STEPHANIE K. BOWMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Pickaway Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on the petition and respondent's return of writ, to which petitioner has not responded. (Doc. 5). As noted below, petitioner has also filed a motion to supplement Ground One (Doc. 6), a motion to supplement the record (Doc. 9), and a motion for transcripts. (Doc. 12).
The Ohio Court of Appeals set forth the following summary of trial evidence and facts leading to petitioner's conviction and sentence:
(Doc. 4, Ex. 22 at PageID 224-26) (footnotes omitted).
On August 28, 2015, the Warren County, Ohio, grand jury returned a twenty-nine-count indictment charging petitioner with eight counts of grand theft of a motor vehicle by deception, ten counts of theft by deception, two counts of attempted grand theft of a motor vehicle by deception, four counts of receiving stolen property, two counts of receiving stolen property of a motor vehicle, and one count each of engaging in a pattern of corrupt activity, theft of a check by deception, and attempted theft by deception. (See Doc. 4, Ex. 1).
On December 21, 2015, the Warren County, Ohio, grand jury returned a second indictment, charging petitioner with one count each of identity fraud and forgery. (Doc. 4, Ex. 8). The two indictments were consolidated for trial. (Doc. 4, Ex. 10). The trial court appointed petitioner counsel. (See Doc. 4, Ex. 2, 3, 6).
Prior to trial, through counsel, petitioner filed a motion to dismiss counts two through ten of the indictment. (Doc. 4, Ex. 11). Petitioner's motion was overruled by the trial court.
On February 2, 2016, following a jury trial, petitioner was found guilty of all charges. (Doc. 4, Ex. 12, 13, 14). Petitioner was sentenced to serve a total aggregate prison sentence of nineteen-years in the Ohio Department of Corrections.
Petitioner, through new counsel, filed a timely notice of appeal. (Doc. 4, Ex. 18). Petitioner raised the following five assignments of error in his appellate brief:
(Doc. 4, Ex. 20). On May 30, 2017, the Ohio Court of Appeal overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 4, Ex. 22).
Petitioner filed a notice of appeal and a motion for a delayed appeal to the Ohio Supreme Court on August 24, 2017. (Doc. 4, Ex. 23, 24). The Ohio Supreme Court granted petitioner's motion on November 1, 2017. (Doc. 4, Ex. 25). Petitioner was ordered to file a memorandum in support of jurisdiction within thirty days of the Entry granting his motion. (See id.). However, the Ohio Supreme Court dismissed the matter for lack of prosecution on December 5, 2017, after petitioner failed to file a jurisdictional memorandum. (Doc. 4, Ex. 26).
Petitioner filed a "motion for leave to vacate and reinstate appeal," on March 9, 2018, which was denied by the Ohio Supreme Court. (Doc. 4, Ex. 27, 28).
On December 4, 2018, petitioner commenced the instant federal habeas corpus action. (Doc. 1). Petitioner raises the following four grounds for relief in the petition:
(Doc. 1).
Respondent has filed a return of writ in opposition to the petition. (Doc. 5). According to respondent, petitioner procedurally defaulted and waived his grounds for relief. Respondent further contends that the grounds for relief are without merit.
On February 11, 2019, petitioner filed a motion for leave to supplement Ground One (Doc. 6), which is opposed by respondent. (Doc. 8). Petitioner claims that he intended to include the following statement of the claim in Ground One:
Supporting facts:
(Doc. 6 at PageID 2824).
On February 26, 2019, petitioner filed a "motion to supplement the record and proceed on Ground One" (Doc. 9), which is also opposed by respondent. (Doc. 10). Petitioner seeks to supplement the record to include "(1) the appendix to Agostini's motion to dismiss that the Ohio Trial Court adjudicated; (2) transcripts and related documents from the State of Ohio's first prosecution of Agostini in Clermont County, Ohio; (3) the original notice of appeal and memorandum in support of jurisdiction received in the Office of the Clerk of the Ohio Supreme Court for filing on July 14, 2017." (Doc. 9 at PageID 2952). Petitioner further requests that the Court proceed with Ground One of the petition and stay the remaining claims.
Finally, on July 19, 2019, petitioner filed a motion for transcripts. (Doc. 12).
By separate Order issued this date, the undersigned has granted petitioner's motion to supplement Ground One (Doc. 6) and denied his motion for transcripts. (Doc. 12). Petitioner's motion to supplement the record and proceed on Ground One (Doc. 9) was granted in part, denied in part. The motion was granted to the extent that the notice of appeal and memorandum in support of jurisdiction received in the Office of the Clerk of the Ohio Supreme Court for filing on July 14, 2017 be made part of the record in this case. (See Doc. 9 at PageID 3075-95). The motion was denied in all other respects.
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 defendant with federal constitutional claims must fairly present those claims to the state courts for consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see also Anderson, 459 U.S. at 6; Picard v. Connor, 404 U.S. 270, 275-76 (1971). A constitutional claim for relief must be presented to the state's highest court in order to satisfy the fair presentation requirement. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). If the petitioner fails to fairly present his constitutional claims through the requisite levels of state appellate review to the state's highest court or commits some other procedural default that prevents a merit-based review of the federal claims by the state's highest court, he may have waived the claims for purposes of federal habeas review. See O'Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989).
