Opinion
5:23-CV-00711-JRA
06-04-2024
HEDY LYNN MOSS, Plaintiff, v. TERI BAULDAUF, Defendant,
JOHN R. ADAMS JUDGE
REPORT & RECOMMENDATION
Carmen E. Henderson United States Magistrate Judge
I. Introduction
Petitioner, Hedy Lynn Moss, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Moss is an Ohio prisoner who is currently serving an aggregate 21-year to life prison term for one count of murder, one count of felonious assault, one count of having weapon while under disability, and one count of tampering with evidence. Moss initially asserted twenty-eight grounds for relief. (ECF No. 1). Moss also supplemented her Petition (ECF No. 7) and later withdrew fourteen of her twenty-eight grounds for relief. (ECF Nos. 13, 15). Respondent, State of Ohio, filed a return of writ on August 30, 2023. (ECF No. 8). Moss filed a traverse on November 21, 2023. (ECF No. 14). On December 23, 2023, Respondent filed a reply to the traverse. (ECF No. 16). Also pending is Moss's Motion to Attach Supplemental Attachments to her Petition. (ECF No. 17). Respondent opposes the motion. (ECF No. 18).
This matter was referred to me under Local Rule 72.2 to prepare a report and recommendation on Moss's petition and other case-dispositive motions. Because Moss has presented only procedurally defaulted claims, I recommend that the Court deny her petition in its entirety and not grant her a certificate of appealability. Additionally, Moss's Motion to Attach Supplements to her Petition (ECF No. 17) is DENIED.
II. Relevant Factual Background
The Ohio Court of Appeals for the Ninth Appellate District set forth the following factson direct appeal:
The facts found by the appellate court of record “shall be presumed to be correct,” and the petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999).
Sometime between 4:00 a.m. and 5:00 a.m., Ms. Moss shot two men in their home. One of the men, E.S., died as a result of the incident, but the second man, J.M., survived. According to J.M., Ms. Moss became angry and shot him and E.S. when E.S. refused to answer questions she had about her stolen property. According to Ms. Moss, she shot the men because E.S. attacked her, she believed J.M. was retrieving a weapon, and she feared for her life. The police began looking for Ms. Moss not long after the shooting and found her walking down a street about three miles from the scene. Ms. Moss initially lied about her identity and never indicated that she had shot anyone in self-defense. The police found a bag of bullets in her coat pocket and loose bullets inside a bookbag she was carrying. Upon searching the immediate vicinity and following footprints in the snow, the police also found a handgun lying on top of compacted snow inside a nearby sewer. Ballistics testing confirmed that the gun had been used to shoot E.S. and J.M.State v. Moss, 2022-Ohio-1833, ¶ 2, motion for delayed appeal granted, 2022-Ohio-4617, ¶ 2, 168 Ohio St.3d 1479, 200 N.E.3d 255, and cause dismissed, 2023-Ohio-269, ¶ 2, 169 Ohio St.3d 1426, 201 N.E.3d 912
III. Relevant State Procedural History
A. Indictment
{¶3} A grand jury indicted Ms. Moss on multiple counts. With respect to E.S., she was charged with murder, felony murder, and felonious assault. With respect to J.M., she was charged with attempted murder and felonious assault. She also was indicted on counts of having a weapon under disability and tampering with evidence. She pleaded not guilty on all counts, and the matter proceeded to trial.Id. at ¶ 3.
B. Trial and Guilty Verdict
At trial, Ms. Moss admitted she shot E.S. and J.M. but claimed she did so in self-defense. The jury found her not guilty of attempted murder but guilty of having a weapon under disability, tampering with evidence, and felonious assault as to J.M. The jury was unable to reach a verdict on her remaining counts, so the trial court declared a mistrial on those counts.
A second jury trial was later held on the counts for which no verdict was returned. At the conclusion of the second trial, the jury found Ms. Moss not guilty of murder but guilty of felony murder and felonious assault as to E.S. The trial court merged the latter counts as allied offenses of similar import and sentenced Ms. Moss to a total of 21 years to life in prison.Id. at ¶ 4-5.
C. Direct Appeal
On appeal, Moss raised four assignments of error:
1. THE VERDICT OF THE TRIAL COURT CONVICTING APPELLANT OF MURDER AND FELONIOUS ASSAULT IN THE SECOND TRIAL WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS NOT ACTING IN SELF DEFENSE.
2. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A MISTRIAL BASED ON PROSECUTORIAL MISCONDUCT.
3. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA NEGOTIATIONS.
4. THE VERDICT OF THE TRIAL COURT CONVICTING APPELLANT OF FELONIOUS ASSAULT IN THE FIRST TRIAL WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE DEFENSE PROVED THE AFFIRMATIVE DEFENSE OF SELF DEFENSE BY A PREPONDERANCE OF THE EVIDENCE.(ECF No. 8-1, Ex. 19).
