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)

Case: 3:15-cv-00785-JGC Doc #: 19 Filed: 10/12/16 1 of 22. PageID #: 553

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

DOMINGO VELEZ JR.,
Petitioner,
v.
MICHELLE MILLER, Warden,
Respondent.

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Case No. 3:15CV785

JUDGE JAMES G. CARR
Magistrate Judge George J. Limbert

REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE

This matter is before the undersigned on a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 by Petitioner Domingo Velez Jr. (“Petitioner”), acting pro se, on April 16,
2015.1 ECF Dkt. #2. Petitioner seeks relief from his conviction and sentence for felonious
assault and menacing entered by the Putnam County, Ohio, Court of Common Pleas. Id. On
November 10, 2015, Respondent, Michelle Miller (“Respondent”), Warden of the Belmont
Correctional Institution in St. Clairsville, Ohio, where Petitioner is currently housed, filed a
return of writ. ECF Dkt. #13. On November 30, 2015, Petitioner filed a traverse to
Respondent’s return of writ. ECF Dkt. #14.
For the following reasons, the undersigned RECOMMENDS that the Court DISMISS
Petitioner’s federal habeas corpus petition in its entirety with prejudice.

1

The filing date for a petition from an incarcerated pro se petitioner is the date the petition was
handed over to the prison mail system, not the date it was received and docketed by the federal habeas
court. Houston v. Lack, 487 U.S. 266, 270-72 (1988).

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I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual History

The Third District Court of Appeals set forth the facts of this case on direct appeal.
These binding factual findings “shall be presumed to be correct,” and Petitioner has “the burden
of rebutting the presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1);
Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999). As
set forth by the Third District Court of Appeals, the facts are:
{2} On June 20, 2012, the Putnam County Grand Jury indicted [Petitioner] on
Count One of felonious assault in violation of R.C. 2903.11(A)(1) “and/or”
2903.11(A)(2), a second-degree felony; Count Two of possession of cocaine in
violation of R.C. 2925.11(A), (C)(4)(A), a fifth-degree felony; and, Count Three
of menacing in violation of R.C. 2903.22(A), a fourth-degree misdemeanor.
Counts One and Two stemmed from an October 13, 2012 incident between
[Respondent] and his wife at their residence. Count Three stemmed from a
September 28, 2012 traffic stop of [Petitioner] by Putnam County Sheriff Greg
Westrick.
{3} The trial court held an arraignment hearing on November 9, 2012. [Petitioner]
appeared with his court-appointed counsel and entered pleas of not guilty.
{4} On April 8, 2013, the trial court scheduled a jury trial for June 3, 2013 and
ordered that any pretrial motion be filed by May 1, 2013. On May 31, 2013, the
trial court rescheduled the jury trial from June 3, 2013 to June 24, 2013.
{5} On the morning of June 21, 2013, [Petitioner] filed a “motion to file
instanter,” requesting that the trial court allow him to file a motion to sever trial, in
which he requested that the trial court sever Count Three and hold a trial on that
count separate from the trial on Counts One and Two. Later that morning,
plaintiff-appellee, State of Ohio, filed a response opposing [Respondent’s] motion
to sever.
{6} A few minutes before the jury trial commenced on June 24, 2013, the trial
court met with counsel in chambers and granted [Petitioner’s] motion to file the
motion to sever but denied the motion to sever.

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{7} On June 24 and 25, 2013, a jury trial was held on the indictment. The jury
found [Petitioner] guilty of Counts One and Three, felonious assault and
menacing, but not guilty of Count Two, possession of cocaine.
{8} On August 8, 2013, the trial court sentenced [Petitioner] to an aggregate term
of six years imprisonment on Counts One and Three and ordered [Petitioner] to
pay court costs. The trial court filed its judgment entry of sentence the next day.
State v. Velez, 3rd Dist. Putnam No. 12-13-10, 2014 WL 1692753, at *1.
B.

Procedural History
1.

