KATHLEEN B. BURKE, Magistrate Judge.
Petitioner Timothy Nash ("Petitioner" or "Nash") brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Nash was detained at the Richland Correctional Institution, having been convicted by a Cuyahoga County, Ohio, Court of Common pleas jury of theft (Count 2), disrupting public service (Count 4), and interference with electric wires (Count 6). Doc. 1-7, pp 1-2.
On August 28, 2013, Nash filed his Petition for Writ of Habeas Corpus setting forth three grounds for relief. Doc. 1, p. 1-15. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. As set forth more fully below, Grounds One and Two are procedurally defaulted and Ground Three is noncognizable. Thus, the undersigned recommends that Nash's Petition for Writ of Habeas Corpus (Doc. 1) be
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).
The following summary of underlying facts is taken from the state trial court's Findings of Facts and Conclusions of Law:
Doc. 13-2, p. 77 (internal citations to the record omitted).
The September 2011 term of the Cuyahoga County Grand Jury issued an indictment with five separate counts: breaking and entering, aggravated theft, vandalism, disrupting public service, possessing criminal tools, and interfering with electric wires in violation of R.C. 4933.21. Doc. 13-2, pp. 1-3. Nash pleaded not guilty. Doc. 13-2, p. 4. On December 7, 2011, Nash was charged with breaking and entering in violation of R.C. 2911.13.B, aggravated theft in violation of R.C. 2913.02.A(1), vandalism in violation of R.C. 2909.05.B(2), disrupting public service in violation of R.C. 2909.04.A(2), possessing criminal tools in violation of R.C. 2923.24.A, and interfering with electric wires in violation of R.C. 4933.21. Doc. 13-2, pp. 77-78. The matter proceeded to a jury trial. Doc. 13-2, p. 15. Nash represented himself and the court appointed standby counsel to be present. Doc. 13-2, p. 8. The state dismissed Count 3 and the trial court acquitted Nash on Counts 1 and 5. Doc. 13-2, pp. 15-16, 78.
On August 1, 2012, the jury found Nash guilty of Counts 2, 4, and 6 of the indictment (aggravated theft, disrupting public service, and interfering with electric wires). Doc. 13-2, pp. 16, 78. Nash was sentenced to concurrent terms of 12 months in prison for the aggravated theft and disrupting public service convictions. Doc. 13-2, p. 16. The trial court ordered that the sentence be served consecutive to Nash's sentence in Cuyahoga County Court of Common Pleas case number CR-11-553521-A.
Nash did not directly appeal his conviction or sentence. Instead, on September 11, 2012, Nash, pro se, filed a Motion for Delayed Appeal to the Eighth District, Ohio Court of Appeals. Doc. 13-2, p. 19. The state Court of Appeals denied his motion as untimely pursuant to Ohio App. R. 4(A). Doc. 13-2, p. 29. On September 25, 2012, Nash filed a motion to consolidate the appeal of this case with his other criminal case (State v. Nash, No. CR-11-553521 (Cuyahoga Cty. Common Pleas Ct. filed September 9, 2011)). Doc. 13-2, p. 30. The state Court of Appeals denied his motion because it had already dismissed his appeal as untimely. Doc. 13-2, p. 30. On October 5, 2012, Nash filed a motion to reinstitute his appeal. Doc. 13-2, pp. 32-33. The state Court of Appeals denied Nash's motion. Doc. 13-2, pp. 32-33. Nash did not appeal any of these rulings to the Ohio Supreme Court. Doc. 13, p. 4, Doc. 13-2, p. 69.
On November 8, 2012, Nash, pro se, filed a post-conviction petition in the trial court and a motion for summary judgment. Doc. 13-2, pp. 34-41. Nash argued that: (1) the police violated his due process rights by offering perjured testimony and filing a false complaint; and (2) the state violated federal and state constitutions, and state law, by not allowing him to be personally present at certain pretrial proceedings. Doc. 13-2, pp. 39-41. The State of Ohio filed a motion for summary judgment on May 20, 2013. Doc. 13-2, p. 69. On May 23, 2013, the trial court granted the state's motion for summary judgment, denied Nash's motion for summary judgment, and denied his petition for post-conviction relief. Doc. 13-2, p. 78. The trial court found that Nash's claims were barred by res judicata because his claims could have been raised on direct appeal. Doc. 13-2, pp. 78-79. In the alternative, the court found that Nash failed to raise a genuine issue of material fact and did not set forth sufficient operative facts to support a cognizable claim of constitutional error. Doc. 13-2, p. 79. Nash moved the trial court for relief from its post-conviction decision. Doc. 13-2, p. 87. He did not appeal the trial court's ruling. Doc. 13-2, p. 87.
On October 31, 2012, Nash filed a state habeas corpus complaint in the Ohio Supreme Court for both the instant case and his other conviction.
On August 28, 2013, Nash filed a federal Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Doc. 1. He listed the following grounds for relief:
Doc. 1, pp. 5-9.
On June 6, 2014, respondent filed a Return of Writ. Doc. 13. Respondent argues that Ground One is non-cognizable and procedurally defaulted, Ground Two is procedurally defaulted, and Ground Three is non-cognizable. Doc. 13, pp. 7-15.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), apply to Nash's habeas petition because he filed it after the effective date of the AEDPA. 28 U.S.C. § 2254; Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). Under the AEDPA, a petitioner must meet certain procedural requirements in order to have his claims reviewed in federal court. Smith v. Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). "Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim." Daniels v. United States, 532 U.S. 374, 381 (2001). Although procedural default is sometimes confused with exhaustion, exhaustion and procedural default are distinct concepts. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state remedies are "still available at the time of the federal petition." Id. at 806 (quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). In contrast, when state court remedies are no longer available, procedural default rather than exhaustion applies.
