Clifton Onunwor v. Ernie Moore

Filing

OPINION filed : AFFIRMED IN PART and DISMISSED IN PART. Decision not for publication. Raymond M. Kethledge and Helene N. White (AUTHORING), Circuit Judges; and Avern Cohn (CONCURRING), U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0384n.06
No. 15-3686

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CLIFTON ONUNWOR,

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Petitioner-Appellant,
v.
ERNIE L. MOORE, Warden,
Respondent-Appellee.

Jul 07, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: KETHLEDGE and WHITE, Circuit Judges; and COHN, District Judge.*
HELENE N. WHITE, Circuit Judge. Clifton Onunwor appeals the district court’s
dismissal of his petition for habeas corpus relief under 28 U.S.C. § 2254. The district court
found Onunwor’s claims procedurally defaulted for failure to comply with a state procedural
rule. We AFFIRM the district court’s dismissal of Onunwor’s petition. To the extent Onunwor
raises claims on appeal for which he was not granted a certificate of appealability, we DISMISS
for lack of jurisdiction.
I.
Clifton Onunwor was convicted of the aggravated murder of his mother and related
charges in connection with her 2008 shooting death. While his direct appeal was pending,
Onunwor filed a petition for postconviction relief in the Ohio Court of Common Pleas arguing
that 1) trial counsel was ineffective for failing to investigate Onunwor’s phone records, which
*

The Honorable Avern Cohn, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.

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Onunwor alleged revealed exculpatory evidence and impeached the testimony of several
prosecution witnesses, 2) the State withheld exculpatory evidence, and 3) the phone records and
additional witness statements demonstrated that Onunwor is actually innocent. In January 2012,
the Court of Common Pleas denied Onunwor’s petition without a hearing, concluding with
respect to his ineffective-assistance-of-counsel claim that the phone records did not exonerate
him, and that the records would not have impeached the prosecution’s witnesses to such a degree
that the outcome of the trial would have been different.
The Ohio Court of Appeals affirmed, holding, inter alia, that it was “prevented from
examining [Onunwor’s] alleged ineffective assistance of counsel claim due to his failure to
furnish the court with the transcripts and exhibits from his trial.” State v. Onunwor, No. 97895,
2012 WL 4951137, *4 (Ohio Ct. App. Oct. 18, 2012). The court reasoned that Ohio law places
the burden on the appellant to produce the transcripts necessary for evaluating a lower court’s
decision; that it could not evaluate whether the trial court properly denied the postconviction
petition without reviewing the trial transcripts; and that without such transcripts, the court must
“presume regularity in the proceedings below.” Id. The court noted, however, that its review of
the phone records did not reveal exculpatory evidence.1 Id. at *4-5.
Onunwor then filed in the Ohio Court of Appeals an application for reconsideration and
motion to supplement the record with the trial transcripts, explaining that he believed the
transcripts were already part of the record because he had filed them on direct appeal, and due to
the requirement in Ohio Revised Code § 2953.1(C) that the postconviction trial court review the
trial transcript. Onunwor’s postconviction counsel Erika Cunliffe (Cunliffe) noted in the motion

1

The court also held that Onunwor’s prosecutorial-misconduct claim was barred by res
judicata because he could have raised it on direct appeal. Onunwor, 2012 WL 4951137, at *3.

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that she had represented “numerous” petitioners appealing from denials of state postconviction
relief and “[t]he presence of the trial transcript ha[d] never been an issue.” (PID 1609 n.1.) The
Ohio Court of Appeals denied the application for reconsideration and the Ohio Supreme Court
declined jurisdiction.
Through new assigned counsel, Onunwor filed the instant § 2254 petition, arguing his
trial counsel was ineffective for failing to investigate and obtain his cell phone records, which he
asserts would have impeached the testimony of the only two State witnesses who testified about
“prior calculation and design,” a required element of aggravated murder.

Onunwor also

contended the cell phone records would have demonstrated that the cell phone he purportedly
used to cover up the murder was deactivated at the time. Finally, Onunwor requested an
opportunity to conduct discovery to factually develop his claim that the State withheld favorable
evidence.2 Warden Ernie Moore (the Warden) responded that Onunwor procedurally defaulted
his ineffective-assistance-of-counsel claims by failing to provide the trial transcripts to the Ohio
Court of Appeals as required by Ohio Appellate Rule 9(B), and, in the alternative, that the
petition failed on the merits.
Onunwor filed a Traverse, and on the same day filed a motion for discovery, requesting
discovery regarding which cell-phone records the State turned over to defense counsel prior to
trial. In an Order dated April 1, 2015, a magistrate judge denied the motion for discovery.
Onunwor filed objections to this Order, but the district court did not rule on them.
On April 30, 2015, the magistrate judge recommended the district court dismiss
Onunwor’s ineffective-assistance-of-counsel claims as procedurally defaulted because Onunwor
2

Onunwor did not assert a stand-alone due-process claim for prosecutorial misconduct,
noting only, “Mr. Onunwor presents a potential habeas claim for violation of his due process
[rights] and the right to a fair trial, that remains undeveloped.” (PID 87.)