State Trial Court

On June 20, 2012, the Putnam County Grand Jury indicted Petitioner on the following
charges: felonious assault in violation of Ohio Revised Code (“O.R.C.”) § 2903.11(A)(1)
“and/or” O.R.C. § 2903.11(A)(2), a second-degree felony (Count One); possession of cocaine in
violation of O.R.C. § 2925.11(A), (C)(4)(a), a fifth-degree felony (Count Two); and menacing in
violation of O.R.C. § 2903.22(A), a fourth-degree misdemeanor (Count Three). ECF Dkt. #13-1
at 4-5. Counts One and Two stemmed from the incident between Petitioner and his wife at their
residence, and Count Three from the traffic stop. Id. at 4. Petitioner entered pleas of not guilty
to all charges. Velez, 2014 WL 1692753, at *1.
On November 14, 2012, Petitioner moved for a competency evaluation. Id. at 13. The
trial court granted the motion on February 14, 2013. Id. at 14. Petitioner and the State stipulated
to the evaluation results, and the court found Petitioner competent to stand trial. Id. at 15.
On December 3, 2012, Petitioner’s initial attorney moved to withdraw due to a
breakdown in communication with Petitioner. ECF Dkt. #13-1 at 6. On December 31, 2012, the
trial court granted the motion and appointed new counsel. Id. at 8.

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On June 21, 2013, Petitioner moved for permission to file a motion requesting that the
court hold two separate trials, one on Count Three and another on Counts One and Two. Id. at
16. On June 25, 2013, the court granted Petitioner leave to file the motion, which he did that
day. Id. at 18, 19-22. The court then denied the motion. ECF Dkt. #13-2 at 6.
Petitioner’s trial by a jury commenced on June 24, 2013. ECF Dkt. #13-1 at 26. The
next day, the jury found Petitioner guilty of Counts One and Three, felonious assault and
menacing, but not guilty of Count Two, possession of cocaine. Id.
On August 8, 2013, the trial court sentenced Petitioner to terms of imprisonment of six
years on Count One and thirty days on Count Three, to be served concurrently. Id. at 27. The
trial court further ordered that Petitioner pay court costs and be subject to three years of post
release control. Id.
2.

Direct Appeal

Petitioner, through the same counsel that represented him at trial, filed a timely notice of
appeal. Id. at 32. In his appellate brief, he asserted the following assignments of error:
1.

The trial court erred when it denied Appellant’s motion for separate trials.

2.

The trial court erred when it accepted the jury’s guilty verdict which was
clearly against the manifest weight of the evidence and sufficiency of the
evidence.

3.

The trial court erred when it allowed an impaired juror to remain.

4.

The trial court erred by allowing the introduction of hearsay documents
and statements arising from those documents particularly as the statements
relate to prior bad acts and character of Appellant.

Id. at 35. On April 28, 2014, the Third District Court of Appeals affirmed Petitioner’s

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convictions and sentences. Velez, 2014 WL 1692753; ECF Dkt. #13-1 at 99-153. A review of
the Supreme Court of Ohio’s online docket revealed that Petitioner did not appeal the state
appellate court’s judgment.
3.

Rule 26(B) Application for Reopening Direct Appeal

On June 11, 2014, Petitioner filed a pro se application to reopen the direct appeal
pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure (also referred to as the “Ohio
R. App. P.,” where appropriate) in the Third District Court of Appeals. Id. at 154. In his brief,
Petitioner raised the following assignments of error:
1.

The trial court erred by imposing concurrent sentences when it failed to
make findings required by [O.R.C. §] 2929.14(C)(4).

2.

The trial court failed to consider whether its sentence utilized the minimum
sanctions necessary to accomplish the goals of sentencing without unnecessarily
burdening governmental resources.

3.

Counsel’s ineffective advice led to an offer’s rejection and where the prejudice
alleged had to stand trial and face conviction.

4.

The trial court erred by sentencing the Defendant-Appellant to a sentence
contrary to law. Specifically contrary to statute [O.R.C. §] 2941.25(A), allied
offenses of similar import.

Id. at 159, 163-64, 174. On August 4, 2014, the state appellate court denied Petitioner’s
application. Id. at 188-89. A review of the Ohio Supreme Court’s online docket revealed that
Petitioner did not appeal this judgment of the state appellate court either.
4.

Post-Conviction Proceedings

On August 25, 2014, Petitioner filed a pro se motion entitled “Sentence Contrary to Law”
in the trial court. Id. at 190-200. The court summarily overruled the motion on August 26, 2014.
Id. at 201.

