ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent's Return of Writ, Petitioner's Response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
State v. Espinal, No. 12-AP-346, 2012 WL 5947353, at *1 (Ohio App. 10th Dist. Nov. 27, 2012). On November 27, 2012, the state appellate court dismissed Petitioner's motion as untimely. Id. On May 8, 2012, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Espinal, 986 N.E.2d. 1023 (2012).
On July 26, 2013, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts in claim one that he "[d]id not commit crimes, was warned that if I did not plead to the charges I would spend the rest of my life in prison." Petition, ECF 3, PageID# 27. In claim two, Petitioner asserts that his convictions should have been merged for sentencing and violate the Double Jeopardy Clause. It is the position of the Respondent that Petitioner's claims are procedurally defaulted.
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, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 447 U.S. 478, 485 (1986); Engle v. Issac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a reviewing court must undertake a four-part analysis when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "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." Id. Second, a court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, the court must decide whether the state procedural 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 has determined that a petitioner did not comply with a state procedural rule and that the rule was an adequate and independent basis on which to do so, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis also applies to a failure to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
In claim one, Petitioner asserts that he is not guilty of the charges against him, but was advised to plead guilty or he would spend the rest of his life in prison. In claim two, Petitioner asserts that his convictions violate the Double Jeopardy Clause. These claims are readily apparent from the face of the record and should have been raised on direct appeal. Petitioner did not timely appeal. The state appellate court denied his a motion for a delayed appeal. Petitioner did not, thereafter file an appeal to the Ohio Supreme Court. Thus, although it appears that Petitioner's claims remain unexhausted, as he may still pursue a delayed appeal to the Ohio Supreme Court, the undersigned recommends dismissal of Petitioner's claims as plainly without merit. See 28 U.S.C. § 2254(b)(2)("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"); see also Turner v. Smith, No. 2:08-cv-52, 2009 WL 799041, at *10 (S.D. Ohio 2009)(addressing merits of unexhausted claim in the interest of judicial economy)(citing Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999)(citing Granberry v. Greer, 481 U.S. 129, 131-32 (1987)).
Petitioner provides no factual summary in support of claim one, as he is required to do under Rule 2(c) of the Rules Governing Section 2254 Proceedings in the United States District Courts,
Flood v. Phillips, 90 F. App'x. 108, 2004 WL 193164, at *4 (6th Cir. 2004). Petitioner has not met this standard in regard to habeas corpus claim one.
In his Response to the Return of Writ, however, Petitioner appears to assert a claim of actual innocence.
Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). To establish a claim of actual innocence, a petitioner "must show that it is more likely than not that no reasonable juror" would have found him guilty beyond a reasonable doubt. Souter, 395 F.3d at 589-90 (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). "[A]ctual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). To be credible, the petitioner must provide support for his allegation with "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidencethat was not presented at trial." Souter, 395 F.3d at 590 (citing Schlup, 513 U.S. at 324. "The actual innocence exception should `remain rare' and `only be applied in the `extraordinary case.'" Souter, at 590 (quoting Schlup, at 321.
Assuming actual innocence to be the basis of Petitioner's is claim, it does not provide him relief. The United States Supreme Court has held that a free standing claim of actual innocence fails to present an issue appropriate for federal habeas corpus relief. "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). Thus, a claim of actual innocence serves as a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera, 506 U.S. 404. Actual innocence, if established by the petitioner, permits him to obtain consideration of an independent constitutional claim otherwise barred from review by a procedural error
Herrera v. Collins, 506 U.S. at 401.
Lardie v. Birkett, No. 05-cv-74766-DT, 2008 WL 474072 (E.D. Mich. Feb. 19, 2008); see also Webb v. Wolfenbarger, No. 2:08-cv-12692, 2009 WL 369482 (E.D. Mich. Feb. 11, 2009) (same). Thus, claim one is procedurally defaulted and otherwise fails on the merits.
In claim two, Petitioner asserts that his convictions violate the Double Jeopardy Clause and Ohio's statute on allied offenses of similar import. This claim also fails
Ordinarily, a plea of guilt conclusively establishes the defendant's guilt to the crimes charged, and any subsequent collateral attack upon that plea is limited to an inquiry as to whether it was voluntarily and knowingly given. United States v. Broce, 488 U.S. 563, 569 (1989). In the double jeopardy context, an exception to this rule exists when it is plain from the language of the charging document that no legally cognizable additional crime was charged to which the defendant could properly have entered a plea of guilt. Id. at 576. In all other respects, any right to assert a claim of double jeopardy is waived by the entry of the guilty plea. Id.
Tarpley v. Bock, No.00-10408-BC, 2003 WL 22258199, at *6 (E.D. Mich. Sept. 25, 2003); see also Emrick v. Wolfe, No. 2006 WL 3500005 (S.D. Ohio Dec. 5, 2006)(same). Here, Petitioner pleaded guilty to two counts of rape on a child under eleven years of age between December 24, 2008 and December 24, 2009. By doing so, he admitted his guilt to two separate criminal acts during that period of time. Petitioner's double jeopardy claim accordingly is without merit.
If any party objects to this Report and Recommendation, that party may, within fourteen 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 (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.
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.
Rules Governing Section 2254 Proceedings, Rule 2(c).
