Barnes v. Eppinger

Filing 5

Memorandum Opinion and Order: For all the foregoing reasons, the portion of Barnes's petition pertaining to his 2009 convictions is dismissed with prejudice for want of jurisdiction. The portion of Barnes's petition pertaining to his 2016 conviction is unexhausted and is dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further, the Court certifies pursuant to 28 U.S.C. Section 1915(a)(3) that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. Section 2253; Fed. R. App. P. 22(b). (Related Doc. No. 1 ). Judge Sara Lioi on 3/11/2019. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD BARNES,

PETITIONER,
vs.

WARDEN LASHANN EPPINGER,

RESPONDENT.

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CASE NO. 1:18cv1091

JUDGE SARA LIOI

MEMORANDUM OPINION

On May 10, 2018, pro se petitioner Richard Barnes (“Barnes”) filed the abovecaptioned petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1
[“Pet.”].) Barmes currently is incarcerated in the Grafton Correctional Institution, having
been convicted on August 2, 2016 of sexual battery. (Id. at 1;1 see id. at 6 (2016 Journal
Entry).) He was sentenced to three years of incarceration, followed by five years of postrelease control. He asserts three grounds for relief: (1) there was no complaint filed in his
criminal case; (2) he was denied due process; and (3) the judgment against him is void. He
seeks relief from his convictions.
Barnes also attempts to challenge his 2009 conviction in this same petition. He
indicates he was convicted in September 2009 of sexual battery and theft and was
sentenced to a seven-year term of imprisonment. (Id. at 9 (2009 Journal Entry).) He asserts

All page number references are to the page identification number generated by the Court’s electronic
docketing system.
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two grounds for relief pertaining to these convictions: (1) there was no complaint filed in
his criminal case; and (2) the judgment against him is void.
I. BACKGROUND
2009 Convictions
Barnes pled guilty on August 19, 2009 to two counts of sexual battery and one
count of theft. On September 14, 2009, the trial court sentenced Barnes to a three-year term
of incarceration for each of the sexual battery convictions and one year for the theft
conviction. The court ordered all sentences to be served consecutively, for a total of seven
years imprisonment. Additionally, the court classified Barnes as a Tier III sex offender. See
State v. Barnes, No. 94025, 2010 WL 3814467, at *1-4 (Ohio App. Ct. Sept. 30, 2010).
Barnes appealed his sentence to the Ohio Eighth District Court of Appeals and
presented two assignments of error. In his first assignment of error, Barnes argued that he
was denied effective assistance of counsel as guaranteed by the Sixth Amendment because
his counsel failed to read and address the presentence investigation report and the state’s
sentencing memorandum. In his second assignment of error, Barnes argued that the trial
court erred in denying him the opportunity to review and comment upon the presentence
investigation report and the state’s sentencing memorandum. On September 30, 2010, the
state appellate court rejected both arguments on the merits and denied Barnes’s direct
appeal. Id.
Barnes appealed that decision to the Supreme Court of Ohio, raising the grounds he
asserted on direct appeal, and that court declined jurisdiction to hear Barnes’s case. See
State v. Barnes, No. 2010-1940, 941 N.E.2d 803 (Table) (Ohio Feb. 16, 2011).

