DAVID A. RUIZ, Magistrate Judge.
Petitioner Harry Tharp, Jr. ("Tharp" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is before the magistrate judge pursuant to Local Rule 72.2(b)(2). Petitioner is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case of State of Ohio v. Tharp, Case No. CR-15-598816-A (Cuyahoga County, Ohio Feb. 18, 2016). (R. 1; R. 7-1, RX 4, PageID #: 72-73.). The petition follows his state court convictions for corrupting another with drugs and importuning. (R. 1, petition, PageID #: 1.)
Tharp's petition raises two grounds for relief:
(R. 1, § 12, PageID #: 6, 8.). Respondent has filed an Answer/Return of Writ (R. 7) and the petitioner has filed a Traverse (R. 10). For the following reasons, the magistrate judge recommends that the petition be denied.
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012) ("State-court factual findings are presumed correct unless rebutted by clear and convincing evidence.") The Ohio Eighth District Court of Appeals ("state appellate court") provided the following background:
(R. 7-1, RX 14, PageID #: 128, 131-132; State v. Tharp, No. 104216, 2016 WL 7427294, at *1, *3 (Ohio Ct. App. Dec. 22, 2016).)
Tharp filed a notice of appeal through counsel on March 10, 2016. (R. 7-1, RX 7.) On May 12, 2016, counsel filed a Motion for Leave to Withdraw as Appellate Counsel, with an Anders brief.
(R. 7-1, RX 9, PageID #: 90-91.) The state appellate court held counsel's motion in abeyance pending review of a merit brief filed by appellant pro se. (R. 7-1, RX 10.)
In his pro se merit brief, Tharp raised two assignments of error:
(R. 7-1, RX 11, PageID #: 99.) The following day, Tharp pro se filed a supplemental brief, raising a third and fourth assignment of error, asserting:
(R. 7-1, RX 12, PageID #: 111.)
On December 22, 2016, the state appellate court granted counsel's motion to withdraw (R. 7-1, RX 13), overruled Tharp's assignments of error, and affirmed the trial court's judgment. (R. 7-1, RX 14, PageID #: 131, 139; Tharp, 2016 WL 7427294, at *2, *6.) Tharp did not file a timely appeal to the Supreme Court of Ohio. See generally Ohio S.Ct.Prac.R. 7.01(A)(1) (45 days to file).
On February 13, 2017, Tharp filed an application to reopen his appeal pursuant to Ohio App. Rule 26(B). (R. 7-1, RX 15.) Tharp argued that appellate counsel was ineffective:
(R. 7-1, RX 15, PageID #: 143.)
The state appellate court denied Tharp's application to reopen. (R. 7-1, RX 18; State v. Tharp, No. 104216, 2017 WL 1955281 (Ohio Ct. App. May 9, 2017).) The court concluded that Tharp could not press an ineffective assistance of counsel claim because he had represented himself pro se on appeal. (R. 7-1, RX 18, PageID #: 164; Tharp, 2017 WL 1955281, at *1.) The court also ruled that, even if his application had not been barred on that basis, his proposed assignment of error failed on the merits. (R. 7-1, RX 18, PageID #: 165; Tharp, 2017 WL 1955281, at *1.)
On June 12, 2017, Tharp filed an appeal with the Ohio Supreme Court, setting forth the following four propositions of law:
(R. 7-1, RX 21, PageID #: 171.) The Ohio Supreme Court declined to accept jurisdiction of the appeal, on September 13, 2017. (R. 7-1, RX 22; State v. Tharp, 150 Ohio St.3d 1433, 81 N.E.3d 1273 (2017).)
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts must apply when considering applications for a writ of habeas corpus. Under the AEDPA, federal courts have limited power to issue a writ of habeas corpus with respect to any claim that a state court adjudicated on the merits. The Supreme Court, in Williams v. Taylor, provided the following guidance:
Williams v. Taylor, 529 U.S. 362, 412-413 (2002). See also Lorraine v. Coyle, 291 F.3d 416, 421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).
A state court decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. See also Price v. Vincent, 538 U.S. 634, 640 (2003). A state court decision, however, is not unreasonable simply because the federal court considers the decision to be erroneous or incorrect. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Williams, 529 U.S. at 410-12; Lorraine, 291 F.3d at 422.
Tharp has filed his petition pro se. The pleadings of a petition drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers, and they will be liberally construed. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001) (citing Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972) (per curiam)). However, no other special treatment is afforded litigants who decide to proceed pro se. McNeil v. United States, 508 U.S. 106, 113 (1993) (strict adherence to procedural requirements); Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991); Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir. 1988).
