THOMAS M. PARKER, Magistrate Judge.
Petitioner, Reeco Dennis, an Ohio prisoner serving an aggregate prison sentence of 19 years for rape and kidnapping, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 4, 2019. ECF Doc. 1, ECF Doc. 9-1 at 18. On July 18, 2019, Warden David Marquis filed a motion to dismiss arguing that seven of Dennis's nine claims for relief — Grounds One through Seven — are unexhausted. ECF Doc. 9. Dennis filed a memorandum in opposition on September 27, 2019. ECF Doc. 13.
This matter is before me by an automatic order of reference under Local Rule 72.2 for preparation of a report and recommendation on Dennis's petition and any potentially case-dispositive motions such as the warden's motion to dismiss. Because Dennis has not shown the necessary good cause and merits of the affected claims, I recommend that the court GRANT respondent's motion to dismiss. However, because Dennis's Ground Eight and Ground Nine claims are exhausted and would be barred by AEDPA's statute of limitations if they had to be re-filed, I also recommend that the Court grant Dennis leave to file an amended petition that omits his unexhausted claims (Ground One through Ground Seven) and proceed to judgment on his Ground Eight and Ground Nine claims.
On March 2, 2016, a Cuyahoga County Grand Jury indicted Dennis on one count of rape in violation of Ohio Rev. Code § 2907.02(A)(2) and one count of kidnapping in violation of Ohio Rev. Code § 2905.01(A)(4), both with firearm specifications. ECF Doc. 9-1 at 4-5. He pleaded not guilty. ECF Doc. 9-1 at 6.
On April 18, 2016, Dennis moved for forensic testing at the state's expense. ECF Doc. 9-1 at 7. On June 21, 2016, he moved under Ohio Evid. Rule 404(B) to preclude the state's use of other act evidence. ECF Doc. 9-1 at 11. On July 5, 2016, the trial court denied the motion to preclude. ECF Doc. 9-1 at 16.
On July 6, 2016, a jury returned guilty verdicts on rape as charged in Count One and kidnapping as charged in Count Two of the indictment. The jury found Dennis not guilty of the associated firearm specifications. ECF Doc. 9-1 at 17. In a journal entry dated July 12, 2016, the trial court sentenced Dennis to serve a prison term of 11 years on Count One and a consecutive prison term of 8 years on Count Two, for an aggregate prison sentence of 19 years. The court also ordered this sentence to be served consecutive to a sentence on another case, No. CR 598782. ECF Doc. 9-1 at 18.
On July 18, 2016, Dennis filed a notice of appeal. ECF Doc. 9-1 at 20. Through counsel, he filed a brief with the following assignments of error:
ECF Doc. 9-1 at 26. The state filed a brief on January 5, 2017. ECF Doc. 9-1 at 49. On June 22, 2017, the Ohio Court of Appeals affirmed Dennis's conviction and sentence. ECF Doc. 9-1 at 11; State v. Dennis, 2017-Ohio-4437, 93 N.E.3d 277 (8th Dist.). Dennis did not appeal this decision to the Ohio Supreme Court.
On September 8, 2017, Dennis filed a pro se application to reopen his appeal under Ohio App. R. 26(B). ECF Doc. 9-1 at 90. Dennis argued ineffective assistance of appellate counsel based on counsel's failure to assign the following error on direct appeal:
ECF Doc. 9-1 at 93. Dennis argued that Jurors 7 and 8 had both been victims of sexual assault and so they were presumed biased against him. ECF Doc. 9-1 at 96-97. He argued that the trial court should have sua sponte removed these jurors for cause and that his trial counsel should have moved to have them removed for cause. ECF Doc. 9-1 at 100-101. He argued that he had received ineffective assistance of appellate counsel because the issues raised in his appeal were "clearly and significantly weaker." ECF Doc. 9-1 at 101-102. The state opposed Dennis's application (ECF Doc. 9-1 at 109) and Dennis replied. ECF Doc. 9-1 at 118. The Ohio Court of Appeals denied Dennis's application on the merits. ECF Doc. 9-1 at 123.