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Barnes next filed an application to reopen his direct appeal under Ohio Rule of
Appellate Procedure 26(B), claiming his appellate counsel was ineffective for failing to
make a sufficiency of the evidence argument, for failing to challenge trial counsel’s
ineffectiveness, for not challenging the credibility and competency of the victim, and for
not challenging trial counsel’s strategy of having him plead guilty instead of going to trial.
State v. Barnes, No. 94025, 2011 WL 1563411, at *1-2 (Ohio Ct. App. Apr. 20, 2011).
Barnes acknowledged that his application was not filed within the 90-day deadline imposed
under Rule 26, but claimed a lack of resources and legal knowledge was good cause that
excused his untimely filing. The court of appeals rejected this argument and dismissed the
application as untimely. Id.
Barnes then filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. §
2254, pertaining to the 2009 convictions. Barnes v. Kelly, No. 1:12-CV-00895, 2015 WL
3742193, at *1-7 (N.D. Ohio June 15, 2015). He raised three grounds for relief: (1)
ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and
(3) deprivation of due process by the trial judge. The federal district court denied the
petition on the merits and declined to issue a certificate of appealability.
2016 Conviction
On March 30, 2016, the Cuyahoga County Grand Jury returned an eight-count
indictment charging Barnes with four counts of rape, two counts of kidnaping, and 2 counts
of gross sexual imposition. All eight counts contained a sexually violent predator
specification, and Counts 3 and 8 contained sexual motivation specifications. The
indictment alleged that the offenses were committed between January 1, 2006, and
November 13, 2007. Barnes pled not guilty to the indictment during his April 15, 2016
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arraignment; however, he subsequently entered into a plea agreement on June 28, 2016 and
pled guilty to one count of sexual battery without the underlying sexually violent predator
specification. Pursuant to the plea agreement, the remaining counts and specifications were
dismissed. On August 2, 2016, the trial court sentenced Barnes to three years in prison and
designated him as a habitual sex offender. See State v. Barnes, No. 104910, 2018 WL
386607, at *1-4 (Ohio Ct. App. Jan. 11, 2018).
Barnes, proceeding pro se, filed a notice of appeal on September 1, 2016. See id.
With the assistance of subsequently appointed counsel, Barnes challenged his sexual
battery conviction, asserting that his constitutional right to effective assistance of trial
counsel was violated when his counsel failed to file a motion to dismiss for pre-indictment
delay. After reviewing the record, the state appellate court found that Barnes waived any
claim of ineffective assistance of counsel by pleading guilty. The court further found that
even if Barnes had not waived this claim, his counsel was not constitutionally ineffective.
Id. Barnes did not appeal this decision to the Supreme Court of Ohio.
Barnes has now filed the instant petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging both his 2009 and his 2016 convictions.
II. DISCUSSION
Barnes’s attempt to challenge his 2009 convictions with his 2016 conviction is
problematic because Barnes already filed a § 2254 habeas petition relative to the earlier
convictions and received a decision on the merits. Before a second or successive petition
for a writ of habeas corpus can be filed in the district court, the petitioner must move in the
appropriate circuit court of appeals for an order authorizing the district court to consider the
petition. 28 U.S.C. § 2244(b)(3)(A). The district court does not have jurisdiction to
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entertain a successive petition for a writ of habeas corpus in the absence of an order from
the court of appeals authorizing the filing. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). In an
order dated September 4, 2018, the Sixth Circuit denied Barnes leave to file a second or
successive petition relative to his 2009 convictions. Therefore, the Court is without
jurisdiction to consider his grounds for relief relating to the 2009 convictions.
Further, Barnes’s challenge to his 2016 conviction cannot be heard by the Court at
this time because he has not yet raised these claims in state court. Before a federal court
will review the merits of a petition for a writ of habeas corpus, a petitioner must overcome
several procedural hurdles. Specifically, the petitioner must surmount the barriers of
exhaustion, procedural default, and time limitation.
Exhaustion is fulfilled once a state supreme court provides a convicted defendant a
full and fair opportunity to review his or her claims on the merits. O’Sullivan v. Boerckel,
526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). To be properly
exhausted, each claim must have been “fairly presented” to the state courts. See Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009); see, e.g., Frazier v. Huffman, 343 F.3d 780, 797
(6th Cir. 2003). Fair presentation requires that the state courts be given the opportunity to
see both the factual and legal basis for each claim. Wagner, 581 F.3d at 414. Specifically,
in determining whether a petitioner “fairly presented” a federal constitutional claim, it must
be presented to the state courts as a federal constitutional issue, not merely as an issue
arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). Moreover, the