The respondent contends that Tharp has procedurally defaulted both his habeas claims. (R. 7, PageID #: 41-44, 56-59.) A habeas claim may be procedurally defaulted in two distinct ways. First, by failing to comply with state procedural rules. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). Second, by failing to raise a claim in state court and not pursuing the claim through the state's ordinary review process. Williams, 460 F.3d at 806 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)).
The second ground for relief in Tharp's petition asserts: "Petitioner's due process rights were violated when he was denied the effective assistance of appellate counsel on his first appeal of right."
Ohio law provides that claims for ineffective assistance of appellate counsel must be raised in a motion for reconsideration before the Ohio Court of Appeals. Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002) (citing State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992)); Ohio App. R. 26(B). The state appellate court — when considering Tharp's Ohio Appellate Rule 26(B) application to reopen his appeal — noted that Tharp's appellate counsel was permitted to withdraw and Tharp pursued his appeal pro se, filing his own brief on the merits and assignments of error. (R. 7-1, RX 18, PageID #: 164; Tharp, 2017 WL 1955281, at *1.) In denying Tharp's application, the state appellate court concluded:
(R. 7-1, RX 18, PageID #: 164-165; Tharp, 2017 WL 1955281, at *1.)
Respondent argues, correctly, that this court must accept the state court's interpretation of Ohio law. (R. 7, PageID #: 57.) Indeed, a habeas court is bound by state court interpretations of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Small v. Brigano, No. 04-3328, 2005 WL 1432898, at *5 (6th Cir. June 17, 2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); see generally Johnson v. Fankell, 520 U.S. 911, 916 (1997). Ohio courts have consistently held that a defendant who represents himself on direct appeal may not maintain a Rule 26(B) application to reopen the appeal based on ineffective assistance of appellate counsel. See, e.g., State v. Kennedy, No. 99378, 2014 WL 265488 (Ohio Ct. App. Jan. 17, 2014) (citing cases); State v. Hurt, No. 96032, 2012 WL 4243652 (Ohio Ct. App. Sept. 14, 2012); State v. Effinger, No. 93450, 2009 WL 3155133 (Ohio Ct. App. Sept. 28, 2009).
When a state court has not addressed a prisoner's federal claim because the prisoner failed to meet a state procedural rule, then the state judgment rests on independent and adequate state procedural grounds that may bar subsequent federal habeas relief. Coleman v. Thompson, 501 U.S. 722, 729-730 (1991); Wainwright v. Sykes, 433 U.S. 72 (1977); Morales v. Coyle, 98 F.Supp.2d 849, 860 (N.D. Ohio 2000), aff'd, 507 F.3d 916 (6th Cir. 2007). Moreover, when a state prisoner has procedurally defaulted his federal claims in state court, habeas review of those claims is barred "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001) (quoting Coleman, 501 U.S. at 750); Davie v. Mitchell, 324 F.Supp.2d 862, 870 (N.D. Ohio 2004), aff'd, 547 F.3d 297 (6th Cir. 2008), cert. denied, 558 U.S. 996 (2009).
The court considers four factors when analyzing whether a petitioner's claim has been procedurally defaulted: (1) the court must determine whether there is a state procedural rule that is applicable to the petitioner's claim, and whether the petitioner failed to comply with the rule; (2) the court must decide whether the state courts actually enforced the procedural sanction; (3) the court must decide whether the state procedural forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of the federal claim; and, (4) the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Buell, 274 F.3d at 348 (citing Maupin, 785 F.2d at 138); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin). It is apparent that the state appellate court ruling, in accordance with Ohio law, denying Tharp's Rule 26(B) application to re-open his appeal satisfies the first three factors.
Furthermore, Tharp's filings do not demonstrate cause for his failure to follow the procedural rule.
The second ground of the petition, alleging ineffective assistance of appellate counsel, has no merit and is procedurally defaulted.
The first ground in Tharp's petition for habeas relief contends his "due process rights were violated when he was subjected to successive prosecution for the same offense[s]." (R. 1, § 12, PageID #: 6.) Petitioner asserts that Count 1 and Count 6 (corrupting another with drugs) were "duplications," as they relied on the same evidence. Id. Likewise, Petitioner argues that Count 3 and Count 8 (importuning) were "duplications" for the same reason. Id. Respondent argues that Tharp's first ground was not fairly presented to the state courts; and, therefore, is procedurally defaulted. (R. 7, PageID #: 41.)
A habeas petitioner cannot obtain relief unless he has completely exhausted his available state remedies. Coleman, 501 U.S. at 731; Buell, 274 F.3d at 349 (citing Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.), cert. denied, 534 U.S. 977 (2001)). This court does not have jurisdiction to consider a federal claim in a habeas petition that was not fairly presented to the state courts. Baldwin v. Reese, 541 U.S. 27 (2004); Jacobs, 265 F.3d at 417.
