ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Magistrate Judge Timothy S. Hogan's January 15, 2011, Report and Recommendation ("R & R") (Doc. 12),1 which recommends denial with prejudice of Petitioner's habeas-corpus action under 28 U.S.C. § 2254. In addition, Magistrate Judge Hogan recommends that Petitioner be granted a certificate of appealability with regards to both grounds for relief alleged in the petition and leave to appeal in forma pauperis. (Doc. 12, 24.)

Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R & R in a timely manner. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). Petitioner filed objections to the R & R. (Doc. 17.) For the reasons provided below, the Court ADOPTS the magistrate judge's R & R in its entirety.

I. BACKGROUND

The full history of this case is set forth in Respondent's Answer/Return of Writ. (Doc. 5.) Thus, the Court will provide only a brief summary here.

In March 2006, Petitioner was indicted on multiple drug offenses. In April 2006, Petitioner was arraigned and assigned appointed counsel. In May, on the morning of the scheduled trial, Petitioner moved to substitute privately retained counsel, who asked that he be allowed to appear on Petitioner's behalf and that the court continue the trial. The prosecutor opposed the continuance, and the trial court ultimately denied Petitioner's motion after hearing arguments from both sides. Petitioner then entered into negotiations that resulted in a no contest plea and a sentence of two ten-year prison terms to be served consecutively.

Petitioner appealed his conviction, setting forth two assignments of error. Petitioner argued that the trial court erred by not permitting his privately retained counsel to represent him at trial and by sentencing him to consecutive rather than simultaneous prison terms. The court of appeals denied Petitioner's appeal. Petitioner, pro se, appealed, and the Ohio Supreme Court dismissed his appeal finding that it lacked any substantial constitutional question.

In June 2007, while the direct appeal was pending with the Ohio Supreme Court, Petitioner filed an application for reopening with the appellate court under Ohio Rules of Appellate Procedure 26(B), alleging ineffective assistance of counsel. In May 2008, Petitioner filed an additional application for reopening under Ohio App. R. 26(A) after the appellate court denied the 26(B) motion. Petitioner failed to file a timely appeal to the court of appeal's denial of his App. R. 26(B) motion for reconsideration. In June 2008, the appeals court denied the App. R. 26(A) delayed application, and, in August 2008, the Supreme Court declined to exercise jurisdiction over the subsequent appeal after finding that it lacked any substantial constitutional question.

Petitioner then brought this habeas-corpus action under 28 U.S.C. § 2254.

II. ANALYSIS

Federal Rule of Civil Procedure 72 provides that a district judge shall consider a party's objections to a magistrate's order on non-dispositive matters and "shall modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). The clearly erroneous standard "mandates that the district court affirm the magistrate's decision unless, on the entire evidence, it `is left with the definite and firm conviction that a mistake has been committed.' In the absence of clear error, the magistrate's order must stand." Bank One Columbus, Ohio, N.A. v. First Fin. Ventures, LLC, No. 2:01-CV-0049, 2001 WL 840310, at *3 (S.D.Ohio July 5, 2001) (quoting Farley v. Farley, 952 F.Supp. 1232, 1235 (M.D.Tenn.1997)).

When objections are received to a magistrate judge's report and recommendation on a dispositive matter, the assigned district judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). After review, the district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C. § 636(b)(1)(B). General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object." Howard v. Sec. of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991).

A. Ground One: Sixth Amendment Right to Counsel

Petitioner asserts that the conviction deprived him of his Sixth Amendment right to counsel of his own choosing. In his objections (Doc. 17), Petitioner asserts that Magistrate Judge Hogan failed to analyze United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), as the binding precedent in his case and failed to take appropriate judicial notice of the Ohio appellate court's insufficient methodology under Saldivar-Trujillo, 380 F.3d 274 (6th Cir.2004). (Doc. 17, 3-4.) Petitioner's objections are not well taken.

1. Standard of Review

A state court's decision is contrary to clearly established law if it applies a rule that contradicts the governing law set forth in Supreme Court cases or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from this precedent. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495); see also Bell, 535 U.S. at 694, 122 S.Ct. 1843. "In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21, 123 S.Ct. 2527 (citations omitted); see also Williams, 529 U.S. at 409, 120 S.Ct. 1495.

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. 28 U.S.C. § 2254(d)(1); see Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d) "does not require citation of [Supreme Court] cases—indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Mitchell, 540 U.S. at 16, 124 S.Ct. 7. While the requirements of "clearly established law" are to be determined solely by the Supreme Court's holdings, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.2003)).

Additionally, a federal habeas court must presume that state court factual determinations are correct. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998).

2. Reasonableness Inquiry

It is well established that the right to counsel of one's choice is not absolute. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The decision regarding whether to appoint new counsel at a defendant's request is committed to the sound discretion of the trial court. United States v. Saldivar-Trujillo, 380 F.3d 274, 277-78 (6th Cir.2004). In United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the Supreme Court held that a defendant could obtain a new trial without showing prejudice when the trial court arbitrarily denied him the services of his retained counsel—in that case, by erroneously refusing to grant the chosen attorney admission pro hac vice. 548 U.S. at 143, 144-45, 126 S.Ct. 2557. However, Gonzalez-Lopez does not suggest that the choice-of-counsel right at issue is absolute; its holding only addresses situations in which "the defendant is erroneously prevented from being represented by the lawyer he wants. ..." Id. at 148, 126 S.Ct. 2557 (emphasis added). The Supreme Court went on to recognize that "a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar. ... None of these limitations on the right to choose one's counsel is relevant here." Id. at 152, 126 S.Ct. 2557 (internal citations omitted).

Petitioner attempts to excise the unhelpful portion of the balancing test required by Gonzalez-Lopez by objecting to the Magistrate Judge's approval of the appellate court's "prejudice analysis." (Doc. 17, 3.) Petitioner fails to acknowledge that, in Gonzalez-Lopez, the government admitted that the defendant had been erroneously deprived of his chosen counsel, but argued that this deprivation should be excused because the defendant was not prejudiced as a result. 548 U.S. at 150, 126 S.Ct. 2557. Gonzalez-Lopez is inapplicable to cases in which the trial court properly balanced the defendant's Sixth Amendment right to counsel of his choice with the demands of its calendar and other equitable considerations. See Benitez v. United States, 521 F.3d 625, 635 (6th Cir.2008) ("This is not to say, of course, that the district court would have been required to permit Benitez to substitute counsel or to delay the sentencing hearing.") (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 150-53, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)).

In this case, the trial court did not abuse its discretion nor violate Petitioner's constitutional rights in denying his request for substitute counsel because it properly weighed Petitioner's right to counsel with the burden the substitution would have had on its schedule and on the prosecutor. The Ohio court of appeals and Magistrate Judge Hogan concluded that Petitioner's claim lacked merit, and each supported this conclusion with ample analysis using the proper standard of review. Petitioner's objection to the Magistrate Judge's recitation of the underlying facts is inapposite to the objective reasonableness analysis. See Warren v. Smith, 161 F.3d at 360-61.

