NORAH McCANN KING, Magistrate Judge.
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 Petition (ECF No. 1), Respondent's Return of Writ (ECF No. 6), Petitioner's Reply (ECF No. 7), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Nian, 10th Dist. No. 15CA070052, 2016 WL 4039205, at *1-2 (Ohio Ct. App. July 25, 2016). On July 25, 2016, the appellate court affirmed the judgment of the trial court. Id. On February 22, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Nian, 148 Ohio St.3d 1411 (Ohio 2017).
On April 13, 2017, Petitioner filed this pro se habeas corpus Petition. He asserts that his conviction is against the manifest weight of the evidence and that the evidence is constitutionally insufficient to sustain his conviction (claim one); that he was denied a fair trial due to prosecutorial misconduct during closing argument (claim two); that he was denied the right to a fair and impartial jury (claim three); that he was denied the effective assistance of trial counsel (claim four); that the trial court erred in instructing jurors to disregard statements by defense counsel regarding Petitioner's citizenship and on the offense of rape (claims five and six). Respondent contends that Petitioner's claims are procedurally defaulted and without merit.
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the Antiterrorism and Effective Death Penalty Act ("the AEDPA") govern this case. The United State Supreme Court has described the AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, 571 U.S. 12, 19 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (The "AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt.") (internal quotation marks, citations, and footnote omitted).
The AEDPA limits a federal court's authority to issue a writ of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state court decision either:
28 U.S.C. § 2254(d). Further, under the AEDPA, the factual findings of the state court are presumed to be correct:
28 U.S.C. § 2254(e)(1). Accordingly, "a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals for the Sixth Circuit has summarized these standards as follows:
Id. at 748-49. The burden of satisfying the AEDPA's standards rests with the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
In claim one, Petitioner asserts that his conviction is against the manifest weight of the evidence. This claim fails to offer a basis for relief. See Taylor v. Warden, Lebanon Correctional Institution, No. 2:16-cv-237, 2017 WL 1163858, at *10 (S.D. Ohio March 29, 2017) (citing Williams v. Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016)) (citing Nash v. Eberlin, 258 F. App'x 761, 765, n. 4 (6th Cir. 2007) ); Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio)) ("Whether a conviction is against the manifest weight of the evidence is purely a question of Ohio law.").
Under Ohio law, a claim that a verdict is against the manifest weight of the evidence — as opposed to one based upon insufficient evidence — requires the appellate court to act as a "thirteenth juror" and review the entire record, weigh the evidence, and consider the credibility of witnesses to determine whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Since a federal habeas court does not function as an additional state appellate court, vested with the authority to conduct such an exhaustive review, petitioner's claim that his convictions were against the manifest weight of the evidence cannot be considered by this Court.
Petitioner also asserts that the evidence is constitutionally insufficient to sustain his conviction; Petitioner argues that the evidence adduced at trial did not establish that he touched the victim or used force, and that the DNA sample was inconclusive. The state appellate court rejected this claim as follows:
State v. Nian, 2016 WL 4039205, at *3-5.
Before a criminal defendant can be convicted consistent with the United States Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining whether the evidence was sufficient to support a petitioner's conviction, a federal habeas court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, at 326). "[A] reviewing court `faced with a record that supports conflicting inferences must presume — even if it does not appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. (quoting Jackson, at 326).
Moreover, federal habeas courts must afford a "double layer" of deference to state court determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009), deference must be given, first, to the jury's finding of guilt because the standard, announced in Jackson v. Virginia, is whether "viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Second, and even if de novo review of the evidence leads to the conclusion that no rational trier of fact could have so found, a federal habeas court "must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." See White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle for a habeas petitioner to overcome, and for the reasons discussed by the state appellate court, Petitioner has not done so here.
Ohio law defines force as "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." O.R.C. § 2901.01(A)(1). The victim testified that Petitioner tried to kiss her, and touched her vagina against her wishes. He did not stop when she asked him to do so. Transcript (ECF No. 6-2, PAGEID # 552.) He pulled down her leggings, gripping her thighs, touched her vagina and placed his mouth on her vagina. She pushed, or tried to push, his head away and asked him to leave, and then he got up and left. (PAGEID # 556-57.)
The state appellate court determined that this record established the use or threat of force as that term is defined under Ohio law. This Court is bound by the state court's interpretation of its own laws. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); see Gumm v. Mitchell, 775 F.3d 345, 362 (6th Cir. 2014) (citing Estelle 502 U.S. at 68) ("This Court should not reinterpret an issue of state law that has already been interpreted by the state courts); Williams v. Smith, No. 11-15163, 2014 WL 632437, at *5 (E.D. Mich. Feb.18, 2014) ("[O]n habeas review, `[s]tate law means what state courts say it means. A claim that the state court misunderstood the substantive requirements of state law does not present a claim under § 2254.'") (quoting Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir.1991)). Further, the State did not need to introduce corroborating DNA evidence. The testimony of the victim, alone, provided constitutionally sufficient evidence to sustain Petitioner's conviction.