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On September 22, 2014, Petitioner, pro se, attempted to file a notice of appeal of the trial
court’s judgment in the state appellate court. Id. at 202-06. On October 8, 2014, that court sua
sponte dismissed Petitioner’s appeal for lack of jurisdiction because Petitioner’s notice of appeal
did not comply with Ohio appellate procedure rules. Id. at 207-08. Petitioner filed additional
documents with the state appellate court on October 20, 2014. Id. at 209-10. On October 28,
2014, the appellate court treated the filing as a motion for reconsideration and subsequently
denied the motion. Id. at 215-16.
On November 19, 2014, Petitioner filed a pro se notice of appeal in the Ohio Supreme
Court. Id. at 217-18. In his memorandum in support of jurisdiction, Petitioner raised the
following propositions of law:
1.

Art I section 10 Note 34. Fair Trial.

2.

Art I section 10 Note 34. Due Process.

Id. at 220. On April 8, 2015, the Ohio Supreme Court declined to accept jurisdiction and
dismissed the case. Id. at 230.
II.

FEDERAL HABEAS CORPUS PETITION
Petitioner filed a pro se federal habeas corpus petition pursuant to 28 U.S.C. § 2254 on

April 16, 2015. ECF Dkt. #2. In his habeas petition, Petitioner asserts the following two
grounds for relief:
GROUND ONE: Fair trial in violation of the Fifth; Sixth; Fourteenth
amend. U.S. Const. The 2013 Rules of Court of the State of Ohio as to the
none exist rules gave as reason to deny argument of Appeal as the forms of
the Court were not of the Court design and the Clerk of Court were to issue
them. The Clerk of Court of Putnam County, Ohio has not such forms or
claim to have issued such forms as the court rule.
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Supporting Facts: The Ohio rules of Court Volume III – Local 2013 West
registered trademark A Thomson Reuters business Mat#41130514, “Local
Rules of the Third Appellate Judicial District,” Putnam County, Ohio. Page
31-42. The instructions were for filing in the Appellate court for review of
claims of error. The court suggested and rule the rules of the book,” Ohio
Rules of Court volume III – Local 2013 were not the appropriate format
for its court and gave the petitioner a dismissal based upon its view the
forms were unappropriated. The instructions that the forms were to be
from the Clerk of Courts. The Clerk had no such forms to file.
GROUND TWO: [Petitioner left this portion of his habeas petition blank]
Supporting Facts: The court denied the petitioner the use of the court to
review when the court claim a certain type of form were to be used to
allow the court to review the petitioner claim the clerk of the court knew
not of any type of form were to be used to allow the court to review the
petitioner claim the clerk of the court knew not of any type of form and
established the appeal was filed in the manner of the Local Rules of the
Third Appellate Judicial District Court. [sic]
Id. at 4, 6 (description of attachments omitted).
On August 3, 2015, Petitioner filed a “Motion for Relief.” ECF Dkt. #8. Respondent
opposed the motion. ECF Dkt. #9. On August 21, 2015, Petitioner filed a brief in support of his
habeas petition. ECF Dkt. #10. On November 10, 2015. Respondent filed an answer/return of
writ. ECF Dkt. #13. Petitioner filed a pro se traverse to Respondent’s return of writ on
November 30, 2015. ECF Dkt. #14.
On January 22, 2016, Petitioner filed a motion requesting the appointment of counsel.
ECF Dkt. #15. Respondent filed a response to the motion requesting appointment of counsel, to
which Petitioner replied. ECF Dkt. #16, #17. On February 11, 2016, the undersigned denied
Petitioner’s motion. ECF Dkt. #18.
III.

PROCEDURAL BARRIERS TO REVIEW
A petitioner must overcome several procedural barriers before a court will review the

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merits of a petition for a writ of federal habeas corpus. As Justice O'Connor noted in Daniels v.
United States, 532 U.S. 374, 381 (2001), “[p]rocedural barriers, such as statutes of limitations
and rules concerning procedural default and exhaustion of remedies, operate to limit access to
review on the merits of a constitutional claim.” See also United States v. Olano, 507 U.S. 725,
731 (1993).
A.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of
limitations period for filing a petition for a writ of federal habeas corpus is one year, and it
begins to run on the date judgment became final. 28 U.S.C. § 2244(d)(1). Respondent does not
challenge the timeliness of Petitioner’s habeas petition.
B.

