Hamrick v. Tibbals

Filing 16

Memorandum Opinion and Order Adopting Report and Recommendation 13 overruling Hamrick's objections 15 and denying 1 petition. Dan A. Polster (C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RYAN HAMRICK,
Petitioner,
vs.
TERRY TIBBALS, WARDEN,
Respondent.

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CASE NO. 5:13 CV 650
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER

Before the Court is the Report and Recommendation of Magistrate Judge James R.
Knepp III. (Doc #: 13 (hereafter, the “R&R”).) Magistrate Judge Knepp recommends that the
Court dismiss the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by pro se Petitioner Ryan Hamrick. (Doc #: 1 (hereafter, the “Petition” or
“§2254 Petition”). Hamrick has timely filed Objections to the R&R. (Doc #: 15.) For the
reasons set forth below, the Court overrules Hamrick’s Objections and denies his § 2254
Petition.
I.
On January 24, 2011, a jury convicted Hamrick of one count of murder in violation of
Ohio Rev. Code § 2903.02 (A) with a firearm specification under Rev. Code § 2941.145. The
trial court sentenced him to an aggregate term of eighteen years to life in prison. Hamrick
appealed his conviction by filing a timely notice of appeal to the Fifth District Court of Appeals
for Stark County, Ohio (“Fifth District Court of Appeals”). On March 5, 2012, the Fifth District
Court of Appeals affirmed Hamrick’s conviction, and on September 20, 2012, Hamrick filed pro
se an untimely notice of direct appeal in the Ohio Supreme Court and a motion for leave to file a

delayed appeal. On November 7, 2012, the Ohio Supreme Court denied Hamrick’s leave to
appeal and dismissed the case. Then, on February 13, 2013, Hamrick filed pro se an untimely
application in the Fifth District Court of Appeals to reopen his direct appeal pursuant to Ohio
App. R. 26(B) alleging that his appellate counsel had been constitutionally ineffective. The Fifth
District Court of Appeals denied Hamrick’s application to reopen and, on appeal to the Ohio
Supreme Court, the Ohio Supreme Court declined to accept jurisdiction of the appeal.
On March 18, 2013, Hamrick filed pro se the instant § 2254 Petition in which he raises
the following five grounds for relief:
GROUND ONE: The trial court plainly erred when it overruled the petitioner’s
request to instruct the jury on the law of defense of another, which is law
applicable to the case made before the jury and resulted in the denial of his
substantial constitutional rights.
GROUND TWO: The trial court plainly erred when it denied the petitioner’s
request to instruct the jury on the lesser offense of voluntary manslaughter.
GROUND THREE: The petitioner is denied his constitutional right to have his
guilt proven beyond a reasonable doubt and his right to a fair trial when the jury
verdicts are unsupported by sufficient evidence.
GROUND FOUR: The trial court plainly erred and/or abused its discretion to the
prejudice of the petitioner, in disqualifying Daniel Clevenger as an expert witness
on deadly force issues which denied the petitioner his constitutional right to a fair
trial.
GROUND FIVE: The petitioner was denied his constitutional right to effective
assistance of trial counsel and to a fair trial when trial counsel failed to consult
with the potential expert to ensure he was completely prepared for the trial court’s
hearing.

Hamrick initially raised grounds one through three on direct appeal, and he raised grounds four
and five in his 26(B) application to reopen his direct appeal.
In the R&R, Magistrate Judge Knepp recommends dismissing Hamrick’s 2254 Petition
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as barred by procedural default. In arriving at this decision, Magistrate Judge Knepp noted that
“[r]easons of federalism and comity generally bar federal habeas corpus review of ‘contentions
of federal law ... not resolved on the merits in the state proceeding due to [the] failure to raise
them as required by state procedure.” (Doc. # 13 at 8) (quoting Wainwright v. Sykes, 433 U.S.
72, 87 (1977)). Then, Magsitrate Judge Knepp concluded that two state procedural rules prevent
the Court from reaching the merits of Hamrick’s 2254 petition:
Here, the applicable state rules are Ohio S.Ct.Prac.R. 7.01(A)(1)(a) and App. R.
26(B)(1). Relevant to grounds one through three, an appeal to the Ohio
Supreme Court from a state appeals court judgment, to be considered timely,
must be filed within 45 days of the appeals court judgment. Ohio S.Ct. Prac. R.
7.01(A)(1)(a). Regarding grounds four and five, Ohio App. R. 26(B)(1) requires
an application to reopen be filed within 90 days of state appellate judgment.
Petitioner failed to comply with each rule. Indeed, Petitioner’s 45-day window
for direct appeal began running after the March 19, 2012, nunc pro tunc entry,
but he did not file for delayed direct appeal until September 20, 2012, a period
of 185 days. (Ex. 21, Doc. 10). The 90- day window for Petitioner’s application
to reopen also began on March 19, 2012, but Petitioner did not file that motion
until February 13, 2013, a period of 331 days. (Ex. 24, Doc. 10). Both
motions were far outside the 45 and 90 day respective requirements.
(Doc. # 13 at 9).
After determining that Hamrick’s 2254 Petition is procedurally defaulted, Magistrate
Judge Knepp considered whether Hamrick should be excused for failing to comply with the
applicable state procedural rules. Federal courts can excuse a petitioner’s failure to comply with
state procedural rules if the petitioner can show cause for not following the procedural rule.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2010) (citing Maupin v. Smilth, 785 F.2d 135, 138
6th Cir. 1986). Demonstrating “cause” requires a petitioner to “show that ‘some objective
factor external to the defense’ prevented the petitioner’s compliacnce with a state procedural
rule.” Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (quoting Murray c. Carrier, 477 US