The State of Ohio filed an Appellee's brief (ECF No. 8-1, Ex. 20), and on June 1, 2022 the state appellate court overruled Moss's error assignments and affirmed her convictions and sentences. Moss, 2022-Ohio-1833, ¶ 48.
D. Application to Reopen
On August 24, 2022, Moss, pro se, filed an application to reopen her appeal. (ECF No. 8 1, Ex. 22). Moss claimed that she received ineffective assistance of counsel and raised the following grounds for reopening appeal:
1. Trial Court violated the Ohio Const. and 6th Amend. right to be inform clause.
2. Trial Court use of redacted indictment under public record act insufficient and prejudicial.
3. Trial Court violates my due process and procedural due process right accorded by Summit County Gen. Div. Local Rules in Practice and procedure, Ohio Constitution Art IV, Art I Sec, 10, U.S. Constitution 14th Amendment.
4. Trial Court error in striking down my proposed motion to amend enacted legislation adopted by Ohio S.B. 237 now S.B. 175 amended acts to sections 2307.601, 2901.05, 2901.09 and 2923.126 of the Ohio revise code.
5. Trial Court error in re-litigation of entirety actual facts of previous trial erroneous, State neglect to disclose witness list according to Criminal R. 16(I) is mandatory and requires exchange even if such is not requested.
6. Ineffective assistance of counsel to represent the defendant at every critical stage of criminal process, due process, procedural due process equal protection of law rights constitutional & fundamental.
7. Ineffective assistance of trial counsel at the plea negotiation stage.(Id.). On October 11, 2022, the Court of Appeals denied the application to reopen. (Id., Ex. 23).
E. Appeal to the Ohio Supreme Court
On October 26, 2022, Moss, pro se, filed a notice of appeal of the June 1, 2022 appellate court decision (id., Ex. 24) and a motion for leave to file delayed appeal with the Supreme Court of Ohio. (Id., Ex. 25). The State opposed the motion for delayed appeal. (Id., Ex. 26). On December 27, 2022, the Court granted the motion for delayed appeal and ordered Moss to file jurisdictional memorandum within 30 days. (Id., Ex. 27). On January 31, 2023, the Court dismissed the case for lack of prosecution. (Id., Ex. 28).
F. Post-Conviction Petition
While the direct appeal was pending, on August 6, 2021, Moss, pro se, filed a petition to vacate or set aside her conviction pursuant to Ohio Revised Code §2953.21. (Id., Ex. 29). Moss raised the following claims:
Claim One: Right to Effective Assistance of Counsel, 6th Amendment U.S. Constitution, Sec. 10 Art I, Ohio Constitution; Construe indigent defendants accused of a felony. Right to effective Assistance of Counsel of Strickland v. Washington.
Supporting Facts: Instant case 2018-02-0432, State v. Hedy L. Moss accrue procedural defects incurring defaults irreversible, retrial commence by default, I, Hedy in Summit County custody not served with summons. Service of summons not perfected prosecutional [sic] misconduct, deprived preliminary hearing where which constitutional right latent, counter-claim impeded. No Counsel During Crucial Stages - State v. Reece, 2019, Ohio - 2259, HN3, HN11, HN8
Claim Two: Ineffective assistance of counsel acquiesce facilitated infringement upon Fifth and Fourteenth Amendment, U.S. Constitution, Section 14; Art I Ohio Constitution - Due Process
Supporting Facts: County selected counsel facilitated on injury to case accuse not having a fair trial is congruence in proportionality of client constitutional right to Substantive Due Process of Procedural Due Process that establishes expectancy to fundamental fairness of equity to the accuse felony defendant.
Claim Three: Right to speedy and Public Trial, 6th Amendment, U.S. Constitutions, Sec 10, Art I, Ohio Constitution
Supporting Facts: Nov 20, 2018, on instant case court declared mistrial Nov 20, 2018 Court declared retrial for remaining charges. Ineffective assistance of counsel did not communicate with defendant, retrial was set for maybe 2019, during time awaiting retrial, counsel neglected the correspond with state prisoner defendant Hedy Moss during the entirely of 497 days, 2020 retrial.
Claim Four: Ineffective assistance of counsel impediment to Moss 6th Amendment U.S. Constitution. Compulsory Process, Art I, Sec 10, Ohio Constitution Trial of accused person and their rights
Supporting Facts: Compulsory Process provides me aggression rights; to attain witnesses in my behalf Crim R 7(D) pursuant to RC 2945.03 written testimonials provided by potential witnesses; Evid R. 406 pursuant to Evid R. 402 is at trial Judge discretion to make judicial determination of admissibility. Statements were provided at initial 2018 action against me then again in 2020 retrial 2 hold potential testimonial property maybe employed.