The Sixth Circuit has held that "the doctrine of exhaustion requires that a claim be presented 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 Brandon v. Stone, No. 06-5284, 2007 WL 786330, at *1 (6th Cir. March 15, 2007) (citing Williams v. Bagley, 380 F.3d 932, 969 (6th Cir. 2004)); Jalowiec v. Bradshaw, No. 1:03CV0645, 2008 WL 312655, at *24 (N.D. Ohio Jan. 31, 2008), aff'd, 657 F.3d 293 (6th Cir. 2011), cert. denied, 568 U.S. 828 (2012). A claim is not preserved for federal habeas review merely because its underlying factual basis is related to another claim. Lott v. Coyle, 261 F.3d 594, 607 (6th Cir. 2001), cert. denied, 534 U.S. 1147 (2002). Those issues which were not fairly presented to the state courts cannot be considered by a federal court considering a habeas petition. Baldwin, 541 U.S. at 29; Jacobs, 265 F.3d at 415.
It is apparent that Tharp did not fairly present to the state courts the claim in the first ground of his petition for a wit of habeas corpus; and, therefore, it cannot be the basis for habeas relief. On direct appeal, Tharp did not assert that the state violated his due process rights by prosecuting him on "duplicate" charges, which is the basis for his first habeas claim. (R. 1, § 12, PageID #: 6.) Rather, on appeal he raised two assignments of error (the first and third) that attacked his sentencing, rather than his prosecution. (R. 7-1, RX 11, PageID #: 99; RX 12, PageID #: 111.)
(R. 7-1, RX 12, PageID #: 112, quoting Ohio Rev. Code § 2941.25(A).) The state appellate court, however, rejected Tharp's allied offenses argument. (R. 7-1, RX 14, PageID #: 137-138; Tharp, 2016 WL 7427294, at *5-*6.)
The record reflects that Tharp failed to properly exhaust the claim in his first habeas ground by raising it on direct appeal. Because the claim was not raised in the state court of appeals, it is barred by the Ohio rule of res judicata. Lott, 261 F.3d at 611-612; Rust v. Zent, 17 F.3d 155, 160-161 (6th Cir. 1994). Tharp cannot return to state court to exhaust the claim because the Ohio Supreme Court has ruled that arguments that could have been raised in an initial appeal, but were not, are barred from consideration, under the doctrine of res judicata. Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir.), cert. denied, 474 U.S. 831 (1985); Adams v. Bradshaw, 484 F.Supp.2d 753, 769 (N.D. Ohio 2007); State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996) (syllabus); State v. Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104, 105-106 (1967) (syllabus, ¶9).
Because state law no longer would permit Tharp to raise this claim, it is defaulted. See Williams, 460 F.3d at 806; Adams, 484 F.Supp.2d at 769. "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." Williams, 460 F.3d at 806 (citing Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). When state court remedies are no longer available to the petitioner, procedural default and not exhaustion bars habeas review. Id. Where the petitioner fails to demonstrate cause and prejudice to excuse the default, the claim is barred. Id. at 807.
In his Traverse, Tharp argues that his first ground should not be procedurally defaulted for two reasons. First, he contends that any procedural default should be excused under the fundamental miscarriage of justice exception. (R. 10, PageID #: 296.) In particular, Tharp claims he "can possibly set forth newly discovered evidence to show he is actually innocent of the degree charged regarding the offenses of importuning." Id. Later in his Traverse, Tharp asserts he "has come forward with newly discovered evidence released and journalized by the court of appeals on December 22, 2016. See, (State's Exhibit PageID # 32)." (R. 10, PageID #: 300.)
The Supreme Court has recognized a "narrow exception" to the procedural default rule "when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense." Dretke v. Haley, 541 U.S. 386, 388 (2004) (citing Murray, 477 U.S. 478). The fundamental miscarriage of justice exception applies only to a "narrow range of cases." Schlup v. Delo, 513 U.S. 298, 314-315 (1995) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). The Supreme Court has instructed that the exception should remain "rare," applied only in the "extraordinary case." Id. at 321. The fundamental miscarriage of justice exception is explicitly linked to a showing of the petitioner's actual innocence. Id. The Sixth Circuit has indicated:
Souter v. Jones, 395 F.3d 577, 589-590 (6th Cir. 2005) (emphasis added) (internal citations omitted).
