GEORGE J. LIMBERT, Magistrate Judge.
This matter is before the undersigned on a motion to dismiss filed by Respondent Michelle Miller, Warden of Belmont Correctional Institution ("Respondent"), on November 10, 2016. ECF Dkt. #13. Petitioner Kenny Montgomery ("Petitioner"), acting pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 7, 2016.
For the following reasons, the undersigned RECOMMENDS that the Court GRANT Respondent's motion to dismiss (ECF Dkt. #13) and DISMISS Petitioner's federal habeas petition (ECF Dkt. #1) in its entirety with prejudice.
The Eighth District Court of Appeals set forth the facts of this case on direct appeal. These binding factual findings "shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6
Ohio v. Montgomery, 8
The May 2014 term of the Cuyahoga County Court of Common Pleas Grand Jury indicted Petitioner on: one count of felonious assault, in violation of Ohio Revised Code ("R.C.") § 2903.11(A)(1); one count of domestic violence, in violation of R.C. § 2919.25(A); and one count of disrupting public services, in violation of R.C. § 2909.04(A). ECF Dkt. #13-1 at 3-4. Petitioner entered a plea of not guilty. Id. at 5. Following trial, the jury found Petitioner guilty of felonious assault, and not guilty of domestic violence and disrupting public services. Id. at 6. Accordingly, the court imposed a three-year sentence, to run concurrently to Petitioner's sentence in another case. Id. at 7.
Petitioner, through counsel, filed a notice of appeal with the Eighth District Court of Appeals. ECF Dkt. #13-1 at 22. In his brief, Petitioner raised the following assignment of error:
1. The verdict and judgment below was against the manifest weight of the evidence. Id. at 25. The state filed a brief in response. Id. at 34. On June 4, 2015, the Eighth District Court of Appeals rejected Petitioner's assignment of error and affirmed the judgment of the trial court. Id. at 44. Petitioner failed to file a timely appeal to the Supreme Court of Ohio, instead filing a notice of appeal and motion for leave to file a delayed appeal in the Supreme Court of Ohio over six months after the decision of the appellate court. Id. at 52, 54. On February 10, 2016, the Supreme Court of Ohio denied Petitioner's motion for a delayed appeal and dismissed the case. Id. at 69.
On December 12, 2014, Petitioner filed a petition for post-conviction relief raising the following two claims for relief:
ECF Dkt. #13-1 at 71-72. Petitioner's petition for post-conviction relief was denied on January 8, 2015. Id. at 74.
On August 27, 2015, Petitioner, pro se, filed an Appellate Rule ("App. R.") 26(B) application to reopen his appeal in the Eighth District Court of Appeals. ECF Dkt. #13-1 at 75. In his application to reopen, Petitioner asserted ineffective assistance of appellate counsel on the following bases: two extensions were sought before filing a brief in the appeal; an ineffective assistance of trial counsel claim was not raised on appeal; failure to argue that words were added and changed in the trial transcripts; failure to review the entire record; failure to timely notify Petitioner of the appellate court's decision; refusal to file an appeal in the trial court case; and failure to inform Petitioner of oral arguments. Id. at 76-77. The state filed a brief in opposition to the application to reopen. Id. at 82. On February 2, 2016, the Eighth District Court of Appeals denied Petitioner's application to reopen as meritless. Id. at 87. Petitioner did not seek review in the Supreme Court of Ohio.
Petitioner, acting pro se, filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 on June 7, 2016. ECF Dkt. #1. In his habeas petition, Petitioner asserts the following grounds for relief:
ECF Dkt. #1 at 5-10.
A petitioner must overcome several procedural barriers before a court will review the merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in Daniels v. United States, "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." 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S. 725, 731 (1993).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") statute of limitations period for filing a petition for a writ of federal habeas corpus is one year, and it begins to run on the date judgment became final. 28 U.S.C. § 2244(d)(1).
As a general rule, a state prisoner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion requirement is satisfied "once the federal claim has been fairly presented to the state courts." Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must present it "to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a "fair trial" and "due process" do not "fairly present" claims that specific constitutional rights were violated. McMeans, 228 F.3d at 681 (citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984)).
