Velez v. Miller

Filing 28

Order: The petitioner's objections (Doc. 20 ) to the Magistrate Judge's Report and Recommendation (Doc. 19 ) be, and the same hereby are, overruled. The Report and Recommendation be, and the same hereby is, adopted as the ord er of this court. The petition for relief (Doc. 2 ) be, and the same hereby is, denied with prejudice. Petitioner's motion for leave to amend (Doc. 23 ) be, and the same hereby is, denied. The Court declines to issue a certificate of appeal ability, as jurists of reasons could find no basis in the record or the Magistrate Judge's Report and Recommendation to reach a conclusion other than that which the Magistrate Judge has recommended and that I have found well taken in all respects. Judge James G. Carr on 3/17/17. (Attachments: # 1 Report and Recommendation)(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Domingo Velez, Jr.,

Case No. 3:15CV00785

Petitioner,
v.

ORDER

Michelle Miller, Warden,
Respondent.

This is a habeas corpus proceeding under 28 U.S.C. § 2254. On referral, Magistrate Judge
George Limbert has filed a Magistrate Judge’s Report and Recommendation (R&R) recommending
dismissal of the petition. (Doc. 19). The petitioner has filed objections (Doc. 20), the respondent has
responded to those objections (Doc. 21), and the petitioner filed a reply. (Doc. 27). Thereafter,
petitioner filed a motion for leave to amend his petition (Doc. 23), the respondent filed an opposition
thereto (Doc. 24), and the petitioner filed a reply. (Doc. 26).
On de novo review, I find the Magistrate Judge’s R&R well taken, and I adopt the R&R and
dismiss the petition with prejudice. In addition, I find no merit in the motion for leave to amend and
deny that motion. Finally, I decline to issue a certificate of appealability.
Discussion
Petitioner was indicted and tried in the Putnam County, Ohio, Court of Common Pleas on
charges arising from domestic violence on his wife. The jury convicted petitioner of separate counts

of felonious assault and menacing; the jury also acquitted petitioner of cocaine possession charges
arising from a traffic stop. The trial court sentenced petitioner to a six-year prison term.
In his pending pro se habeas corpus petition, the petitioner asserts two duplicative
claims–namely that the state appellate court required him to use a specific form in the course of his
appeal but the Putnam County Clerk of Court did not have the required form.
The respondent sought dismissal of the petition on the basis that: 1) petitioner had not fairly
presented the claims he makes here to the state courts; and 2) the state appellate court had held that
petitioner committed a procedural default when he failed to file a notice of appeal that conformed
with the requirements of state law.
On reviewing the applicable opinion by the state appellate court (which provides the
applicable and definitive statement), the Magistrate Judge agreed with the respondent that the default
occurred on the two grounds the respondent argued.
As the Magistrate Judge pointed out, noncompliance with state requirements regarding the
notice of appeal is an adequate and independent state procedural bar that precludes federal habeas
review. E.g., Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004); see also Deresse v. Warden, Ross
Corr. Inst., 2011 WL 3473361, *2 (S.D. Ohio).
I also agree with the Magistrate Judge’s rejection of petitioner’s unfounded contention that
any error on the part of the Clerk of Court in transmitting “an imperfect record” to the appellate court
entitles him to habeas relief. This is so because the state court ruled on the basis of petitioner’s
failure to file a proper notice of appeal, not on the basis of an imperfect record.
To be sure, if “something external to the petitioner, something that cannot fairly be attributed
to him[,] . . . impeded [his] efforts to comply with the State's procedural rule,” that can excuse a
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procedural default. Maples v. Thomas, 565 U.S. 266, 280, 132 S. Ct. 912, 922 (2012) (internal
citation and quotation marks omitted). Here, though, nothing external got in petitioner’s way.
Certainly, as the Magistrate Judge also pointed out, Ohio law does not require Clerk’s offices to
prepare and distribute forms to appellants.
The Magistrate Judge also correctly accepted the respondent’s argument that the petitioner
failed utterly to meet the threshold requirement that he “fairly present” his federal claim in the state
court proceeding. Petitioner’s unadorned conclusory references to fair trial, due process, and equal
protection “do not ‘fairly present claims’ that specific constitutional rights were violated.” Blackmon
v. Booker, 394 F.3d 399, 401 (6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir.2000) (citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2nd Cir. 1984))).
In addition, the Magistrate Judge also properly concluded that federal habeas relief is not
available because petitioner’s claims related to claimed violations of state, not federal, law. E.g.,
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (holding state law claims are not cognizable in federal
habeas proceeding). This doctrine applies to “errors in post-conviction proceedings,” which “are
outside the scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.
2007).
Petitioner’s objections to the R&R primarily claim that the state court did not, in fact, rely
on the defective notice and resulting default. I disagree. In any event, it is clear that petitioner had
failed adequately to present his claim as a federal law, rather than a state law, claim
Finally, I agree with the respondent that I should deny the petitioner’s motion for leave to
amend to reframe his claims as federal constitutional claims. Even if petitioner could do so (which
he cannot, due to the non-cognizability of the underlying claims), his amendment would be futile.
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The issue is not how petitioner frames the claims here; it is that he failed to frame his claims in state
court as being of federal constitutional nature and dimension.
Conclusion
For the foregoing reasons, it is, accordingly,
ORDERED THAT:
1.

The petitioner’s objections (Doc. 20) to the Magistrate Judge’s Report and
Recommendation (Doc. 19) be, and the same hereby are, overruled; the Report and
Recommendation be, and the same hereby is, adopted as the order of this court; and
the petition for relief (Doc. 2) be, and the same hereby is, denied with prejudice; and

2.

Petitioner’s motion for leave to amend (Doc. 23) be, and the same hereby is, denied.

I decline to issue a certificate of appealability, as jurists of reasons could find no basis in the
record or the Magistrate Judge's Report and Recommendation to reach a conclusion other than that
which the Magistrate Judge has recommended and that I have found well taken in all respects.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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