Claim Five: Ineffective assistance of counsel omission of his client 6th Amendment & U.S. Constitution, Art I. Sec 10 Ohio Constitution, Art I, Sec 10 Ohio Constitution Confrontation of Adverse witness/Trial of accused person and their rights.
Supporting Facts: Violation of Moss right of confrontation of Adverse witness deprived my right to face witness, cross-examine submit testimony to impeach bias witness testimony at trial and retrial. Court required written waiver exclude my attendance of preliminary proceeding Crim R (5) provisions ORC 2945.53 pursuant 2945.50, Crim R 15 (B) supports counter claim affirmative defense.
Claim Six: Fifth Amendment U.S. Constitution, Art I Sec I, 16, 19 Ohio Constitution Double Jeopardy; ineffective assistance of counsel failed to delegate doctrine of double jeopardy and collateral estoppel provisions. Procedural Due Process, Double Jeopardy - State v. Turner, 2015-Ohio-996
Supporting Facts: Ineffectiveness of counsel to ensure his indigent client defective procedural due process protection of double jeopardy. Counsel fail to object prosecutional [sic] misconduct in use of witness undesignated violates Rule 16 (State) treaties with Rule 26 State government Rule 37(C)(1) provision protects in case of trial error and misconduct, ineffective counsel neglected to perform adequately not objecting to prosecutional [sic] misconduct.(Id.). On May 8, 2023, following a stay pending the outcome of Moss's direct appeal, the State moved to dismiss Moss's petition for post-conviction relief. (Id., Ex. 34). On June 30, 2023, Moss filed three pro se motions: 1) motion to rebut the State's motion to dismiss (id., Ex. 35); 2) motion for leave to amend supporting evidence (id., Ex. 36); and 3) motion to request postconviction discovery (Id., Ex. 37). The State opposed Moss's motion for leave to amend supporting evidence (Id., Ex. 38) and motion for post-conviction discovery (Id., Ex. 39). On July 7, 2023, the trial court granted the State's motion to dismiss. (Id., Ex. 40).
On July 17, 2023, Moss, pro se, filed a motion for leave to amend her petition for postconviction relief and asserted that she received ineffective assistance of counsel. (Id., Ex. 41). The State opposed the motion for leave to amend. (Id., Ex. 42). On July 26, 2023, the trial court dismissed the motion as moot. (Id., Ex. 43).
IV. Federal Habeas Corpus Petition
Moss, pro se, timely filed the instant petition on April 5, 2023, raising twenty-eight grounds for relief. (ECF No. 1). Moss then withdrew grounds 1-8, 18, 19, 21, 22, 25, and 26. (ECF No. 15, PageID #: 2851). Remaining are the following grounds for relief:
GROUND NINE:
Supporting Facts: Ineffective assistance to trial counsel function below standard in representation of indegent [sic] defendant where multiple critical stages of trial preparation. Trial Counsel failed to represent at preliminary hearing, where petitioner was had in county jail past 10 consecutive day period which hearing hold & before indicted
GROUND TEN:
Supporting Facts: Ineffective assistance of trial counsel function below standard to fairly represent his client a critical stage of plea hearing. Trial two being reassigned to new judge and prosecutor, counsel failed to protect client interest of fair trial.
GROUND ELEVEN:
Supporting Facts: Ineffective assistance of counsel at critical stage of plea bargaining negotiation stage. Trial counsel failed to explain, conduct understanding whether his client in nor full knowledge of potential life imprisonment and penalty.
GROUND TWELVE:
Supporting Facts: Ineffective of counsel at trial two represent his client at pretrial conference, he did not schedule or motion for his client to have a pretrial conference. Critical Stage of proceedings.
GROUND THIRTEEN:
Supporting Facts: Ineffective assistance of counsel of trial two fail do request discovery, trial two records indicate no discovery demand, from prosecutor
GROUND FOURTEEN and GROUND TWENTY-SEVEN
Supporting Facts: Ineffective assistance of counsel failed to communicate to his client at unreasonable delay of retrial, originally retrial was to be May 6, 2019 delay lasted until Feb 10, 2020, Oct 2019 counsel filed continuance on ground to consult with his client motion was a lie he never contact me to explain delay motion.
Defense counsel at trial two filed notice of appearance 7 days before trial began thus implementing limited counsel to an indigent defendant accused of a serious offense.
