Leffler v. State of Ohio

Filing 35

Memorandum and Order For the reasons stated in the Order, the petitioners objections are overruled, the R&R is adopted, and the petition is denied. Related document 40 . Signed by Judge Lesley Wells on 7/19/2013. (K,K)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

-----------------------------------------------------PAUL D. LEFFLER,
Petitioner
-vs-

SARA ANDREWS, Deputy Director of
the Ohio Department of Rehabilitation
and Correction,

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: CASE NO. 3:09 CV 02801
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: MEMORANDUM AND ORDER
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Respondent.
-----------------------------------------------------UNITED STATES DISTRICT JUDGE LESLEY WELLS
Pursuant to Local Rule 72.2(b), the instant petition for the Writ of Habeas Corpus
was referred to United States Magistrate Judge Kenneth S. McHargh for report and
recommendation (“R&R”). On 26 July 2012, the Magistrate Judge recommended that
the petition be denied. (Doc. 30). The petitioner now objects. (Doc. 34). For the reasons
that follow, the objections will be overruled, the R&R adopted, and the petition denied.
I. Background
On 23 May 2007, the petitioner Paul D. Leffler appeared in the Hardin County
Court of Common Pleas, where he pled no contest to – and the court found him guilty of
– two counts of contributing to the unruliness of a minor. He also pled guilty to two
counts gross sexual imposition. Prior to sentencing, the petitioner filed a motion to
withdraw his guilty plea, which the court denied. His motion for reconsideration was also