This Court agrees with Magistrate Judge Hogan's determination that the Ohio appellate court's rejection of Petitioner's motion was reasonable. Petitioner has failed to establish that the trial court erred in denying his request for substitute counsel. Therefore, habeas relief is not warranted under this line of inquiry.

a) Saldivar-Trujillo's Test

In assessing a motion to substitute counsel, a court must consider: (1) the timeliness of the motion; (2) the adequacy of the court's inquiry into the defendant's complaint; (3) whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense; and (4) the balancing of the accused's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice. Saldivar-Trujillo, 380 F.3d 274, 277-78 (6th Cir.2004) (citing United States v. Iles, 906 F.2d 1122, 1130 n. 8 (6th Cir.1990)).

Again, Petitioner ignores the unhelpful portions of this test. Petitioner's reliance on the Magistrate Judge's alleged failure to adequately consider two of the four Saldivar-Trujillo factors is unavailing. (Doc. 17, 4-5.) Factors one, three, and four weighed considerably against granting Petitioner's request for substitute counsel. First, Petitioner only expressed dissatisfaction with his counsel on the morning of his trial when he attempted to substitute privately retained counsel. A request for substitute counsel on the day of trial is untimely and weighs against granting such a motion. See Saldivar-Trujillo, 380 F.3d at 278-79. Second, while the court did not conduct an extensive inquiry into the substance of Petitioner's complaint, the record does not indicate that Petitioner's complaint arose from any conflict with his appointed counsel. The conflict, if any, was clearly not so great as to result in a total lack of communication preventing an adequate defense. Third, the trial court weighed all the factors and acted within its discretion to decide in favor of the public's interest in the prompt and efficient administration of justice.

The Court agrees with Magistrate Judge Hogan's determination that the Ohio appellate court's rejection of Petitioner's motion was not an abuse of discretion under Saldivar-Trujillo. Petitioner has failed to establish that the trial court erred in denying his request for substitute counsel, and habeas relief is not warranted.

B. Ground Two: Double Jeopardy

Petitioner asserts that the plea deal subjected him to the imposition of multiple punishments for allied offenses of similar import, and this result violated the Double Jeopardy Clause of the United States Constitution. In addition, Petitioner asserts that this claim was not procedurally defaulted. Petitioner specifically objects to Magistrate Judge Hogan's "assessment that the instant claim was not fully exhausted in the state courts through [Petitioner's] delayed application for reconsideration of the denial of [Petitioner's] application for reopening." (Doc. 17, 6.) In the alternative, Petitioner claims that the allegedly procedurally defaulted claim should be considered because Petitioner can show cause or the ruling would result in a fundamental miscarriage of justice. (Doc. 17, 7-8.) Petitioner's objections are not well taken.

1. Procedural Default

Prior to addressing the merits of Petitioner's claim, this Court must determine that the claim is properly before it and has not been procedurally defaulted. "`Under the procedural default doctrine, a federal court is generally barred from considering an issue of federal law arising from the judgment of a state court if the state judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the state court's decision.'" Munson v. Kapture, 384 F.3d 310, 313-14 (6th Cir. 2004) (quoting Clinkscale v. Carter, 375 F.3d 430, 435 (6th Cir.2004)). As such, federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Such a "procedural default" occurs when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White v. Mitchell, 431 F.3d 517, 524 (6th Cir.2005).

Notwithstanding Petitioner's objection to the contrary, which proffer no case law to support his position that his Ohio App. R. 26(B) motion for reconsideration due to ineffective counsel preserved an independent double-jeopardy claim, the Court agrees with the Magistrate Judge's analysis that Petitioner's claim was procedurally defaulted. Petitioner committed a procedural default by failing to raise his record-based double-jeopardy claim in the state direct review proceedings. His attempt to bootstrap this claim by alleging that his appellate counsel should have asserted the claim on direct appeal is inefficacious. Under Ohio R.App. P. 26(B), the underlying claim of error cannot serve as an independent justification for reopening the appeal but, rather, only as an example of appellate counsel's ineffectiveness.

a) Cause for Procedural Default

A petitioner may overcome procedural default if he can demonstrate "`cause for the default and actual prejudice as a result of the alleged violation of federal law. ...'" Murphy v. Ohio, 551 F.3d 485, 502 (6th Cir.2009) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Petitioner fails to direct the Court to new evidence or case law to support his position that an application for reopening a motion for reconsideration under Ohio App. R. 26(A) due to ineffective assistance of counsel, which was denied for failure to assert an error in the appellate court's judgment and later denied review by the Ohio Supreme Court because the motion lacked any substantial constitutional question, constitutes cause for committing procedural default in regards to failing to appeal a double-jeopardy claim through direct appeal. Although appellate counsel's ineffectiveness may amount to cause for procedural default occurring in an appeal as of right to the Ohio Court of Appeals, cause cannot be established if the ineffective assistance of appellate counsel claim was itself procedurally defaulted. See Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Burroughs v. Makowski, 411 F.3d 665, 667-68 (6th Cir.2005) (per curiam), cert. denied, 546 U.S. 1017, 126 S.Ct. 653, 163 L.Ed.2d 529 (2005). The Court agrees with the Magistrate Judge's analysis that Petitioner lacks cause under this line of reasoning.

Petitioner's additional assertion of cause, that a subsequent "clarification of law" justified a delayed application for reconsideration, fails on two levels. (Doc. 17, 6.) The Supreme Court has held that "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); see also Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, at the time of Petitioner's direct appeal, Ohio appellate courts had split on the issue of the double-jeopardy claim herein. Cf. Bousley, 523 U.S. at 622, 118 S.Ct. 1604. Even assuming arguendo that the legal basis for Petitioner's claim was not reasonably available to appellate counsel at the time of Petitioner's direct appeal, this does not discount the analysis above regarding Petitioner's failure to appeal his motion for reconsideration. Petitioner conflates the procedural import of direct versus indirect appeals. As such, the Court concludes that Petitioner is unable to establish cause for his procedural default.

b) Fundamental Miscarriage of Justice

A petitioner may overcome procedural default if he can demonstrate that a "fundamental miscarriage of justice" will result if the court declines to consider his claims. Murphy, 551 F.3d 485, 502 (6th Cir.2009) (citing Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To demonstrate that a "fundamental miscarriage of justice" would occur absent review of a petitioner's claim, the petitioner must assert a credible claim of actual innocence that is supported by reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 315-16, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To establish actual innocence, a petitioner must demonstrate that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329, 115 S.Ct. 851. Thus, if the Schlup test is met, a federal habeas petitioner may have an otherwise barred constitutional claim considered on the merits.

