Kelley v. Smith

Filing 47

Order Adopting Report and Recommendation (re 39 ). Petitioner's Motion to Compel State Court to Furnish Missing Portions of Court Record (ECF No. 42) is denied as moot. Petitioner's Motion for Appointment of Counsel (ECF No. 46) is denied. Kelley's Petition is dismissed because Grounds One through Seven are procedurally defaulted and final judgment is entered in favor of Respondent. Kelley's request for evidentiary hearing is denied. The court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), 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. Signed by Judge Solomon Oliver, Jr on 4/30/2012. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM KELLEY, Pro Se,
Petitioner
v.
KEITH SMITH, WARDEN,
Respondent

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Case No.: 5:10 CV 731
JUDGE SOLOMON OLIVER, JR.

ORDER

On April 8, 2010, Petitioner William Kelley, Pro Se (“Petitioner” or “Kelley”) filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner initially
alleged five grounds for relief, but after his request to amend was granted in part, the fifth ground
was restated and two additional grounds were added. Ultimately, Petitioner alleged the following
seven grounds for relief:
Ground One: “Conviction Obtained By use of evidence gained
Pursuant to an unconstitutional search and seizure. Conviction
Obtained by use of Evidence Obtained Pursuant to unlawful arrest.”
Ground Two: “Conviction obtained By a violation of the privelege
[sic] Against Self-Incrimination.”
Ground Three: “Conviction obtained By Use of Coerced Confession.”
Ground Four: “Failure to Disclosure [sic] Exculpatory Evidence And
Afford Compulsory Process to Present A Defense And Failing to

Afford Petitioner Compulsory Process To Procure Witnesses For His
Defence [sic].”
Ground Five: “CONVICTION OBTAINED BY USE OF EVIDENCE
OBTAINED PURSUANT TO UNLAWFUL ARREST.”
Ground Six: “CONVICTION OBTAINED BY ACTION OF A
GRAND OR PETIT JURY WHICH WAS UNCONSTITUTIONALLY
SELECTED AND IMPANELED.”
Ground Seven: “CONVICTION OBTAINED BY AN
UNCONSTITUTIONAL STATUTE, AND DEFECTIVE
INDICTMENT.”
(Id. at 4-5; Mot. to Amend at 13-17, ECF No. 7.) Petitioner has also requested an evidentiary
hearing to more fully develop his claims of ineffective assistance of appellate counsel in order to
demonstrate cause to excuse the various procedural defaults.
This case was referred to Magistrate Judge William H. Baughman for preparation of a report
and recommendation. The Magistrate Judge issued his Report and Recommendation (“R&R”) on
December 1, 2011, recommending that final judgment be entered in favor of the Respondent and
that Kelley’s Petition be dismissed. (ECF No. 39.) Specifically, the Magistrate Judge found that
all grounds, Grounds One through Seven, in Kelley’s Petition are procedurally defaulted, and Kelley
failed to show cause to excuse these defaults as required by the Sixth Circuit in Maupin v. Smith,
285 F.2d 135, 138 (6th Cir. 1986). (Id. at 22-29.) Since he had not demonstrated cause, the court
did not need to consider the issue of prejudice. Without a showing of cause and prejudice to excuse
a procedural default, the court cannot review the merits of the claim.
In the alternative, if Ground Four was fairly presented, the Magistrate Judge recommended
finding that the decision of the state appeals court was not an unreasonable application of clearly
established federal law. (Id. at 28.) The Magistrate Judge also recommended that no evidentiary