It is well-settled under the procedural default doctrine that the default of a federal claim in the state court may preclude federal habeas review if the state court judgment rests on a statelaw ground that is both "independent" of the merits of the federal claim and an "adequate" basis for the state court's decision. See Harris, 489 U.S. at 260-62. The Supreme Court has stated:
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner fails to comply with a state procedural rule that required him to have done something at trial to preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit applies a four-part test to determine if a claim is procedurally defaulted:
Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)).
In the usual case, the adequate and independent state ground doctrine will not apply to bar consideration of a federal claim on habeas corpus review unless the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar. Harris, 489 U.S. at 263; see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000).
In addition, the rule precluding federal habeas corpus review of claims rejected by the state courts on state procedural grounds applies only in cases where the state rule relied on by the courts is deemed "adequate" or, in other words, involves a "firmly established and regularly followed state practice" at the time that it was applied. Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Richey v. Mitchell, 395 F.3d 660, 679 (6th Cir.) (citing White v. Schotten, 201 F.3d 743, 751 (6th Cir. 2000)), rev'd on other grounds, 546 U.S. 74 (2005) (per curiam); Warner v. United States, 975 F.2d 1207, 1213 (6th Cir. 1992); see also Rideau v. Russell, 342 F. App'x 998, 1002 (6th Cir. 2009). To be considered regularly followed, a procedural rule need not be applied in every relevant case, but rather "[i]n the vast majority of cases." Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989); see also Byrd v. Collins, 209 F.3d 486, 521 (6th Cir. 2000).
Finally, the state court's adequate and independent finding of procedural default will preclude habeas corpus review of the petitioner's federal claims unless the petitioner can show "cause" for the default and "actual prejudice" as a result of the alleged violations of federal law, or that failure to consider the federal claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Harris, 489 U.S. at 262; see also 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 this case, petitioner procedurally defaulted his grounds for relief by failing to fairly present his claims to the Ohio Supreme Court. As noted above, petitioner failed to timely file an appeal to the Ohio Supreme Court following the Ohio Court of Appeals' May 30, 2017 decision overruling his assignments of error and affirming the judgment of the trial court. As he argued in filing his motion for a delayed appeal to the Ohio Supreme Court (see Doc. 4, Ex. 24 at PageID 251-52), petitioner claims that he timely submitted his appeal by providing the state supreme court with his appeal documents prior to the filing deadline.
Consequently, by failing to fairly present his constitutional claims to the Ohio Supreme Court, petitioner has waived his claims absent a showing of cause for his default and actual prejudice as a result of the alleged errors, or that the failure to consider the claims will result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750. See also Murray, 477 U.S. at 485; Isaac, 456 U.S. at 129; Sykes, 433 U.S. at 87.
No such showing has been made in this case. As he did in his motion to reinstate his appeal—filed several months after his case was dismissed for want of prosecution—petitioner claims that he in fact filed his memorandum in support of jurisdiction to the Ohio Supreme Court. (See Doc. 4, Ex. 27 at PageID 286-87; Doc. 9 at PageID 2952). However, as noted above (see supra n.4), petitioner's memorandum was not filed and was returned to him. Petitioner had the opportunity to pursue his claims after the Ohio Supreme Court granted his motion for a delayed appeal and ordered him to file a memorandum in support of jurisdiction within thirty days. Petitioner has not provided any cause for his failure to do so.
Finally, petitioner has not demonstrated that a fundamental miscarriage of justice will occur if his procedurally-defaulted claims for relief are not considered or, in other words, that the alleged errors "probably resulted in the conviction of one who is actually innocent." See Murray, 477 U.S. at 495-96. See also Schlup v. Delo, 513 U.S. 298, 327 (1995); Bonilla, 370 F.3d at 498. To establish a credible claim of actual innocence sufficient to excuse his procedural default, petitioner must "support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324.
Petitioner must also show "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt" in light of all the evidence, including that evidence alleged "to have become available only after the trial." Id. at 327-28. "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. at 329. The Court notes that actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). See also Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998). The actual innocence exception should "remain rare" and "only be applied in the `extraordinary case.'" Schlup, 513 U.S. at 321.
Petitioner has not demonstrated that his procedural defaults should be excused under the "fundamental miscarriage of justice" exception. Therefore, petitioner has procedurally defaulted and waived the claims raised in the petition.
1. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be
2. A certificate of appealability should not issue with respect to the claims alleged in the petition, which this Court has concluded are waived and thus procedurally barred from review, because under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether this Court is correct in its procedural ruling.
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
As noted above, petitioner's delayed appeal motion was filed on August 24, 2017 (Doc. 4, Ex. 23, 24) and was granted by the Ohio Supreme Court on November 1, 2017. (Doc. 4, Ex. 25). Petitioner was ordered to "file a memorandum in support of jurisdiction within thirty days from the date of this entry." (Id. at PageID 282). Petitioner's appeal was dismissed on December 5, 2017 for want of prosecution. (Doc. 4, Ex. 26). Petitioner took no further action until March 9, 2018, when he unsuccessfully filed a motion to reinstate his appeal. (See Doc. 4, Ex. 27).