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failed to comply with Ohio Appellate Rule 9(B) in appealing the denial of his state
postconviction petition. Onunwor objected to the Report and Recommendation, raising the same
arguments made in his prior filings, and contending that the magistrate judge erred in not
considering an affidavit from state-postconviction counsel Cunliffe, in which she asserted that in
her prior postconviction cases in Ohio appellate courts, the presence of the transcript had not
been an issue. The district court rejected Onunwor’s objections and adopted the Report and
Recommendation in its entirety, but granted Onunwor a certificate of appealability on the court’s
procedural rulings.
II.
Procedural default bars federal habeas review where a “state prisoner has defaulted his
federal claims in state court pursuant to an independent and adequate state procedural rule[,]
. . . unless the prisoner can demonstrate cause for the default and actual prejudice,” or “that
failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991). We review de novo a district court’s determination that
procedural default forecloses review of a petitioner’s claims. Atkins v. Holloway, 792 F.3d 654,
657 (6th Cir. 2015).
A.
This court will find a claim procedurally defaulted if the petitioner fails “to obtain
consideration of [the] claim by a state court . . . due to a state procedural rule that prevents the
state courts from reaching the merits of the petitioner’s claim.” Lundgren v. Mitchell, 440 F.3d
754, 763 (6th Cir. 2006) (quoting Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000))
(internal quotation marks omitted); see also Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977).
Thus, a claim is procedurally barred where:

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(1) [T]he petitioner failed to comply with a state procedural rule that is applicable
to the petitioner’s claim; (2) the state courts actually enforced the procedural rule
in the petitioner’s case; and (3) the procedural forfeiture is an “adequate and
independent” state ground foreclosing review of a federal constitutional claim.
Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003).
For a state procedural rule to be adequate, it must be “‘firmly established’ and ‘regularly
followed’ by the time it was applied.” Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002)
(quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).

“Failure to comply with well-

established and normally enforced procedural rules usually constitutes ‘adequate and
independent’ state grounds for foreclosing review.” Lundgren, 440 F.3d at 763.
The Ohio Court of Appeals denied Onunwor’s postconviction appeal on his ineffectiveassistance claim for failure to comply with Ohio Appellate Rule 9(B), which provides that “it is
the obligation of the appellant to ensure that the proceedings the appellant considers necessary
for inclusion in the record . . . are transcribed in a form that meets the specifications of App. R.
9(B)(6),” Ohio App. R. 9(B)(1), and that “[t]he appellant shall order the transcript in writing and
shall file a copy of the transcript order with the clerk of the trial court,” id. 9(B)(3). The rule also
provides alternative means of complying with the latter requirement where no transcript exists.
See id. 9(B)(4), (C), (D). Ohio courts have interpreted Rule 9(B) as recognizing that “[t]he duty
to provide a transcript for appellate review falls upon the appellant . . . because an appellant
bears the burden of showing error by reference to matters in the record.” Knapp v. Edwards
Labs., 400 N.E.2d 384, 385 (Ohio 1980) (per curiam). Consequently, “[w]hen portions of the
transcript necessary for resolution of assigned errors are omitted from the record, the reviewing
court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but
to presume the validity of the lower court’s proceedings, and affirm.” Id.; see also State ex rel.