Construing all of the evidence in the light most favorable to the prosecution, and crediting the testimony of the victim, as this Court is required to do, the evidence is, for the reasons discussed by the state appellate court, constitutionally sufficient to sustain Petitioner's conviction.
Claim one is without merit.
In claim three, Petitioner asserts that the trial court improperly denied his motion for a new trial, because the jury improperly considered extraneous information in reaching its guilty verdict, and he was thereby denied his right to a fair and impartial jury. Respondent argues that this claim presents an issue regarding the alleged violation of State law only, and therefore fails to provide a basis for relief.
This Court's review is limited to consideration of claims alleging a violation of "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Claims based on a "perceived error of state law" fall outside the scope of the Court's review and, therefore, do not constitute cognizable grounds for federal habeas relief. See id.; see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. at 67-68) ("it is not the province of a federal court to reexamine state-court determinations on state-law questions"); Pulley v. Harris, 465 U.S. 37, 41 (1984). Thus, to the extent that Petitioner asserts that the state courts erred or misapplied Ohio law in denying his motion for a new trial, this claim does not provide him the relief that he seeks. See Mickens v. Richard, No. 2:17-cv-00539, 2018 WL 1173037, at *2 (S.D. Ohio March 6, 2018) (citing Pudelski v. Wilson, 576 F.3d 595, 610-11 (6th Cir. 2009); Chamblin v. Warden, Chillicothe Correctional Institution, No. 1:15-cv-545, 2016 WL 8679076, at *12 (S.D. Ohio June 24, 2016); Rigdon v. Ohio Adult Parole Authority, No. 1:08-cv-716, 2010 WL 3910236, at *11 (S.D. Ohio July 7, 2010), adopted, 2010 WL 3910230 (S.D. Ohio Oct. 4, 2010)).
However, Petitioner asserts in this claim that he was denied his right to a fair and impartial jury. This issue presents a claim of federal constitutional dimension. See Rodriguez v. Warden, Southern Ohio Correctional Facility, 940 F.Supp.2d 704, 711-12 (S.D. Ohio 2013) (Petitioner's claim that the trial court abused its discretion and violated State law in denying a motion for a new trial does not provide a basis for relief, unless the trial court's decision was "so egregious" as to violate due process, but considering merits of his underlying claim of ineffective assistance of counsel) (citing Pudelski, 576 F.3d at 610-11). Nonetheless, Petitioner appears to have waived this Court's review of this federal constitutional claim because he failed to present it to the state courts.
"To avoid procedural default, the petitioner must `exhaust' all state-court remedies." Williams v. Mitchell, 792 F.3d 606, 613 (6th Cir. 2015) (citing Carter v. Mitchell, 693 F.3d 555, 563-64 (6th Cir. 2012)). This requires "fair presentation" of the federal claim to the state supreme court. Id. (citing Bray v. Andrews, 640 F.3d 731, 734-35 (6th Cir. 2011)); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."). To fairly present a federal claim, a state prisoner must present the state courts with "both the legal and factual basis" for his claim. Id. (citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)).
In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly present the substance of each constitutional claim to the state courts as a federal constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). Although the fair presentment requirement is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999), it is rooted in principles of federalism designed to allow state courts the opportunity to correct the State's alleged violation of a federal constitutional right that threatens to invalidate a state criminal judgment. In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of a constitutional right, such as the right to a fair trial or to due process, are insufficient to satisfy the "fair presentment" requirement. Id.
Petitioner asserted on direct appeal that he had been "denied his right to a fair and impartial panel of jurors as guaranteed under the Sixth Amendment of the United States Constitution. . . as the result of jurors' improper consideration of extraneous information and the trial court's refusal to grant [him] a new trial." Brief on Behalf of Defendant-Appellant (ECF No. 6-1, PAGEID # 149.) In support, he argued only that the trial court violated state law and should have resolved the issue by questioning other jurors on the issue. (PAGEID # 149-151.) Petitioner did not refer to any federal cases or to state cases relying on federal law in support. Rather, he argued in terms of state law only. In his appeal to the Ohio Supreme Court, Petitioner asserted that he "was denied the right to a fair trial when prejudicial extraneous evidence was presented to the jury during deliberations without the court's approval." Memorandum in Support of Jurisdiction (PAGEID # 201.) Again, he argued only that the trial court had violated state law and evidentiary rules, stating that the trial court had "abused its discretion" in denying his motion for a new trial. (PAGEID # 208-09.) Again, Petitioner did not refer to any federal cases, or to any state cases relying on federal law, in support of his claim.