Tharp's claim of actual innocence is contradicted by his guilty plea to four counts in state court. See, e.g., Vanwinkle v. United States, 645 F.3d 365, 370 (6th Cir. 2011) (defendant's plea serves as admission that he is not innocent of the crimes charged); Carter v. Mitchell, 443 F.3d 517, 538-539 (6th Cir. 2006), cert. denied, 549 U.S. 1127 (2007); Canty v. Cason, 56 Fed. Appx 660, 662 (6th Cir.), cert. denied, 539 U.S. 931 (2003). The record demonstrates the following: Tharp appeared in the trial court; he was represented by counsel; the trial court advised him of his constitutional rights; and, Tharp entered a plea of guilty to charges in Counts 1 and 6 of corrupting another with drugs and Counts 3 and 8 of importuning. (R. 7-1, RX 3, PageID #: 71; R. 10, PageID #: 287.) Tharp has never contended that his guilty plea should be found invalid. See generally R. 7-1, RX 11, PageID #: 99; RX 12, PageID #: 111; RX 15, PageID #: 143. Nor does the record indicate that Tharp entered an Alford plea.
Moreover, Tharp does not provide any new reliable evidence that would tend to establish his innocence, for purposes of overcoming his procedural default. As noted above, Tharp asserts that the "newly discovered evidence [was] released and journalized by the court of appeals on December 22, 2016. See, (State's Exhibit PageID # 32)." (R. 10, PageID #: 300.) The page cited by Tharp is simply a factual summary in the respondent's Return of Writ. See R. 7, PageID #: 32. It contains no reference to any newly discovered evidence.
Although he does not refer to it in the body of his Traverse, Tharp did attach an "Intake Report Form" from the Ohio Department of Job & Family Services, dated August 25, 2015, which he labeled as "new evidence." See R. 10-1, PageID #: 302-304. The form sets forth the allegations reported to the agency by the daughter. Id. Tharp's Traverse does not discuss how the document constitutes new reliable evidence or what he contends the alleged evidence would establish. The court does not find that this unauthenticated form or Tharp's general arguments undermine confidence in his conviction; nor does the court find that this is the type of "extraordinary case" contemplated by the Supreme Court. See Murray, 477 U.S. at 496. The court finds that the miscarriage of justice exception does not apply here to excuse Tharp's procedural default.
Tharp bases the second argument that his claim should not be procedurally defaulted upon a due process violation theory stemming from alleged ineffective assistance of trial and appellate counsel. (R. 10, PageID #: 298.) Ineffective assistance of counsel can serve as cause to overcome procedural default. Smith v. Ohio Dep't of Rehab. and Corr., 463 F.3d 426, 432 (6th Cir. 2006). However, an ineffective assistance of counsel claim, which could be asserted as cause for another procedurally defaulted federal claim, can itself be procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). A claim of ineffective assistance of counsel must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Edwards, 529 U.S. at 452; Little v. Brunsman, No. 1:12CV145, 2014 WL 4354547, at *30 (N.D. Ohio Sept. 2, 2014).
Tharp raised a claim of ineffective assistance of trial counsel on appeal, arguing that "counsel failed to raise any objection to the failure of the trial court to make a determination as to whether the multiple counts in this case required merger under the Double Jeopardy Clause." (R. 7-1, RX 11, PageID #: 99.) He argued that "counsel stood silent while Appellant's sentences were run consecutively, despite the fact that the requirement for merger [of allied offenses] is at the least arguable in this case." Id. at 104. As already discussed above, this is not the same theory of ineffective assistance of counsel that Tharp presents in his habeas petition. See Wong, 142 F.3d at 322; Brandon 2007 WL 786330, at *1.
In addition, Tharp did not appeal any claim of ineffective assistance of counsel to the Ohio Supreme Court. See generally R. 7-1, RX 21, PageID #: 171. Therefore, Tharp failed to exhaust this claim by presenting it to the state high court. Rust, 17 F.3d at 160 (citing Manning, 912 F.2d at 881); Townsend, 2009 WL 589332, at *7. As already noted above, the Supreme Court of Ohio will not consider a constitutional question that was not raised in the lower courts. Leroy, 757 F.2d at 99; Adams, 484 F.Supp.2d at 769. Tharp can no longer raise this claim in state court, as Ohio law would bar the claim on the basis of res judicata. Leroy, 757 F.2d at 99. State law no longer would permit Tharp to raise this ineffective assistance claim; consequently, it is defaulted. See Williams, 460 F.3d at 806; Adams, 484 F.Supp.2d at 769.
Furthermore, the court's decision supra determined that Tharp procedurally defaulted his claim of ineffective assistance of appellate counsel. Since Tharp has failed to establish cause to excuse the procedural default, the court need not address the issue of prejudice. Canty, 56 Fed. Appx at 662 (citing Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000)). The first ground of the petition is procedurally defaulted.
It is recommended that the petition be denied. The petition should not be granted because both grounds raised in the petition have been procedurally defaulted.
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days of mailing of this notice. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); see also United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
