Opinion
CASE NO. 2:06-cv-1025.
March 26, 2007
OPINION AND ORDER
On January 10, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the petitioner's request for a stay be denied, and that the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254 be dismissed without prejudice as unexhausted, unless petitioner deleted his unexhausted claim of ineffective assistance of appellate counsel and proceeded on his remaining exhausted claims. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, petitioner's objections are OVERRULED. Petitioner may amend the petition to delete his unexhausted claim of ineffective assistance of appellate counsel within ten (10) days of the date of this order. Failure to do so will result in dismissal of this action.
Petitioner objects to the Magistrate Judge's conclusion that he has failed to establish that a stay of proceedings pending exhaustion is warranted under Rhines v. Weber, 544 U.S. 269 (2005). Petitioner first objects to the Magistrate Judge's conclusion that he failed to establish good cause for failing to exhaust state court remedies. Petitioner again argues that he established good cause for a stay because he was represented by the same attorney at trial and on direct appeal, and because the same attorney represented him through the dismissal of his appeal in the Ohio Supreme Court, on September 7, 2005. According to petitioner, he therefore was precluded from filing an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B) or exhausting his claim of ineffective assistance of appellate counsel. Petitioner contends that a conclusion that he did not have good cause within the meaning of Rhines v. Weber, supra, under these circumstances would mean that criminal defendants must raise a claim of ineffective assistance of counsel while continuing to be represented by that same attorney. Objections, at 4.
Petitioner states in his objections that the Ohio Supreme Court dismissed his appeal on December 5, 2005; however, the record reflects that the Ohio Supreme Court dismissed his appeal on September 7, 2005. See Petition, at 2; State v. Tullis, 106 Ohio St.3d 1510 (2005).
This Court does not agree. As of this date, and more than one and a half years since the Ohio Supreme Court dismissed petitioner's direct appeal, the record does not reflect that petitioner has initiated Rule 26(B) proceedings, despite the fact that counsel for petitioner indicates that she was assigned to this case in February 2006, and "immediately. . . . commenced her review of Mr. Tullis' claims." Under these circumstances, the Court concludes that petitioner has failed to establish good cause for failing to exhaust state court remedies.
Petitioner also objects to the Magistrate Judge's conclusion that his unexhausted claim is not potentially meritorious. See Rhines v. Weber, supra. Petitioner now indicates that he has a potentially meritorious unexhausted claim of ineffective assistance of appellate counsel due to his attorney's failure to raise on direct appeal a claim of ineffective assistance of trial counsel due to trial counsel's failure to request a jury instruction on the lesser included offense of voluntary manslaughter. Objections, at 4-5. Petitioner did not explicitly identify such claim in his initial habeas corpus petition. See Petition; Request for a Stay. However, petitioner correctly notes that appellate counsel cannot be expected to raise on appeal an issue regarding his own ineffectiveness. Jamison v. Collins, 100 F.Supp.2d 521, 572 (S.D. Ohio 1998) (citations omitted); State v. Cole, 2 Ohio St.3d 112 (1982). Therefore, this Court agrees that the record fails to reflect that petitioner's unexhausted claim of ineffective assistance of counsel is potentially meritorious. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000), citing Strickland v. Washington, 466 U.S. 668 (1984); Smith v. Murray, 477 U.S. 527, 535-36 (1986). Additionally, as noted by the Magistrate Judge, because petitioner was represented by the same attorney at trial and on direct appeal, his ineffective assistance of trial counsel claim properly would be raised in a petition for post conviction relief pursuant to O.R.C. § 2953.21. The record offers no suggestion that petitioner has either pursued such an action in the state courts or that he intends to do so.
For all of the foregoing reasons, and for the reasons detailed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED.
Pursuant to 28 U.S.C. 636(b)(1), this Court has conducted a de novo review of those portions of the Report and Recommendation objected to by petitioner. For the foregoing reasons, and for the reasons detailed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED.
Petitioner must notify the Court within ten (10) days if he intends to delete his unexhausted claim three, and proceed on his remaining exhausted claims. Failure to do so will result in dismissal of this action.
IT IS SO ORDERED.