GROUND FIFTEEN:
Supporting Facts: Ineffective assistance of counsel falsey [sic] notorised affidavit using his power of notary to forge investigator false statement and had prosecutor unrelated to proceeding file false statement 2-28-20
GROUND SIXTEEN:
Supporting Facts: Ineffective assistance of counsel denied his client the right to present a defense
GROUND SEVENTEEN:
Supporting Facts: Ineffective assistance of appeals counsel, petitioner request that appeals counsel raise issue in direct relating to cause of appeal, issues raise in post-conviction and other matter known personally by his client, counsel was non cooperative to assist
GROUND TWENTY:
Supporting Facts: Ineffective assistance of counsel deprived his client right of confrontation adverse witness and not informing his client of this right lay law
GROUND TWENTY-THREE:
Ineffective assistance of counsel denied his indigent client compulsory process by not presenting written witness testimony to Trial judge. Written statements given to defense counsel at initial trial then again requested by petitioner at second trial so judge may ascertain if written testimony admissible, defense counsel also failed to investigate by interviewing witnesses.
GROUND TWENTY-FOUR:
Ineffective defense counsel failed to inspect juror's reasoning not returning to jury duty after president's day holiday break in deliberation., new trial judge said absent juror is to present doctor's excuse a requirement by jurors sitting in trial proceedings.
GROUND TWENTY-EIGHT:
Defense counsel failed to raise objection of redacted multiplicity of offenses on [illegible] state's indictment causing prejudice during court of trial 2 and failing to challenge defective accusatory instrument redacted under 149.43.(ECF No. 1).
Moss states that Ground Fourteen and Ground Twenty-seven have been combined. (See ECF No. 14 at 22).
V. Motion to Dismiss Under Habeas Rule 2
A habeas petition under § 2254 must “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” Habeas Corpus Rules Governing § 2254 Cases, Rule 2(c). The pleading standard under Rule 2(c) “is more demanding” than that under Rule 8 of the Federal Rules of Civil Procedure, which governs the pleading standard in civil proceedings other than those involving habeas petitions. Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). Therefore, in the habeas context, notice pleading does not suffice, and the petitioner must state facts that point to the real possibility of a constitutional error. Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (citing Rules Governing Habeas Corpus Cases, Rule 4, advisory committee's note.)
“Where ‘it is impossible to determine from the Petitioner's pleadings the exact errors of fact or law raised for adjudication,' the pleading requirements of Rule 2(c) are not met and dismissal is appropriate.” Pedraza v. Foley, No. 1:22 CV 1425, 2022 WL 10535458, at *2 (N.D. Ohio Oct. 18, 2022), appeal dismissed, No. 22-4065, 2023 WL 3183582 (6th Cir. Mar. 15, 2023) (quoting Reynolds v. Warden, Lebanon Corr. Inst., No. 2:19-CV-3495, 2019 WL 4862060, at *2 (S.D. Ohio Sept. 9, 2019) (citations omitted), report and recommendation adopted, No. 2:19-CV-3495, 2019 WL 4861377, 2019 U.S. Dist. LEXIS 170829 (S.D. Ohio Oct. 2, 2019)); Roberts v. Wainwright, No. 1:18 CV 2228, 2019 WL 2341200, at *, 2019 U.S. Dist. LEXIS 92446 (N.D. Ohio June 3, 2019) (citing Blackledge, 431 U.S. at 76, 97 S.Ct. 1621). The fact that Moss is proceeding pro se does not excuse her from this requirement. A pro se litigant is entitled to liberal construction of his or her pleadings. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
In the Return of Writ, Respondent asks the Court to hold that the petition does not conform to Rule 2(c) of the Rules Governing Section 2254 Cases (hereinafter “Habeas Rules”) and dismiss the case as Moss's “facts” are frequently illegible and she fails to “actually identif[y]” her grounds for relief. (ECF No. 8 at 13). Because this Court recommends dismissing the petition as all claims are procedurally defaulted, it does not analyze Respondent's Rule 2(c) argument.
VI. Legal Standards
A. Jurisdiction
Title 28 U.S.C. § 2254(a) authorizes district courts to entertain an application for a writ of habeas corpus “on behalf of a person in custody pursuant to the judgment of a State court.” A state prisoner may file a § 2254 petition in the “district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him.” 28 U.S.C. § 2241(d). The Court of Common Pleas of Summit County sentenced Moss, and Summit County is within this court's geographic jurisdiction. Accordingly, this Court has jurisdiction over Moss's § 2254 petition.
B. Procedural Default
Procedural default occurs when a habeas petitioner fails to obtain consideration of a federal constitutional claim by state courts because they failed to: (1) comply with a state procedural rule that prevented the state courts from reaching the merits of the petitioner's claim; or (2) fairly raise that claim before the state courts while state remedies were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). In determining whether there has been a procedural default, the federal court again looks to the last explained state-court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). When a state court declines to address a prisoner's federal claims because the prisoner 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 (2009).