denied. On 19 September 2007, the petitioner was sentenced to a total of 30 months
incarceration.
The petitioner filed a direct appeal, challenging the trial court’s denial of his
motion to withdraw his guilty plea. On 23 June 2008, his conviction was affirmed. State
v. Leffler, No. 6-07-22, 2008 WL 2486413 (Ohio Ct. App. 23 June 2008). He filed a pro
se appeal to the Ohio Supreme Court, again challenging the denial of his motion. The
appeal was dismissed as not involving any substantial constitutional question. His
motion for reconsideration was denied. While his appeal to the Ohio Supreme Court
was pending, the petitioner filed an application to reopen his appeal in the intermediate
court of appeals. On motion of the state, the court rejected the petitioner’s application
because it was signed not by the petitioner, but by his wife. The court ordered his
application stricken from the record.
The petitioner filed the instant habeas petition on 2 December 2009. The
respondent filed a motion to dismiss on the ground that some of the petitioner’s claims
were unexhausted. (Doc. 9). The petitioner requested a stay for the purpose of returning
to state court to exhaust those claims. (Doc. 17). The motion to dismiss was denied,
and the stay was granted. (Doc. 20, 21).The petitioner returned to state court seeking to
reopen his appeal, alleging ineffective assistance of appellate counsel. His application
to reopen was denied as untimely, and a subsequent appeal to the Ohio Supreme Court
was dismissed. After exhausting his options in state court, the petitioner returned to this
Court.
The petitioner now seeks relief on the following grounds:
1. Court violated appellant’s rights under due process of law by not allowing him
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to withdraw his plea prior to sentencing
2. Effective assistance of counsel guaranteed under the 6th Amendment to the
Constitution
3. Retroactive application of tier system is contrary to the rights of no Ex Post
Facto Law and was improperly aplied [sic].
4. Bias of judge in clear violation of petitioner’s right.
5. State violated petitioner’s rights under due process of law by flawed grand jury
procedures which included multiplicity of charges and several compromised
indictments.
(Doc. 1, 10). The respondent filed an answer, and the petitioner filed a traverse. (Doc.
25, 29).
On referral, the Magistrate Judge reviewed the petitioner’s claims and
recommended that the Court deny the petition. Specifically, the Magistrate Judge
concluded that the first ground for relief was not fairly presented to the state courts; the
second ground of ineffective assistance of counsel is procedurally defaulted; and the
third, fourth, and fifth grounds were never presented to the Ohio Court of Appeals, and
are defaulted. Consequently, the Magistrate Judge recommended denying the petition.
The petitioner has filed timely objections and seeks the Court’s de novo review of
the Magistrate Judge’s recommendations as to the petitioner’s first and second claims
for relief.
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II. Discussion
This Court makes “a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
the Magistrate Judge.” Local Rule 72.3(b). The failure by either party to file specific
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objections constitutes a waiver of the right to appeal the Magistrate Judge's
recommendations. Thomas v. Arn, 474 U.S. 140, 155 (1985); Howard v. Sec'y of Health
& Human Servs., 932 F.2d 505, 508–09 (6th Cir.1991). “The objections must be clear
enough to enable the district court to discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). “The filing of vague,
general, or conclusory objections does not meet the requirement of specific objections
and is tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App'x. 354, 356
(6th Cir. 2001) (citing Miller, 50 F.3d at 380). In the absence of objections, “the court
need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Fed.R.Civ.P. 72(b) advisory committee's note.
A. First Objection
In his first claim for relief, the petitioner maintains that he was denied due
process when the trial court denied his motion to withdraw his plea prior to sentencing.
The Magistrate Judge concluded this claim was not fairly presented to the state courts,
because the arguments raised in state court related strictly to state law.
The petitioner seems to acknowledge that no federal claim was explicitly raised in
the state courts, but objects by suggesting that the relevant federal claim was somehow
implied by the state claim. The petitioner provides no meaningful support for this
argument, and the Court rejects it. “A claim may only be considered ‘fairly presented’ if
the petitioner asserted both the factual and legal basis for his claim to the state courts.”
McMeans v. Brigand, 228 F.3d. 674, 681 (6th Cir.2000). To determine whether a claim
has been fairly presented to the state courts, this Court considers whether the petitioner
reli[ed] upon federal cases employing constitutional analysis; (2) reli[ed] upon
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state cases employing federal constitutional analysis; (3) phras[ed] the claim in
terms of constitutional law or in terms sufficiently particular to allege a denial of a
specific constitutional right; or (4) alleg[ed] facts well within the mainstream of
constitutional law.
Id. Upon consideration of these factors, the Court agrees with the conclusion of the
Magistrate Judge. The question the petitioner raises now – whether due process was
violated when the trial court denied the petitioner’s motion to withdraw his guilty plea –
was not “fairly presented” to the court of appeals or to the Ohio Supreme Court,
because the arguments raised in state court implicated none of the four factors noted
above. The petitioner’s objection is accordingly overruled.
In the absence of a showing of cause and prejudice, failure to fairly present a
claim to the state court while state court remedies are still available forecloses federal
habeas review. See Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000). In this
instance, the petitioner has not demonstrated cause and prejudice. Therefore, the Court
concludes, consistent with the Magistrate Judge, that the petitioner’s first claim for relief
must be denied.
B. Second Objection
Next, the petitioner objects to the Magistrate Judge’s recommendation that
habeas review of his claim of ineffective assistance of appellate counsel is barred
because the state court rejected that claim on independent and adequate state
procedural grounds.
During state proceedings, the petitioner moved to reopen his appeal, arguing that
appellate counsel was constitutionally ineffective. Under Ohio law, an application to
reopen an appeal must be filed within 90 days of appellate judgment. Ohio App. Rule
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26(B). In this case, the petitioner’s first application to reopen was timely, but the court of
appeals concluded that it was improperly filed, because the application was signed, not
by the petitioner, but by his wife. The court ordered the application stricken. Then, while
the case was stayed in this Court, the petitioner filed a second application to reopen,
which the court of appeals denied as untimely. The state court concluded that the
petitioner did not demonstrate good cause for his untimeliness pursuant to Ohio App.
Rule 26(B).
Based on this procedural background, the Magistrate Judge concluded, correctly,
that the petitioner procedurally defaulted his ineffective assistance of appellate counsel
claim, because the state court’s disposition of the claim rested on adequate and
independent state grounds pursuant to the framework set forth in Maupin v. Smith, 785
F.2d 135, 138 (6th Cir. 1986). Under Maupin, the Court considers the following factors
to determine whether a claim is procedurally defaulted: (1) whether there is a state
procedural rule applicable to the petitioner’s claim, (2) whether the petitioner failed to
comply with the rule; (3) whether the state courts actually enforced the procedural
sanction; and (4) whether the state procedural forfeiture is an adequate and
independent state ground on which the state can foreclose review of the federal claim.
Maupin, 785 F.2d at 138.
As noted in the R&R, the Sixth Circuit has recognized that Rule 26(B)’s 90-day
filing requirement is an adequate and independent state ground on which the state may
foreclose federal review. See Monzo v. Edwards, 281 F.3d 568, 578 (6th Cir. 2002).
And in this instance, it is clear that this rule was applicable to the petitioner’s claim, that
petitioner failed to adhere to the rule, and that the state court enforced the rule.
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Therefore, federal review of the petitioner’s claim is barred unless he can
demonstrate cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
The petitioner maintains that the procedural bar should be lifted because his failure to
adhere to the rule resulted only from the fact that his application to reopen bears his
wife’s signature and not his. He states that his wife signed the document because he
was trying to avoid a late filing, and not for any improper purpose. He suggests that the
state court’s stringent application of the signature requirement should not bar him from
federal court.
This argument has no merit as it demonstrates neither cause nor prejudice. The
petitioner has not shown cause because the circumstances surrounding his failure to
properly sign his application do not relate to any “objective factor external to the defense
[that] impeded [his] efforts to comply with the State's procedural rule.” Burroughs v.
Makowski, 411 F.3d 665, 667 (6th Cir. 2005) (quoting Murray, 477 U.S. at 488). The
petitioner’s failure to properly and timely file his application are not attributable to the
state court as he seems to suggest. Further, the petitioner offers no argument that he
was prejudiced as a result of the default. The petitioner’s objection is accordingly
overruled.
III. Conclusion
For the reasons stated above, the petitioner’s objections are overruled, the R&R
is adopted, and the petition is denied.
IT IS SO ORDERED.
/s/ Lesley Wells
UNITED STATES DISTRICT JUDGE
Date: 19 July 2013
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