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hearing be held because Petitioner’s ineffective assistance of counsel claim was procedurally
defaulted. (Id. at 15, 17, 29.)
Petitioner filed an objection to the R&R (“Objection”) on January 25, 2012. (ECF No. 43.)
Petitioner raised the following objections:
*OBJECTION: IT IS CLEARLY ERRONIOUS [sic] AND
CONTRARY TO CLEARLY ESTABLISHED LAW FOR A
FEDERAL FIDUCIARY [sic] TO ACT IN CONCERT WITH STATE
OFFICIALS IN THE RENDITION OF HIS DUTIES AS A FEDERAL
OFFICIAL, IN EXECUTING THE FEDERAL GOVERNMENTS
[sic] POWER OVER THE STATES, TO FALSELY ACCUSE
PETITIONER OF FILING HIS HABEAS PETITION BEFORE THE
DISPOSITION OF HIS MOTION FOR LEAVE TO APPEAL TO
THE OHIO SUPRIME [SIC] COURT. THE DISPOSITION OF THE
MOTION FOR LEAVE TO APPEAL WAS ON MARCH 24, 2010,
AND NOT MAY 24, 2010.
*OBJECTION: IT IS CLEARLY ERRONEOUS AND CONTRARY
TO CLEARLY ESTABLISHED FEDERAL LAW FOR A FEDERAL
FIDUCIART [sic] TO ACT IN CONCERT WITH STATE
OFFICIALS IN MANIPULATING THE FORM AND PROCEDURE
IN WHICH PETITIONER PRESENTED HIS PROPOSITIONS OF
LAW TO THE OHIO SUPREME COURT, FOR THE FACT THAT
THERE WAS NEVER A DEFAULT TO BEGIN WITH.
*OBJECTION: WHERE A HABEAS PETITION SETS FORTH
SPECIFIC AND DETAILED FACTUAL ASSERTIONS, THAT IF
TRUE, WOULD ENTITLE THE PETITIONER TO RELIED, THE
COURT MUST ENSURE FULL DEVELOPMENT OF THE
RELEVANT FACTS.
*OBJECTION: FIRST IT WAS CLEARLY ERRONEOUS AND
CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAWS
AND RULES FOR MAGISTRATE TO DENY PETITIONERS [sic]
AUG. 08, 2011, MOTION ‘TO EXPAND THE RECORD’
PURSUANT TO HABEAS RULE SEVEN, IN WHICH HE MOVED
THE COURT TO SUPPLEMENT THE RECORD WITH THE
CORRECT REBUTTAL OF REBUTTAL OF TRUTH ‘VIA’
CITATIONS TO STATE COURT RECORD IN HIS TRAVERSE,
AND APPENDIX IN SUPPORT THEREOF.

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*OBJECTION: SECOND IT WAS CLEARLY ERRONEOUS AND
CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAWS
AND RULES FOR MAGISTRATE TO DENY PETITIONERS [sic]
JANUARY 4, 2011, MOTION TO COMPEL STATE TO ‘FURNISH
MISSING PORTIONS OF STATE COURT RECORD’; AND
PETITIONERS [sic] AUGUST 08, 2011 MOTION TO EXPAND
PURSUANT TO HABEAS RULE SEVEN, IN WHICH HE MOVED
THIS COURT TO REQUIRE STATE TO ‘FURNISH MISSING
PORTIONS OF STATE RECORD, THAT SHOULD HAVE BEEN
APPENDED TO STATES [sic] ANSWER, TO ENSURE FULL
DEVELOPMENT OF RELEVANT FACTS.
*OBJECTION: PETITIONER OBJECTS TO THES [sic]
ALLEGATION [‘MAGISTRATE ALLEGES THAT PETITIONER
HAS PRESENTED A NEW GROUND FOR RELIEF BY
RECASTING HIS INITIALLY ASSERTED SEARCH AND
SEIZURE ISSUE INTO A TWO PART CLAIM WITH AN
ADDITIONAL CLAIM OF EQUAL PROTECTION
DISCRIMINATION’] ON THE GROUNDS THAT THE ESSENCE
OF PETITIONERS [sic] GGROUND [sic] FOR RELIEF IS AND
ALWAYS HAS BEEN AN ILLEGAL SEIZURE IN WHICH
PETITIONER WAS UNLAWFULLY INTERROGATED AND
TARGETED BY STATE OFFICIALS BECAUSE OF HIS RACE,
RESULTING IN THE SAME STATE OFFICIALS BIASLY [sic]
UTILIZING CLOTHES SEIZED FROM PETITIONER ON MARCH
31, 2008 AGAINST CLOTHES SEIZED FROM CO DEFENDANT
[sic] SEVERAL DAYS LATER: AND FABRICATING
STATEMENTS OBTAINED FROM PETITIONER THROUGH A
TWO AND A HALF HOUR UNLAWFUL INTERROGATION
WITHOUT MIRANDA WARNINGS, TO CONTRIVE A
CONVICTION OF PETITIONER UNDER FALSE PRETENSES.
INFRINGING UPON HIS FOURTH, FIFTH, AND FOURTEENTH
AMEND. RIGHTS.
*OBJECTIVE [sic]: PETITIONER OBJECTS TO [Magistrate falsely
accusing him of ‘ATTEMPTING TO STATE AN ARGUMENT OF
INEFFECTIVE ASSISTANCE OF COUNSEL TO EXCUSE
PROCEDURAL DEFAULTS CLAIMED BY THE STATE, THAT IF
DID EXIST, WAS THE FAULT OF THE ATTORNEY ASSIGNED
BY STATE WHO DELIBERATELY FILED NONMERITORIOS
[sic] CLAIMS AGAINST PETITIONERS [sic] WISHES IN FAVOR
OF THE U.S. CONSTITUTIONAL CLAIMS WHICH SIT BEFORE
THE COURT NOW’] FOR LTHE [sic] SAME REASONS

