Opinion
Case No. 3-:05-CV-258.
March 3, 2008.
Andrew P. Avellano, Andrew P. Avellano, LLC, Columbus, OH, for Petitioner.
Steven Harry Eckstein, Thelma Thomas Price, Ohio Attorney General's Office, Columbus, OH, for Respondent.
This matter is before the Court pursuant to Petitioner Keith Abshear's ("Abshear's") Objections to the Report and Recommendations and to the Supplemental Report and Recommendations of Chief Magistrate Judge Michael R. Merz. The Report and Recommendations was filed on December 26, 2006, and Abshear's Objections thereto were filed on February 15, 2007. The Supplemental Report and Recommendations was filed on August 28, 2007, and Abshear's Objections thereto were filed on November 16, 2007. Both the Report and Recommendations and the Supplemental Report and Recommendations address Abshear's Petition for a Writ of Habeas Corpus.
The Report and Recommendations finds that Abshear procedurally defaulted in presenting each of his Grounds for Relief to the state courts, those defaults were held against him by the state courts, and he is unable to excuse the defaults. (Doc. #15.) Abshear objected to the Report and Recommendations (doc. #17) and the Warden responded (doc. #18). Abshear's objections to the Report and Recommendations were then argued orally on March 26, 2007, at Abshear's request.
The Chief Magistrate Judge then issued the Supplemental Report and Recommendations (doc. #23) to which Abshear objected (doc. #24). The Warden did not file objections to the Supplemental Report and Recommendations and did not file a response to Abshear's Objections. The Supplemental Report and Recommendations addresses each of Abshear's objections to the Report and Recommendations and reaches the same conclusion as the Report and Recommendations regarding procedural default.
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Upon said review, the Court finds that Abshear's objections to the Chief Magistrate Judge's Report and Recommendations and Abshear's objections to the Chief Magistrate Judge's Supplemental Report and Recommendations are not well-taken, and they are hereby OVERRULED. The Chief Magistrate Judge's Report and Recommendations and Supplemental Report and Recommendations are ADOPTED in their entirety. Abshear's Petition for a Writ of Habeas Corpus is DISMISSED WITH PREJUDICE as barred by procedural default.
A decision on a Certificate of Appealability awaits a request therefore. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
DONE and ORDERED in Dayton, Ohio.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 17) to the Magistrate Judge's original Report and Recommendations (the "Report," Doc. No. 15). Respondent has replied to the Objections (Doc. No. 18) and the Objections were argued orally on March 26, 2007, at Petitioner's request (Transcript, Doc. No. 22). Andrew Avellano represented the Petitioner at oral argument and Thelma Price represented Respondent.
The General Order of Reference for the Dayton location of court permits the Magistrate Judges to reconsider decisions or reports and recommendations when objections are filed.
Petitioner, who is serving a seventeen-year sentence imposed by the Clark County Common Pleas Court raises the following grounds for relief:
Ground One: Denial of due process under the 5th and 14th amendments by state's failure to enforce its own statutory procedures in giving a first-time offender non-minimum sentences, and in giving a maximum sentence as required and prohibited by law, respectively.
Supporting Facts: State statutory schemes require giving a first time offender minimum sentences, unless certain findings are made by the trial court. Said findings were not present, and were not made "on the record" as required under the Ohio Supreme Court case law.
Ground Two: Denial of due process under the 5th and 14th amendments, due to the state's failure to enforce its own statutory procedures in giving consecutive sentences and when the prosecution conceded error on said issue.
Supporting Facts: Petitioner was a first time offender at age 59. He had no prior record of any kind. He was a 30+ year retiree from Navistar, Inc. State statutory schemes require that certain factors be present and found and stated on the record by the trial court during sentencing in order to justify giving consecutive sentences. Said factors were not present, and the prosecutor conceded error on the issue of the trial court's failure to make send findings on the record, yet the state Court of Appeals sustained the trial court's sentences.
Ground Three: Denial of due process under the 5th, 6th, and 14th amendments, as the sentencing court made findings, exclusive to the providence [sic] of the jury, to give more than statutory minimum sentences to a first-time offender and to give consecutive sentences.
Supporting Facts: State statutory schemes require that a first time offender receive a minimum sentence and that a defendant not receive consecutive sentences, unless certain "aggravating" factors are found by the trial court judge. Petitioner is a first-time offender, yet he received non-minimum and maximum sentences that will run consecutively. Not only did the trial court fail to make the necessary findings on the record to justify such sentences, such as sentence and sentencing scheme are in direct conflict with United States Supreme Court case law precedent.
(Petition, Doc. No. 1, at 6-9.)
Analysis
In his Answer, Warden Moore pled that all three Grounds for Relief were procedurally defaulted in the state courts and should be dismissed with prejudice on that basis (Answer, Doc. No. 11, at 7-18). The Warden also offered an alternative defense on the merits. Id. at 18-33. However, the Magistrate Judge did not reach the merits in the original Report and Recommendations, but concluded that the Warden's procedural default defenses should be sustained (Report and Recommendations, Doc. No. 15).
