CHELSEY M. VASCURA, Magistrate Judge.
Petitioner, a state prisoner, brings this 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 Undersigned
Petitioner challenges his convictions in the Belmont County Court of Common Pleas on two counts of drug trafficking. The Ohio Seventh District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Nickelson, 7th Dist. No. 16BE0039, 2017 WL 3951925, at *103 (Ohio Ct. App. Aug. 30, 2017). On August 30, 2017, the appellate court affirmed the judgment of the trial court. Id. On January 31, 2018, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Nickelson, 151 Ohio St.3d 1514 (Ohio 2018).
On November 17, 2017, Petitioner filed a timely application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). In that application, Petitioner asserted that he was denied the effective assistance of appellate counsel because his attorney failed advance the following arguments on appeal: that the affidavit attached to the search warrant did not provide probable cause; that police unjustifiably evicted him from his hotel in violation of the Fourth Amendment; and that he was denied the effective assistance of trial counsel because his attorney failed to pursue and or use exculpatory evidence. See State v. Nickelson, 7th Dist. No. 16BE0039, 2018 WL 527972, at *1-6 (Ohio Ct. App. Jan. 19, 2018). Petitioner apparently did not file an appeal to the Ohio Supreme Court.
On January 30, 2019, Petitioner filed this habeas corpus petition. He asserts, as his sole claim for relief, that he was denied the effective assistance of appellate counsel because his attorney failed to properly litigate or preserve a claim under the Fourth Amendment. It is Respondent's position that Petitioner has procedurally defaulted this claim.
Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). 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 state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971). Where a petitioner has failed to exhaust claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas." Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present `the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case—that is, they are "procedurally defaulted."
To determine whether procedural default bars a habeas petitioner's claim, courts in the Sixth Circuit engage in a four-part test. See 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). 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. Second, the court must determine whether the state courts actually enforced the state procedural sanction. Third, the court must determine whether the forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138. 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) cause sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged constitutional error. Id.
Petitioner asserts he was denied effective assistance of appellate counsel. However, Petitioner failed to file a timely appeal of the appellate court's January 2018 decision denying his Rule 26(B) application. Further, he may now no longer do so, as Ohio does not permit delayed appeals in Rule 26(B) proceedings. Ohio S. Ct. Prac. R. 7.01(A)(4)(c). The state courts were never given the opportunity to enforce the procedural rule at issue due to the nature of Petitioner's procedural default. Moreover, this Court has repeatedly held that the failure to file a timely appeal to the Ohio Supreme Court in Rule 26(B) proceedings constitutes a procedural default of a claim of the denial of the effective assistance of appellate counsel. See Teitelbaum v. Turner, No. 2:17-cv-583, 2018 WL 2046456, at *21 (S.D. Ohio May 2, 2018) (citing Davis v. Morgan, No. 2:15-cv-00613, 2017 WL 56034, at *3 (S.D. Ohio Jan. 5, 2017) (citing Wright v. Lazaroff, 643 F.Supp.2d 971, 987-88, 994 (S.D. Ohio 2009); Johnson v. Turner, No. 2:14-cv-01908, 2016 WL 6963177, at *6 (S.D. Ohio Nov. 29, 2016); Hudson v. Smith, No. 2:09-cv-0030, 2010 WL 2671273, at *6 (S.D. Ohio June 30, 2010)). Thus, Petitioner has procedurally defaulted his claim of the denial of the effective assistance of appellate counsel. Petitioner has failed to establish cause and prejudice for his procedural default.
Moreover, Petitioner does not allege, and the record does not reflect, that he can establish his actual innocence so as to obtain a merits review of this claim based on a manifest miscarriage of justice. See Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
For the reasons set forth above, it is
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.