In Sawyer v. Whitley, the Supreme Court narrowly held that a federal habeas court may review an otherwise defaulted claim under the exceptionally limited circumstances where the petitioner could demonstrate "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under applicable state law." 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Supreme Court recently affirmed the contours of the narrow "actual innocence" exception in Dretke v. Haley when it declined an opportunity to extend the actual innocence exception to noncapital sentencing errors. 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). The Sixth Circuit has not directly addressed this issue, but other circuits have provided some, albeit conflicting, guidance.

The circuits remain divided when interpreting the language of Sawyer and Dretke. The Second Circuit has adopted the broadest reading by seemingly endorsing the application of the actual innocence exception to all sentencing proceedings. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170-71 (2d Cir.2000). The Fourth and Fifth Circuits have taken a narrow approach by limiting the actual innocence exception to the context of eligibility for a career or habitual offender enhancement. United States v. Mikalajunas, 186 F.3d 490, 496 (4th Cir. 1999); United States v. Maybeck, 23 F.3d 888, 893 (4th Cir.1994) ("[W]e see little difference between holding that a defendant can be innocent of the acts required to enhance a sentence in a death case and applying a parallel rationale in non-capital cases."); Haley v. Cockrell, 306 F.3d 257, 265 (5th Cir.2002); see also Cristin v. Brennan, 281 F.3d 404, 422 (3d Cir.2002) ("Those courts that have extended Sawyer's holding on the `actual innocence' of a sentence have uniformly done so in the context of testing the factual findings on which a particular non-capital sentence is based, such as prior convictions.").

While the Ninth Circuit has not directly addressed this issue, district court cases support the conclusion that the actual innocence exception does not apply to sentencing error claims in noncapital cases. Nasset v. Belleque, No. 06-611-CL, 2008 U.S. Dist. LEXIS 115140, at *17 (D.Or. Sept. 11, 2008) (citing Downs v. McGee, CV 04-6215-MA, 2006 U.S. Dist. LEXIS 41260, 2006 WL 1582304, at *6 (D. Ore. June 1, 2006) ("neither the Ninth Circuit nor this court has expanded the actual innocence exception to permit a petitioner to attack a noncapital sentence."), aff'd, 246 Fed.Appx. 476 (9th Cir.2007)). The case law in three other circuits is sufficiently ambiguous as to prevent any divination in regards to the state of the law in each circuit. Compare, Jones v. Arkansas, 929 F.2d 375, 381 (8th Cir.1991), with Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir.1997).

The R & R correctly points out that the Sixth Circuit has yet to directly address this issue except to state that the Supreme Court has not issued a clear ruling on whether or not to extend the actual innocence exception to noncapital cases. Ross v. Berghuis, 417 F.3d 552, 557 (6th Cir. 2005). In two earlier unpublished opinions, the Sixth Circuit rejected any extension of the actual innocence exception to noncapital cases. Flahardy v. United States, No. 95-5281, 1995 WL 570925, at *2, 1995 U.S.App. LEXIS 36911, at *6 (6th Cir. Sept. 27, 1995) (unpublished); Black v. United States, No. 95-5041, 1995 WL 445718, at *2, 1995 U.S.App. LEXIS 20847, at *5 (6th Cir. July 26, 1995) (unpublished). For noncapital cases, the Sixth Circuit held that claims of actual innocence were reserved only for cases where the petitioner asserted substantive innocence of the actual offense. Flahardy, 1995 WL 570925, at *1-2, 1995 U.S.App. LEXIS 36911, at *5-6; Black, 1995 WL 445718, at *1-2, 1995 U.S.App. LEXIS 20847, at *4-5; see also Gibbs v. United States, 2:97-CV-556, 2009 WL 1024456, at *8, 2009 U.S. Dist. LEXIS 35002, at *21-22 (S.D.Ohio Apr. 15, 2009) (unpublished).

The Court agrees with the Magistrate Judge that unpublished Sixth Circuit precedent and analogous cases in other circuits weigh against extending the actual innocence exception to consecutive sentences in noncapital cases. See, e.g., Selsor v. Kaiser, 22 F.3d 1029, 1035 (10th Cir.1994) (noting "that even if the petitioner prevailed on the merits of his double jeopardy claim he would not show factual innocence; rather, doing so would show only legal innocence of part of his conviction.") (quotations omitted). Assuming arguendo that the actual innocence exception extends to noncapital offenses involving double-jeopardy claims, actual innocence can be used to obviate procedural default for an untimely filing of a habeas-corpus petition in a noncapital case only if the petitioner can prove his innocence of the sentence imposed. See Ross, 417 F.3d at 555-57; see, e.g., Goldman v. Winn, 565 F.Supp.2d 200, 228 (D.Mass.2008) (granting habeas relief pursuant to 28 U.S.C.S. § 2241, and holding that the inmate's clear and convincing evidentiary showing of actual innocence excused the default).

Petitioner's showing of actual innocence would serve as a "gateway" to hear his otherwise defaulted claim that his consecutive sentences were improper as the sentencing was in violation of the Double Jeopardy Clause. It is difficult for this Court to conclude that petitioner can meet this "actual innocence" exception in view of the fact that the record suggests that Petitioner would have been separately convicted of trafficking and possession. (Doc. 12, 23-24.)

It is well established that either cause and prejudice or a fundamental miscarriage of justice must be established in order to excuse procedural default. Johnson v. Wolfenbarger, 391 Fed.Appx. 510, 513-14 (6th Cir.2010) (citing Murray, 477 U.S. at 488, 106 S.Ct. 2639 (1986) and Murphy, 551 F.3d at 501-02). Petitioner cannot demonstrate that either the cause and prejudice or the fundamental miscarriage of justice exceptions apply to his case. Therefore, this Court must conclude that his second ground is procedurally defaulted, and habeas relief is not warranted.

III. CONCLUSION

After reviewing this matter de novo, the Court ADOPTS the magistrate judge's R & R. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice.

A certificate of appealability will be issued, and in forma pauperis status will be granted consistent with the opinion by the Magistrate Judge as outlined in the R & R (Doc. 12).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

TIMOTHY S. HOGAN, United States Magistrate Judge.

Petitioner, a prisoner in state custody at the Chillicothe Correctional Institution in Chillicothe, Ohio, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the assistance of counsel from the Ohio Public Defender's Office. This matter is before the Court on the petition, respondent's "Answer/Return Of Writ" with exhibits, and petitioner's "traverse" in reply to the return of writ. (Docs. 2, 5, 10).

Background

On March 13, 2006, the Scioto County, Ohio, grand jury returned a two-count indictment charging petitioner with first-degree-felony drug possession and trafficking offenses; the indictment also contained a major drug offender specification and forfeiture specification. (Doc. 5, Ex. 1).

