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 Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
Petitioner's Motion for Leave to Conduct Discovery and to Expand Record (ECF No. 10) is
The Ohio Fourth District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Hawkins, No. 13CA3, 2014 WL 1339804, at *1-3 (Ohio App. 4th Dist. March 21, 2014) (footnotes omitted). On March 21, 2014, the appellate court affirmed the judgment of the trial court. Id. Petitioner did not file an appeal with the Ohio Supreme Court.
On June 17, 2014, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 9-1, PageID# 184.) Petitioner asserted that he had been denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that he had been denied the effective assistance of trial counsel based on his attorney's failure to object to the presentation of cumulative prejudicial evidence. (PageID# 193.) On September 11, 2014, the appellate court denied the Rule 26(B) application. (PageID# 190.) On December 24, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4). (PageID# 210.)
On September 9, 2015, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts that he was denied the effective assistance of trial counsel because his attorney failed to object to the needless presentation of cumulative prejudicial evidence, i.e., gruesome details and photographs of the decedent's body (claim one); and that he was denied the effective assistance of appellate counsel based on his attorney's failure to raise the issue on appeal (claim two). It is the position of the Respondent that Petitioner's claims are procedurally defaulted or without merit.
Petitioner moves the Court to order Respondent to provide a copy of all photographs submitted into evidence at trial in support of his claim of the denial of the effective assistance of counsel. He contends that, absent admission of this unduly prejudicial evidence, he would have been acquitted.
The discovery processes contained in the Federal Rules of Civil Procedure do not automatically apply to habeas corpus proceedings. Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery." Under this "good cause" standard, a district court should grant leave to conduct discovery in habeas corpus proceedings only "`where specific allegations before the court show reason to believe that the petitioner may, if the facts are more fully developed, be able to demonstrate that he is . . . entitled to relief. . . .'" Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); see also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001).
Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004).
Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts provides:
Rule 7 permits federal habeas corpus courts to direct the parties to supplement the state court record with materials relevant to the Court's resolution of the petition. The decision of whether to order Rule 7 expansion is within the sound discretion of the district court. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988) (holding that record expansion is left to discretion of the district court). Expansion pursuant to Rule 7, under the language of that Rule, therefore contains only a relevancy limitation. That is, the materials a petitioner seeks to include need only be relevant to the determination of the merits of the constitutional claims in order to be added to the record.
Here, Respondent maintains that Petitioner has waived his claim of ineffective assistance of trial counsel by failing to raise the claim on direct appeal. Review of the photographs at issue, therefore, will not assist this Court in determining whether Petitioner has committed a procedural default. Further, expansion of the record to include such evidence likewise is not relevant to this Court's determination of whether Petitioner has established cause for his procedural default. Petitioner has failed to establish either good cause for this discovery request or that the information sought will be relevant to this Court's resolution of this case.
Petitioner's Petitioner's Motion for Leave to Conduct Discovery and to Expand Record (ECF No. 10) therefore is
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 to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no longer present the relevant claims to a state court, the petitioner also waives the claims for purposes of federal habeas review unless he or she can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).
In the Sixth Circuit, a court must undertake a four-part analysis to determine whether procedural default is a bar to a habeas petitioner's claims. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x. 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth Circuit requires the district courts to engage in the following inquiry:
Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if "the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner" may still obtain review of his or her claims on the merits if the petitioner establishes: (1) a substantial reason to excuse the default and (2) that he or she was actually prejudiced by the alleged constitutional error. Id. "Cause" under this test "must be something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some factor external to the defense [that] impeded [ ] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753. This "cause and prejudice" analysis also applies to failure to raise or preserve issues for review at the appellate level or failure to appeal at all. Id. at 750.
Nevertheless, "`[i]n appropriate cases' the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration.'" Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135 (1892)). Petitioners who fail to show cause and prejudice for procedural default may nonetheless receive a review of their claims if they can demonstrate that a court's refusal to consider a claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir.2001) (same). The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995).
In claim one, Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to object to admission of prejudicial photographs of the victim. This claim, being readily apparent from the face of the record, should have been raised on direct appeal, where Petitioner was represented by new counsel. However, Petitioner failed to raise the claim on direct appeal.
