Jackie Stone v. Ernie Moore

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. Gilbert S. Merritt, Eric L. Clay (AUTHORING), Richard Allen Griffin, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0108p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 08-4460
v.
>
,
ERNIE MOORE,
Respondent-Appellee. N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 07-00363—Gregory L. Frost, District Judge.

JACKIE STONE,

Petitioner-Appellant,

Decided and Filed: April 29, 2011
Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Thelma Thomas Price, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. Jackie Stone, London, Ohio, pro se.
_________________
OPINION
_________________
CLAY, Circuit Judge. Pro se Petitioner Jackie Stone appeals from a judgment
entered by the district court denying Petitioner’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons stated below, we AFFIRM the district
court’s judgment.

1

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STATEMENT OF FACTS
On September 16, 1999, Petitioner went to a residence in Franklin County, Ohio
to purchase ecstacy pills from one Danny Feeney. Petitioner purchased the pills, and left
the residence. Later that day, Petitioner returned to the residence with a few additional
individuals.

Feeney met Petitioner and the others at the residence’s back

door. Petitioner drew a gun, and began shooting at Feeney. Individuals on the second
floor of the residence returned fire. Feeney was shot by Petitioner, as was one other
individual, Darvelle Ward. Subsequently, Feeney was taken to the hospital where he
died of gunshot wounds inflicted by Petitioner.
An Ohio grand jury indicted Petitioner, and charged him with the following
crimes: (1) one count of robbery pursuant to Ohio Revised Code (“O.R.C.”) § 2911.02;
(2) one count of aggravated murder pursuant to O.R.C. § 2903.01(A), with specifications
that the killing was committed as part of a course of conduct involving the purposeful
killing or attempted killing of two or more people pursuant to O.R.C. § 2929.04(A)(5),
and that the offense was committed with a firearm in the course of committing an
aggravated robbery, which included a death penalty specification, pursuant to O.R.C.
§ 2929.04(A)(7); (3) one count of aggravated murder of Danny Feeney with death
penalty and firearm specifications pursuant to O.R.C. § 2903.01(B); (4) one count of
attempted aggravated murder of Darvelle Ward with a firearm specification pursuant to
O.R.C. § 2923.02; (5) one count of attempted aggravated murder of Darvelle Ward
pursuant to O.R.C. § 2903.01(B); (6) one count of aggravated robbery pursuant to
O.R.C. § 2911.01 with specifications for a firearm and for improperly discharging a
firearm into a habitation pursuant to O.R.C. § 2923.161; and (7) one count of having a
weapon while under a disability with a firearm specification pursuant to O.R.C.
§ 2923.13.
On May 15, 2000, Petitioner entered a guilty plea to one count of murder with
a firearm specification, a lesser-included offense of aggravated murder, and one count
of felonious assault, a lesser-included offense of attempted aggravated murder. On the

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guilty plea form, Petitioner acknowledged that his guilty plea “represents the free and
voluntary exercise of my own free will and best judgment.” (R. 7-1, Ex. 4 at 2.)
That same day, the state court sentenced Petitioner to an agreed upon statutorily
mandated term of imprisonment of fifteen years to life for murder, plus a three year term
of imprisonment for the firearm specification, and to a concurrent seven year term of
imprisonment for felonious assault. Petitioner was thus sentenced to a minimum of
eighteen years of imprisonment.
More than six years later, Petitioner filed a motion for delayed appeal to
challenge the voluntariness of his guilty plea pursuant to Ohio Rule of Appellate
Procedure 5(A). On August 6, 2006, the Ohio Court of Appeals denied Petitioner leave
to appeal. The Ohio Supreme Court similarly denied Petitioner’s motion to appeal
further.
On April 24, 2007, after exhausting his available state court remedies, Petitioner
filed a pro se petition for a writ of habeas corpus in the district court pursuant to
42 U.S.C. § 2254. In his habeas petition Petitioner raised three grounds for relief:
(1) that the Ohio courts’ denial of his motion for delayed appeal violated his due process
rights; (2) that the State of Ohio’s failure to provide him with appellate counsel violated
his Sixth Amendment right to appellate counsel; and (3) that his trial counsel’s
ineffective assistance violated his Sixth Amendment right to trial counsel. (R. 9,
Magistrate’s Rep. and Recommendation at 4.) Although pro se Petitioner did not state
so explicitly, the substance of his habeas petition challenges the voluntariness of his
guilty plea.
The district court referred Petitioner’s habeas petition to a magistrate judge. The
magistrate judge stated in his Report and Recommendation that although Petitioner had
not waived his right to challenge the voluntariness of his guilty plea, Petitioner had
procedurally defaulted his habeas claims by failing to satisfy the requirements of Ohio
Rule of Appellate Procedure 5(A) in filing his motion for delayed appeal in the Ohio
Court of Appeals. The district court adopted the magistrate judge’s Report and
Recommendation,