It appears from the record that petitioner appeared before the Scioto County Common Pleas Court for arraignment on April 13, 2006, where counsel was appointed to represent him. (See id., Ex. 7, p. 2). Pretrial and suppression hearings were held on May 4 and 5, 2006, and the trial was scheduled to commence on May 8, 2006. (Id.).

On the morning of the scheduled trial date, a new, privately retained attorney filed a motion requesting that he be allowed to "substitute in as defense counsel," to replace petitioner's court-appointed attorney. (See id., Ex. 2 & May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 2). A hearing was held on the record, where the retained attorney also requested a continuance of the trial date for the purpose of preparing a defense. (Id., May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 3). Petitioner's court-appointed attorney addressed the court as well, stating:

(Id., Tr. 3-4).

After hearing further arguments by the two attorneys, as well as the prosecuting attorney who opposed any continuance of the trial date, the court overruled the motion for leave to substitute counsel on the record. (Id., Tr. 6). In so ruling, the court stated:

(Id.).

At that point, petitioner "entered into negotiations that resulted in a no contest plea to both counts of the indictment." (See id., Ex. 7, p. 3). Petitioner entered the plea at a hearing held on the record on May 8, 2006. (See id., May 8, 2006 Plea and Sentencing Tr.). It appears from the record that petitioner agreed as a term of the plea bargain to the imposition of consecutive ten-year terms of imprisonment totaling twenty (20) years, and that in exchange, no additional sentence was to be imposed based on petitioner's status as a "major drug offender" on the attached specification. (Id., Tr. 2, 21). In a Judgment Entry filed May 10, 2006, petitioner was sentenced in accordance with the plea agreement to consecutive mandatory ten-year prison terms "for a total of 20 years." (Id., Ex. 4, pp. 3-4).

With the assistance of the same attorney who had sought to replace petitioner's court-appointed counsel at the trial level, petitioner timely appealed to the Ohio Court of Appeals, Fourth Appellate District, raising two assignments of error:

(See id., Ex. 5).

On April 17, 2007, 2007 WL 1165863, the Ohio Court of Appeals overruled the assignments of error and affirmed the trial court's judgment. (Id., Ex. 7).

Petitioner filed a pro se appeal to the Ohio Supreme Court. In his memorandum in support of jurisdiction, he re-asserted the two claims of error that had been presented to the Ohio Court of Appeals and also claimed as additional propositions of law that (1) his no contest plea was invalid because he believed when he entered the plea that he could challenge his stipulated sentence on appeal; and (2) his appellate counsel was ineffective in failing to raise on appeal the claim contesting the no contest plea "to an agreed sentence which [petitioner] though[t] he had the right to challenge" on appeal. (See id., Ex. 8). On October 3, 2007, 874 N.E.2d 538 (2007), the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 9).

In the meantime, on June 5, 2007, petitioner also filed with the Ohio Court of Appeals, Fourth Appellate District, a timely pro se application for reopening of the appeal under Ohio R.App. P. 26(B), raising the same claim of ineffectiveness on the part of his appellate counsel that he had separately presented in his appeal to the Ohio Supreme Court. (Id., Ex. 10). Thereafter, petitioner amended the application to add another ineffective assistance of appellate counsel claim based on counsel's failure to assert as an assignment of error that "[t]he trial court erred to the prejudice of appellant by imposing consecutive terms of imprisonment in violation of R.C. 2941.25 and in violation of appellant's Fifth and Fourteenth Amendment[] rights against double jeopardy." (Id., Ex. 11).

On September 28, 2007, the Ohio Court of Appeals denied petitioner's reopening application after addressing and rejecting both ineffective assistance of appellate counsel claims on the merits. (Id., Ex. 14). Respondent states that petitioner did not appeal this decision to the Ohio Supreme Court. (Id., Brief, p. 6).

Over seven months later, on May 9, 2008, counsel from the Ohio Public Defender's Office filed a delayed application for reconsideration under Ohio R.App. P. 26(A) with the Ohio Court of Appeals on petitioner's behalf. (Id., Ex. 15). In the application, counsel contended that the Ohio Court of Appeals had erred in rejecting the double jeopardy claim asserted as a basis for finding that petitioner's appellate counsel was ineffective; specifically, counsel contended that the Ohio Supreme Court's April 9, 2008 decision in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181 (Ohio 2008), which resolved a conflict among the lower appellate courts regarding the standard for determining allied offenses of similar import, mandated that the drug possession and trafficking offenses charged against petitioner be deemed allied offenses that should have been merged for sentencing purposes. (See id.).

On June 30, 2008, the Ohio Court of Appeals denied the delayed application for reconsideration, reasoning in pertinent as follows:

(Id., Ex. 16).

Petitioner's counsel filed a timely appeal from this decision to the Ohio Supreme Court. (Id., Ex. 17). On October 15, 2008, 894 N.E.2d 1245 (2008), the Ohio Supreme Court summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 18).

Petitioner's counsel from the Ohio Public Defender's Office next commenced the instant federal habeas action on petitioner's behalf. In the petition filed on December 29, 2008, petitioner alleges two grounds for relief:

(Doc. 2, pp. 16-18).

In the return of writ filed in response to the petition, respondent contends that petitioner has waived his second ground for relief, which he procedurally defaulted in the state courts, and that petitioner has not demonstrated he is entitled to habeas relief based on the merits of the claim alleged in his first ground for relief. (Doc. 5, pp. 8-18).

OPINION

A. Petitioner Is Not Entitled To Relief Based On The Claim In Ground One Challenging The Denial Of His Motion For Substitution Of Counsel

In Ground One of the petition, petitioner alleges that he was denied due process and his Sixth Amendment right to counsel of his own choosing when the trial court denied a motion filed on his behalf the morning the trial was scheduled to commence for substitution of his court-appointed counsel by a retained attorney, who also requested a continuance in order to prepare a defense. (Doc. 2, pp. 16-17; see also Doc. 5, May 8, 2006 Hearing on Motion to Substitute Counsel Tr.). This claim, which petitioner exhausted in the state direct review proceedings, is subject to review on the merits.

The Ohio Court of Appeals was the last state court to issue a reasoned decision addressing the claim of constitutional error. In overruling petitioner's assignment of error, the court made findings of fact, which are presumed correct under 28 U.S.C. § 2254(e)(1),1 and ruled in relevant part as follows:

(Doc. 5, Ex. 7, pp. 4-8) (footnote and state case citations omitted) (emphasis in original).

In so ruling, the state appellate court did express concerns in a footnote about the State's disclosure of "supplemental discovery" to the defense four days before the trial was scheduled to commence. Specifically, the court emphasized that if petitioner's court-appointed attorney had moved for a continuance of the trial at the pretrial hearings held on May 4 and 5, 2006, when the disclosure was made, "the trial court would have been hard pressed to justify denying" the motion; the court noted further that its decision "should not be viewed as condoning belated discovery practices by the state" and that, given the "last minute disclosures by the state" in the instant case, "we would give rigorous scrutiny to a decision denying a timely request for a continuance." (Id., p. 7 n. 1).