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DESCRIBED IN PGS. (4) THRU (8) OF THIS INSTANT
‘OBJECTION TO MAGISTRATES R AND R.’ [sic]
*OBJECTION: IT WAS CLEARLY ERRONEOUS AND
CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAW FOR
MAGISTRATE TO NOT RECOMMEND THAT THE WRIT ISSUE
OR AN ALTERNATIVE EVIDENTIARY HEARING BE
CONDUCTED ON THESE GROUNDS ALONE, DUE TO FACT
THAT ANAMBIGUOUS [sic], POTENTIALLY ERRONEOUS
INSTRUCTION VIOLATES THE CONSTITUTION WHEN THERE
IS A REASONABLE LIKLIHOOD [sic] THAT THE JURY HAS
APPLIED THE INSTRUCTION IMPROPERLY.
*OBJECTION: WHILE IT IS TRUE THAT PROSECUTING
OFFICIALS PRESENTED THE ‘CONSTITUTIONALLY INFIRM
EVIDENCE’ ‘VIA’ EXPERT TESTIMONY, CRIME LAB
REPRESENTATIVE TO BE EXACT. THE ESSENCE OF GROUND
ONE FOR RELIEF IS AS DESCRIBED ABOVE, WHETHER
PROSECUTING OFFICIALS BIASLY [sic] USED EVIDENCE
GAINED PURSUANT TO AN ILLEGAL FOURTH AMEND.
SEIZURE, AND IN VIOLATE OF LTHE [sic] FOURTEENTH
AMENDS. EQUAL PROTECTION AND DUE PROCESS OF
LAW PROHIBITIONS, ([sic] CRIMELAB REPRESENTATIVES
WERE NOT RESPONSIBLE FOR VIOLATIONS, THE
VIOLATIONS WERE RESULT OF THE ‘KNOWINGLY AND
WILLINGLY’ USE OF THE CONSTITUTIONALLY INFIRM
EVIDENCE BT [sic] THE PROSECUTING OFFICIALS, TO
CONTRIVE CONVICTION OF PETITIONER.
*OBJECTION: IT WAS CLEARLY ERRONEOUS AND
CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAW FOR
MAGISTRATE TO ACT IN CONCERT WITH STATE OFFICIALS,
IN THE RENDITION OF HIS DUTIES, AND IN EXECUTING THE
FEDERAL GOV. POWER STATES, IN RECOMMENDING THAT
GROUND ONE IS PROCEDURALLY DEFAULTED AND
PROPERLY SUBJECT TO DISMISSAL [for the reasons stated in the
R &R].
*OBJECTION: IT IS CLEARLY ERRONEOUS AND CONTRARY
TO CLEARLY ESTABLISHED FEDERAL LAWS AND RULES
FOR MAGISTRATE TO RECOMMEND THAT GROUND TWO IS
PROCEDURALLY DEFAULTED AND PROPERLY SUBJECT TO
DISMISSAL FOR SAME REASONS CITED IN PETITIONERS [sic]
GROUND ONE.
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*OBJECTION: IT WAS CLEARLY ERRONEOUS AND
CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAWS
AND RULES FRO [sic] MAGISTRATE TO RECOMMEND THAT
GROUND THREE BE PROCEDURALLY DEFAULTED AND
PROPERLY SUBJECT TO DISMISSAL FOR THE SAME REASON
CITED IN PETITIONERS [sic] ANALYSIS IN GROUND ONE.
*OBJECTION: IT WAS CLEARLY ERRONEOUS AND
CONTRARY TO CLEARLY ESTABLISHED FEDERAL LAWS
AND RULES FOR MAGISTRATE TO RECOMMEND THAT
GROUND FOUR IS PROCEDURALLY DEFAULTED FOR LACK
OF FAIR PRESENTMENT AS A FEDERAL CLAIM TO THE OHIO
COURT, FOR SAME REASONS CITED IN PETITIONERS [sic]
GROUND ONE.
*OBJECTION: IT IS CLEARLY ERRONEOUS AND CONTRARY
TO CLEARLY ESTABLISHED FEDERAL LAW FOR
MAGISTRATE TO RECOMMEND THAT THE OHIO APPELLATE
COURTS [sic] CECISION [sic] WAS NOT AN UNREASONABLE
APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW
FOR [the reasons stated in the R&R].
*OBJECTION: IT IS CLEARLY ERRONEOUS AND CONTRARY
TO CLEARLY ESTABLISHED FEDERAL LAWS AND RULES
FOR MAGISTRATES [sic] RECOMMENDING THAT THIS
GROUND SIX BE PROCEDURALLY DEFAULTED FOR SAME
REASONS CITED IN PETITIONERS [sic] GROUND ONE.
*OBJECTION: IT IS CLEARLY ERRONEOUS AND CONTRARY
TO CLEARLY ESTABLISHED FEDERAL LAWS AND RULES
FOR MAGISTRATE TO RECOMMEND THAT THIS GROUND
SEVEN BE PROCEDURALLY DEFAULTED FOR THE SAME
REASONS CITED IN PETITIONER’S GROUND ONE.
*OBJECTION: PETITIONER OBJECTS TO THE MAGISTRATES
[sic] CONCLUSION.
(Id. at 2-27.) The court finds none of Petitioner’s Objections to be well-taken. Several of
Petitioner’s arguments are in regard to previous rulings by the Magistrate Judge on Petitioner’s
motions to expand the record. However, as Magistrate Judge Baughman indicated in his Order
denying Petitioner’s motions, Petitioner has not shown how the granting of those motions would
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assist him in overcoming the claimed procedural defaults, since any information that he would gain
would be in regard to the merits of his claims, which have been procedurally defaulted. (ECF No.
38.) The rest of Petitioner’s objections assert that the Magistrate Judge erred in making his
recommendations and primarily seek to argue the merits of Petitioner’s grounds for relief.
However, Petitioner fails to demonstrate cause and prejudice to excuse his procedural defaults, and
therefore, the merits of his Petition cannot be considered. Petitioner’s arguments that his counsel
was ineffective or that he presented his claims to the Ohio Supreme Court does not change this
result. Arguments regarding ineffective assistance of counsel do not cure the default because
Petitioner failed to diligently develop his ineffective assistance of counsel allegation in the proper
Ohio court in a timely manner. He did not raise this claim on direct appeal, and did not move to
reopen his appeal under Ohio Appellate Rule 26(B). Petitioner’s claims that may have been
presented to the Ohio Supreme Court are procedurally defaulted because he failed to present them
to the Ohio Court of Appeals, which prevented the Ohio Supreme Court from reviewing them.
Therefore, this also does not cure his default.
Petitioner filed two Motions after the R&R was issued. He filed a Motion to Compel State
Court to Furnish Missing Portions of Court Record (ECF No. 42) and a Motion for Appointment
of Counsel (ECF No. 46). In his Motion to Compel, Petitioner requests police reports, court
exhibits, and codefendant’s statements, which he asserts relate to the merits of his first, second, third
and fourth grounds for relief. However, as discussed above, Petitioner has not shown how the
granting of those motions would assist him in overcoming the claimed procedural defaults, since
any information that he would gain would be in regard to the merits of his claims, which have been
procedurally defaulted. Therefore, this Motion is denied as moot.