claim must be presented to the state courts under the same legal theory in which it is later
presented in federal court. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). It cannot rest
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on a legal theory that is separate and distinct from the one previously considered and
rejected in state court. Id.
The doctrine of procedural default also limits access to federal court review of the
merits of a constitutional claim. Daniels v. United States, 532 U.S. 374, 381, 121 S. Ct.
1578, 149 L. Ed. 2d 590 (2001). Although procedural default is sometimes confused with
exhaustion, exhaustion and procedural default are distinct concepts. Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies where state remedies are “still
available at the time of the federal petition.” Id. at 806 (quoting Engle v. Isaac, 456 U.S.
107, 125 n.28, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982)). In contrast, where state court
remedies are no longer available, procedural default rather than exhaustion applies.
Williams, 460 F.3d at 806.
Procedural default may occur in two ways. First, a petitioner procedurally defaults a
claim if he fails to comply with state procedural rules in presenting his claim to the
appropriate state court. Id. (“If, due to the petitioner’s failure to comply with the procedural
rule, the state court declines to reach the merits of the issue, and the state procedural rule is
an independent and adequate grounds for precluding relief, the claim is procedurally
defaulted.”) Second, a petitioner may procedurally default a claim by failing to raise a
claim in state court, and is now precluded from raising that claim in the state courts. Id.
(“If, at the time of the federal habeas petition, state law no longer allows the petitioner to
raise the claim, the claim is procedurally defaulted.”) While the exhaustion requirement is
technically satisfied because there are no longer any state remedies available to the
petitioner, see Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991), the petitioner’s failure to have the federal claims considered in the state courts
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constitutes a procedural default of those claims that bars federal court review. Williams,
460 F.3d at 806.
To overcome the bar of procedural default, a petitioner must show cause for the
default and actual prejudice that resulted from the alleged violation of federal law or that
there will be a fundamental miscarriage of justice if the claims are not considered.
Coleman, 501 U.S. at 750. “A fundamental miscarriage of justice results from the
conviction of one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th
Cir. 2006) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d
397 (1986)).
Simply stated, a federal court may review only federal claims that were evaluated
on the merits by a state court. Claims that were not so evaluated, either because they were
never presented to the state courts (i.e., exhausted) or because they were not properly
presented to the state courts (i.e., were procedurally defaulted), are generally not
cognizable on federal habeas review.
Barnes did not raise the habeas claims pertaining to his 2016 conviction in state
court. The question the Court must determine then is whether these claims are unexhausted
or procedurally defaulted. Barnes filed a direct appeal of his conviction and asserted one
claim which is not raised in this habeas petition. State v. Barnes, No. 104910, 2018 WL
386607, at *1-4 (Ohio Ct. App. Jan. 11, 2018). Ohio has a rule that claims must be raised
on direct appeal if possible; otherwise, res judicata bars their litigation in subsequent state
proceedings. See State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967). If his current habeas
claims could and should have been raised on direct appeal, Barnes would be unable to
return to state court to exhaust his state remedies and the claims would be procedurally
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defaulted for habeas purposes. Because he does not explain his last two habeas claims of
denial of due process and void judgments, it is possible he may be able to assert them in
another type of action, such as a post-conviction petition, if they are not deemed untimely.
Where a habeas petition contains unexhausted claims, there is a “strong presumption” in
favor of requiring a petitioner to pursue his available state remedies, unless a return to state
court would be futile. Granberry v. Greer, 481 U.S. 129, 131, 107 S. Ct. 1671, 95 L. Ed. 2d
119 (1987). Because the Court does not have sufficient information to conclude that a
return to state court would be futile, the Court will dismiss this petition without prejudice to
permit Barnes the opportunity to pursue relief, if it is still available, in the state courts.
III. CONCLUSION
For all the foregoing reasons, the portion of Barnes’s petition pertaining to his 2009
convictions is dismissed with prejudice for want of jurisdiction. The portion of Barnes’s
petition pertaining to his 2016 conviction is unexhausted and is dismissed without
prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further, the Court
certifies pursuant to 28 U.S.C. §1915(a)(3) that an appeal from this decision could not be
taken in good faith, and there is no basis upon which to issue a certificate of appealability.
28 U.S.C. § 2253; Fed. R. App. P. 22(b).
IT IS SO ORDERED.

Dated: March 11, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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