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Bardwell v. Cuyahoga Cty. Bd. of Comm’rs, 937 N.E.2d 1274, 1278 (Ohio 2010); Yates v.
Brown, 925 N.E.2d 669, 675 (Ohio Ct. App. 2010).
Onunwor concedes that he did not file the trial transcripts with the state court of appeals
in appealing the denial of his state postconviction petition, and that the Ohio Court of Appeals
enforced Appellate Rule 9(B) in dismissing his postconviction appeal, but argues that there is
“doubt” as to whether he failed to comply with the rule because he filed the transcripts on direct
appeal, and that the rule is not “well-established and normally enforced,” and thus cannot serve
as the basis for procedural default. (Onunwor Br. 42.)
Although the district court relied only on Knapp and the text of Rule 9 in finding
Onunwor’s claims procedurally defaulted, Ohio courts regularly cite both for the proposition that
“the appellant has the duty to provide a transcript for appellate review,” State v. Conner, 948
N.E.2d 497, 501 (Ohio Ct. App. 2011), and invoke this rule where the appellant has failed to file
a transcript that is necessary to permit consideration of the assigned errors. See, e.g., State ex rel.
Bardwell, 937 N.E.2d at 1278; Krost v. Baltz, No. 80252, 2002 WL 1348221, *1-2 (Ohio Ct.
App. June 20, 2002); State v. Estrada, 710 N.E.2d 1168, 1170 (Ohio Ct. App. 1998); Chaney v.
East, 646 N.E.2d 1138, 1140 (Ohio Ct. App. 1994). And, in Gonzales v. Wolfe, 290 F. App’x
799 (6th Cir. 2008), this court held that Ohio Appellate Rule 9(B) was an adequate and
independent state ground to bar federal review of the petitioner’s claim. Id. at 804-05.
Although those cases involved direct appeals, Ohio courts have applied Rule 9(B) and
Knapp in appeals from the denial of postconviction relief where the petitioner failed to provide
the appellate court with a transcript of the original trial proceedings and that transcript was
necessary to resolution of the assigned errors. See, e.g., State v. Perry, No. 2010-CA-00185,
2011 WL 302143, *13-14 (Ohio Ct. App. Jan 24, 2011); State v. Wright, No. 08AP-1095, 2009

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WL 2872994, *3 (Ohio Ct. App. Sept. 8, 2009); State v. McCuller, No. 89834, 2007 WL
4200634, *2 & n.7 (Ohio Ct. App. Nov. 29, 2007); State v. Socha, No. 80002, 2002 WL 538754,
*6 (Ohio Ct. App. Apr. 11, 2002); State v. Wilson, No. 72740, 1998 WL 241933, *1-3 (Ohio Ct.
App. May 14, 1998); State v. Roberts, 585 N.E.2d 934, 936 (Ohio Ct. App. 1991). These cases
refute Onunwor’s assertion that the rule has been applied differently in the context of
postconviction appeals where the relevant trial transcript was filed in the direct appellate
proceedings.3
Ohio Revised Code § 2953.21(C)’s requirement that a postconviction trial court review,
among other things, the “court reporter’s transcript,” does not render Rule 9(B) ambiguous in the
context of postconviction appeals. At best, this provision suggests that a trial transcript is
accessible to the appeals court, presuming the postconviction trial court adhered to the statute
and reviewed the transcript.4 However, it does not negate the clear Ohio precedent based on
Rule 9(B) and Knapp placing the burden on the appellant to ensure transcripts necessary to
adjudicating assigned errors are filed with the appellate court. That Ohio courts have applied
Rule 9(B) in postconviction appeals where the relevant transcript was from the original trial
proceedings—thus presumably would have been reviewed by the postconviction trial court
pursuant to § 2953.21(C)—further undermines Onunwor’s contention that § 2953.21(C) creates
ambiguity in Rule 9(B)’s application in this context. And, in any event, we must defer to the

3

Although it is unclear whether transcripts were filed on direct appeal in all of these
cases, in at least two—both from the Eighth District Court of Appeals, which heard Onunwor’s
appeal—the direct-appeal opinion references specific trial testimony, suggesting that the trial
transcripts were filed on direct review. See State v. McCuller, No. 86592, 2006 WL 199047, *12 (Ohio Ct. App. Jan. 26, 2006); State v. Socha, No. 76913, 2001 WL 498613, *1-2 (Ohio Ct.
App. May 10, 2001).
4

Although the postconviction trial court appears to have considered the transcript in this
case, it is unclear how it obtained that transcript.

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Ohio courts’ interpretation of their own rule. Israfil v. Russell, 276 F.3d 768, 771 (6th Cir.
2001).
Nor does Cunliffe’s affidavit demonstrate that Rule 9(B) is not firmly established or
regularly followed. Cunliffe attested that she had handled “several appeals from dismissals of
petitions for post conviction relief,” and that in those appeals, she had not “supplemented the
record with the transcript from the original appeal” because “it was [her] understanding that the
Court of Appeals would simply access the trial transcript from the courthouse basement, where it
is kept.” (PID 98.) However, in Ohio, “[t]ranscripts are not always a necessity in postconviction
relief cases” because postconviction petitions can raise matters outside the record. State v.
Fields, 736 N.E.2d 933, 936 (Ohio Ct. App. 1999). Thus, without knowing the context of those
cases, the court cannot determine whether they present instances of the Ohio appellate courts
ignoring Rule 9(B). And, although Cunliffe cited two cases where she had not filed the trial
transcripts in appealing the denial of postconviction relief, but the court of appeals nonetheless
“took note of the trial proceedings,” (see PID 1609 n.9), two isolated cases are “insufficient to
defeat an otherwise ‘strict and regular’ practice.” See Coe v. Bell, 161 F.3d 320, 331 (6th Cir.
1998); see also Franklin v. Anderson, 434 F.3d 412, 421 (6th Cir. 2006) (distinguishing
inadequate rule before it from cases where a rule is well established, but the courts allow an
“occasional act of grace”). Thus, we agree with the district court that Onunwor procedurally
defaulted his ineffective-assistance-of-counsel claims.
B.
A petitioner may obtain relief despite procedural default “only by showing that there was
cause for the default and prejudice resulting from the default, or that a miscarriage of justice will
result from enforcing the procedural default in the petitioner’s case.” Seymour, 224 F.3d at 550.