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Petitioner requests appointment of counsel under Rules 6(a) and 8(c) of the Rules Governing
Section 2254 Cases. Those rules refer to the appointment of counsel if an evidentiary hearing is
granted or appointment of counsel if necessary for effective discovery. Because Petitioner’s
ineffective assistance of counsel claim is procedurally defaulted, no evidentiary hearing needs to
be conducted and therefore, there is no need for the appointment of counsel to represent him for this
purpose. Since all of Petitioner’s claims are procedurally defaulted, discovery is unnecessary, and
an attorney is also unnecessary on this basis. Therefore, Petitioner’s Motion for Appointment of
Counsel is denied.
After carefully reviewing the R&R, Petitioner’s Objections, and all other relevant materials,
the court finds that the Magistrate Judge’s conclusions in regard to Grounds One through Three and
Five through Seven, are fully supported by the record and controlling case law. The court finds that
Grounds One through Three and Five through Seven are procedurally defaulted, and Kelley has not
demonstrated cause to excuse these defaults. Accordingly, the court adopts as its own the Magistrate
Judge’s R&R in this regard. (ECF No. 39.)
The court also adopts the Magistrate Judge’s findings regarding Ground Four. In Ground
Four, Petitioner essentially argued that, “the prosecution permitted the cremation of the victim’s
body when Kelley wanted it for an additional autopsy (withholding of exculpatory evidence) and,
further, that the trial court refused to allow testimony of defense experts as to alternative causes of
death.” (Id. at 26.) The Magistrate Judge found that the first aspect of Petitioner’s claim, regarding
cremation, was not presented to the Ohio courts, and the second part, regarding defense experts, was
not presented to the Ohio appeals court as a federal constitutional issue, but only as an abuse of
discretion/state law issue. (Id.) Therefore, the Magistrate Judge recommended finding that Ground