Exhaustion of State Remedies

As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas corpus.
28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion
requirement is satisfied “once the federal claim has been fairly presented to the state courts.”
Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must
present it “to the state courts under the same theory in which it is later presented in federal
court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228
F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a “fair trial” and “due
process” do not “fairly present” claims that specific constitutional rights were violated.
McMeans, 228 F.3d at 681 (citing Petrucelli v. Coombe, 735 F.2d 684, 688–89 (2nd Cir. 1984)).

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In order to have fairly presented the substance of each of his federal constitutional claims
to the state courts, the petitioner must have given the highest court in the state in which he was
convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878,
881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim
to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying
upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of
constitutional law or in terms sufficiently particular to allege the denial of a specific
constitutional right; or (4) alleging facts that are obviously within the mainstream of
constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (quoting Newton v.
Million, 349 F.3d 873, 877 (6th Cir. 2003)); see also Levine v. Torvik, 986 F.2d 1506, 1516 (6th
Cir. 1993), cert. denied, 509 U.S. 907 (1993). In Harris v. Lafler, 553 F.3d 1028, 1031–32 (6th
Cir. 2009), the Sixth Circuit laid out the options that a district court may pursue in dealing with a
petition that contains unexhausted claims:
When faced with this predicament in the past, we have vacated the order granting
the writ and remanded the case to the district court so that it could do one of four
things: (1) dismiss the mixed petition in its entirety, Rhines, 544 U.S. at 274; (2)
stay the petition and hold it in abeyance while the petitioner returns to state court
to raise his unexhausted claims, id. at 275; (3) permit the petitioner to dismiss the
unexhausted claims and proceed with the exhausted claims, id. at 278; or (4)
ignore the exhaustion requirement altogether and deny the petition on the merits if
none of the petitioner's claims has any merit, 28 U.S.C. § 2254(b)(2).
The Supreme Court has held that “the petitioner has the burden... of showing that other available
remedies have been exhausted or that circumstances of peculiar urgency exist.” Darr v. Burford,
339 U.S. 200, 218–19 (1950), overruled in part on other grounds, Fay v. Noia, 372 U.S. 391
(1963). A petitioner will not be allowed to present claims never before presented in the state
courts unless he can show cause to excuse his failure to present the claims in the state courts and
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actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the crime for
which he was convicted. Coleman v. Thompson, 501 U.S. 722, 748 (1991).
C.

Procedural Default

The procedural default doctrine serves to bar review of federal claims that a state court
has declined to address when a petitioner does not comply with a state procedural requirement.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, “the state judgment rests on
independent and adequate state procedural grounds.” Coleman, 501 U.S. at 730. For purposes of
procedural default, the state ruling with which the federal court is concerned is the “last
explained state court judgment.” Munson v. Kapture, 384 F.3d 310, 314 (6th Cir. 2004) (citing
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)) (emphasis removed). When the last explained
state court decision rests upon procedural default as an “alternative ground,” a federal district
court is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d
264, 265 (6th Cir. 1991). In determining whether a state court has addressed the merits of a
petitioner's claim, federal courts must rely upon the presumption that there are no independent
and adequate state grounds for a state court decision absent a clear statement to the contrary.
Coleman, 501 U.S. at 735.
Applying this presumption, the Sixth Circuit established a four-pronged analysis to
determine whether a claim has been procedurally defaulted under Maupin v. Smith, 785 F.2d 135,
138 (6th Cir. 1986). Under the first prong of Maupin, there must be a firmly established state
procedural rule applicable to the petitioner's claim and the petitioner must not have complied
with the rule. Ford v. Georgia, 498 U.S. 411, 423–24 (1991). Under the second prong, the last
state court to which the petitioner sought review must have invoked the procedural rule as a basis