On July 26, 2018, Dennis filed a notice of appeal with the Ohio Supreme Court. ECF Doc. 9-1 at 136. Dennis's pro se memorandum in support of jurisdiction presented the following propositions of law:
ECF Doc. 9-1 at 138. On October 10, 2018, the Supreme Court declined jurisdiction and dismissed the appeal. ECF Doc. 9-1 at 165.
On April 4, 2019 Dennis filed a pro se, petition for writ of habeas corpus. ECF Doc. 1. Dennis's petition asserts nine grounds for relief:
ECF Doc. 1.
On July 18, 2019, Warden Marquis moved to dismiss Dennis's petition based on the argument that the Ground One through Ground Seven claims have not been exhausted. ECF Doc. 9.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Dennis's petition for writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Under AEDPA, state prisoners must either exhaust all possible state remedies or have no remaining state remedies before a federal court can review a petition for writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509, 515-19 (1982). This entails giving the state courts "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990) ("The highest court in the state in which the petitioner was convicted [must have] been given a full and fair opportunity to rule on the petitioner's claims.").
Dennis admits that his Ground One through Ground Seven claims are unexhausted. ECF Doc. 13 at 1.
Because Dennis did not exhaust his Grounds One through Seven claims, but did exhaust his Grounds Eight and Nine claims, his habeas petition is a "mixed petition". See Rhines v. Weber, 544 U.S. 269, 271, (2005). When a court is presented with a mixed petition, the entire petition may be dismissed without prejudice. See Rose, 455 U.S. at 510. When a mixed petition is dismissed, and the petitioner thereafter exhausts his state court remedies, the petitioner may file a new habeas petition without his petition being treated as an unauthorized second or successive petition. See Slack v. McDaniel, 529 U.S. 473, 487 (2000).
After AEDPA established a one-year statute of limitations on habeas petitions, however, the Supreme Court determined that the dismissal of an entire petition could potentially preclude the petitioner from bringing his already-exhausted claims in a new petition. See Rhines, 544 U.S. at 274-75. To avoid statute of limitations problems, the Court held that district courts may use their inherent stay authority to hold in abeyance mixed habeas petitions in order to allow the petitioner the opportunity to bring unexhausted claims to conclusion in state court. Id. at 275 (noting that, without the use of inherent stay authority, habeas petitioners would run the risk of forever losing their opportunity for federal review of their unexhausted claims). However, the Supreme Court warned that the frequent stay and abeyance of mixed federal habeas petitions could: (1) undermine AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of federal proceedings; and (2) decrease a petitioner's incentive to exhaust all his state claims before filing his federal petition. Id. at 277.
Thus, before considering whether a stay is appropriate, we must first determine whether the statute of limitations tolling provision under 28 U.S.C. § 2244(d)(2) would preserve the opportunity to litigate the petitioner's already-exhausted claims in a new petition filed after the unexhausted claims were fully considered in state court. Cf. id. at 276-77 (noting that Congress enacted AEDPA against the backdrop of the total exhaustion requirement, and that included a tolling provision in 28 U.S.C. § 2244(d)(2) in order to balance the interests served by the exhaustion requirement and the limitation period).
AEDPA's one-year limitations period begins to run when: (1) the judgment becomes final by the conclusion of direct review or the expiration of time for seeking such review; (2) any improper state-created impediment to filing an application is removed; (3) a constitutional right asserted is recognized by the Supreme Court; or (4) the petitioner discovers, or could have discovered through due diligence, the factual predicate for his claim. 28 U.S.C. § 2244(d)(1). AEDPA's one-year limitations period stops running (is "tolled") for "the time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Rhines, 544 U.S. at 274.
