NORAH McCANN KING, Magistrate Judge.
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 1, Respondent's Return of Writ, Doc. No. 6, Petitioner's Traverse, Doc. No. 7, Respondent's Reply to the Traverse, Doc. No. 8, Petitioner's Surreply, Doc. No. 9, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge concludes that Petitioner has procedurally defaulted all of the claims that he presents for review in this action. It is therefore
This case involves Petitioner's conviction after a jury trial in the Licking County Court of Common Pleas on charges of aggravated murder, with a firearm specification; tampering with evidence; gross abuse of a corpse; and conspiracy to commit arson, all arising out of the murder of Robert Ebright. On May 10, 2011, Petitioner was sentenced to an aggregate term of imprisonment ranging from forty years to life and to a term of post-release control. Exhibit 20 to Return of Writ. Petitioner timely appealed from that judgment. That appeal "was dismissed on December 16, 2011, for want of an appellant's brief, despite several time enlargements. On January 27, 2012, th[e state court of appeals] reopened the appeal, and new appellate counsel was appointed." State v. Gaona, No. 11-CA-61, 2012 WL 3255042, at *5 (Ohio App. 5
Id. On August 9, 2012, the state appellate court vacated the judgment of the trial court only as it related to the imposition of post release control and remanded the case to the trial court for modification of the sentence; otherwise, the judgment of the trial court was affirmed. Id. at *11. On October 31, 2012, the trial court amended Petitioner's sentence pursuant to the mandate of the state appellate court. Exhibit 29 to Return of Writ.
Petitioner did not timely appeal the appellate court's judgment to the Ohio Supreme Court. On August 29, 2013, i.e., more than one year later, he filed a motion for delayed appeal in the Ohio Supreme Court. Exhibit 31 to Return of Writ. On October 23, 2013, the Ohio Supreme Court denied that motion. State v. Gaona, 137 Ohio St.3d 1457 (Ohio 2013).
On November 25, 2013, Petitioner filed this action, presenting for this Court's review all of the claims raised by his counsel in the Ohio court of appeals. Respondent contends that Petitioner has waived this Court's review of those claims. This Court agrees.
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 criminal defendant with federal constitutional claims is required fairly to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If he can no longer present his claims to a state court, he has waived them for federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485, 397 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 (1977).
In the Sixth Circuit, a court must consider the following to determine whether a federal habeas claim is precluded because of a petitioner's failure to observe a state procedural rule: "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, the court must determine whether the state procedural forfeiture rule is an `adequate and independent' state ground on which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the court determines that the petitioner failed to comply with an adequate and independent state procedural rule, the petitioner must demonstrate cause for his failure to follow the State's procedural rule as well as actual prejudice from the alleged constitutional error. Id.
Petitioner properly raised his claims on direct appeal; however, he failed to timely present those claims to the Ohio Supreme Court, and the Ohio Supreme Court denied his motion for a delayed appeal. The United States Court of Appeals for the Sixth Circuit has held that the Ohio Supreme Court's denial of a motion for leave to file a delayed appeal "constitutes a procedural ruling sufficient to bar federal court review of [the] habeas corpus petition." Bonilla v. Hurley, 370 F.3d 494, 497 (6
Petitioner may still obtain review of the merits of his claims if he establishes cause for his procedural default as well as actual prejudice from the alleged constitutional violations.
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003)(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).
As cause for his failure to timely appeal to the Ohio Supreme Court, Petitioner asserts that he initially believed that the Office of the Ohio Public Defender would represent him in the Ohio Supreme Court. After he learned that that office would not represent him, Petitioner attempted to obtain assistance from the prison's law clerk but could find no one willing or able to assist him. It was not until he was moved into "the merit block" that he was able, with the assistance of another inmate, to file his motion for a delayed appeal in the Ohio Supreme Court. See Exhibit 31 to Return of Writ, PageID# 235. Referring to Bounds v. Smith, 430 U.S. 817 (1977), Petitioner asserts that he was denied his constitutional right of access to the courts when he was denied the assistance of a prison law clerk and that it was this denial that caused his procedural default. See Petitioner's Traverse, PageID# 1315; Surreply, PageID# 1332-33.
A prisoner's constitutional right of access to the courts "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries
Moreover, Petitioner has not established, or even alleged, that his inability to secure the assistance of a prison law clerk impeded his ability to timely present his claims — which were, after all, the same claims presented by his counsel on direct appeal to the state court of appeals — to the Ohio Supreme Court.
Doliboa v. Warden U.S. Penitentiary Terre Haute, Indiana, 503 Fed. Appx. 358, unpublished, 2012 WL 5327501 (6
This Court therefore concludes that Petitioner has failed to establish cause for his procedural default of all of the claims that he presents for federal habeas corpus relief.
Petitioner also alleges that he is actually innocent of the charge against him. Beyond the four-part Maupin analysis, a court is required to consider whether the case is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333 (1992)(Petitioner must show by clear and convincing evidence that, but for the defaulted constitutional error, no reasonable juror would have found petitioner eligible for the death penalty).
Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (footnote omitted); see also McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1931-32 (2013).
Petitioner does not support his claim of actual innocence with new evidence not previously available to him, and review of the record does not establish that this case constitutes one of those rare or extraordinary cases that justify a merits review of a petitioner's otherwise procedurally defaulted claims for relief.
It is therefore
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.