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for its decision to reject review of the prisoner's federal claims. Coleman, 501 U.S. at 729–30;
Richey v. Mitchell, 395 F.3d 660 at 678 (2005) (holding that “a lapsed claim survives if the state
court overlooked the default and decided the claim anyway”); Baze v. Parker, 371 F.3d 310, 320
(6th Cir. 2004) (holding that if a state court does not expressly rely on a procedural deficiency,
then a federal court may conduct habeas review); Gall v. Parker, 231 F.3d 265, 310 (6th Cir.
2000) (holding that even if the issue is not raised below, where state supreme court clearly
addresses the claim, no procedural bar arises). Under the third prong, a state judgment invoking
the procedural bar must rest on a state law ground that is both independent of the merits of the
federal claim and is an adequate basis for the state court's decision. Munson v. Kapture, 384 F.3d
at 313–14. Under the fourth prong, a claim that is procedurally defaulted in state court will not be
reviewable in federal habeas corpus unless the petitioner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or that failure to consider
the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751. “Cause”
is a legitimate excuse for the default, and “prejudice” is actual harm resulting from the alleged
constitutional violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984), cert. denied,
490 U.S. 1068 (1985). If a petitioner fails to show cause for his procedural default, the reviewing
court need not address the issue of prejudice. Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review 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.
Bonnell v. Mitchel, 301 F. Supp. 2d 698, 722 (N.D. Ohio 2004).

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IV.

STANDARD OF REVIEW
If Petitioner's claims overcome the procedural barriers of time limitation, exhaustion, and

procedural default, the AEDPA governs this Court's review of the instant case because Petitioner
filed the instant § 2254 federal habeas corpus petition well after the AEDPA's effective date of
April 26, 1996. Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112
(1998). Under § 2254, a state prisoner is entitled to relief if he is held in custody in violation of
the United States Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(d).
The AEDPA sets forth the standard of review for the merits of a petition for the writ of
habeas corpus. The AEDPA provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d) (emphasis added). In Williams v. Taylor, the Supreme Court clarified the
language of 28 U.S.C. § 2254(d) and stated:
Under the “contrary to” clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case.
529 U.S. 362, 412–13 (2000). Furthermore, the Supreme Court declared that “a federal habeas
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court making the ‘unreasonable application’ inquiry should ask whether the state court's
application of clearly established federal law was objectively unreasonable.” Id. Elaborating on
the term “objectively unreasonable,” the Court stated that “a federal habeas court may not issue
the writ simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.” Id.; see also Bailey v. Mitchell, 271 F.3d 652,
655–56 (6th Cir. 2001).
The Sixth Circuit offers the following guidelines for applying the AEDPA limitations:
A.

Decisions of lower federal courts may not be considered.

B.

Only the holdings of the Supreme Court, rather than its dicta, may be
considered.

C.

The state court decision may be overturned only if:
1.

2.

the state-court decision ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [Supreme Court]
precedent’; or

3.

‘the state court identifies the correct governing legal rule from [the
Supreme] Court's cases but unreasonably applies it to the facts of
the particular state prisoner's case’; or

4.

D.

It ‘[applies] a rule that contradicts the governing law set forth in
[Supreme Court of the United States] cases,’ [the Supreme Court
precedent must exist at the time of petitioner's direct appeal]; or

the state court ‘either unreasonably extends a legal principle from
[a Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply.’

Throughout this analysis the federal court may not merely apply its own
views of what the law should be. Rather, to be overturned, a state court's
application of Supreme Court of the United States precedent must also be
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objectively unreasonable. That is to say, that ‘a federal habeas court may
not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.’ ‘An unreasonable application of
federal law is different from an incorrect or erroneous application of
federal law.’
E.

Findings of fact of the state courts are presumed to be correct. ‘The
applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.’

Bailey, 271 F.3d at 655–56 (6th Cir. 2001) (internal citations omitted).
Finally, a reviewing federal court is bound by the presumption of correctness, under
which the federal court is obligated to “accept a state court's interpretation of the state's statutes
and rules of practice.” Hutchinson v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984), cert. denied, 469
U.S. 1221 (1985); see also Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). The presumption
of correctness is set forth in 28 U.S.C. § 2254(e), which provides:
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct.
28 U.S.C. § 2254(e). The presumption of correctness applies to basic primary facts, and not to
mixed questions of law and fact. Levine, 986 F.2d at 1514. The presumption also applies to
“implicit findings of fact, logically deduced because of the trial court's ability to adjudge the
witnesses' demeanor and credibility.” McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996),
cert. denied, 520 U.S. 1257 (1997). Furthermore, a reviewing federal court is not free to ignore
the pronouncement of a state appellate court on matters of law. See Central States, Southeast &
Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 676, n.4 (6th Cir. 2000). Petitioner has
the burden of rebutting the presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
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V.