In this federal habeas case, the applicable standard of review governing the adjudication of petitioner's claim in Ground One challenging the trial court's denial of his motion for substitution of counsel is set forth in 28 U.S.C. § 2254(d). Pursuant to this standard, petitioner is not entitled to relief unless the state courts' adjudication of his claim resulted in a decision that (1) is contrary to, or involves an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., writing for majority on this issue); Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998).

A state court decision is "contrary to" clearly established federal law as determined by the Supreme Court if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495 (O'Connor, J.); Harris, 212 F.3d at 942. An "unreasonable application" of Supreme Court precedent occurs (1) if the state court identifies the correct legal standard but unreasonably applies it to the facts of the case, or (2) if the state court either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407-08, 120 S.Ct. 1495 (O'Connor, J.).

Under § 2254(d)(1)'s "unreasonable application" clause, a federal habeas corpus court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495 (O'Connor, J.); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir.2000); Harris, 212 F.3d at 942.

The reasonableness inquiry is an objective one; it does not involve a subjective inquiry into whether or not reasonable jurists would all agree that the state court's application was unreasonable. Williams, 529 U.S. at 409-10, 120 S.Ct. 1495 (O'Connor, J.); see also Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000); Harris, 212 F.3d at 942-43. Moreover, the writ may issue only if the application is objectively unreasonable "in light of the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." McGhee, 229 F.3d at 510, 512 (citing Williams, 529 U.S. at 412, 120 S.Ct. 1495).

In this case, although the Ohio Court of Appeals primarily relied on state cases in addressing petitioner's claim of constitutional error, it utilized standards of review that comport with applicable, well-established Supreme Court precedents, and reasonably applied those standards in rejecting petitioner's claim on the merits.

As the Ohio Court of Appeals apparently understood, it is well-settled that the Sixth Amendment right to counsel encompasses "the right of a defendant who does not require appointed counsel to choose who will represent him."2 See United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (citing Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), and Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). However, as the state appellate court also understood, the right is not absolute. See id. (citing Wheat, 486 U.S. at 159, 108 S.Ct. 1692); see also United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir.), cert. denied, 552 U.S. 1009, 128 S.Ct. 531, 169 L.Ed.2d 371 (2007). The Supreme Court has recognized that a trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness ... and against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557 (citing Wheat, 486 U.S. at 163-64, 108 S.Ct. 1692, and Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)).

The Supreme Court's decision in Morris is particularly instructive here. In Morris, the petitioner's initial attorney was hospitalized shortly before trial, and six days before the scheduled trial date, a colleague was substituted to represent petitioner at trial. Morris, 461 U.S. at 5, 103 S.Ct. 1610. On the first two days of trial, petitioner made comments complaining about the inadequacy of his new counsel's investigation and the lack of time for preparation, which the trial court construed as a request for a continuance; the request was denied. See id. at 6-8, 103 S.Ct. 1610. On the third day of trial, petitioner presented the trial court with a petition, claiming that he was "unrepresented by counsel" and expressing dissatisfaction with his new attorney's performance. Id. at 8, 103 S.Ct. 1610. The court treated the petition as a renewed request for a continuance until petitioner's original attorney could represent him again; the request was denied. Id. At that point, the petitioner announced that he would not cooperate at the trial, and against counsel's advice, refused to take the stand to testify in his defense. Id. at 8-9, 103 S.Ct. 1610.

In addressing the question whether the court's denial of the petitioner's requests for continuance effectively deprived petitioner of his Sixth Amendment right to counsel of choice, the Court stated:

Morris, 461 U.S. at 11-12, 103 S.Ct. 1610 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). The Court held that the trial court was "abundantly justified in denying [the petitioner's] midtrial motion for continuance so as to have [his original attorney] represent him," because "it could reasonably have concluded that [the petitioner's] belated requests to be represented by [the attorney] were not made in good faith but were a transparent ploy for delay." Id. at 13, 103 S.Ct. 1610.

Although Morris was decided in the context of the denial of a request for a continuance, the decision is pertinent to the issue to be addressed herein involving the denial of a request for substitution of counsel. Cf. Henness v. Bagley, No. 2:01cv43, 2007 WL 3284930, at *46 (S.D.Ohio Oct. 31, 2007) (unpublished); see also Charley v. Bagley, No. 1:03cv1607, 2006 WL 1624240, at *8 (N.D.Ohio June 2, 2006) (unpublished) (denying habeas relief because the Ohio appellate court's application of Morris in upholding the trial court's refusal to appoint substitute counsel was reasonable).

As the court stated in Henness, supra, 2007 WL 3284930, at *46:

Here, neither the trial court's denial of petitioner's request for new counsel nor the Ohio Court of Appeals' decision upholding that ruling are unreasonable under Morris.

First, as in Morris, the Ohio Court of Appeals properly considered the timing of petitioner's request, made belatedly on the first day of trial for the purpose of allowing additional time to prepare a defense, as well as the resulting inconvenience to "the witnesses, opposing counsel, and the court." In opposing the motion for substitution of counsel, the prosecutor pointed out that both the prosecutor's office and the court had such busy schedules, with a "number of cases set over the summer on a weekly basis," that it was difficult to even schedule the May 8th trial date at the initial pretrial conference in order to comply with speedy trial time constraints. (See Doc. 5, May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 5). Although retained counsel indicated that "as part of my Motion for Leave to Substitute[,] I had obviously prepared a ... Motion for a continuance which did contain a speedy trial waiver," by that point, the State had "fifteen witnesses standing by," including a prisoner who had been transported to the courthouse from a state penal institution. (See id., Tr. 6). In addition, by that point, the trial court also was inconvenienced because, in the absence of any "indication whatsoever that other counsel was even considered," it had continued "two to three other cases" on its "overcrowded docket" on the Friday before the scheduled Monday trial date "in anticipation of this going to trial." (Id.).

Second, as the Ohio Court of Appeals further pointed out in rejecting petitioner's claim, petitioner has not shown that his relationship with his court-appointed attorney was such that the attorney was unable to provide competent representation. In overruling petitioner's motion for leave to substitute counsel, the trial court expressly noted that petitioner had never indicated that he was even considering other counsel to represent him. Moreover, there is no evidence in the record to suggest that petitioner had any problems or conflicts with his appointed counsel, who prior to May 8, 2006, "never voic[ed] any reservations during pretrial hearings concerning preparation for trial or the need for a continuance." (See Doc. 5, Ex. 7, p. 7). Indeed, at the hearing on the motion to substitute counsel, petitioner's appointed counsel indicated that he had already spent an extensive amount of time over the previous weekend preparing for trial and planned to return to his office after the first day of testimony "for probably another eight hours to prepare for cross examination." (Id., May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 3-4).