A petitioner procedurally defaults a claim by failing to “fairly present” the claim in state court when he does not pursue that claim through the state's “‘ordinary appellate review procedures,'” and, at the time of the federal habeas petition, state law no longer allows the petitioner to raise the claim. Williams, 460 F.3d at 806 (quoting O'Sullivan, 526 U.S. at 848); see also Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and every level [of the state courts] cannot be considered in a federal habeas corpus petition.”). Under these circumstances, while the exhaustion requirement is technically satisfied because there are no longer any state-court remedies available to the petitioner, the petitioner's failure to have the federal claims fully considered in the state courts constitutes a procedural default of those claims, barring federal habeas review. Williams, 460 F.3d at 806 (“Where state court remedies are no longer available to a petitioner because he or she failed to use them within the required time period, procedural default and not exhaustion bars federal court review.”); see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (“Because the exhaustion requirement ‘refers only to remedies still available at the time of the federal petition,' . . ., it is satisfied ‘if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law' ....” (internal citations omitted)).
Furthermore, to “fairly present” a claim to a state court, a petitioner must assert both its legal and factual basis. Williams, 460 F.3d at 806 (citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Most importantly, a “‘petitioner must present his claim to the state courts as a federal constitutional issue - not merely as an issue arising under state law.'” Id. (quoting Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)).
A petitioner can overcome a procedural default by demonstrating cause for the default and actual prejudice that resulted from the alleged violation of federal law, or that there will be a “fundamental miscarriage of justice” if the claim is not considered. Coleman, 501 U.S. at 750. “‘[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot be fairly attributed to him.” Id. “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Id. “A fundamental miscarriage of justice results from the conviction of one who is ‘actually innocent.'” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)); Williams v. Bagley, 380 F.3d 932, 973 (6th Cir. 2004) (“The ‘fundamental miscarriage of justice' gateway is open to a petitioner who submits new evidence showing that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.' ” (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995))).
Respondent argues that all fourteen grounds for relief are procedurally defaulted.
VI. Discussion
Respondent argues that Moss has procedurally defaulted each of her grounds for relief. More specifically, Respondent argues that despite being granted leave, Moss failed to pursue her direct appeal in the Supreme Court of Ohio and failed to appeal the denial of both her application to reopen her appeal and the denial of her petition for post-conviction relief. (ECF No. 8 at 1617). In response, Moss notes that she “moves forward on the 14 claims of ineffective trial counsel under the presumption deletion of unexhausted claims respectfully.” (ECF No. 14 at 17).
Moss largely fails to address Respondent's procedural default argument and, at best, argues that she properly preserved certain claims by one of the following methods: through a letter to the trial judge and by filing a motion for misrepresentation prior to her trial in state court that does not appear on a docket (ECF No. 14 at 18 (Ground 9)); raising the issue in her motion to reopen her appeal (Id. at 20 (Ground 10)); and arguing that she did not understand that purpose of a petition to reopen an appeal pursuant to Ohio App. R. 26(b) was to address appellate counsel's errors and instead believed that she could raise additional trial counsel errors not previously raised on direct appeal. (See ECF No. 14 at 25 (Ground 17)).
Of Moss's fourteen remaining habeas grounds for relief, all but one - Ground Seventeen -assert ineffective assistance of trial counsel. Ground Seventeen asserts ineffective assistance of appellate counsel. Ohio has a “dual-track system” for ineffective assistance of counsel claims. Hill v. Mitchell, 842 F.3d 910, 936 (6th Cir. 2016); see also McGuire v. Warden, 738 F.3d 741, 751 (6th Cir. 2013). Under this dual-track system, grounds for relief that are based on evidence wholly within the trial record must be brought on direct appeal, while claims based on evidence outside the trial record cannot be brought on direct review and must be raised in a petition for state post-conviction relief. McGuire, 738 F.3d at 751 (citing State v. Cole, 443 N.E.2d 169, 171 (1982)). In this system, res judicata bars an ineffective-assistance-of-trial-counsel claim that is brought in a state post-conviction petition that relies on evidence within the trial record because such a claim could have been brought on direct appeal. Id. (citing State v. Perry, 226 N.E.2d 104, 108 (1967)). Ohio courts routinely apply res judicata to such claims. Williams, 460 F.3d at 806 (citing Engle, 456 U.S. at 125 n.28) (“Thus, if an Ohio petitioner failed to raise a claim on direct appeal, which could have been raised on direct appeal, the claim is procedurally defaulted.”)). Regardless as to whether Moss's claims were correctly raised on direct appeal, should have been raised on direct appeal but were not, were raised in her application to reopen, or were raised in her petition for post-conviction relief, each of Moss's remaining fourteen grounds is procedurally defaulted.