ANALYSIS
A.

Procedural Default

As best the undersigned can discern, in both grounds for relief, Petitioner claims that he
was denied a fair trial when, in attempting to appeal the trial court’s denial of his post-conviction
petition, the appellate court’s clerk of court failed to properly advise him about, and/or provide
him with the necessary forms to file a notice of appeal that would comply with the Ohio Rules of
Appellate Procedure. See ECF Dkt. #2 at 4, 6; ECF Dkt. #8 at 2; ECF Dkt. #14 at 2-4.
Respondent argues that Petitioner’s claims are procedurally defaulted because: (1) Petitioner did
not fairly present any federal constitutional claim to the trial court in his post-conviction petition;
and (2) the state appellate court asserted the procedural bar that his notice of appeal did not
satisfy state appellate procedure rules. ECF Dkt. #13 at 17. In response, Petitioner appears to
argue that the procedural default should be excused because the appellate court failed to correct
the error of the clerk of the trial court in transmitting “an imperfect record” to the appellate court.
ECF Dkt. #14 at 4-6.
As explained above, Petitioner filed a pro se post-conviction petition entitled “Sentence
Contrary to Law” in the trial court, complaining of numerous, if ill-defined, errors committed at
his trial. ECF Dkt. #13-1 at 190-200. In the petition, he made only one cursory reference to
federal constitutional law, citing “Due Process” and “Equal Protection” in his “Conclusion,” but
did not cite to any federal case law or provide any supporting argument. See id. at 192-93. The
court summarily overruled the motion on August 26, 2014. Id. at 201.
On September 22, 2014, Petitioner, acting pro se, attempted to appeal that judgment in
the state court of appeals. However, the appellate court sua sponte dismissed Petitioner’s appeal

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for lack of jurisdiction on October 8, 2014, because Petitioner had not complied with the Ohio
Rules of Appellate Procedure. Id. at 207-08. The court explained:
Appellant filed a docketing statement, brief with assignments of error, poverty
affidavit, and four different forms of statement and praecipe. Although the clerk
of court’s “notice of filing” reflects that Appellant filed a notice of appeal, none of
the documents filed have that caption nor do they contain anything close to the
content requirements for a notice of appeal. See [Ohio R. App. P.] 3(D).
Upon consideration the Court finds that, to perfect an appeal as of right and confer
appellate jurisdiction, a proper notice of appeal must be filed with the trial court
within thirty days of the judgment appealed. [Ohio R. App. P.] 3(A) and 4(A).
Appellant did not file a notice of appeal and the documents Appellant did file do
not substantially comply with the jurisdictional requirement found in [Ohio R.
App. P.] 3. Accordingly, the instant appeal should be dismissed for lack of
jurisdiction.
Id. at 207.
Ohio Appellate Rule 3(D) governs the content of a notice of appeal, stating:
The notice of appeal shall specify the party or parties taking the appeal; shall
designate the judgment, order or part thereof appealed from; and shall name the
court to which the appeal is taken. The title of the case shall be the same as in the
trial court with the designation of the appellant added, as appropriate. Form 1 in
the Appendix of Forms is a suggested form of a notice of appeal.
Ohio R. App. P. 3(D) (footnote omitted). Ohio Appellate Rules 3(A) and 4(A) establish the
requirement that a notice of appeal be filed within thirty day from the date of the judgment entry
being appealed from, and the authority of the appellate court to dismiss the appeal for failing to
file a proper, timely notice of appeal. Ohio R. App. P. 3(A), 4(A).
On October 20, 2014, Petitioner filed additional documents with the state appellate court.
Id. at 209-10. The state appellate court treated the filing as a motion for reconsideration and
denied the motion. Id. at 215-16.

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Petitioner then filed a pro se notice of appeal in the Ohio Supreme Court. Id. at 217-18.
The first proposition of law asserted in Petitioner’s memorandum in support of jurisdiction
appears similar to his federal habeas claims, challenging the trial court clerk of court’s role in the
preparation and/or filing of his notice of appeal in the state appellate court. Id. at 223. Petitioner
made only general references to “Fair Trial” and “Due Process” in his argument, and only cited
to the Ohio Constitution, not any federal constitutional law. Id. The Ohio Supreme Court
declined to accept jurisdiction and dismissed the case. Id. at 230.
The undersigned agrees with Respondent that Petitioner’s claims are procedurally
defaulted and therefore barred from federal habeas review.