Instead, the only concern that retained and court-appointed counsel conveyed to the court at the hearing pertained to both attorneys' inability to adequately prepare a defense responding to the State's belated "supplemental discovery" provided four days earlier at a pretrial conference that petitioner "was being considered as someone who has done other acts, someone who is above the wholesale level." (See id., Tr. 3). As the Ohio Court of Appeals noted, if counsel had timely moved for a continuance at the pretrial conference, the trial court "would have been hard pressed" to justify the denial of a continuance.3 However, no request for a continuance was asserted at that time; instead, petitioner waited until the first day of trial four days later to seek a continuance by way of the motion for substitution of counsel, after witnesses, opposing counsel, and the trial court had been inconvenienced. Under these circumstances, in the absence of any evidence of conflicts or other problems in petitioner's relationship with appointed counsel, it was reasonable for the Ohio Court of Appeals to conclude that the motion for substitution of counsel was "not made in good faith but w[as] a transparent ploy for delay," Morris, 461 U.S. at 13, 103 S.Ct. 1610. (See Doc. 5, Ex. 7, p. 7).4

The Ohio Court of Appeals' determination also comports with Sixth Circuit precedents, which hold that a motion for new counsel is "addressed to the sound discretion of the trial court." United States v. Trujillo, 376 F.3d 593, 606 (6th Cir.2004) (quoting United States v. White, 451 F.2d 1225, 1226 (6th Cir.1971) (per curiam)); see also Mooneyham, 473 F.3d at 291. The Sixth Circuit cites four factors to consider in ruling on these motions: (1) the timeliness of the motion; (2) the adequacy of the court's inquiry into the matter; (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense; and (4) the balancing of these factors with the public's interest in the prompt and efficient administration of justice. Trujillo, 376 F.3d at 606 (and cases cited therein); see also Mooneyham, 473 F.3d at 291. The Sixth Circuit also has held that "[w]hen `the granting of the defendant's request [for substitution of counsel] would almost certainly necessitate a last-minute continuance, the trial judge's actions are entitled to extraordinary deference.'" United States v. Vasquez, 560 F.3d 461, 467 (6th Cir.) (quoting United States v. Whitfield, 259 Fed.Appx. 830, 834 (6th Cir.2008) (not published in Federal Reporter), in turn quoting United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995), cert. denied, 518 U.S. 1033, 116 S.Ct. 2580, 135 L.Ed.2d 1094 (1996)), cert. denied, ___ U.S. ___, 130 S.Ct. 476, 175 L.Ed.2d 319 (2009).

Here, under the first factor, and as the Ohio Court of Appeals emphasized, petitioner's request for new counsel made on the first day of trial was untimely. See, e.g., Bailey v. Trombley, No. 05-10190, 2008 WL 2937843, at *8 (E.D.Mich. July 24, 2008) (unpublished); cf. White, 451 F.2d at 1226 (holding that "the refusal of the [court] to appoint substitute counsel on the eve of the trial" is not improper); Edsall v. Lazaroff, 208 F.3d 213 (table), No. 99-3128, 2000 WL 263273, at *2 (6th Cir. Mar. 10, 2000) (unpublished), cert. denied, 531 U.S. 842, 121 S.Ct. 107, 148 L.Ed.2d 65 (2000).

The trial court did not conduct an extensive inquiry into the substance of petitioner's complaint about his court-appointed counsel. But, it appears clear from the record that the competency of counsel's representation was not at issue; rather, petitioner's complaint stemmed from the relatively short amount of time accorded to him to prepare a defense responding to the State's belated disclosure of "other acts" evidence. The record does not reveal the existence of any conflict between petitioner and his appointed counsel that was so great it resulted in a total lack of communication preventing an adequate defense. Therefore, upon weighing all the factors, the trial court acted within its discretion to decide in favor of the public's interest in the prompt and efficient administration of justice.

Accordingly, in sum, the undersigned concludes that the state courts' adjudication of the constitutional claim alleged in Ground One of the petition neither is contrary to nor involves an unreasonable application of clearly-established federal law as determined by the United States Supreme Court in Wheat and Morris and their progeny. In light of the circumstances presented herein, the trial court's decision to deny petitioner's motion for substitution of counsel filed the first day of trial was reasonable and does not trigger concerns that petitioner was deprived of his Sixth Amendment right to counsel of his own choosing. Petitioner, therefore, is not entitled to relief based on the claim alleged in Ground One of the petition.

B. Petitioner Has Waived The Claim Alleged In Ground Two Of The Petition As A Result Of His Procedural Default In The State Courts

In Ground Two of the petition, petitioner essentially challenges the validity of the plea agreement, in which he agreed to plead no contest to allied offenses of similar import and to the imposition of multiple punishments for those offenses in violation of the Double Jeopardy Clause. He contends that the state appellate courts committed constitutional error when they refused to remand the matter to the trial court for merger of the allied offenses and for a reduction in his sentence in accordance with the Ohio Supreme Court's April 2008 Cabrales decision. (Doc. 2, pp. 17-18).

In the return of writ, respondent contends that petitioner has waived this claim for federal habeas relief, which was not asserted as an independent assignment of error on direct appeal. It is respondent's position that to the extent petitioner raised the claim as an example of appellate counsel's ineffectiveness in his pro se application for reopening of the direct appeal, the claim is procedurally defaulted because petitioner failed to timely appeal the denial of his reopening application to the Ohio Supreme Court. (Doc. 5, Brief, pp. 8-11).

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 v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The claims 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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir.), cert. denied, 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985).

If petitioner fails to fairly present a claim through the requisite levels of state appellate review to the state's highest court or commits some other procedural default relied on to preclude review of the merits of such claim by the state's highest court, and if no avenue of relief remains open or if it would otherwise be futile for petitioner to continue to pursue the claim in the state courts, his claim for habeas corpus relief is subject to dismissal with prejudice on the ground that it is waived. See O'Sullivan, 526 U.S. at 847-848, 119 S.Ct. 1728; Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (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).

If, because of a procedural default, petitioner has not had a claim considered by the state's highest court and he can no longer present the claim to the state courts, he has waived such claim for purposes of federal habeas corpus review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error, or that failure to consider the claim will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In this case, petitioner committed a procedural default by failing to raise his record-based double jeopardy claim in the state direct review proceedings. Although he alleged in his pro se application for reopening of the appeal that his appellate counsel should have asserted the claim as an assignment of error on direct appeal, under Ohio R.App. P. 26(B), the underlying claim of error cannot serve as an independent justification for reopening the appeal but rather only as an example of appellate counsel's ineffectiveness.

Petitioner, nevertheless, contends in his "traverse" brief that there is no procedural bar to review of the underlying double jeopardy claim, because it was fully exhausted in the state courts by way of his delayed application for reconsideration of the denial of his reopening application based on the Ohio Supreme Court's April 2008 Cabrales decision. (Doc. 10, pp. 7-8). The undersigned disagrees.

