Kelley v. Smith
Filing
66
Order Adopting Report and Recommendation (re 58 ). Kelley's Rule 60(b) Motion (ECF No. 52) is denied, and final judgment is entered in favor of Respondent. The court grants Petitioner's Motion to Supplement Objections (ECF No. 63). The court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 9/17/2013. (D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM KELLEY,
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 (“Kelley” or “Petitioner”) filed a Petition for
Writ of Habeas Corpus (“Petition,” ECF No. 1) pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his conviction for (1) murder as a proximate result of child endangering; and (2)
child endangering. After several motions to amend the Petition, Magistrate Judge Baughman issued
a Report and Recommendation, recommending that the Petition be dismissed as procedurally
defaulted (ECF No. 39). The court adopted this Report and Recommendation as to all claims on
April 30, 2012 (ECF No. 47). Petitioner then filed the instant motion, a “Motion Pursuant to Civil
Rule 60 (b)(6)” (the “Rule 60(b) motion”), on February 15, 2013 (ECF No. 52). The motion was
again referred to Magistrate Judge Baughman, who issued another Report and Recommendation (the
“R&R”) on April 9, 2013, recommending that the court deny Kelley’s Motion (ECF No. 58). For
the following reasons, the court adopts as its own the Magistrate Judge’s second Report and
Recommendation, and denies Kelley’s Motion.
Magistrate Judge Baughman’s R&R first confirmed that Petitioner’s Rule 60(b) Motion was
not in fact a second or successive habeas petition, and therefore the court has jurisdiction to address
this Motion. (R&R at 9, ECF No. 58.) This was not challenged by Respondent. Next, Magistrate
Judge Baughman addressed all of Petitioner’s arguments in order. First, the Magistrate Judge
rejected Petitioner’s argument that the court erred in applying the applicable Ohio procedural rule
on behalf of the Supreme Court of Ohio in its order dismissing Kelley’s habeas corpus petition. (Id.
at 10-11.) Magistrate Judge Baughman found that the Supreme Court of Ohio was not required to
explicitly state that its decision was based on a procedural default arising from Petitioner’s failure
to present a claim to the state appeals court. (Id. at 10.) Next, Magistrate Judge Baughman rejected
Petitioner’s argument that because he had raised an ineffective assistance of appellate counsel
argument to the Ohio Supreme Court, this court had no basis for concluding that the claims not
presented to the intermediate appellate court were procedurally defaulted. (Id. at 12.) He maintains
that any default would have been excused by the ineffective assistance of counsel in not raising the
claims on direct appeal. (Id.) The Magistrate Judge, citing Goldberg v. Maloney, 692 F.3d 534, 538
(6th Cir. 2012), found that Kelley had not exhausted his remedies because he had not filed a claim
of ineffective assistance of counsel with the Ohio Court of Appeals under Ohio Appellate Rule
26(B) in order to give an Ohio court an opportunity to rule on the merits of that claim. (Id. at13.)
Magistrate Judge Baughman also found that the Ohio Supreme Court did not dismiss Petitioner’s
appeal on the merits, but rather dismissed it on procedural default grounds because it did not raise
any substantial constitutional questions. (Id. at 14-15.)
Finally, Magistrate Judge Baughman rejected Petitioner’s claim of actual innocence. (Id. at
16.) First, the Magistrate Judge noted that most of Petitioner’s arguments were restatements of
arguments he had previously made in his habeas corpus petition or to the Ohio courts. (Id.) Next,
Magistrate Judge Baughman found that the “new” evidence arguments put forward by Petitioner
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consists mostly of arguments involving the legal sufficiency of the evidence used to convict him.
