause and prejudice for the procedural default of all of his claims of ineffective assistance of counsel; the Magistrate Judge therefore RECOMMENDS that respondent's motion to dismiss claims A through F as procedurally defaulted be DENIED and that respondent be ORDERED to provide supplemental briefing regarding these The Magistrate Judge further concludes that petitioner's sole remaining claim fails to present an issue appropriate for federal habeas corpus review, and therefore RECOMMENDS that claim G be DISMISSED.
II. PROCEDURAL HISTORY
Petitioner was indicted by the 2001 term of the Delaware County grand jury in Case No. 01CR-1-06-196 on breaking and entering, in violation of O.R.C. § 2911.13(A), possessing criminal tools, in violation of O.R.C. § 2923.24(A), theft, in violation of O.R.C. § 2913.02(A)(1), and receiving stolen property, in violation of O.R.C. § 2913.51. Exhibit A to Return of Writ. Petitioner also was indicted in Case No. 01CR-1-06-229 on possession of burglary tools, in violation of O.R.C. § 2923.24(A). Exhibit B to Return of Writ. The cases were consolidated, Exhibits C and D to Return of Writ, and on September 17, 2001, after a jury trial, petitioner was found guilty of breaking and entering, theft, receiving stolen property, and possession of burglary tools. Exhibit E to Return of Writ. On September 19, 2001, petitioner was sentenced to an aggregate term of 42 months incarceration. Exhibits F and G to Return of Writ. Represented by the same counsel, petitioner filed a timely appeal of his convictions and sentence to the Fifth District Court of Appeals. He asserted the following assignment of error:The Court sub judice erred as a matter of law to the prejudice of appellant when it admitted character evidence in the form of a previous breaking and entering allegedly committed by appellant under exceptions to Evid.R. 404(B).
Exhibits I and J to Return of Writ. On June 14, 2002, the appellate court affirmed the judgment of the trial court. Exhibit L to Return of Writ. Petitioner never filed an appeal of the appellate court's decision to the Ohio Supreme Court. However, on October 3, 2002, petitioner filed a pro se application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B), in which he asserted the ineffective assistance of appellate counsel due to his attorney's failure to raise the following claims on direct appeal, repeated here verbatim:
1. The appellant's conviction for possession of criminal tools is not supported by sufficient evidence in violation of the Due Process Clause to the Fourteenth Amendment.
2. The appellant's conviction for breaking and entering is not supported by sufficient evidence in violation of [the] Due Process Clause to [the] Fourteenth Amendment.
3. The appellant was not subjected to a competency hearing where a competency hearing was required based upon pre-trial notice the appellant's competency was at issue; therefore, the procedures used violate the Due Process Clause to the Fourteenth Amendment.
4. The appellant was denied the effective assistance of appellate counsel where counsel failed to raise the admission of the other act evidence as propensity evidence that violated the Sixth Amendment right to an impartial jury and relieved the state from proving beyond a reasonable doubt every element of the offense in violation of the Due Process Clause to the Fifth Amendment and impartial jury guarantee of the Sixth Amendment; therefore, the admission of the other act evidence violated the due process clause to the Fourteenth Amendment.
5. The appellant's conviction for possession of criminal tools is based upon the use of a presumption and the presumption as used in the jury instruction determines the presumption and jury instruction violates the Due Process Clause to the Fourteenth Amendment.
6. The appellant has been denied the right to complete appellate review of his criminal conviction where appellate counsel failed to order all pre-trial hearings transcribed and failed to relinquish the entire trial transcript to the appellant at the end of the appellate process in violation of Due Process Clause to the Fourteenth Amendment.
7. The appellant has been denied the Sixth and Fourteenth Amendment guarantee to counsel where Ohio Appellate Rule 26(B) fails to contain any provision for assignment of counsel to an indigent attempting to reopen their direct appeal.
Exhibit M to Return of Writ. On December 18, 2002, petitioner's application was denied for failure to show good cause for the untimely filing. Exhibit R to Return of Writ. Petitioner filed a timely appeal of the appellate court's decision to the Ohio Supreme Court. He asserted the following propositions of law:
On October 28, 2002, petitioner filed a "Motion for Correction and Amendment," and a "Motion to Allow Untimely Filing of Application for Reopening Pursuant to Appellate Rule 26(B)(2)(b)." Exhibits N and O to Return of Writ. Petitioner asserted as cause for the untimely filing of his application for reopening the appeal, that he had submitted his application to prison authorities for mailing on September 5, 2002. Exhibit O to Return of Writ.
1. Appellant's conviction for felony possession of criminal tools is not supported by sufficient evidence in violation of the Due Process Clause to the Fourteenth Amendment.
2. The appellant's conviction for breaking and entering is not sufficient evidence in violation of the Due Process Clause of the Fourteenth Amendment.
3. The appellant should have been subjected to the competency hearing where pre-trial notice to the appellant's competency was at issue and the procedures used violate the Due Process Clause to the Fourteenth Amendment.