The only claim that would have been subject to reconsideration by the Ohio Court of Appeals at that point was petitioner's ineffective assistance of appellate counsel claim. In any event, the court did not address the merits of either the ineffective assistance of appellate counsel claim or the underlying double jeopardy claim in refusing to grant the motion for delayed reconsideration. The court, instead, denied the application based on concerns that the reopening of "every case potentially affected by a later decision from the [Ohio] Supreme Court" would undermine the "finality of every judgment," and most importantly, because petitioner "could have appealed our denial of his [reopening] application, but he chose not to." (See Doc. 5, Ex. 16). The Ohio appellate court's reliance on these state procedural bars to review in denying the delayed application for reconsideration constitute adequate and independent state-law grounds for its decision, which foreclose review by this Court of the underlying federal constitutional claims. See Harris, 489 U.S. at 260-62, 109 S.Ct. 1038.5

Accordingly, in sum, the Court concludes that petitioner procedurally defaulted the double jeopardy claim alleged in Ground Two of the petition in the state courts. He, therefore, has waived this ground for federal habeas relief unless he can show cause and prejudice for his default or that failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Murray, 477 U.S. at 485, 106 S.Ct. 2639; Engle, 456 U.S. at 129, 102 S.Ct. 1558; Sykes, 433 U.S. at 87, 97 S.Ct. 2497.

Petitioner is unable to demonstrate that his appellate counsel's ineffectiveness constitutes "cause" for his failure to raise the double jeopardy claim as an independent ground for relief on direct appeal. Although it is well-settled that appellate counsel's ineffectiveness may amount to cause for a procedural default occurring in an appeal as of right to the Ohio Court of Appeals, cause cannot be established if the ineffective assistance of appellate counsel claim was itself procedurally defaulted. See Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Burroughs v. Makowski, 411 F.3d 665, 667-68 (6th Cir.) (per curiam), cert. denied, 546 U.S. 1017, 126 S.Ct. 653, 163 L.Ed.2d 529 (2005).

Here, petitioner procedurally defaulted the ineffective assistance of appellate counsel claim when he failed to file a timely appeal to the Ohio Supreme Court from the denial of his reopening application. At this juncture, no avenue remains open to petitioner in the state courts to pursue such a claim because delayed appeals to the Ohio Supreme Court of Ohio are not permitted for "appeals involving postconviction relief, including appeals brought pursuant to . . . App. R. 26(B)." See Rule II, § 2(A)(4)(a)-(b), Rules of Practice of the Supreme Court of Ohio. Any argument that petitioner's procedural default was cured by way of his subsequent, fully-exhausted, delayed application for reconsideration is unavailing, because the state courts refused to reconsider the denial of the reopening application in part because petitioner had not appealed that decision to the Ohio Supreme Court.

Petitioner also is unable to prevail on any claim that changes in the controlling law stemming from the Ohio Supreme Court's April 2008 decision in Cabrales constitute "cause" for his procedural default in the state courts. The Supreme Court has held that "where a . . . claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); see also Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, at the time of petitioner's direct appeal, there was sufficient debate among the Ohio appellate courts about the double jeopardy issue posed herein that petitioner is unable to establish cause based on this argument. Cf. Bousley, 523 U.S. at 622, 118 S.Ct. 1604. In any event, even assuming, arguendo, that the legal basis for the claim was not reasonably available to appellate counsel at the time of petitioner's direct appeal, petitioner is unable to rely on this argument to justify his subsequent default in failing to appeal the denial of his pro se reopening application, which raised the double jeopardy claim as an example of appellate counsel's ineffectiveness, to the Ohio Supreme Court. Finally, to the extent petitioner contends that his default should be excused because it would have been "futile" for him to pursue a further appeal before the state supreme court decided Cabrales, the Supreme Court has expressly rejected such an argument, holding that "futility cannot constitute cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'" Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Engle, 456 U.S. at 130 n.5, 102 S.Ct. 1558).

Therefore, the Court concludes that petitioner is unable to establish cause for his procedural default in this case.

A closer question is presented as to whether petitioner's procedural default should be excused to prevent a fundamental miscarriage of justice. Under this exception, review is permitted in those "rare" or "extraordinary" cases where it is shown that the alleged constitutional violation "probably resulted in the conviction of one who is actually innocent." Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2678); see also Schlup v. Delo, 513 U.S. 298, 319-21, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Here, the argument can be made that petitioner may have entered a plea of no contest and agreed to the imposition of consecutive sentences for drug possession and trafficking offenses that the Ohio Supreme Court later determined in Cabrales are "allied offenses of similar import." See Cabrales, 886 N.E.2d at 188-89 (holding that "trafficking in a controlled sub-stance under R.C. 2925.03(A)(2) and possession of that same substance under R.C. § 2925.11(A) are allied offenses of similar import" and, therefore, must merge for sentencing purposes).6 Under this theory, further arguments can be made that petitioner's no contest plea is invalid because the parties were mistaken about petitioner's eligibility for the imposition of consecutive sentences under the Double Jeopardy Clause, and that petitioner is thus "actually innocent" of the sentence that was imposed.7

The "prototypical example of `actual innocence'. . . is the case where the State has convicted the wrong person of the crime." Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Although in Sawyer the Supreme Court recognized that the exception applies to capital cases where it is shown that the defendant is actually innocent of the death penalty, the Court has yet to decide the issue, which has caused a split among the circuit courts, as to whether the exception extends to the noncapital sentencing context. See Dretke v. Haley, 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). In the absence of guidance from the Supreme Court, some circuit courts have held that the exception does not extend to any claims of sentencing error in noncapital cases. See, e.g., Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997) (en banc), cert. denied, 525 U.S. 828, 119 S.Ct. 78, 142 L.Ed.2d 61 (1998); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993); cf. Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997) (holding that the "actual innocence" exception as extended to sentencing issues did not survive the Antiterrorism and Effective Death Penalty Act of 1996 and that, therefore, "a successive motion under 28 U.S.C. § 2255 (and presumably a successive petition for habeas corpus under section 2254 . . .) may not be filed on the basis of newly discovered evidence unless the motion challenges the conviction and not merely the sentence").

In contrast, in a case involving the rescission of probation and imposition of a sentence based on the petitioner's breach of a plea agreement condition that he may not have committed, the Second Circuit held in general terms that the actual innocence exception applies to noncapital sentencing decisions. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170-71 (2nd Cir.2000). In another case, a district court within the Second Circuit held that the actual innocence exception "is properly extended to the narrow group of non-capital cases where the petitioner: (1) alleges and proves that a constitutional violation resulted in the sentence. . .; (2) demonstrates that he is innocent of the facts necessary to impose his sentence by clear and convincing evidence. . .; and (3) proves that the sentence received exceeded the maximum permitted by applicable statute." Borrego v. United States, 975 F.Supp. 520, 525 (S.D.N.Y.1997). In Borrego, the court concluded that the federal prisoner's § 2255 petition fell within the actual innocence exception "[i]n view of the conceded Ex Post Facto violation," which demonstrated that the petitioner was innocent of the facts necessary to impose his sentence and that the sentence exceeded the maximum available penalty for his crime. Id. at 527.