Ohio's doctrine of res judicata in this context is adequate and independent under the third part of the Maupin test. To be "independent," the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). To be "adequate," the state procedural rule must be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). "[O]nly a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 521, 561 (S.D. Ohio 1998).
The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. With respect to the independence prong, the Court concludes that Ohio's doctrine of res judicata in this context does not rely on or otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.
Petitioner may still secure review of his claims on the merits if he demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice from the constitutional violations that he alleges.
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). The constitutionally ineffective assistance of counsel may constitute cause for a procedural default, so long as such claim has been presented to the state courts and is not, itself, procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).
The Court presumes that Petitioner asserts, as cause for his procedural default of claim one, the denial of the effective assistance of appellate counsel. He raises this same allegation in habeas corpus claim two. This Court therefore will address the merits of this claim in order to determine whether Petitioner can establish cause for his procedural default.
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act ("AEDPA") sets forth standards governing this Court's review of state-court determinations. The United State Supreme Court recently described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that statecourt decisions be given the benefit of the doubt." (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e)(1) provides:
"Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law"); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding"). The United States Court of Appeals for the Sixth Circuit recently explained these standards as follows:
Coley, 706 F.3d at 748-49. The burden of satisfying the standards set forth in § 2254 rests with the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
"In order for a federal court to find a state court's application of [Supreme Court precedent] unreasonable, . . . [t]he state court's application must have been objectively unreasonable," not merely "incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520-21, (2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 131 S.Ct. at 786 ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as "`fairminded jurists could disagree' on the correctness of the state court's decision." (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of "unreasonable application" under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir.2009) ("`[O]ur focus on the `unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not whether the state court considered and discussed every angle of the evidence.'" (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc))); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that was "not expressly considered by the state court in its opinion" to evaluate the reasonableness of state court's decision). Relatedly, in evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a court must review the state court's decision based solely on the record that was before it at the time it rendered its decision. Pinholster, 563 U.S. at 181. Put simply, "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 182.
"In all criminal prosecutions," the Sixth Amendment affords "the accused . . . the right . . . to Assistance of Counsel for his defence." U.S. Const. amend. VI. "Only a right to `effective assistance of counsel' serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principals governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate that his counsel's performance was deficient and that he suffered prejudice as a result. 466 U.S. at 687; Hale v. Davis, 512 F. App'x 516, 520 (6th Cir. 2013). A petitioner "show[s] deficient performance by counsel by demonstrating `that counsel's representation fell below and objective standard of reasonableness." Poole v. MacLaren, No. 12-1705, ___ F. App'x ___, 2013 WL 6284355, at *5 (6th Cir. Dec. 5, 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and citing Strickland, 466 U.S. at 687). To make such a showing, a petitioner "must overcome the `strong [ ] presum[ption]' that his counsel `rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Poole, 2013 WL 6284355 at *5 (quoting Strickland, 466 U.S. at 687). "To avoid the warping effects of hindsight, [courts must] `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir.2009) (quoting Strickland, 466 U.S. at 689).
Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D. Ohio March 6, 2013). Factors to be considered in determining whether a defendant has been denied the effective assistance of appellate counsel include:
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999) (citations omitted).
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court observed that while "`[s]urmounting Strickland's high bar is never . . . easy.' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult. . . ." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, ___, 130 S.Ct. 1473, 1485 (2010) (and citing Strickland, 466 U.S. at 689). The Court instructed that the standards created under Strickland and § 2254(d) are both "`highly deferential,' and when the two apply in tandem, review is `doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The state appellate court rejected Petitioner's claim of the denial of the effective assistance of appellate counsel in relevant part as follows:
Entry Denying Application to Reopen Direct Appeal (ECF No. 9-1, PageID# 190-95.) Thus, the state appellate court found that Petitioner had failed to identify any inadmissible evidence presented at trial. Petitioner therefore has failed to establish the denial of the effective assistance of appellate counsel. He likewise has failed to establish cause for his procedural default of claim one.
Therefore, the Magistrate Judge
Petitioner's Motion for Leave to Conduct Discovery and to Expand Record (ECF No. 10) is
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 Recommendati on 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.