First, the state appellate court

asserted a procedural bar to Petitioner’s claims based on a defective notice of appeal. Failure to
comply with state rules of appellate procedure is an adequate and independent state procedural
bar preventing federal habeas review. See, e.g., Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.
2004) (finding petitioner’s claims procedurally defaulted where he failed to file a proper notice
of appeal to the Ohio Supreme Court ); see also Deresse v. Warden, Ross Corr. Inst., No. 2:10CV-1083, 2011 WL 3473361, at *2 (S.D. Ohio May 20, 2011).
The Sixth Circuit has explained the importance of the federal appellate rule governing the
content of notices of appeal:
The content requirements of Rule 3(c) serve two functions. They address fairness
and “due process concerns by ‘ensur[ing] that the filing provides sufficient notice
to other parties and the courts.’” And they address administrative concerns by
“avoid[ing] inconsistency, vagueness and an unnecessary multiplication of
litigation” caused by uncertainty over who has appealed and from what judgment.
Uniting these considerations is notice — notice to the opposing party and the
court that an appeal of a given order has been taken and that it has been taken to a
certain court. An aspiring notice of appeal thus “must specify” not just any
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“party” but “the party... taking the appeal,” Fed. R.App. P. 3(c)(1)(A); it must
designate not just any court but “the court to which the appeal is taken,” id.
3(c)(1)(C); and it must designate not just any order but “the... order [or orders]...
being appealed,” id. 3(c)(1)(B).
Isert v. Ford Motor Co., 461 F.3d 756, 758 (6th Cir. 2006) (internal citations omitted).
Furthermore, the undersigned rejects Petitioner’s argument that the procedural default
should be excused because the appellate court failed to correct the error of the trial court’s clerk
in transmitting “an imperfect record” to the appellate court. ECF Dkt. #14 at 4-6. Petitioner
cites Ohio R. App. P. 9(E) and 10(B) as support. Id. Rule 9(E) governs possible omissions or
misstatements in the trial record. Ohio R. App. P. 9(E). Rule 10(B) directs the clerk of the trial
court to transmit the trial record to the appellate court. Ohio R. App. P. 10(B). Neither of these
rules is relevant here. The state appellate court made no reference to the trial record when ruling
that Petitioner’s notice of appeal was defective. Rather, it found generally that Petitioner “did
not file a notice of appeal and the documents [Petitioner] did file [did] not substantially comply
with the jurisdictional requirement found in [Ohio R. App. P.] 3.” ECF Dkt. #13-1 at 207.
Indeed, the Ohio Rules of Appellate Practice do not impose any obligation upon clerks of court
to assist litigants in any respect. To the contrary, Ohio R. App. P. 3(D) refers to a “suggested
form” for notices of appeal to Ohio appellate courts that is provided in the Rules’ appendix. See
Ohio R. App. P. Form 1. It was Petitioner’s duty to use that form and follow the other applicable
rules in drafting his notice.
It is well-established that “[c]ause for procedural default exists where something external
to the petitioner, something that cannot fairly be attributed to him, . . . impeded his efforts to
comply with the State's procedural rule.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012)
(emphasis original) (internal citations and quotations omitted); Murray v. Carrier, 447 U.S. 478,
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488 (1986). Nothing in the record indicates that any external factor prevented Petitioner from
filing a proper, timely notice of appeal to the state appellate court. Petitioner’s default in this
regard is therefore attributable only to him. See, e.g., Deresse, 2011 WL 3473361, at *2
(rejecting petitioner’s argument that error of court’s clerk caused procedural default). Thus,
because Petitioner has not established “cause” and “prejudice” for his procedural default, and
does not assert that he is actually innocent, his claims are procedurally barred from federal
habeas review.
Petitioner’s claims also are procedurally defaulted because, as Respondent argues,
Petitioner did not “fairly present” them in state court. Petitioner’s references to “due process”
and “fair trial” in his state-court pleadings were too general to fairly present the substance of a
federal claim to the state courts. “A petitioner need not cite ‘chapter and verse’ of constitutional
law, but ‘[g]eneral allegations of the denial of rights to a ‘fair trial’ and ‘due process' do not
‘fairly present claims’ that specific constitutional rights were violated.’” Blackmon v. Booker,
394 F.3d 399, 401 (6th Cir. 2004) (quoting Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987)
and McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000)) (holding claims were not fairly
presented where petitioner’s only citation to federal authority appeared in a section heading and
petitioner “failed to develop any cogent arguments regarding those rights beyond the naked
assertion that they were violated.”). See also Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir.
2006) (finding claim of “denial of due process and a fair trial” in violation of “14th and 6th
Amendments” without citation to federal constitutional cases insufficient for fair presentation).
Moreover, even if Petitioner did present a federal constitutional claim in state court, he
still did not fully exhaust the claims by giving state courts “one full opportunity to resolve any