Finally, the Fourth Circuit has held that the actual innocence exception applies to noncapital sentencing, but "only in the context of eligibility for application of a career offender or other habitual offender [sentencing] provision." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999), cert. denied, 529 U.S. 1010, 120 S.Ct. 1283, 146 L.Ed.2d 230 (2000).8

The Sixth Circuit has not issued a published decision addressing this issue, except to point out in one case that the Supreme Court had noted in Dretke, 541 U.S. at 396, 124 S.Ct. 1847, that the question whether or not "to extend Sawyer's `innocence of the penalty' analysis to non-capital penalties" is a "difficult unanswered question." See Ross v. Berghuis, 417 F.3d 552, 557 (6th Cir.2005). However, in prior unpublished decisions, which have been cited and followed by district courts within the Sixth Circuit, the court has summarily held that the "actual innocence exception is not available . . . in the case of a challenge to a noncapital sentence." See, e.g., Flahardy v. United States, 67 F.3d 299 (table), No. 95-5281, 1995 WL 570925, at *2 (6th Cir. Sept. 27, 1995) (unpublished); Black v. United States, 61 F.3d 903 (table), No. 95-5041, 1995 WL 445718, at *2 (6th Cir. July 26, 1995) (unpublished); see also Gibbs v. United States, Nos. 2:97cv55, 2:91cr128(19), 2009 WL 1024456, at *7-8 (S.D.Ohio Apr. 15, 2009) (Graham, J.) (unpublished) (involving challenge to sentence as a career offender); Davis v. Stegall, No. Civ. 02-73093-DT, 2003 WL 1867920, at *5 (E.D.Mich. Mar. 17, 2003) (unpublished); cf. Dabbs v. Bell, No. 3:07-0048, 2008 WL 743967, at *3 (M.D.Tenn. Mar. 19, 2008) (unpublished) (without citing the unpublished Sixth Circuit decisions, the district court ruled after "stud[ying] the competing authority" that "the actual innocence exception should not apply to non-capital sentences").

In light of the unpublished Sixth Circuit precedents followed within this circuit, the undersigned declines to find that the actual innocence exception should apply to any claim that, as a result of a double jeopardy violation, petitioner is actually innocent of the consecutive sentences that were imposed in this case. Cf. Gibbs, supra, 2009 WL 1024456, at *7-8; see also Selsor v. Kaiser, 22 F.3d 1029, 1035-36 (10th Cir. 1994) (in an analogous case, the Tenth Circuit rejected the petitioner's claim that because the parties had agreed he was placed in double jeopardy by virtue of being punished for both felony murder and the underlying armed robbery felony, the petitioner was actually innocent of the sentence he received for armed robbery; in so ruling, the court distinguished cases applying the actual innocence exception to sentences that required "a separate showing from the proof required to convict").

In any event, to the extent that petitioner's "quarrel is not really with his sentence," but with the fact that he was multiply convicted for the same conduct, numerous courts have held that a double jeopardy claim does not satisfy the fundamental miscarriage of justice exception in the absence of a showing that the defendant is factually (as opposed to legally) innocent of the underlying offenses. See, e.g., Selsor, 22 F.3d at 1034-35 (relying on Steele v. Young, 11 F.3d 1518, 1522 & n.8 (10th Cir.1993), and Wallace v. Lockhart, 12 F.3d 823, 826-27 (8th Cir.1994), in holding that a meritorious double jeopardy claim was insufficient to establish a fundamental miscarriage of justice); Waite v. United States, 74 F.3d 1242 (table), No. 95-1384, 1996 WL 4359, at *1 (7th Cir. Jan. 3, 1996); Drummond v. United States, 41 F.3d 664 (table), No. 94-60419, 1934 WL 2663, at *2 (5th Cir. Nov. 23, 1994) (per curiam) (unpublished); Harms v. Conway, No. CV06-34-S-LMB, 2007 WL 2265116, at *6 (D.Idaho Aug. 6, 2007) (unpublished); Donaldson v. United States, Nos. 01-CV-1061(NPM), 92-CR-51-001, 2003 WL 22959502, *4 (N.D.N.Y. Oct. 27, 2003) (unpublished); Montemayor de la Paz v. United States, No. Civ.A.4:01cv344-Y, 2002 WL 66915, at *3-4 (N.D.Tex. Jan. 11, 2002) (unpublished), appeal dismissed, 54 Fed.Appx. 794 (5th Cir.2002) (not published in Federal Reporter); United States v. Wesson, No. 97 C 7339, 1998 WL 30695, at *11 (N.D.Ill. Jan. 22, 1998) (unpublished);9 cf. Embrey, 131 F.3d at 741.

Even assuming, arguendo, that a meritorious double jeopardy claim should fall within the fundamental miscarriage of justice exception, in this case, evidence was disclosed at the plea hearing indicating that in addition to the 442 grams of crack cocaine discovered on December 14, 2005, which led to petitioner's indictment for drug possession and trafficking, the State was planning to present evidence at petitioner's trial that "between October 1, 2005 and December 16, 2005 on at least five occasions but more likely every day or every other day, . . . this Defendant brought into Scioto County roughly 3,000 grams of crack cocaine which has a street value of One and a half million dollars." (See Doc. 5, May 8, 2006 Plea and Sentencing Tr. 18). This evidence suggests that, contrary to petitioner's contention, petitioner could have been separately convicted and sentenced on both the possession and trafficking charges.

Accordingly, in sum, the Court concludes that petitioner has waived the double jeopardy claim alleged in Ground Two of the petition in the absence of a showing of cause for his procedural default in the state courts or that failure to consider the claim will result in a fundamental miscarriage of justice.

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 2) be DENIED with prejudice.

2. A certificate of appealability should issue with respect to both grounds for relief alleged in the petition. With respect to the claim alleged in Ground One, which was reviewed on the merits herein, the issue presented is "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)); see also 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b). With respect to the claim alleged in Ground Two, which this Court has concluded is waived and thus procedurally barred from review, "jurists of reason" would find it debatable (1) whether this Court is correct in its procedural ruling, and (2) whether petitioner has stated a viable constitutional claim. See Slack, 529 U.S. at 484-85, 120 S.Ct. 1595.

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 be taken in "good faith," and therefore GRANT petitioner leave to appeal in forma pauperis. See Fed. R.App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), within fourteen (14) days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).