Here, the Ohio Supreme Court declined review of Dennis's exhausted claims on October 10, 2018, over a year ago and it does not appear that he has filed any post-conviction motions that might toll the statute. ECF Doc. 9-1 at 165. Thus, if the court were to dismiss Dennis's Ground 8 and Ground 9 claims, they would likely be barred by AEDPA's statute of limitations if re-asserted in a later-filed, post-exhaustion petition.
If a petitioner's already-exhausted claims would not be tolled under 28 U.S.C. § 2244(d)(2), courts must consider the following factors when deciding whether to stay a mixed habeas petition: (1) whether the petitioner had good cause for failing to exhaust some of his claims in state court; (2) whether the unexhausted claims are plainly meritless; and (3) whether the petitioner has engaged in intentionally dilatory litigation tactics. Rhines, 544 U.S. at 277-78. When a stay is not appropriate and the AEDPA's statute of limitations would bar the petitioner from raising in a new petition his already-exhausted claims, the district court may permit the petitioner to amend his petition to remove his unexhausted claims and proceed on with his exhausted claims. Id. at 278.
Because Dennis's motion to stay did not toll the statute of limitations, the court must determine whether Dennis meets the requirements for a stay. Habeas petitioners bear the burden to demonstrate that they satisfy the three required elements to receive a stay. Sueing v. Palmer, 503 F. App'x 354, 357 (6th Cir. 2012).
Dennis asserts that he has good cause for failing to exhaust his Ground One through Ground Seven claims. He represents that his appellate counsel failed to notify him of the denial of his direct appeal in the Ohio Court of Appeals. However, even if this were true, (Dennis has not submitted any statements or affidavits informing the court when he learned of the Ohio Court of Appeals' decision) he must have known that his appeal had been denied no later than September 2017 when he filed an application to reopen his appeal. He could have also filed a motion for leave to file a delayed appeal with the Ohio Supreme Court at that time. Instead, he waited until April 2019 to file his federal habeas petition, having only exhausted two of his nine claims. Given this timeframe and Dennis's failure to move for a delayed appeal, I must conclude that Dennis has not shown good cause for failing to exhaust his Ground One through Ground Seven claims.
To compound his problems, Dennis has not satisfied the requirement that he show that his claims are not plainly meritless. Ground One asserts that the trial court erred on an evidentiary ruling. Generally, "alleged errors in evidentiary rulings by state courts are not cognizable in federal habeas review." Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012). We are required to presume that the Ohio state courts have correctly interpreted Ohio evidence law in their evidentiary rulings. Small v. Brigano, 134 F. App'x 931, 2005 WL 1432898, at *5 (6th Cir. 2005). State-court evidentiary rulings may "rise to the level of due process violations [if] they `offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L. Ed. 2d 361 (1996)). They must be "so egregious that [they] result in a denial of fundamental fairness." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). But "courts `have defined the category of infractions that violate `fundamental fairness' very narrowly.'" Dennis has not shown that his Ground One claim challenges an egregious evidentiary ruling by the trial court. His Ground One claim is non-cognizable, and Dennis has not shown that it is not plainly meritless.
Dennis's Ground Two claim asserts that the trial court erred in not providing a lesser included offense jury instruction on gross sexual imposition. As with evidentiary rulings, claims of errors in jury instructions involve only matters of state law which are not cognizable in a federal habeas court unless they infect the entire trial or amount to a fundamental miscarriage of justice. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L. Ed. 2d 385 (1991); Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007). As with Ground One, Dennis's Ground Two claim is non-cognizable on habeas review. He has not shown that it is not plainly meritless.
Dennis's Ground Three claim challenges the sufficiency of the state's trial evidence. The Ohio Court of Appeals rejected this claim, reasoning:
State v. Dennis, 2017-Ohio-4437, 93 N.E.3d 277 (8th Dist.). The Ohio Court of Appeals' finding — that there was sufficient evidence supporting the jury's verdicts — was not contrary to federal law established in the decisions of the United States Supreme Court.