(Id. at 16-18.) The Magistrate Judge also noted that all but one of these arguments were known to
Petitioner at the time of his trial, and thus did not constitute “new” evidence of innocence. (Id. at
18.) In addition, the Magistrate Judge pointed out that many of these arguments were “simply
restatements of Kelley’s procedurally defaulted federal habeas claims.” (Id.) As for Petitioner’s sole
new piece of evidence, an affidavit from Delores Wiggins stating that she overheard Crystal Sisson
say that she had been “coached” by detectives for her testimony at Petitioner’s trial, Magistrate
Judge Baughman found that the statement would be deemed hearsay and therefore would have been
inadmissible. (Id.) In addition, the Magistrate Judge also found that even if it were admissible, it
would not be clear, irrefutable evidence of Petitioner’s innocence, but only evidence that Sisson’s
testimony may have been coerced. (Id. at 18-19.) Furthermore, the Magistrate Judge found that this
evidence would not have established actual innocence as there were several other bases for
Petitioner’s conviction. (Id. at 19.)
In his Objections to the R&R, Kelley essentially challenges the entirety of the Magistrate
Judge’s conclusions. (Objections, ECF Nos. 61 and 63.) Kelley first argues that the Ohio Supreme
Court was required to make a plain statement that relief was denied for reasons of procedural
default, based on the Supreme Court’s holding in Harris v. Reed, 489 U.S. 255 (1989), and that its
failure to do so means those claims were not procedurally defaulted. (Objections at 4, ECF No. 61.)
Next, Kelley argues that he presented his claims to the Ohio Supreme Court for “plain error” review,
which, under Ohio Rule of Criminal Procedure 52(b), entitled him to review on the merits even
though he did not raise the issue on direct appeal. (Id. at 9-10.) Kelley then argues that the
Magistrate Judge erred in interpreting his ineffective assistance of counsel argument as a claim, as
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he was using it as a “mere example of his appellate counsels [sic] ineffectiveness.” (Id. at 13.)
Kelley also argues that his Rule 60(b) Motion was not premised on “eneffective [sic] asst. [sic] of
appellate counsel...but rather the issue of whether petitioners [sic] grounds for relief are ripe for a
determination on thier [sic] ‘merits’ in this habeas court, due to the Ohio Supreme Courts [sic]
choice to dispose of petitioners [sic] timely direct appeal in its ‘standard one(1) fit-all order’ rather
than properly considering it under the “plain error standard of review”. (Id. at 14.) Finally, Kelley
contends that the Magistrate Judge erred in finding that his actual innocence claim failed.
The court does not find Petitioner’s arguments to be well-taken. Petitioner relies on Harris
for his argument that this court erred in finding that his claims had been procedurally defaulted even
though the Ohio Supreme Court had issued a ‘one size fits all’ order. However, as Magistrate Judge
Baughman notes in his R&R, the Harris rule has been drastically expanded upon, and a federal court
may “‘look through’ an unexplained order to the last reasoned state court judgment and presume that
the Ohio Supreme Court’s unexplained order rests on the same grounds as the reasoned judgment.”
Eskridge v. Konteh, 88 Fed. App’x 831, 837 (6th Cir. 2004) (citing Ylst v. Nunnemaker, 501 U.S.
797, 802-04 (1991); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1996)). Petitioner’s argument that Ohio
Rule of Criminal Procedure 52(b) entitles him to review on the merits is also not well-taken. Ohio
Rule of Criminal Procedure 52(b) does not bar the Ohio Supreme Court from refusing to hear a
claim based on procedural default if the claim of “plain error” was not raised in the intermediate
appellate court. Ohio R. Crim. P. 52(b). As for the remainder of Petitioner’s arguments, the court
finds, after carefully reviewing the Report and Recommendation, Petitioner’s Objections, and all
other relevant materials in the record that the Magistrate Judge’s conclusions are fully supported by
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the record and the controlling case law. Accordingly, the court adopts as its own the Magistrate
Judge’s Report and Recommendation. (ECF No. 58.)
Consequently, Kelley’s Rule 60(b) Motion (ECF No. 52) is hereby denied, and final
judgment is entered in favor of Respondent. The court grants Petitioner’s Motion to Supplement
Objections (ECF No. 63). 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).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
September 17, 2013
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