In order to have fairly presented the substance of each of his federal constitutional claims to the state courts, the petitioner must have given the highest court in the state in which he was convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of constitutional law or in terms sufficiently particular to allege the denial of a specific constitutional right; or (4) alleging facts that are obviously within the mainstream of constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993). In Harris v. Lafler, the Sixth Circuit laid out the options that a district court may pursue in dealing with a petition that contains unexhausted claims:
553 F.3d 1028, 1031-32 (6th Cir. 2009). The Supreme Court has held that "the petitioner has the burden . . . of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist." Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds, Fay v. Noia, 372 U.S. 391 (1963). A petitioner will not be allowed to present claims never before presented in the state courts unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the crime for which he was convicted. Coleman v. Thompson, 501 U.S. 722, 748 (1991).
The procedural default doctrine serves to bar review of federal claims that a state court has declined to address when a petitioner does not comply with a state procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, "the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730. For purposes of procedural default, the state ruling with which the federal court is concerned is the "last explained state court judgment." Munson v. Kapture, 384 F.3d 310, 314 (6th Cir. 2004) (citing Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)) (emphasis removed). When the last explained state court decision rests upon procedural default as an "alternative ground," a federal district court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a petitioner's claim, federal courts must rely upon the presumption that there are no independent and adequate state grounds for a state court decision absent a clear statement to the contrary. Coleman, 501 U.S. at 735.
Applying this presumption, the Sixth Circuit established a four-pronged analysis to determine whether a claim has been procedurally defaulted under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Under the first prong of Maupin, there must be a firmly established state procedural rule applicable to the petitioner's claim and the petitioner must not have complied with the rule. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). Under the second prong, the last state court to which the petitioner sought review must have invoked the procedural rule as a basis for its decision to reject review of the prisoner's federal claims. Coleman, 501 U.S. at 729-30; Richey v. Mitchell, 395 F.3d 660 at 678 (2005) (holding that "a lapsed claim survives if the state court overlooked the default and decided the claim anyway"); Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004) (holding that if a state court does not expressly rely on a procedural deficiency, then a federal court may conduct habeas review); Gall v. Parker, 231 F.3d 265, 310 (6th Cir. 2000) (holding that even if the issue is not raised below, where state supreme court clearly addresses the claim, no procedural bar arises). Under the third prong, a state judgment invoking the procedural bar must rest on a state law ground that is both independent of the merits of the federal claim and is an adequate basis for the state court's decision. Munson v. Kapture, 384 F.3d at 313-14. Under the fourth prong, a claim that is procedurally defaulted in state court will not be reviewable in federal habeas corpus unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751. "Cause" is a legitimate excuse for the default, and "prejudice" is actual harm resulting from the alleged constitutional violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied, 490 U.S. 1068 (1985). If a petitioner fails to show cause for his procedural default, the reviewing court need not address the issue of prejudice. Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review federal claims:
Bonnell v. Mitchel, 301 F.Supp.2d 698, 722 (N.D. Ohio 2004).
If Petitioner's claims overcome the procedural barriers of time limitation, exhaustion, and procedural default, the AEDPA governs this Court's review of the instant case because Petitioner filed the instant § 2254 federal habeas corpus petition well after the AEDPA's effective date of April 26, 1996. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112 (1998). Under § 2254, a state prisoner is entitled to relief if he is held in custody in violation of the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d).
The AEDPA sets forth the standard of review for the merits of a petition for the writ of habeas corpus. The AEDPA provides:
28 U.S.C. § 2254(d). In Williams v. Taylor, the Supreme Court clarified the language of 28 U.S.C. § 2254(d) and stated:
529 U.S. 362, 412-13 (2000). Furthermore, the Supreme Court declared that "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. Elaborating on the term "objectively unreasonable," the Court stated that "a federal habeas 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.; see also Bailey v. Mitchell, 271 F.3d 652, 655-56 (6th Cir. 2001).
The Sixth Circuit offers the following guidelines for applying the AEDPA limitations:
Bailey, 271 F.3d at 655-56 (6th Cir. 2001) (internal citations omitted).
Finally, a reviewing federal court is bound by the presumption of correctness, under which the federal court is obligated to "accept a state court's interpretation of the state's statutes and rules of practice." Hutchinson v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984), cert. denied, 469 U.S. 1221 (1985); see also Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). The presumption of correctness is set forth in 28 U.S.C. § 2254(e), which provides: (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.
