Moreover, under the third factor, it is well-established that this Ohio rule is an adequate and independent ground upon which to deny relief. See Nesser v. Wolfe, 370 F. App'x 665, 670 (6th Cir. 2010); Stojetz v. Ishee, 389 F. Supp. 2d 858, 885-86 (S.D. Ohio 2005). Because Petitioner has not demonstrated cause and prejudice, or shown that the failure to consider his claims will result in a fundamental miscarriage of justice, this Court finds they are procedurally defaulted.
Denney's procedural default can be excused only if he can establish cause and prejudice for the failure to present his claims to the state court or if he can show actual innocence. Nesser v. Wolfe, 370 F. App'x 665, 669-70 (6th Cir. Mar. 25, 2010); Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000). "Demonstrating cause requires showing that an 'objective factor external to the defense impeded counsel's efforts to comply' with the state procedural rule.
Stewart did not appeal the denial of his post-conviction motion for leave to file a motion for new trial to the state appellate court, much less the Ohio Supreme Court, and can no longer do so. Nesser v. Wolfe, 370 Fed.App'x. 665, 670, 2010 WL 1141006, at *4 (6th Cir. 2010) (“Ohio does not permit delayed appeals in post-conviction proceedings, and this is an adequate and independent ground upon which to deny relief.”); State v. Nichols, 463 N.E.2d 375, 378 (Ohio 1984) (“a delayed appeal pursuant to App.R. 5(A) is not available in the appeal of a postconviction relief determination[.]”).
At this juncture, Petitioner is precluded from filing an appeal in the state courts from the denial of his post-conviction motion for judicial release because Ohio does not permit delayed appeals in postconviction proceedings. See Nesser v. Wolfe, 370 Fed.Appx. 665, 670 (6th Cir.2010) (and cases cited therein). However, Petitioner still has an avenue open to him in the state courts by which he may present his claims.
(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.
In both instances, Petitioner failed to appeal the decision through the requisite levels of state appellate review to the Ohio Supreme Court and therefore no longer has any avenues of relief available to him. See State v. Nichols, 463 N.E.2d 375, 78 (Ohio 1984) (“a delayed appeal pursuant to App. R. 5(A) is not available in the appeal of a postconviction relief determination”); Nesser v. Wolfe, 370 Fed.Appx. 665, 670 (6th Cir. Mar. 25, 2010) (“Ohio does not permit delayed appeals in postconviction proceedings”); see also Sup. Ct. Prac. R. 7.01(A)(4)(c) (“The Clerk shall refuse to file motions for delayed appeal involving postconviction relief or App.R. 26(B).”).
Further, he may now no longer do so, as Ohio does not permit delayed appeals in post-conviction proceedings. See Myers v. Haviland, No. 3:16-CV-00659, 2017 WL 9476855, at *24 (N.D. Ohio May 8, 2017), report and recommendation adopted, No. 3:16 CV 659, 2017 WL 4837479 (N.D. Ohio Oct. 26, 2017) (citing Nesser v. Wolfe, 370 F. App'x 665 (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") (other citations omitted). Thus, Petitioner has procedurally defaulted his final claim of ineffective assistance of counsel.
Even so, a procedurally defaulted claim may still be considered if a petitioner can show either (1) cause and prejudice, or (2) actual innocence. Nesser v. Wolfe, 370 F. App'x 665, 669-70 (6th Cir. 2010); Seymour, 224 F.3d at 550. In other words, a procedural default may be excused to avoid a "miscarriage of justice."
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, 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, 2010 WL 1141006 at *4 (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."). Thus, the Court finds that the outside-the-record ineffective assistance of trial counsel claims that were raised in Jefferson's first Post-Conviction Petition are procedurally defaulted.
Moreover, Rodano may not now seek leave to file a delayed appeal of this claim to the Ohio Supreme Court, as Ohio does not permit delayed appeals in post-conviction proceedings. See Nesser v. Wolfe, 370 Fed. Appx. 665, 670 (6th Cir. March 25, 2010) (holding that "Ohio does not permit delayed appeals in postconviction proceedings"); Brown v. Clipper, 2016 WL 5173331 at * 23 (N.D. Ohio Sept. 21, 2016). See also Ohio S. Ct. Prac. R. 7.01(A)(4)(c) ("The provision for delayed appeal does not apply to appeals involving postconviction relief . . . ").