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To demonstrate cause, a petitioner must show “that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.” Lundgren, 440 F.3d at
763-64 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

Onunwor contends that

Cunliffe’s ineffective assistance in failing to file the trial transcript with the postconviction
appellate court establishes cause to excuse the default.5
“Attorney error may constitute cause [to excuse procedural default] if it rises to the level
of constitutionally ineffective assistance of counsel.” Willis, 351 F.3d at 745; see also Murray,
477 U.S. at 488. However, because there is “no constitutional right to an attorney in state postconviction proceedings,” Coleman, 501 U.S. at 725, ineffective assistance of postconviction
counsel may only establish cause for procedural default in limited circumstances:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.
Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (emphasis added); see also Trevino v. Thaler,
133 S. Ct. 1911, 1921 (2013) (holding that Martinez applies where a “state procedural
framework, by reason of its design and operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial
counsel on direct appeal”).
Even assuming the Martinez-Trevino framework applies to Ohio postconviction
petitions,6 Cunliffe’s failure to file the trial transcripts in the postconviction appeal cannot

5

Although Onunwor maintains his innocence, he does not argue procedural default
should be excused based on a fundamental miscarriage of justice.
6

This court has held that Martinez does not apply in Ohio because the state permits
raising ineffective-assistance-of-counsel claims on direct appeal. Moore v. Mitchell, 708 F.3d

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provide cause for the default. Onunwor does not assert cause based on postconviction counsel’s
performance in an initial-review collateral proceeding; rather, he argues his postconviction
counsel was ineffective on appeal from the denial of state postconviction relief. In Martinez, the
Supreme Court explicitly stated that its holding did not extend to “appeals from initial-review
collateral proceedings.” 132 S. Ct. at 1320. Accordingly, this court has held that “the MartinezTrevino exception does not extend to attorney error at post-conviction appellate proceedings
because those proceedings are not the ‘first occasion’ at which an inmate could meaningfully
raise an ineffective-assistance-of-trial-counsel claim.” Atkins, 792 F.3d at 661 (quoting West v.
Carpenter, 790 F.3d 693, 698 (6th Cir. 2015)) (emphasis in original); see also Williams v.
Mitchell, 792 F.3d 606, 615 (6th Cir. 2015). Thus, any error by postconviction appellate counsel
cannot excuse procedural default in this case.
III.
Onunwor also contends this court should remand because the district court has not yet
ruled on his objections to the magistrate judge’s Order denying his motion to conduct discovery.
However, the district court did not grant a certificate of appealability on this issue, nor has
Onunwor requested one.

Without a certificate of appealability, this court does not have

jurisdiction to decide this issue. 28 U.S.C. § 2253(c)(1)(A); see also United States v. Bryant,
246 F.3d 650, 653 (6th Cir. 2001).

760, 785 (6th Cir. 2013). The Sixth Circuit has not yet ruled on whether Trevino applies in Ohio,
but has indicated that it may apply to cases such as Onunwor’s, where ineffective-assistance-ofcounsel claims rely on evidence outside the record, and therefore generally are not raised on
direct review. See McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 751-52 (6th Cir.
2013). However, the court need not decide this issue here.

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IV.
For these reasons, we AFFIRM in part and DISMISS in part.

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AVERN COHN, District Judge, concurring. I concur in the result reached by the lead
opinion that Onunwor’s claims are procedurally defaulted for failure to comply with a state court
procedural rule that requires counsel to furnish the court with a copy of the transcript and
exhibits from his trial.

I fail to understand, however, why when it was obvious that the

transcripts were not filed, that the Ohio appellate courts did not direct counsel to do so. It seems
this was a simple solution to a technical error. This is particularly so where there appears to be
no dispute that the transcript was filed on Onunwor’s direct appeal and therefore was already
part of the file of the case. Onunwor lost the right to have his claims heard on the merits as a
consequence of his counsel’s negligence and a strict adherence to a procedural rule. This is a
demonstration where the procedural default doctrine in habeas jurisprudence does little to
advance justice and simply exalts form over substance. Baron Parke would have been pleased
with the outcome.

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