and

denied

Petitioner’s

habeas

claims

as

procedurally

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defaulted. Nevertheless, the district court granted Petitioner a certificate of appealability
on his habeas claims, and Petitioner thereafter filed the instant timely appeal.
DISCUSSION
I.

Standard of Review

In reviewing a district court’s denial of a petition for a writ of habeas corpus, this
Court reviews findings of facts for clear error and questions of law de novo. Haliym v.
Mitchell, 492 F.3d 680, 689 (6th Cir. 2007).
II.

Analysis

In pleading guilty, Petitioner waived his right to appeal the substance of his guilty
plea, and was advised as much by the Ohio trial court. In his Report and
Recommendation, the magistrate judge quoted the transcript of Petitioner’s sentencing
hearing at which the Ohio trial court engaged in the following colloquy with Petitioner:
the court asked, “Do you understand that at the end of the trial, if you were convicted, you
would have the right to appeal this conviction?” Petitioner replied, “Yes, ma’am.” The
Ohio trial court further asked Petitioner, “If you proceed by pleading guilty and admitting
your guilt, do you understand then that you would not be in a position to appeal your
conviction and you would be waiving all of these rights that we just discussed?” Once
again, Petitioner replied, “Yes, ma’am.” (R. 9, Rep. and Recommendation at 7.)
However, as recognized by the district court, Petitioner did not waive his right to
challenge the voluntariness of his guilty plea on appeal or in a federal petition for a writ
of habeas corpus. See, e.g., United States v. Mader, 251 F.3d 1099, 1103 (6th Cir. 2001).
Prior to addressing the merits of Petitioner’s claims, we must determine whether
the claims are properly before us, or whether they have been procedurally defaulted.
“Under the procedural default doctrine, a federal court is generally barred from
considering an issue of federal law arising from the judgment of a state court if the state
judgment rests on a state-law ground that is both independent of the merits of the federal
claim and an adequate basis for the state court’s decision.” Munson v. Kapture, 384 F.3d
310, 313-14 (6th Cir. 2004) (internal quotations and citations omitted).

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The Supreme Court clarified the laws governing procedural default in two recent
decisions, Beard v. Kindler, 558 U.S. ___, 130 S. Ct. 612 (2009), and Walker v. Martin,
131 S. Ct. 1120, No. 09-996 (2011). In Beard, the Supreme Court held that, “a
discretionary state procedural rule can serve as an adequate ground to bar federal habeas
review,” because it can be considered “firmly established.” Beard, 130 S. Ct. at
618. Extending the precedent it set in Beard, in Walker the Supreme Court emphasized
the practical importance of “preserving the flexibility” of states’ discretionary procedural
rules. See Walker, 131 S. Ct. 1120, No. 09-996, slip op. at 2. Thus, the Supreme Court
held in Walker that even wholly discretionary state procedural rules may constitute
adequate state grounds for foreclosing federal review of a habeas claim. See id. at 8.
Guided by the Supreme Court’s recent decision in Walker, our procedural default
inquiry in this case turns on whether Ohio Rule of Appellate Procedure 5(A) can serve
as the basis for barring federal habeas review. Under Ohio Rule of Appellate Procedure
4(A), a defendant’s right to appeal expires thirty days after sentencing. However, Ohio
Rule of Appellate Procedure 5(A) permits a defendant to make a motion for delayed
appeal, providing an exception to the general thirty day appellate period. Rule 5(A)
states in relevant part, “[a]fter the expiration of the thirty day period provided by [Rule
of Appellate Procedure] 4(A) for the filing of a notice of appeal as of right in criminal
cases, an appeal may be taken only by leave of the court to which the appeal is taken.”
Ohio R. App. P. 5(A).
In order to determine whether Petitioner’s claim is procedurally defaulted
pursuant to Rule 5(A), this Court engages in the following four step inquiry:
First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that petitioner failed to comply
with the rule . . . . Second, the court must decide whether the state courts
actually enforced the state procedural sanction . . . . Third, the court must
decide whether the state procedural ground is an adequate and
independent state ground on which the state can rely to foreclose review
of a federal constitutional claim . . . . Once the court determines that a
state procedural rule was not complied with and that the rule was an
adequate and independent state ground, then the petitioner must