Grounds Nine through Sixteen, Twenty, Twenty-Three, Twenty-Four, Twenty-Seven, and Twenty-Eight, to the extent they rely on evidence within the trial court record, are procedurally defaulted by Moss's failure to fully present the issues at each and every level of the state courts. Baston, 282 F.Supp.2d at 661; McGuire, 738 F.3d at 751. Moss raised one ineffective-assistance-of-trial-counsel claim on direct appeal but did not do so on the factual bases contained in any of her habeas grounds for relief. See Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) (noting that a ground for relief must “be presented to the state courts under the same theory in which it is later presented in federal court”). By failing to timely raise these issues in her direct appeal, Moss procedurally defaulted on each of Grounds Nine through Sixteen, Twenty, Twenty-Three, Twenty-Four, Twenty-Seven, and Twenty-Eight. Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); Howard v. Tibbals, No. 1:12 CV 1661, 2014 WL 201481, at *13 (N.D. Ohio Jan. 17, 2014) (“In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim.”).
In Moss's petition, she states that she raised her ineffective-assistance-of-counsel claim in Ground Eleven in her direct appeal. (ECF No. 1, PageID #: 21). In Ground Eleven, Moss asserts that her counsel was ineffective for failing to explain and ensure that she understood that she could face “potential life imprisonment” during plea negotiations. (Id.) Moss's ineffective assistance of counsel claim on direct appeal asserted that her trial counsel as ineffective during plea negotiations for failing to have her decline the plea offer on the record. (ECF No. 8-1, PageID #: 544). As such, Ground Eleven does not present the same “legal theory” as the issue in Moss's direct appeal. (Compare (ECF No. 8-1, PageID #: 543-44, Ex. 19 (Assignment of Error III)), with (ECF No. 1, PageID #: 21 (Ground Eleven)).
Even had Moss properly raised any of her habeas grounds in her direct appeal, she procedurally defaulted such grounds by failing to pursue a discretionary appeal in the Ohio Supreme Court. Moss raised four issues on direct appeal (ECF No. 8-1, PageID #: 533, Ex. 19); the state court of appeals overruled her assignments of error and affirmed Moss's conviction and sentence (id., PageID #: 599, Ex. 21). Although Moss failed to timely file a notice of appeal with the Ohio Supreme Court, Moss requested and received leave to pursue a delayed appeal with the Ohio Supreme Court. The court then sua sponte dismissed the appeal on the ground that Moss had failed to prosecute the case “with the requisite diligence” because she did not timely file a memorandum in support of jurisdiction in accordance with the Rules of Practice of the Supreme Court of Ohio, see. e.g., Rule II, § 2(A)(1)(a), and Rule III, § 1, Rules of Practice of Supreme Court of Ohio. (See ECF No. 8-1, Ex. 28). In so ruling, the court “clearly and expressly relied on both an independent and adequate state ground stemming from petitioner's noncompliance with the court's well-established and regularly-followed written procedural rules governing the timing and filing of the requisite appeal documents.” Schroyer v. Moore, No. C-1-05-797, 2007 WL 2492312, at *7 (S.D. Ohio Aug. 29, 2007); James v. Warden, Lebanon Corr. Inst., No. 1:06CV212, 2007 WL 2326867, at *4 (S.D. Ohio Aug. 10, 2007) (“Dismissals for failure to comply with a court order and for want of prosecution involve a ‘firmly established and regularly followed' practice utilized by all courts, not only the courts of Ohio.”). Accordingly, the Court concludes that Moss procedurally defaulted any grounds raised in Moss's direct appeal by failing to timely file a memorandum in support of jurisdiction in accordance with the Ohio Supreme Court's express order.
Moss procedurally defaulted any grounds raised in her petition for post-conviction relief by failing to appeal the denial of her petition. Moss asserts that she raised Grounds Nine, Ten, Thirteen, Twenty, Twenty-Three, and Twenty-Seven in her petition for post-conviction relief. (ECF No. 1). The record reflects that, on August 6, 2021, Moss filed a pro se post-conviction petition in the state trial court asserting six grounds for relief. (ECF No. 8-1, Ex. 29). The state trial court denied Moss's petition in an Order dated July 7, 2023. (Id., Ex. 40). Moss failed to appeal the trial court's Order denying her petition to the state appellate court, and she may no longer do so, as Ohio does not permit delayed appeals in post-conviction proceedings. See Wright v. Lazaroff, 643 F.Supp.2d 971, 987 (S.D. Ohio 2009) (“The Supreme Court of Ohio has specifically held that “a delayed appeal pursuant to App. R. 5(A) is not available in the appeal of a post-conviction relief determination ...”) (citing State v. Nichols, 11 Ohio St.3d 40, 43, 463 N.E.2d 375, 378 (1984)); Carley v. Hudson, 563 F.Supp.2d 760, 775 (N.D. Ohio 2008) (same); Scott v. Warden, Pickaway Correctional Inst., 2014 WL 29514 at * 6 (S.D. Ohio Jan. 3, 2014) (finding claim procedurally defaulted because petitioner failed to appeal the trial court's denial of his post-conviction petition and petitioner could no longer appeal because “Ohio does not permit delayed appeals in post-conviction proceedings.”); see also Nesser v. Wolfe, 370 Fed.Appx. 665, 670 (6th Cir. March 25, 2010) (holding that “Ohio does not permit delayed appeals in postconviction proceedings, and this is an adequate and independent ground upon which to deny relief.”) (citation omitted). Thus, the Court finds that any habeas claims stemming from Moss's post-conviction petition are procedurally defaulted.