Second, "a petitioner may procedurally default a claim by failing to raise a claim in state court, and pursue that claim through the state's `ordinary appellate review procedures.'" Williams, 460 F.3d at 806 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). "If, at the time of the federal habeas petition, state law no longer allows the petitioner to raise the claim, the claim is procedurally defaulted."
To overcome a procedural bar, a petitioner must show cause for the default and actual prejudice that resulted from the alleged violation of federal law or that there will be a fundamental miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at 750.
Nash sets forth three grounds for relief in his petition. Doc. 1, pp. 5-9. Respondent argues that Ground One is non-cognizable and procedurally defaulted, Ground Two is procedurally defaulted, and Ground Three is non-cognizable. For the reasons that follow, the undersigned concludes that Grounds One and Two are procedurally defaulted and Ground Three is non-cognizable.
Respondent asserts that Nash's allegations—that he was charged by police in a false complaint (Ground One) and that he was denied his right as a defendant representing himself to be personally present at certain pre-trial proceedings (Ground Two)—were never fairly presented to the Ohio courts. Doc. 13, p. 12. Nash did not timely appeal his trial court conviction to the Ohio Court of Appeals. He filed a motion for delayed appeal, which the state Court of Appeals denied. Doc. 13-2, p. 19. He never appealed the state Court of Appeals' decision to the Ohio Supreme Court. Nash's failure to timely appeal his trial court conviction and his failure to appeal the state Court of Appeals' decision denying his delayed appeal constitutes a procedural default because Nash failed to pursue his claim through the state's ordinary appellate review procedures.
Nash raised Grounds One and Two for the first time in his state post-conviction petition filed with the trial court. Doc. 13-2, pp. 35-36. The trial court found these claims were barred by res judicata because they were based on the trial court record and could have been raised on direct appeal. Doc. 13-2, p. 78. As noted, Nash did not file a direct appeal. "Ohio's doctrine of res judicata . . . provides in relevant part that a final judgment of conviction bars a convicted defendant from raising in any proceeding, except an appeal from that judgment, any issue that was raised, or could have been raised, at trial or on appeal from that judgment." Williams v. Bagley, 380 F.3d 932, 967 (6th Cir. 2004) (citing State v. Perry, 10 Ohio St.2d 175 (1967)). Res judicata is an adequate and independent state ground for precluding federal habeas review. Id. at 967-968; see also Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998) (citing State v. Combs, 652 N.E.2d 205, 209 (Ohio Ct. App. 1994)) (holding that res judicata precludes post-conviction relief to address constitutional claims that could have been raised on direct appeal from the conviction and sentence).
Applying the Maupin factors, the undersigned finds that Nash is precluded from asserting Grounds One and Two based on the doctrine of res judicata. First, a state procedural rule applies to Nash's claims and he failed to comply with that rule. See Williams, 380 F.3d at 967 (Ohio's doctrine of res judicata bars a defendant from raising an issue in a later proceeding that could have been raised at trial or on appeal). Second, the trial court enforced the procedural rule when it denied Nash's post-conviction petition based on the doctrine of res judicata. Doc. 13-2, p. 78-79. Third, Ohio's res judicata doctrine is an adequate and independent state ground on which the state can foreclose review. Williams, 380 F.3d at 967. Fourth, Nash does not assert cause for his failure to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. See Maupin, 785 F.2d at 138.
In sum, Nash has procedurally defaulted Grounds One and Two because he failed to pursue his claims through the ordinary appellate review procedure. He may no longer pursue his claims because he is barred by the doctrine of res judicata.
In Ground Three, Nash challenges the state's failure to give him jail time credit under Ohio law. Doc. 1, pp. 8-9. This claim is not cognizable as it is not the province of a federal habeas court to reexamine state court determinations on state law questions. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Fuller v. Bradshaw, 2008 WL 1970276, at *1 (N.D. Oh. May 7, 2008). "The interpretation of state crediting statutes is a matter of state concern and not a proper function of a federal court under its habeas corpus jurisdiction." Howard v. White, 76 Fed.Appx. 52, 53 (6th Cir. 2003) (citing Travis v. Lockhard, 925 F.2d 1095, 1097 (8th Cir. 1991)); McGrath v. Clipper, 2012 WL 8677220, at *20 (N.D. Oh. Nov. 1, 2012) (A state court's misapplication, or proper application, of the state's sentencing statutes is not cognizable in federal habeas proceedings). Consequentially, Ground Three of Nash's petition is noncognizable.
In the alternative, even if Ground Three would have been cognizable in federal habeas proceedings, the claim is now moot as a result of Nash's release from prison. State ex rel. Gordon v. Murphy, 112 Ohio St.3d 329, 330 (2006) (writ of mandamus seeking proper application of jail-time credit declared moot because the sentence had expired and petitioner had been released from prison already); State v. Feagin, 2013 WL 1874845, at * 2 (Ohio Ct. App. May 3, 2013) (citing State ex rel. Gordon, 112 Ohio St.3d 329 (Ohio 2006)); see also Patterson v. Smith, 2011 WL 2144561, at *2 (N.D. Oh. May 31, 2011) (federal habeas petition challenging the calculation of jail time credit when the prison term has already been served is moot).
For the reasons stated above, the undersigned recommends that Petitioner's Habeas Corpus Petition be