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demonstrate . . . that there was cause for him not to follow the procedural
rule and that he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). In our procedural default inquiry,
we look to the “last explained state court judgment,” to determine whether relief is barred
on procedural grounds. Munson, 384 F.3d at 314.
It is undisputed that Petitioner waited six years to file a motion for delayed
appeal. Generally under Ohio law, to succeed on a Rule 5(A) motion for delayed appeal,
a defendant must demonstrate cause for both the delay itself, and the length of delay. See,
e.g., State v. Yates, 2004 Ohio App. LEXIS 4358, at *5-8 (Ohio Sept. 10, 2004); State v.
Robinson, 2004 Ohio App. LEXIS 4220, at *3 (Ohio Sept. 2, 2004). Therefore, although
this delay does not automatically disqualify Petitioner’s motion for delayed appeal, under
Rule 5(A) Petitioner bears the burden of demonstrating cause for his delay.
In ruling on Petitioner’s motion for a delayed appeal, the Ohio Court of Appeals
recounted that in his Rule 5(A) petition, Petitioner stated that
neither his [trial] counsel nor the court advised him of his right to file an
appeal by filing a notice of appeal within 30 days of the judgment of
sentence. [Petitioner] acknowledges that there is no appeal from sentence
jointly recommended by the parties. However, somewhat inconsistently,
[Petitioner] argues that his sentence was illegal because the trial court did
not advise him he could appeal. [Petitioner] does not explain the six-year
delay that occurred before he filed [his] . . . motion for leave to appeal
. . . . [Petitioner] has failed to explain the six-year delay in seeking
appellate review of his conviction.
(R. 2, Ohio Ct. of App. Decision Den. Pet’r’s Mot. for Leave to Appeal at 20-21.)
Adopting the magistrate judge’s Report and Recommendation, the district court
found that Petitioner had procedurally defaulted his habeas claims challenging the
voluntariness of his plea, stating,
as the Magistrate Judge found, [P]etitioner Stone did not file a timely
appeal [in Ohio state court]; and he failed to demonstrate good cause for
waiting over six years to file a motion for delayed appeal. Consequently
his federal claims are waived by his failure to timely present them to Ohio
courts. Petitioner’s unsupported argument that the failure of his attorney

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and the trial judge to advise him that he could appeal the voluntariness of
his guilty plea explains his failure to act sooner does not demonstrate
cause for waiting more than six years to file a motion for delayed appeal.
(R. 12, Order at 3.)
Although Petitioner admits that he did not provide a reason for the six year delay
in filing his Rule 5(A) motion for delayed appeal, Petitioner contends that Ohio’s Rule
5(A) does not meet the procedural default requirements articulated by this Court in
Maupin. Without accounting for the extent to which Walker may have superseded
Maupin, Petitioner asserts that Rule 5(A) is not “actually enforced” as required by
Maupin’s second prong. See Maupin, 785 F.2d at 138. Petitioner’s Maupin argument is
that “[t]he decision to grant or deny leave to appeal . . . rests solely within the discretion
of the court of appeals.” State v. Fisher, 517 N.E.2d 911, 912 (Ohio, 1998). Therefore,
Walker notwithstanding, Petitioner maintains that although Rule 5(A) is applicable to
Petitioner’s case, and was actually applied by the Ohio courts to bar his petition, the
discretionary nature of its enforcement means that it is not “actually enforced,” as
required by Maupin.
In explicating Maupin’s second prong, this Court has explained that “[a] state
procedural rule is adequate if it was firmly established and regularly followed by the time
it was applied.” Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002). Prior to Beard
and Walker, we found that because not all discretion is unfettered, a court’s discretion in
applying a procedural rule does not necessarily render that rule “inadequate” under
Maupin. See Deitz v. Money, 391 F.3d 804, 811 (6th Cir. 2004). Nevertheless, this Court
held in Deitz, 391 F.3d at 810-11, that
Rule 5(A) does not specify the criteria the courts should use in
determining whether to grant a delayed appeal. Instead, it simply requires
that the defendant set forth the reasons for the failure to perfect an appeal
of right. The decision to grant or deny a motion for leave to appeal
pursuant to rule 5(A) is therefore solely within the discretion of the
appellate court. A rule that grants such discretion to the courts is not
firmly established and regularly followed so as to be adequate within the
meaning of Maupin.