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478, 494-95 (1986). In his Traverse, Hamrick argued that substantial denial of access to the law
library demonstrates cause as to why his appeals were untimely. Specifically, Hamrick argued
that he had problems gaining access to the law library due to a new prison tier system which
separated rule abiding inmates from those who did not follow prison regulations. In support, he
produced prison logs detailing all inmate requests to use the library during the disputed time
period and library logs detailing hours the library was closed. After reviewing the logs,
Magistrate Judge Knepp concluded that the documents that Hamrick produced discredit his
claim that Mansfield Correctional’s new tier system prevented him from using the prison’s law
library.
In his Objections, Hamrick reiterates his argument that substantial denial of access to the
law library demonstrates cause as to why his appeals were untimely, and states that “the law
library access here at Mansfield Correctional is not as easy as the Report and Recommendation
makes it seem.” (Doc. # 15 at 2).1 Even if Hamrick is correct in claiming that the prison’s tier
system made it difficult to access the law library, this is not a sufficient basis to establish “cause”
for failing to comply with a state procedural rule. See Bonilla,, 370 F.3d at 498 (“The fact that
Bonilla’s time in the prison law library was limited to four hours per week was insufficient to
establish cause to excuse his procedural default.”). Furthermore, in his Objections, Hamrick
admits that he stopped requesting a library pass and, with respect to his 26(B) application, he
waited almost a year to file an appeal and therefore cannot be said to have been diligently
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In his Objections, Hamrick also complains that Magistrate Judge Knepp failed to address
his contention that mail room under-staffing resulted in his not receiving the Court of Appeals’
March 19, 2012 decision affirming his conviction until April 10, 2012. However, even if the Court
were to use April 10, 2012 as the day that the 45-day window for filing a direct appeal began to
run, Hamrick’s appeal would be untimely. As noted above, Hamrick filed his appeal on September
20, 2012, well beyond 45 days from April 10, 2012.

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pursuing his claims. See Doliboa v. Warden U.S. Penitentiary Terre Haute, 503 Fed. Appx. 358,
360 (6th Cir. 2012) (rejecting petitioner’s argument that there was “cause” for his procedural
default where there were no facts on the record that the petitioner diligently pursued his claims
before the Ohio Supreme Court.)
Finally, in his Objections, Hamrick argues that his appellate counsel is responsible for his
failure to timely file his 26(B) application. Specifically, Hamrick argues that his appellate
counsel failed to provide him with his “case file and other records” within the 90-day deadline.
Doc. # 15 at 4. This argument is also not supported by the law. “Ineffective assistance of
counsel may constitute cause for a procedural default only at a stage of the proceedings where a
petitioner has a Sixth Amendment right to counsel.” See Wilson v. Hurley, 382 Fed. Appx. 471,
478 (6th Cir. 2010). There is no right to counsel at the Rule 26(B) stage and therefore a
counsel’s performance, or lack thereof, as it relates to a petitioner’s Rule 26(B) motion, cannot
constitute cause for procedural default. Id.
II.
Based on the foregoing, the Court OVERRULES Hamrick’s objections (Doc #: 15),
ADOPTS the Magistrate Judge’s R&R to the extent it is consistent with this opinion (Doc #:
13), and DENIES the § 2254 Petition (Doc #: 1).
IT IS SO ORDERED.

/s/ Dan A. Polster December 19, 2014
Dan Aaron Polster
United States District Judge

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