4. The appellant was denied the effective assistance of appellate counsel where counsel failed to raise in a federal constitutional context the admission of the other acts evidence under Ohio Evidence Rule 404(B) was propensity evidence that violated the Sixth Amendment guarantee to an impartial jury and relieved the State from proving beyond a reasonable doubt every element of the offense in violation of the Due Process Clause to the Fifth Amendment and impartial jury guarantee of the Sixth Amendment; therefore, the admission of the other acts evidence violated the Due Process Clause to the Fourteenth Amendment.
5. The appellant's conviction for possession of criminal tools is based upon the mandatory conclusive presumption and the jury instruction that uses a mandatory conclusive presumption violates the Due Process Clause to the Fourteenth Amendment.
6. The appellant has been denied the right to a complete appellate review of his criminal conviction where appellate counsel failed to order the pre-trial hearing transcripts that would have supported arguable merit to the claims presented and failed to relinquish the entire jury trial transcript to the Appellant at the completion of the appellate process in violation of the Due Process Clause to the Fourteenth Amendment.
7. The appellant has been denied the Sixth and Fourteenth Amendment guarantee to counsel where Ohio Appellate Rule 26(B) fails to contain any provision for assignment of counsel to an indigent attempting to reopen their direct appeal.
8. Appellant was denied Due Process and Equal Protection in violation of the Fourteenth Amendment when the appellate court held that the Appellate Rule 26(B) application was filed untimely without regard to the substantial showing of good cause for the late filing.
Exhibit U to Return of Writ. On April 2, 2003, the Ohio Supreme Court dismissed petitioner's appeal as not involving any substantial constitutional question. Exhibit W to Return of Writ.
On January 6, 2004, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
A. The petitioner was denied the effective assistance of counsel during his only appeal as of right guaranteed by the Federal Constitution [for failing to raise the following issues on direct appeal]:
B. The petitioner's conviction for felony possession of criminal tools is not supported by sufficient evidence in violation of the Due Process Clause to the Fourteenth Amendment.
C. The petitioner's conviction for breaking and entering is not supported by sufficient evidence in violation of the Due Process Clause of the Fourteenth Amendment.
D. The petitioner was denied the effective assistance of appellate counsel where counsel failed to raise in a federal constitutional context the admission of the other acts evidence under Ohio Evidence rule 404(B) was propensity evidence that violated the Sixth Amendment guarantee to an impartial jury and relieved the State from proving beyond a reasonable doubt every element of the offense in violation of the Due Process Clause to the Fifth Amendment and impartial jury guarantee of the Sixth Amendment; therefore, the admission of the other acts evidence violated the Due Process Clause of the Fourteenth Amendment.
E. The petitioner's conviction for possession of criminal tools is based upon the mandatory conclusive presumption and the jury instruction that uses a mandatory conclusive presumption violates the Due Process Clause to the Fourteenth Amendment.
F. The petitioner was denied the right to a complete appellate review of his criminal conviction where appellate counsel failed to order the pre-trial hearing transcripts that would have supported arguable merit to the claims presented and failed to relinquish the entire jury trial transcript to the petitioner at the completion of the state appellate process in violation of the Due Process Clause to the Fourteenth Amendment.
G. The petitioner was denied the Sixth and Fourteenth Amendment guarantee to counsel where Ohio Appellate Rule 26(B) fails to contain any provision for assignment of counsel to an indigent attempting to reopen their direct appeal.
H. The petitioner was denied Due Process and Equal Protection in violation of the Fourteenth Amendment where the state appellate court held that the Appellate Rule 26(B) Application was filed untimely without regard to the substantial showing of good cause for the late filing.
The record reflects that petitioner intended to raise each of the following as issues of ineffective assistance of appellate counsel.
It is the position of the respondent that claims A through G are procedurally defaulted, and that claim H presents an issue of state law that is not appropriate for federal habeas corpus review.
III. PROCEDURAL DEFAULT
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required fairly to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) ( per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an `adequate and independent' state ground on which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis also applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
In claims A through G, petitioner raises claims of ineffective assistance of appellate counsel. Petitioner raised all of these claims in his October 3, 2002, application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B); however, the state appellate court denied petitioner's application for failure to show good cause for untimely filing:
This matter is before the Court on Appellant Richard Freeman's Application to Reopen Pursuant to App.R. 26(B). Our Opinion and Judgment Entry affirming appellant's convictions was filed June 14, 2002.
Applications to reopen are governed by App.R. 26. The rule provides in relevant part:
"(B) Application for reopening
"(1) A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
"(2) An application for reopening shall contain all of the following:
"(a) The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken;
"(b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
"(c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation;
"(d) A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record;
"(e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies.
* * *
(5) An application for reopening shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.
We note this application has been untimely filed. However, pursuant to App.R. 26(B)(2)(b), appellant contends he is not responsible for the untimely filing. Appellant, currently incarcerated, claims he prepared the application for a timely filing and turned the application over to the mail room of the institutional staff for deliver through the U.S. Postal Service. Appellant claims the institutional staff failed to promptly forward his application for deliver and therefore the application was timely filed.