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constitutional issues by invoking one complete round of the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To provide state courts the
necessary “opportunity,” petitioners must “fairly present” federal constitutional claims “in each
appropriate state court” before seeking relief in the federal courts. Baldwin v. Reese, 541 U.S.
27, 29 (2004) (internal citations omitted). Petitioner did not meet this requirement because he
fairly presented this claim only to the Ohio Supreme Court in an attempt to obtain discretionary
review. “A habeas petitioner’s submission of a new claim to the state’s highest court on
discretionary review is not a fair presentation to the state’s courts.” Hruby v. Wilson, 494 F.
App’x 514, 517 (6th Cir. 2012) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
Petitioner’s claims, therefore, are procedurally defaulted. See Gray v. Netherland, 518

U.S. 152, 161–62 (1996) (internal citations omitted) (“Because [the exhaustion
requirement] refers only to remedies still available at the time of the federal petition it is
satisfied if it is clear that [the habeas petitioner's] claims are now procedurally barred
under [state] law.”); Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (“[I]f an unexhausted claim
would be procedurally barred under state law, that claim is procedurally defaulted for purposes of
federal habeas review.”). Furthermore, as will be discussed below, Petitioner’s claims fail for the
additional reason that they are not cognizable on federal habeas review. See 28 U.S.C. §
2254(b)(2) (courts may deny unexhausted habeas petitions on the merits).
B.

Cognizability

Respondent further argues that both of Petitioner’s grounds for relief are not cognizable
on federal habeas review because they are based on alleged errors of state law. ECF Dkt. #13 at
16-17. The undersigned agrees.
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“[I]t is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241); see also Lewis v. Jeffers, 497 U.S.
764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Engle v.
Isaac, 456 U.S. 107, 121 n.21 (1982) (internal citation omitted) (“We have long recognized that a
‘mere error of state law’ is not a denial of due process.”).
More specifically, “errors in post-conviction proceedings are outside the scope of
federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007). This is
“because ‘the essence of habeas corpus is an attack by a person in custody upon the legality of
that custody, and... the traditional function of the writ is to secure release from illegal custody.’”
Id. (quoting Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986)). Challenges to post-conviction
proceedings “address collateral matters and not the underlying state conviction giving rise to the
prisoner’s incarceration.” Kirby, 794 F.2d at 247. A due process claim related to collateral
post-conviction proceedings, therefore, even if resolved in a petitioner’s favor, would not “result
[in]... release or a reduction in... time to be served or in any other way affect his detention
because we would not be reviewing any matter directly pertaining to his detention.” Id.
Accordingly, such claims cannot be brought in federal habeas proceedings. Id. at 246.
Here, Petitioner claims that the state appellate court erred when it found his notice of
appeal did not comply with the Ohio Rules of Appellate Procedure. ECF Dkt. #13-1 at 207-08.
Even if that were true, the state court made this procedural determination based on state law in a
post-conviction proceeding, and it is not cognizable on federal habeas review.

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VI.

CONCLUSION AND RECOMMENDATION
For the above reasons, the undersigned RECOMMENDS that the Court DISMISS

Petitioner’s federal habeas corpus petition (ECF Dkt. #2) in its entirety with prejudice.

DATE: October 12, 2016

/s/ George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice. Fed. R. Civ. P. 72; L.R. 72.3. Failure to
file objections within the specified time WAIVES the right to appeal the Magistrate Judge’s
recommendation. L.R. 72.3(b).

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