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Four was procedurally defaulted because it was not fairly presented to the Ohio courts and Petitioner
has not demonstrated cause to excuse this default. In the alternative, if fairly presented, the
Magistrate Judge recommended denying Ground Four because the decision of the Ohio appeals
court was not an unreasonable application of clearly established federal law. The Ohio appeals
court found that the trial court did not abuse its discretion in denying Petitioner’s expert the right
to testify as to the conclusions to be drawn from an autopsy report, and because the opinion
anticipated from this expert was similar to an opinion already given by another expert, any error
would have been harmless. (Id.) The court adopts the Magistrate Judge’s reasoning and finds that
the first part of Petitioner’s claim was procedurally defaulted and he has not demonstrated cause to
excuse this default. The court also adopts the Magistrate Judge’s reasoning regarding the second
part of Petitioner’s claim, and finds it was procedurally defaulted because he did not present his
claim to the Ohio courts as a federal constitutional issue. Petitioner has not demonstrated cause to
excuse this default. However, to the extent it may be construed that his claim was fairly presented,
the decision of the Ohio appeals court was not an unreasonable application of clearly established
federal law, and the court also adopts the Magistrate Judge’s reasoning in this regard. Therefore,
the court adopts as its own the Magistrate Judge’s R&R in its entirety.
Consequently, Kelley’s Petition is hereby dismissed because Grounds One through Seven
are procedurally defaulted and final judgment is hereby entered in favor of Respondent.

In

addition, Kelley’s request for an evidentiary hearing is denied. The court further certifies that
pursuant to 28 U.S.C. § 1915(a)(3), 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(c); Fed.
R. App. P. 22(b).

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IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

April 30, 2012

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