To the extent any of Moss's other grounds were not raised in her petition for postconviction relief but should have been, such grounds are likewise procedurally defaulted. See Cody v. McConahay, No. 21-3462, 2022 WL 1572573, at *6 (6th Cir. Jan. 7, 2022), cert. denied, 143 S.Ct. 231, 214 L.Ed.2d 93 (2022) (“To the extent [petitioner] argued that the claim was based on evidence outside the trial court record, he did not raise it in any state post-conviction petition and could not do so now because state law bars him from raising it in a second or successive petition for post-conviction relief.”) (citing Ohio Rev. Code § 2953.23(A); Landrum v. Mitchell, 625 F.3d 905, 919 (6th Cir. 2010)).
Finally, Moss procedurally defaulted any grounds raised in her application to reopen her appeal because she failed to appeal the Court of Appeals' decision to the Ohio Supreme Court. Moss states in her Petition that she raised Grounds Ten, Fifteen, Seventeen, Twenty-Four, and Twenty-Seven in her application to reopen her appeal. (ECF No. 1). Respondent adds that Moss appears to have raised Ground Thirteen in her application to reopen. The record shows that Moss filed an application to reopen the appeal raising seven claims. (ECF No. 8-1, Ex. 22). The state appellate court found that “most of [Moss's] arguments are framed as direct challenges to alleged errors on the part of the trial court. Yet, an application for reopening is an improper vehicle to raise trial court error. App.R. 26(B) only provides or the reopening of an appeal on the basis of ineffective assistance of appellate counsel.” (Id. at Ex. 23). The state appellate court further found that Moss had not properly raised her claims, noting that “[t]o the extent Appellant seeks to reopen her appeal based solely on claims of alleged trial court error or claims that would require evidence de hors the record, those arguments are not a valid basis for reopening.” (Id.). Moss did not appeal the denial of her application to reopen. Moss's failure to appeal the Court of Appeals' initial denial of her application forecloses habeas review. Carter v. Mitchell, 693 F.3d 555, 565 (6th Cir. 2012). Because Moss did not appeal the denial of her initial Rule 26(B) application, she did not give the Ohio Supreme Court a full or fair opportunity to rule on it. Id. (citing O'Sullivan, 526 U.S. at 842, 119 S.Ct. 1728). Accordingly, Moss procedurally defaulted any grounds raised in her application to reopen.
“In Ohio, claims of ineffective assistance of appellate counsel are not cognizable in the normal course of post-conviction proceedings, and must be raised through an application to reopen the direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B).” Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012) (citing State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1208-09 (1992); see, e.g., Hoffner, 622 F.3d at 504).
Accordingly, all of Moss's remaining grounds - Grounds Nine through Seventeen, Twenty, Twenty-Three, Twenty-Four, Twenty-Seven, and Twenty-eight - are procedurally defaulted.
“When a habeas claim is procedurally defaulted, it may nevertheless be considered if the petitioner shows ‘cause for the procedural default and prejudice attributable thereto....' ” Burroughs v. Makowski, 411 F.3d 665, 667 (6th Cir.2005) (quoting Murray v. Carrier, 477 U.S. 478, 484, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); see also Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir.2009) (“A defendant can overcome a procedural default by showing (a) cause for the default and (b) actual prejudice from it.”).
Moss cannot establish cause to excuse her procedural default of her ineffective assistance of counsel claims. Moss has not attempted to argue cause to excuse her procedural default. (ECF No. 14). In her petition, Moss states that several of her grounds were not raised by her appellate counsel on direct appeal. (See ECF No. 1). Also, in Ground Seventeen, Moss raises an issue of ineffective assistance of appellate counsel for failing to raise various claims on direct appeal. Although ineffective assistance of appellate counsel can serve as cause to excuse procedural default, it can do so only if the ineffective assistance of appellate counsel claim is not itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-53 (2000). This Court concludes that Moss cannot rely on ineffective assistance of appellate counsel as cause for failing to raise issues on her direct appeal. Because Moss's ineffective assistance of appellate counsel claim is itself defaulted (see above), Moss cannot rely on that claim as cause to overcome the procedural default.