We find appellant[`s] application was untimely filed and he has not demonstrated good cause. For this reason, we deny appellant's application to reopen. However, we further note we have reviewed appellant's claims in their entirety along with appellee's memorandum in opposition to reopen. Our review indicates appellant's claims of ineffective assistance of appellate counsel are without merit. Further, we find there was sufficient evidence to support appellant's convictions.
Accordingly, appellant's application is denied.
Exhibit R to Return of Writ. Further, petitioner may now no longer present such claims to the state courts under Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967).
This Court must next determine whether or not the state courts relied upon the procedural rule at issue to dispose of petitioner's claim. In Harris v. Reed, 489 U.S. 255, 265-66 (1989), the United States Supreme Court held that a procedural default will not preclude consideration of a federal claim in federal habeas corpus unless the last state court rendering judgment in the case clearly and expressly stated that its judgment rested on that procedural bar. The Supreme Court explained, however, that state courts could reach the merits of a federal claim without sacrificing the procedural default, so long as the merits review is expressed as an alternative holding. Id., at 264, n. 10.
In order to determine whether the state courts clearly and expressly relied on a state procedural default, this Court must look to the last state court disposition providing reasons for its decision. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In McBee, the state appeals court expressly applied the procedural default rule, and proceeded to only a limited review of the merits in order to determine whether the fundamental miscarriage of justice exception was applicable. Id., at 266. The United States Court of Appeals for the Sixth Circuit enforced the state court procedural default, holding that the state courts had clearly and expressly relied upon two alternative grounds, procedural default or substantive lack of merit, in rejecting the petitioner's federal claim. Id., at 267. Likewise, the state appellate court here clearly enforced the procedural bar, but also noted that petitioner's claims were without merit. See Exhibit R to Return of Writ. This Court must also decide whether the procedural rules at issue constitute adequate and independent bases upon which to foreclose review of petitioner's federal constitutional claims. This task requires the Court to balance the state's interests behind each procedural rule against the federal interest in reviewing federal claims. See Maupin v. Smith, 785 F.2d at 138. Under this analysis, the procedural rules barring petitioner's claims constitute adequate and independent state grounds for denying relief. The state courts must be given a full and fair opportunity to remedy alleged constitutional defects. The time limitations for filing appeals, and the requirement all available claims be asserted in the first proceeding serve the state's interests in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. Finally, the doctrine of res judicata is stated in unmistakable terms in numerous Ohio decisions and Ohio courts have consistently refused to review claims on the merits under that doctrine. See State v. Cole, supra; State v. Ishmail, supra; State v. Perry, supra.
The Court concludes that petitioner has waived his right to present claims A through G for federal habeas review. Petitioner can still secure review of these claims on the merits if he demonstrates cause for his failure to follow the state's procedural rules, as well as actual prejudice from the alleged constitutional violation. As cause for his failure to file a timely application pursuant to Ohio's Appellate Rule 26(B), petitioner asserts, as he did in the state courts, that he placed his application for mailing with prison authorities on September 5, 2002, in a timely manner, but that prison staff either failed to timely forward his 26(B) application, or the filing clerk failed to timely file the motion. In support of this assertion, petitioner refers to a document entitled "Personal A/C Withdrawal Checkout Slip," which appears to indicate that petitioner delivered his 26(B) application to prison staff for mailing on September 5, 2002. See Exhibit O to Return of Writ.
"`[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him [;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis in original).Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). In Maples, the Sixth Circuit concluded that cause and prejudice were established where a state prisoner delivered his papers to prison authorities to mail:
Where a pro se prisoner attempts to deliver his petition for mailing in sufficient time for it to arrive timely in the normal course of events . . . the [mailbox rule of Houston v. Lack, 487 U.S. 266 (1988),] is sufficient to excuse a procedural default based upon a late filing. . . .
The prejudice resulting from the procedural default is that the Michigan Supreme Court refused to consider Maples's claim of ineffective assistance of counsel. Moreover, as the state admits, Maples "no longer has any procedure available to present his claim to the Michigan Supreme Court."Id., at 439; see also Mohn v. Bock, 208 F.Supp.2d 796 (E.D. Mich. 2002).
In Houston v. Lack, supra, the United States Supreme Court held that, under federal law, pro se prisoner filings are deemed filed on the date that they are delivered to prison authorities for mailing. The rule, however, is not binding on the state courts. See Adams v. LeMaster, 223 F.3d 1177, 1183 (10th Cir. 2000).
In view of all of the foregoing, this Court concludes that petitioner has established cause and prejudice for the procedural default of his claims of ineffective assistance of appellate counsel.
IV. CLAIM H
In claim H, petitioner asserts that he was denied due process and equal protection because the state appellate court denied his delayed application for reopening of the appeal as untimely. This claim fails to present an issue appropriate for federal habeas corpus review. "[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Petitioner's allegations in claim four address a collateral matter that is unrelated to his detention. Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986). This claim is therefore inappropriate for federal habeas corpus review.V.
Based upon the foregoing, the Magistrate Judge RECOMMENDS that claim H be DISMISSED, that respondent's motion to dismiss claims A through G be DENIED, and that respondent be ORDERED to provide supplemental briefing regarding petitioner's claims A through G within thirty days.
If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).