Petitioner's Objections to that conclusion are considered seriatim.
Objection No. 1
Petitioner has argued that the State had waived any procedural default by failing to object to the untimeliness of Petitioner's Application for Delayed Reopening under Ohio R. App. P. 26(B). In fact, the county prosecutor filed nothing in response to the Application. Nevertheless, the Second District Court of Appeals found the Application to be untimely because that court's judgment on the merits was entered March 19, 2004, and the 26(B) Application was not filed until August 3, 2005. State v. Abshear, Case No. 03 CA 0012 (Ohio App. 2nd Dist., September 29, 2005) (unreported, copy attached as Ex. 14 to Answer, Doc. No. 11). The Court of Appeals dismissed the Application, holding "Because Abshear's App. R. 26(B) application was not timely filed, and because he has failed to demonstrate good cause for that failure, the application is Denied." Id. at 3.
Applying the governing four-prong analysis of Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), there is no question that (1) Ohio has a relevant rule — 26(B) applications must be filed within ninety days of final appellate judgment, (2) Petitioner did not comply with that rule, and (3) Petitioner's non-compliance was held against him, i.e., the timeliness rule was enforced. The Report concluded that this procedural default barred the Petition.
Petitioner objects that Merlo v. Bolden, 801 F.2d 252 (6th Cir. 1986), creates an exception to the Maupin analysis which saves him from procedural default. Merlo was decided the same year as Maupin but does not cite to the earlier case for governing law on procedural default, or attempt in any way to distinguish Maupin. Because Maupin is a published circuit opinion, the panel which decided Merlo could not have overruled Maupin even had it wanted to; its lack of citation to Maupin suggests perhaps Maupin had not yet established itself as the precedent to be cited on procedural default.
Without question, Maupin has now established itself as the controlling precedent. According to Shepard's while it has been criticized once ( Tyler v. McCaughtry, 293 F. Supp. 2d 920 (E.D. Wis. 2003)), it has been followed 197 times. See, e.g., Durr v. Mitchell, 487 F.3d 423 (6th Cir. 2007); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); James v. Brigano, 470 F.3d 636 (6th Cir. 2006); Apanovitch v. Houk, 466 F.3d 460 (6th Cir. 2006); Smith v. Ohio Dep't of Rehab. Corr., 463 F.3d 426 (6th Cir. 2006); Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006); Washington v. Renico, 455 F.3d 722 (6th Cir. 2006); Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006); Keith v. Mitchell, 455 F.3d 662 (6th Cir. 2006); Carter v. Mitchell, 443 F.3d 517 (6th Cir. 2006); Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006); and Linscott v. Rose, 436 F.3d 587 (6th Cir. 2006), just to cite Sixth Circuit published opinions in the last two years. In contrast, Merlo has not generated any following; Shepard's does not cite any approving cases.
Moreover and more importantly, the petitioner in Merlo would not have been barred under Maupin analysis because the state court decided his case on the merits and did not hold any state court default against him. See Merlo, 801 F. 2d at 255. The key question under Maupin is whether the state court enforced a procedural bar against a defendant, See Maupin, 785 F.2d at 138, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). If the state court ignores the procedural default and decides the case on the merits (which is what happened in Merlo but not here), the federal court is also free to consider the merits. The mere existence of a procedural bar is insufficient; the state courts must have relied on it. Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). In this case, as is evident from the holding quoted above, the Court of Appeals plainly enforced the 26(B) timeliness rule.
Procedural default doctrine is grounded in comity to the state courts, not state prosecutors. Abdur'Rahman v. Bell (In re Abdur'Rahman), 392 F.3d 174, 186 (6th Cir., 2004), citing Coleman v. Thompson, 501 U.S. 722, 732, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991), and Maupin, supra. Petitioner's suggested approach, which would not permit state courts to enforce their own rules sua sponte, turns the comity consideration upside down.
Petitioner also relies on Lee v. Kemna, 534 U.S. 362 (2002). In that case, the Supreme Court held that the state court rule relied upon was not an adequate state ground of decision because, at least in this case, it served no perceivable state interest. Thus Lee is not a case about waiver of a default by not objecting, but about the inadequacy of the state procedural rule even when it was enforced. Lee is not applicable to the timeliness rule in Ohio App. R. 26(B) which has been held to be an adequate state ground for decision. Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002).
Petitioner also relies, in support of his first Objection, on City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985). That was a § 1983 action which did not in any way turn on deference to state court decisions.
Objection No. 2
In his second Objection, Petitioner asserts that the Ohio Supreme Court did not clearly rely on his procedural default when it declined to review the Court of Appeals decision which did rely on that default, relying on the plain statement rule of Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308, 317 (1989). As noted in the Report, subsequent to Harris, the Supreme Court held where there has been one reasoned state court judgment rejecting a federal claim, there is a rebuttable presumption that later unexplained orders upholding the judgment or rejecting the same claim rest on the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590, 115 L. Ed. 2d 706, 716 (1991).Objection No. 3
In his third Objection, Petitioner asserts that he has demonstrated excusing cause and prejudice with regard to any claimed procedural default. The asserted excusing cause is ineffective assistance of appellate counsel in not presenting Petitioner's claims made in the Petition in the direct appeal. While ineffective assistance of appellate counsel can constitute excusing cause, the claim of ineffective assistance of appellate counsel must first be properly presented to the state courts. Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000). Petitioner did not do that. Instead of filing his 26(B) Application within the three months allowed by Ohio law, he waited seventeen months.