Dennis's Ground Four claim asserts that the trial court erred by not ruling on his motion for independent forensic testing. ECF Doc. 1 at 10. The Ohio Court of Appeals held that "due process did not require the state to provide expert assistance to an indigent defendant in the absence of a showing of need. State v. Mason, 82 Ohio St.3d 144, 150, 1998-Ohio-370, 694 N.E.2d 932. At trial, the state's expert conceded that most of the samples from the original rape kit had excluded Dennis as a contributor. Thus, he was able to make his point and did not need his own expert to establish this fact. The Ohio Court of Appeals concluded that Dennis had not shown a particularized need for his own forensic expert in this case. ECF Doc. 9-1 at 84-86. Dennis has not cited any U.S. Supreme Court precedent contrary to the decision of the Ohio Court of Appeals, and he has not met the burden of showing that Ground Four is not plainly meritless.
Dennis's Ground Five claim is an ineffective assistance of counsel claim alleging that his trial counsel's failure to move to dismiss based on pre-indictment delay and failure to compel the trial court to rule on his motion for an independent forensic test violated his due process rights. ECF Doc. 1 at 16. The Ohio Court of Appeals applied the correct U.S. Supreme Court test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and found that Dennis had not established that he had received ineffective assistance of counsel. The court reasoned that Dennis had not shown any basis for dismissal based on preindictment delay or that he had a particularized need for his own expert. Thus, his claim of ineffective assistance of counsel could not be based on these alleged insufficiencies. ECF Doc. 9-1 at 84-86. The Ohio Court of Appeals applied the correct legal standard and its decision was not contrary to any U.S. Supreme Court precedent. Dennis has not shown that his Ground Five claim has any merit.
Dennis's Ground Six claim asserts that the trial court erred in denying his motion for merger of allied offenses. Normally, a challenge to state court sentencing decisions does not raise a cognizable federal constitutional claim that can be considered in a federal habeas case. See e.g., Sneed v. Donahue, 993 F.2d 1239, 1244 (6th Cir. 1993). The Ohio Court of Appeals applied Ohio law and determined that Dennis's failure to merge argument was insufficient to sustain a reversal. ECF Doc. 9-1 at 86-88. This claim does not even implicate federal law let alone involve any claimed unreasonable application of U.S. Supreme Court precedent. Dennis has not met his burden of showing that his Ground Six claim is not plainly meritless.
Finally, Dennis's Ground Seven claim states that the evidence was insufficient to support the trial court's imposition of consecutive sentences. ECF Doc. 1 at 16. As stated above, Dennis's insufficient evidence claim lacks merit and any alleged error in the trial court's sentence involved only state law issues — making it not cognizable on habeas review. As with his other claims, Dennis has failed to show that his Ground Seven claim is not plainly meritless.
There is no indication that Dennis has employed any intentionally dilatory litigation tactics. Nonetheless, he has not met his burden to show that he had good cause for failing to exhaust his claims in state court or that his unexhausted claims are not plainly meritless. Rhines, 544 U.S. at 277-78. Because he has not met this burden, he is not entitled to a stay of his unexhausted claims.
Dennis filed a mixed petition. He concedes that his Ground One through Ground Seven claims are unexhausted. For this reason, I recommend that the Court GRANT Warden Marquis' motion to dismiss. However, because Dennis has exhausted his Ground Eight and Ground Nine claims and because they would be barred by AEDPA's statute of limitations in any later-filed petition, I also recommend that the Court grant Dennis leave to file an amended petition within 30 days of the Court's disposition of this Report & Recommendation. Dennis should be ordered to omit his unexhausted claims (Grounds One through Seven) from his amended petition.
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after being served with a copy of this document. Failure to file objections within the specified time may waive the right to appeal the District Court's order. See U.S. v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).