Moss moved to supplement her traverse with several attachments that she claims will demonstrate cause for procedurally defaulting on claims she failed to raise on direct appeal. (ECF No. 17). Moss seeks to introduce the following documents: 1. A January 15, 2024, affidavit from Moss. (Id., PageID #: 2885); 2. An undated and unsigned handwritten letter to the attention of her appellate attorney, Angela Kille. (Id., PageID #: 2886-88); 3. An undated handwritten letter to the attention of Attorney Kille. (Id., PageID #: 2889-92); 4. An illegibly signed “affidavit” dated October 12, 2023. (Id., PageID #: 2894); and 5. A March 14, 2024, notarized letter from Crystal Moss. (Id., PageID #: 2895). Respondent opposes her motion. (ECF No. 18). One of the attachments - Document 3 - is already included in the state court record. (Compare (ECF No. 17, PageID #: 2889-92) with (ECF No. 8-1, PageID #: 661-64). Accordingly, this portion of Moss's motion is DENIED AS MOOT.
The remainder of Moss's motion is DENIED. Moss does not indicate what authority she invokes in her request for the Court to allow her to supplement the record with evidence outside the state court record. Generally, “review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). However, Rule 7 of the Rules Governing Section 2254 Cases confers on district courts the authority to expand the record with “additional materials relating to the petition.” Rules Governing Section 2254 Cases, Rule 7(a). “The decision of whether to expand the record ... is within the sound discretion of the district court.” West v. Bell, 550 F.3d 542, 551 (6th Cir. 2008) (citing Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988)). Motions to expand the record under Rule 7 must meet the standards of AEDPA's § 2254(e)(2), although that provision is expressly directed only at evidentiary hearings. v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (“Those same restrictions [of § 2254(e)(2)] apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing.”) (emphasis in original).
Section 28 U.S.C. §2254(e)(2) requires that an applicant show that
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C.A. § 2254(e)(2). Respondent argues that Moss does not meet the strict requirements of 28 U.S.C.A. § 2254(e)(2). This Court agrees with Respondent.
Documents 1, 4, and 5 were created after Respondent filed the Return of Writ. Document 2, which is undated, does not appear to be part of the state court record. And none of the documents offer a new rule of constitutional law, newly discovered evidence or alert to the presence of a previously undiscovered factual affirmation. 28 U.S.C.A. § 2254(e)(2)(A). Nor do the documents purport to contain facts that establish Moss's “actual innocence” of the underlying claims. 28 U.S.C.A. § 2254(e)(2)(B); see Hill v. Anderson, No. 4:96CV0795, 2010 WL 5178699, at *10 (N.D. Ohio Dec. 14, 2010) (“28 U.S.C. § 2254(e)(2)(B) actually requires a petitioner first show his actual innocence before he can obtain an evidentiary hearing.”). Moss has not argued that she is actually innocent. Accordingly, Moss's motion to supplement her traverse with evidence outside the record is DENIED.
Moreover, Moss does not argue cause to excuse her procedural default of Ground Seventeen. Moss states only that she did not understand that an application to reopen was meant to raise ineffective assistance of appellate counsel claims. However, she does not provide any explanation for failing to appeal the Court of Appeals' decision to the Ohio Supreme Court. Accordingly, Moss cannot establish cause for her procedural default of Ground Seventeen.
Finally, Moss does not allege “actual innocence” to excuse her procedural default.
Accordingly, this Court recommends dismissing Grounds Nine through Seventeen, Twenty, Twenty-Three, Twenty-Four, Twenty-Seven, and Twenty-Eight as procedurally defaulted.
VII. Certificate of Appealability
A. Legal Standard
A habeas petitioner may not appeal the denial of their application for a writ of habeas corpus unless a judge issues a certificate of appealability and specifies the issues that can be raised on appeal. 28 U.S.C. § 2253(c) (“A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”). The “‘petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The granting of a certificate of appealability does not require a showing that the appeal would succeed on any claim. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
B. Analysis
Moss's grounds for relief are procedurally defaulted. If the Court accepts the foregoing recommendation, then Moss has not made a substantial showing of a denial of a constitutional right. She would then not be entitled to a certificate of appealability. Thus, I recommend that the Court not issue a certificate of appealability.
VIII. Recommendation
Moss has presented only procedurally defaulted claims. Thus, I recommend that the Court deny her petition in its entirety and not grant her a certificate of appealability. Additionally, Moss's motion to supplement her traverse is DENIED AS MOOT in part and DENIED in part.
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after being served with a copy of this document. Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. Berkshire v. Beauvais, 928 F.3d 520, 530-31 (6th Cir. 2019).