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Id. at 810-11 (italics added). Thus, Deitz held that because Rule 5(A) accords state courts
wide discretion and does not impose any particular requirements upon state courts, it is
not firmly established and cannot be the basis for procedural default.
The Supreme Court’s decisions in Beard and Walker altered the jurisprudential
backdrop against which we decided Deitz. Beard and Walker clarified that discretionary
state procedural rules may, under appropriate circumstances, serve as the basis for
procedural default of a petitioner’s habeas claim.
In Beard, the Supreme Court stated,
the question whether a state procedural ruling is adequate is itself a
question of federal law. We have framed the adequacy inquiry by asking
whether the state procedural rule in question was firmly established and
regularly followed. We hold that a discretionary state procedural rule can
serve as an adequate ground to bar federal habeas review.
Beard, 130 S. Ct. at 617-18 (internal quotations and citations omitted). In so stating, the
Supreme Court limited its holding to the “uncontroversial” principle “that discretionary
rules are [not] automatically inadequate” grounds for procedurally barring federal habeas
review. Id. at 619. Thus, in Beard the Supreme Court went no further than rejecting a
“per se rule about discretionary rulings.” Id.
The Supreme Court clarified in Walker that its holding in Beard was not so
circumscribed. In Walker, the Supreme Court evaluated whether a California procedural
rule could serve as the basis for procedural default although the rule “does not employ
fixed statutory deadlines to determine the timeliness of a state prisoner’s [state] petition
for habeas corpus.” Walker, 131 S. Ct. 1120, No. 09-996, slip. op. at 1 (internal citations
omitted). The California procedural rule at issue in Walker “directs petitioners to file
known claims as promptly as the circumstances allow,” and instructs petitioners “to state
when they first learned of the asserted claims and to explain why they did not seek
postconviction relief sooner.” Id. Under this California procedure, post-conviction
claims filed may be disposed of by state courts in one of two ways: “[c]laims substantially
delayed without justification may be denied as untimely;” or “courts may elect to

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pretermit the question whether a petition is timely and simply deny the petition, thereby
signaling that the petition lacks merit.” Id. at 2.
The state procedural rule evaluated in Walker provides no criteria directing the
state courts’ decision to address the merits of a petition in lieu of disposing of the petition
on timeliness grounds. State courts exercise liberal discretion in applying the procedural
rule at issue in Walker.
Notwithstanding the state courts’ broad discretion in applying the timeliness
requirement, the Supreme Court held in Walker that the rule can nonetheless serve as the
basis for procedural default of a federal petition for habeas corpus. The Supreme Court
stated that “a state procedural bar may count as an adequate and independent ground for
denying a federal habeas petition even if the state court has discretion to reach the merits
despite the default.” Id.
Beard and Walker, when read together, permit a state procedural rule to serve as
an adequate state ground for preventing review of a habeas petition even if the state
procedural rule accords courts broad discretion. As a result of the Supreme Court’s
decision in Walker, Deitz is no longer the controlling law on this issue in our Circuit, and
a petitioner’s failure to follow Ohio Rule of Appellate Procedure 5(A) can serve as the
basis for a procedural default of a petitioner’s habeas claims.
In this case, Petitioner waited six years before moving for delayed appeal pursuant
to Rule 5(A). Both the Ohio Court of Appeals and the Ohio Supreme Court denied
Petitioner’s Rule 5(A) motion as untimely. Notwithstanding Petitioner’s delay, the Ohio
courts had discretion under Rule 5(A) to permit Petitioner’s delayed appeal. However,
based on Walker’s holding that discretionary state procedural rules can serve as an
adequate and independent state ground for denying a petitioner’s habeas claim,
Petitioner’s failure to promptly file his Rule 5(A) motion constituted procedural
default. This Court is therefore foreclosed from considering Petitioner’s habeas claims.
Because we find that Petitioner procedurally defaulted his petition for a writ of
habeas corpus, we decline to address the merits of Petitioner’s habeas claims.

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CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.