As an alternative to cause and prejudice, Petitioner relies on the "miscarriage of justice" excuse for procedural default (Objections, Doc. No. 17, at 9-10). However, the miscarriage of justice excuse is precisely equivalent to the excuse for actual innocence. The "miscarriage of justice" standard, which is sometimes used synonymously with "actual innocence," requires some showing of actual innocence. In other words, they are the same standard, not alternative ways of avoiding a procedural default. Calderon v. Thompson, 523 U.S. 538, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998). In Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), the Supreme Court recognized an exception to the cause and prejudice requirement for a petitioner who could demonstrate actual innocence. However, actual innocence means factual innocence as compared with legal innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). "A prototypical example of actual innocence in a colloquial sense is the case where the State has convicted the wrong person of the crime." Sawyer v. Whitley, 505 U.S. 333, 112 S. Ct. 2514, 120 L.Ed. 2d 269 (1992). Petitioner here does not claim actual innocence within the meaning of that doctrine as developed by the Supreme Court. Instead, he asserts it is a miscarriage of justice "that Ohio failed to follow its own sentencing law" in this case. That sort of miscarriage of justice, assuming it is one, does not excuse procedural default.
Objection No. 4
Petitioner objects to the holding that the Court of Appeals' denial of his Application for Delayed Reopening relies on an adequate and independent state ground, to wit, the failure to file within the time allowed by the Rule (Objections, Doc. No. 17, at 11). As noted above, the timeliness rule in Ohio App. R. 26(B) which has been held to be an adequate state ground for decision. Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002).
Petitioner relies on Deitz v. Money, 391 F.3d 804 (6th Cir. 2004). That case, however, was not considering Ohio App. R. 26(B), but Ohio R. App. P. 5(A). Indeed the Deitz court did not cite Monzo and specifically indicated it was not deciding whether 26(B) was an adequate and independent state ground. Id. at 810. Petitioner argues "[t]he rules governing delayed appeals in the Ohio Court of Appeals [under App. R. 5(A)] and filing a timely application to reopen an appeal are substantially the same." (Objections, Doc. No. 12). If that is so, then it is Deitz which is wrongly decided, because Monzo was decided first in time and is a published decision.
Petitioner asserts that Monzo is not applicable because of Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006). As explained in the Report, Franklin is a capital case and based its reasoning on the failure of the Ohio Supreme Court to apply the 26(B) timeliness rule in capital cases (Report, Doc. No. 15, at 12-13). There is simply no comparable failure to apply the Rule in non-capital cases.
Objection No. 5
The Report concluded that Petitioner's Third Ground for Relief, which asserts the applicability of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to sentences above the statutory minimum in Ohio, is procedurally defaulted because it was never presented to the Ohio courts until the 26(B) Application was filed. This is a procedural default independent of the untimeliness of the 26(B) Application. That is to say, if the Court of Appeals had granted the application to reopen, it would still have denied this claim on the merits because it was a claim available to Petitioner at trial and never raised at trial; absent a contemporaneous objection at trial, it could not have been ineffective assistance of appellate counsel to fail to raise it on appeal.
Even if this claim had been raised at trial, it would not likely have been a winning argument on direct appeal because the Ohio courts were not applying Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004), to the Ohio sentencing scheme until State v. Foster, 109 Ohio St. 3d 1, 845 N.E. 2d 470 (2006). On both these grounds, it was not ineffective assistance of appellate counsel to fail to raise this claim on direct appeal.
Objection No. 6
In his Objection No. 6, Petitioner contests the Report's conclusion that he did not raise his First Ground for Relief on appeal to the Ohio Supreme Court. He asserts he did raise it "albeit in-artfully."
The First Ground for Relief reads:
Ground One: Denial of due process under the 5th and 14th amendments by state's failure to enforce its own statutory procedures in giving a first-time offender non-minimum sentences, and in giving a maximum sentence as required and prohibited by law, respectively.
The sole proposition of law raised in the Ohio Supreme Court reads:
If a trial court chooses to impose consecutive sentences pursuant to R.C. 2929.14(E), it must first make the statutorily enumerated findings and give reason supporting those findings at the sentencing hearing. The trial court must clearly align each reason with the specific finding in order to support its decision to impose consecutive sentences.
(Quoted in Report, Doc. No. 15, at 4.) Comparing those two sets of words, it is clear that they do not raise the same issue under Ohio Revised Code § 2929.14.
Conclusion
Having considered Petitioner's Objections, the Magistrate Judge again concludes the Petition should be dismissed with prejudice as barred by procedural default. Any decision on a certificate of appealability should await a request.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by one of the methods of service listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).