Jackson v. Houk

Filing 55

Opinion & Order signed by Judge James S. Gwin on 9/8/17. The Court, for the reasons set forth in this order, grants petitioner's motion for a continuance of the stay of his federal habeas corpus claims. (Related Doc. 50 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
NATHANIEL JACKSON,
:
:
Petitioner,
:
:
vs.
:
:
MARC C. HOUK, Warden,
:
:
Respondent.
:
:
-------------------------------------------------------

CASE NO. 4:07-CV-880

OPINION & ORDER
[Resolving Doc. No. 50]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On April 18, 2008, this Court granted Petitioner Nathaniel Jackson’s motion to hold his
federal habeas corpus proceedings in abeyance until the conclusion of his state court
proceedings.1 Since that time, the Ohio courts vacated Petitioner’s original death sentence and
resentenced him, again to death.2 Petitioner continues to challenge the reinstatement of his death
penalty in Ohio state courts.3 To that end, he seeks a continuance of this Court’s 2008 order
holding his federal habeas proceedings in abeyance.4 The Warden opposes this continuance.5
For the reasons stated below, Petitioner Jackson’s motion for continuance of the stay is
GRANTED.

1

Doc. 33.
See Doc. 52 at 2.
3
See id. at 2-3.
4
Doc. 50.
5
Doc. 51. Petitioner replies. Doc. 52.
2

Case No. 4:07-CV-880
Gwin, J.
I. Background
Petitioner currently has a pending Application for Reopening before the Ohio Supreme
Court.6 This application raises several grounds for relief based on the ineffectiveness of
Jackson’s counsel during and after the re-imposition of his death sentence.7
These grounds for relief include issues stemming from counsel’s failure to raise issues
during Petitioner Jackson’s resentencing itself—such as whether Petitioner Jackson was entitled
to a new jury during his resentencing8—and whether counsel adequately prepared Jackson for his
resentencing.9 Petitioner Jackson also alleges that his counsel was ineffective for failing to argue
that errors during his resentencing could not be fixed by an independent sentencing evaluation of
the appellate court,10 and that his counsel failed to argue that Jackson is ineligible for execution
because of an intellectual disability.11
II. Legal Standard
The U.S. Supreme Court has recognized that the “interests of comity and federalism
dictate that state courts must have the first opportunity to decide a petitioner’s claims.”12 Federal
district courts have the “discretion to stay a mixed petition (i.e., one that includes both exhausted
and unexhausted claims) to allow a habeas petitioner to present his unexhausted claims to the
state court in the first instance, then return to federal court for review of his perfected petition.”13

Appellant Nathaniel Jackson’s App. For Reopening Pursuant to S. Ct. Prac. R. 11.06, State of Ohio v.
Nathaniel Jackson, 2012-1644 (Ohio 2017) [hereinafter App. For Reopening].
7
See Doc. 52 at 2-4. See also App. For Reopening.
8
See Doc. 52 at 3.
9
Id.
10
Id.
11
Id.
12
Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-519 (1982)).
13
Day v. McDonough, 547 U.S. 198, 210 n.10 (2006) (citing Rhines, 544 U.S. at 278-79).
6

-2-

Case No. 4:07-CV-880
Gwin, J.
In the context of mixed petitions, the Supreme Court has stated that a district court should
grant a stay if: “[T]he petitioner had good cause for his failure to exhaust, his unexhausted claims
are potentially meritorious, and there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.”14
III. Analysis
A. Good Cause
The Court finds that Petitioner Jackson has good cause for failing to exhaust his state
court claims. All of petitioner’s remaining state court claims arose as a result of the alleged
failures of his counsel during and after his resentencing. Ohio recognizes the validity and
potential necessity of challenging the effectiveness of appellate counsel in this way both in case
law15 and by rule.16
Jackson’s resentencing did not occur until 2012, four years after the original stay granted
by this Court. Further, Petitioner’s remaining state court claims concern the effectiveness of
counsel during both the resentencing itself and during the state-level appeals of that resentencing.
Those appeals were finalized during February 2017.17 Petitioner Jackson filed his application to
reopen during the same month.18
B. Intentional Delay
Further, the record shows that Petitioner Jackson has not engaged in any “dilatory
litigation tactics.”19 Petitioner Jackson’s filings and attempts for relief have been timely. The

14

Rhines, 544 U.S. at 278.
See State v. Murnahan, 63 Ohio St.3d 60 (1992).
16
Ohio S. Ct. Prac. R. 11.06.
17
Doc. 51 at 2.
18
See App. For Reopening (filed February 7, 2017).
19
See Rhines, 544 U.S. at 278.
15

-3-

Case No. 4:07-CV-880
Gwin, J.
time between the Court’s original grant of a stay and now is a result of Jackson’s previous
success in receiving a resentencing, and the direct appellate review of that resentencing.
C. Potential Merit of Petitioner’s Claims
In Rhines v. Webber, the Supreme Court stated that a petitioner’s claims should not be
held in abeyance if they are “plainly meritless.”20 Petitioner Jackson’s claims clear this bar.
Petitioner Jackson filed a timely application to re-open the direct appeal of his sentence in
the Ohio Supreme Court.21 In this application, commonly referred to as a Murnahan application,
Jackson contends that his direct appellate counsel was constitutionally ineffective.22
In order to prove constitutional ineffectiveness of counsel, a petitioner must show both
that his counsel was deficient and that counsel’s deficiencies prejudiced the defendant.23
The underlying legal arguments raised in Jackson’s Murnahan application allege that his
appellate counsel was ineffective for failing to raise several arguments about issues that arose
during and after his resentencing. These issues include counsel’s failure to adequately prepare
mitigation evidence,24 failing to request a new jury for his resentencing,25 and failing to
challenge the appellate court’s decision not to remand for resentencing upon a finding of error.26
Additionally, Jackson alleges that counsel failed to argue that his intellectual disability makes
him ineligible for the death penalty.27
Failing to raise a potentially meritorious defense on direct appeal can constitute
constitutionally deficient counsel, and so Jackson potentially meets Strickland’s “deficiency”

20

Id. at 277.
See Doc. 52 at 3; see also App. For Reopening.
22
App. For Reopening at 1-10.
23
See Strickland v. Washington, 466 U.S. 668, 687 (1984).
24
App. For Reopening at 4-6.
25
Id. at 2-4.
26
Id. at 6-8.
27
Id. at 8-10; see also, e.g., Atkins v. Virginia, 536 U.S. 304, 321 (2002).
21

-4-

Case No. 4:07-CV-880
Gwin, J.
prong.28 Additionally, these alleged errors are not obviously harmless. If Jackson succeeds on
any of these issues, he could receive another resentencing. Therefore, Jackson was potentially
prejudiced by his allegedly defective counsel.
Each of these issues involves a substantial constitutional claim. Regardless of Petitioner
Jackson’s success in this attack on his resentencing, the arguments advanced in his Murnahan
application are not “plainly meritless.”
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Petitioner Jackson’s motion to
continue the stay of his federal habeas corpus claims.

IT IS SO ORDERED.

Dated: September 8, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

28

See, e.g., Franklin v. Anderson, 434 F.3d 412, 428 (6th Cir. 2006) (holding that the failure of appellate
counsel to appeal a claim of juror bias “amounted to ineffective assistance of counsel”).

-5-