28 U.S.C. § 2254(e). The presumption of correctness applies to basic primary facts, and not to mixed questions of law and fact. Levine, 986 F.2d at 1514. The presumption also applies to "implicit findings of fact, logically deduced because of the trial court's ability to adjudge the witnesses' demeanor and credibility." McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997). Furthermore, a reviewing federal court is not free to ignore the pronouncement of a state appellate court on matters of law. See Central States, Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 676, n.4 (6th Cir. 2000). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Respondent asserts that all of the grounds for relief presented in Petitioner's habeas petition are considered within the record since they are based on allegations that can be determined by examination of the files and records in this case. ECF Dkt. #13 at 10-11. Additionally, Respondent contends that Petitioner concedes in his habeas petition that all of his instant grounds for relief are procedurally defaulted due to his failure to present these grounds during direct review. Id. at 11. Respondent states, "[a]s apparent cause to excuse these defaults, [Petitioner] asserts ineffective assistance of appellate counsel for failing to raise these claims in his direct appeal." Id. The undersigned agrees that Petitioner has conceded that all of grounds for relief contained in his habeas petition are subject to procedural default, as he indicates that he did not raise any of the grounds for relief on appeal. See ECF Dkt. #1 at 5-12. Accordingly, Petitioner's habeas petition must be dismissed unless he can show: (1) cause and prejudice to excuse his procedural default; and/or (2) a fundamental miscarriage of justice. See Wainwright v. Sykes, 433 U.S. 72 (1977); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner did not file a response to the motion to dismiss, and has thus failed to make an attempt to show cause and prejudice, or a fundamental miscarriage of justice. In any event, both items are addressed below.
Respondent correctly asserts that since the Ohio courts were denied the opportunity to review Petitioner's grounds for relief due to his failure to fairly present said grounds, he must demonstrate some external factor as a cause for the defaults, as well as prejudice in order to obtain habeas review. ECF Dkt. #12 at 11 (citing Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107 (1982); United States v. Frady, 456 U.S. 152, 168; Wainwright v. Sykes, 433 U.S. 72 (1977)). Petitioner asserts that the reasons he failed to fairly present the instant grounds for relief on direct appeal was due to ineffective assistance of appellate counsel. ECF Dkt. #1 at 5-12. However, as correctly stated by Respondent, "a claim that is itself procedurally defaulted cannot be used as cause to excuse another procedurally defaulted claim." ECF Dkt. #13 at 12 (quoting Goldberg v. Money, 629 F.3d 534, 537 (6th Cir. 2012)). Although Petitioner filed a timely application to reopen pursuant to App. R. 26(B), none of the assertions of ineffective assistance of counsel presented in his habeas petition were presented in the application to reopen. See ECF Dkt. #13-1 at 75-81.
Further, even if Petitioner had presented the instant grounds for relief in his application to reopen, he did not appeal the denial of the application to the Supreme Court of Ohio. Petitioner may no longer attempt to appeal the denial of the application to reopen because the Supreme Court of Ohio's Rules of Practice provide that the motions for delayed appeal involving postconviction relief shall be refused. S.Ct.Prac.R. 701(A)(4)(c). Any claim regarding ineffective assistance of appellate counsel claim raised by Petitioner is subject to procedural default. The undersigned finds that Petitioner has failed to show cause for his procedural default, and thus an analysis of prejudice is moot.
A fundamental miscarriage of justice is the conviction of one who is actually innocent. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court of the United States explained:
Schlup v. Delo, 513 U.S. 298, 234 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. Respondent correctly asserts that Petitioner has failed to present any "new" reliable evidence to facilitate a finding that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. See ECF Dkt. #13 at 13. Accordingly, the undersigned recommends that the Court find that there has been no fundamental miscarriage of justice in this case.
For the foregoing reasons, the undersigned RECOMMENDS that the Court GRANT Respondent's motion to dismiss (ECF Dkt. #13) and DISMISS Petitioner's federal habeas petition (ECF Dkt. #1) in its entirety with prejudice.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this notice. Fed. R. Civ. P. 72; L.R. 72.3. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. L.R. 72.3(b).