Thus, Petitioner appears to have waived any federal claim for this Court's review. Moreover, the record does not reflect that this claim warrants relief. The trial court denied the motion for a new trial, as follows:
Judgment Entry Denying Motion For New Trial (ECF No. 6-1, PAGEID # 116-117.)
The state appellate court affirmed the judgment of the trial court after rejecting this claim:
State v. Nian, 2016 WL 4039205, at *7.
Petitioner has failed to establish that the state appellate court unreasonably applied clearly established federal law as determined by the Supreme Court of the United States, or based its decision on an unreasonable determination of the facts in light of the evidence presented so as to warrant relief. 28 U.S.C. § 2254(d); see Gatliff v. Tibbals, No. 1:14-cv-931, 2015 WL 8481565, at *16 (S.D. Ohio Dec. 10, 2015) (noting that the Supreme Court has not held that application of the aliunde rule is unconstitutional and has unanimously upheld application of Fed. R. Evid. 606(b) to prohibit the use of a juror's testimony that another juror lied during voir dire) (citing Warger v. Shauers, ___ U.S. ___, 135 S.Ct. 521 (2014)). Further, "[t]he Sixth Circuit has held that there is no `constitutional impediment to enforcing' Ohio's aliunde rule." Brakeall v. Warden, 2011 WL 4712774, at *4 (S.D. Ohio Oct. 6, 2011) (citing Hoffner v. Bradshaw, 622 F.3d 487, 501 (6th Cir. 2010) (internal citations omitted)).
Claim three is without merit.
In claim five, Petitioner asserts that he was denied a fair trial by reason of certain instructions given by the trial court to the jury. Petitioner specifically complains that the trial court improperly instructed the jury to disregard, because there was "no evidence of that so you strike that from consideration," Transcript (ECF No. 6-3, PAGEID # 819), defense counsel's indication, made in opening statement, that Petitioner had come to the United States when he was a teen. Petitioner also complains that the trial court improperly instructed the jury to disregard a statement regarding a particular text and what Petitioner may have thought: "Again, it's not evidence for your hearing." Id. Petitioner complains that these jury instructions unnecessarily emphasized that he was not a citizen of the United States. Reply (ECF No. 7, PAGEID # 1002.) In claim six, Petitioner asserts that the trial court improperly advised the jury, prior to the start of trial, that "Mr. Nian is charged with two counts of rape in that he engaged in sexual conduct with [name redacted] and purposely compelled her to submit by force or threat of force." Transcript (ECF No. 6-2, PAGEID # 434.) According to Petitioner, the trial court improperly indicated by the wording of this instruction that Petitioner had committed the charged crimes. The state appellate court rejected these claims, reasoning as follows:
State v. Nian, 2016 WL 4039205, at *8-9.
Errors in jury instructions are generally not cognizable in federal habeas corpus unless they deprive the petitioner of a fundamentally fair trial. Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986); Thomas v. Arn, 704 F.2d 865, 868-69 (6th Cir. 1983).
Stallings v. Bagley, 561 F.Supp.2d 821, 855 (N.D. Ohio 2008). A habeas petitioner challenging jury instructions must establish that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). The record fails to reflect such circumstances here.
Claims five and six are without merit.
Respondent contends that Petitioner has procedurally defaulted claims two and four. Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). 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 to present those claims to the state courts 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 his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas. . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This obligation "requires the petitioner to present `the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case — that is, they are "procedurally defaulted."
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim has been waived 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 upon 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 applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause sufficient to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, however, a claim of ineffective assistance of counsel generally must "`be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'" Id. at 452 (quoting Murray, 477 U.S. at 479). Put another way, "that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted." Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if the claim of ineffective assistance of counsel is itself procedurally defaulted, a petitioner must be able to "satisfy the `cause and prejudice' standard with respect to the ineffective-assistance claim itself." Edwards, 529 U.S. at 450-51.
If, after considering all four factors of the Maupin test, a court concludes that a procedural default has occurred, the court must not consider the merits of the procedurally defaulted claim unless "review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray, 477 U.S. at 495-96).
In claim two, Petitioner asserts that he was denied a fair trial because the prosecutor mischaracterized evidence during closing argument. The state appellate court reviewed this claim for plain error only, due to Petitioner's failure to object at trial:
State v. Nian, 2016 WL 4039205, at *5-6.
As the state appellate court noted, Petitioner did not raise his claim of prosecutorial misconduct before the trial court. As a result, Petitioner waived this claim for review in these proceedings and the state court's plain error review of this claim does not constitute a waiver of the state's procedural default rules. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).
Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D. Ohio 2007).
Petitioner may still secure review of the merits of this claim if he demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice from the alleged constitutional violation. See Coleman, 501 U.S. at 753. As cause for his procedural default, Petitioner notes that he is a pro se, incarcerated prisoner, that English is his second language, and that he has a hard time understanding legal terminology. Petitioner also asserts that his trial attorney performed in a constitutionally ineffective manner by failing to object at trial, and that his appellate counsel improperly failed to raise this claim on direct appeal. Reply (ECF No. 7, PAGEID # 999.)
"[P]etitioner has the burden of showing cause and prejudice to overcome a procedural default." Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999)) (internal citation omitted).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003) (quoting Coleman, 501 U.S. at 753). Courts have held repeatedly that a petitioner's pro se, incarcerated status, limited access to the prison law library, or ignorance of the law and state procedural requirements do not constitute cause sufficient to excuse a procedural default. See, e.g., Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (citing Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995)); Crosby v. Warden, London Correctional Facility, No. 1:12-cv-523, 2013 WL 5963136, at *5 n. 2 (S.D. Ohio Nov. 7, 2013). Similarly, "language barriers and unfamiliarity with the legal system are not external factors sufficient to excuse procedural default." Cruz-Altunar v. Warden, Ross Correctional Inst., No. 2:14-cv-08144, 2016 WL 1449848, at *1 (S.D. Ohio April 13, 2016) (quoting Sanchez v. Hetzel, No. 1:11-cv-940-TMH, 2014 WL 1491178, at *4 (M.D. Ala. April 15, 2014) (citing Vazquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988)) (pro se status and language barrier are insufficient to excuse procedural default); Bonilla, 370 F.3d at 498 ("unfamiliarity with the English language" is not "external to [one's] defense") (other citations omitted).
As noted supra, the constitutionally ineffective assistance of counsel may also constitute cause for a procedural default, so long as such claim has been presented to the state courts and is not, itself, procedurally defaulted. See Edwards, 529 U.S. at 451-52 (citing Murray, 477 U.S. at 488-89). Petitioner asserts the ineffective assistance of counsel in his in habeas corpus claim four.
In his claim four, Petitioner asserts the denial of the effective assistance of trial counsel because his attorney failed to object to the characterization of the alleged victim as a victim; failed to object to the prosecutor's phrasing of a question indicating that the sexual assault had taken place; failed to object to the relevancy of evidence that the mother had a working relationship with the Petitioner; and failed to object to comments, made on opening statement, regarding his citizenship. Petitioner waived these claims by failing to raise them on direct appeal, where he was represented by new counsel, or in his appeal to the Ohio Supreme Court, where he argued only that he was denied the effective assistance of trial counsel because his attorney failed to object to mandatory sentencing, and because his attorney raised the issue of Petitioner's citizenship during voir dire.
Having failed to properly present his current claim of ineffective assistance of trial counsel to the state courts, Petitioner may now no longer present these claims to the state courts by virtue of Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967) (claims must be raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata.). Moreover, the state courts were never given an opportunity to enforce the procedural rule at issue due to the nature of Petitioner's procedural default.
Ohio's doctrine of res judicata is adequate and independent under the third part of the Maupin test. To be "independent," the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman, 501 U.S. at 732-33. To be "adequate," the state procedural rule must be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). "[O]nly a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).
The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour, 224 F.3d at 555; Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. With respect to the independence prong, this Court concludes that Ohio's doctrine of res judicata in this context does not rely on or otherwise implicate federal law. Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.
Moreover, the denial of the effective assistance of appellate counsel cannot constitute cause for this procedural default, because Petitioner has never presented this claim to the state courts. See Murray, 477 U.S. at 489.
Thus, Petitioner has failed to establish cause for his procedural default of claims two and four. He has thereby waived these claims for review in these proceedings.
Petitioner also asserts that he is actually innocent. The United States Supreme Court has held that a claim of actual innocence may be sufficient "to avoid a procedural bar to the consideration of the merits of [a petitioner's] constitutional claims." Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible showing of actual innocence was sufficient to authorize a federal court in reaching the merits of an otherwise procedurally-barred habeas petition. Id. at 317. However, a claim of actual innocence is "`not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception to a procedural default allows a petitioner to pursue his constitutional claims if it is "more likely than not" that new evidence — i.e., evidence not previously presented at trial — would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained this exception as follows:
Souter, 395 F.3d at 589-90 (footnote omitted). Petitioner does not meet these standards here. After an independent review of the record, the Court does not deem this to be so extraordinary a case as to relieve petitioner of his procedural default of claims two and four.
If any party objects to this Report and Recommendation, that party may, within fourteen 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).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
