Miles v. Bradshaw
Filing
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Memorandum Opinion and Order: The Report and Recommendation is ACCEPTED. The Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED, Petitioner's Motion to Dismiss (Doc. 6 is DENIED, and Petitioner's Motion for Default Judgement (Doc. 8 ) is DENIED. Furthermore, for the reasons stated herein and in the Report and Recommendation, the Court certifies, 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. 28 U.S.C. 2253(c); Fed.R.App.P. 22(b). Petitioner's Request for a Certificate of Appealability is DENIED (Doc. 12 ). Judge Patricia A. Gaughan on 3/12/14. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Demetrius D. Miles,
Petitioner,
vs.
Margaret Bradshaw, Warden,
Respondent.
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CASE NO. 5:13 CV 1078
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Armstrong (Doc. 10), recommending denial of Petitioner’s pending Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), Petitioner’s Motion to Dismiss all
Unexhausted Claims (Doc. 6), and Petitioner’s Motion for Declaratory Judgement (Doc. 8).
Petitioner filed objections to the Report and Recommendation. For the following reasons, the
Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts
provides, “The judge must determine de novo any proposed finding or recommendation to which
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objection is made. The judge may accept, reject, or modify any proposed finding or
recommendation.”
Discussion
A. Indictment and Trial
Following a fight with his girlfriend where he bit and severed her lip, Petitioner was
indicted for the following offenses:
Count One: Felonious assault, a violation of Ohio Rev. Code § 2903.11
Count Two: Domestic violence, a violation of Ohio Rev. Code § 2919.25(A)
Count Three: Domestic violence, a violation of Ohio Rev. Code § 2919.25(C)
Count Four: Violation of a protection order, a violation of Ohio Rev. Code § 2919.27
The victim refused to testify during the trial after being subpoenaed by the state. The
trial court admitted statements the victim had made to police while being treated in the hospital
and excerpts of jail calls between the victim and Petitioner. Petitioner, represented by counsel,
testified that he had acted in self-defense when he bit the victim. After a jury trial, Petitioner
was found guilty of Counts Two, Three, and Four. When the jury was unable to reach a verdict
as to Count One, the court empaneled another jury to retry the felonious assault charge. After
another jury trial, the defendant was found not guilty of felonious assault. Petitioner was
sentenced to 36 months’ imprisonment on November 1, 2011.
B. Direct Appeal
Petitioner thereafter appealed his convictions. Petitioner, represented by new counsel,
presented four grounds for relief:
1. The evidence is insufficient to sustain a finding that Petitioner is guilty of domestic
violence menacing and domestic violence.
2. The verdict of guilty of domestic violence menacing and domestic violence were against
the manifest weight of the evidence.
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3. The trial court erred by not granting petitioner’s Rule 29 motion with respect to the
domestic violence menacing charge and domestic violence charge.
4. The trial court violated Petitioner’s right to due process under the Ohio Constitution and
the Constitution of the United States as applicable through the Fourteenth Amendment.
On June 13, 2012, the Court of Appeals for the Ninth Judicial District upheld the
domestic violence conviction under § 2919.25(A) finding it was based on sufficient evidence,
but reversed and vacated the § 2919.25(C) conviction as not being based on sufficient evidence
and remanded the case to the trial court. Petitioner, represented by new counsel (his third
attorney), thereafter timely appealed to the Ohio Supreme Court on July 30, 2012. The Ohio
Supreme Court declined to accept review of his case as not involving any substantial
constitutional question on October 24, 2012.
C. Application to Reopen
On July 16, 2012, Petitioner, pro se, filed an application for reopening under Rule 26(B),
in which he alleged that appellate counsel had been ineffective for failing to raise his right to
face his accusers and cross-examine the victim, for failing to investigate and subpoena witnesses,
and for failing to object to the jury instructions. Petitioner’s application was denied on August
10, 2012. Petitioner moved the Court of Appeals to be served with all the documents. On
August 23, 2012, the court granted his motion and directed the clerk of courts to serve petitioner
where he was incarcerated. Petitioner did not timely appeal the denial of his application for
reopening to the Ohio Supreme Court. Petitioner was subsequently re-sentenced on August 2,
2012, consistent with the Court of Appeals decision, to a definite term of three years for the
remaining domestic violence conviction and a term of six months for the protective order
conviction, which were to run concurrently.
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D. Federal Habeas Petition
On May 10, 2013, Petitioner filed the present habeas petition. Petitioner presented the
following claims for relief.
1. Ineffective assistance of trial counsel for failing to object to the deprivation of
Petitioner’s right to face his accusers and to cross-examine the victim.
2. Ineffective assistance of trial counsel for failure to investigate and call witnesses.
3. Ineffective assistance of appellate counsel for failure to raise the issue on appeal that
Petitioner had a right to confront his accuser.1
The Magistrate Judge considered Petitioner’s first and second claims for relief and
determined that these grounds were procedurally defaulted. The Magistrate Judge noted that
Petitioner had not raised either of these issues of ineffective assistance of trial counsel on direct
appeal, but had done so only in his Rule 26(B) application. The Magistrate Judge concluded,
and the Court agrees, that under Ohio law constitutional questions about the performance of trial
counsel cannot be preserved in an application to reopen. Wogenstahl v. Mitchell, 668 F.3d 307,
338 (6th Cir. 2012) (quoting Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001)) (explaining that
permitting an Ohio prisoner to raise a substantive claim in a Rule 26(B) motion ‘would
eviscerate the continued vitality of the procedural default rule; every procedural default could be
avoided, and federal court merits review guaranteed, by claims that every act giving rise to every
procedural default was the result of constitutionally ineffective counsel’”).
The Magistrate Judge then analyzed whether Petitioner’s failure to present these claims
was excused and concluded that it was not. Examining whether there was cause for default,
while acknowledging that an ineffective assistance of counsel claim may constitute cause for
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Petitioner’s claims have been renumbered for ease of reference.
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procedural default, the Magistrate Judge noted that such a claim must not itself be defaulted on.
Here, while Petitioner presented his claim in a Rule 26(B) application, he did not appeal to the
Ohio Supreme Court as required under O’Sullivan v. Boerckel, 526 U.S. 838 (1999). As such,
the Magistrate Judge concluded that Petitioner has not demonstrated cause for the default of his
first two claims and had additionally procedurally defaulted on his ineffective assistance of
appellate counsel claim, his third claim for relief. The Magistrate Judge further concluded that
Petitioner failed to overcome the presumed correctness of the appellate court’s decision denying
his Rule 26(B) application because he had not shown anything more than the mere possibility
that alleged errors at trial had worked to his substantial disadvantage. Finally, the Magistrate
Judge determined that Petitioner had not presented a claim that his conviction was a fundamental
miscarriage of justice because he only asserted he had acted in self-defense, and not that he was
factually innocent.
Petitioner objects that he did raise his claims of ineffective assistance of trial counsel at
the earliest time available because he presented them in his Rule 26(B) application and that this
alone satisfies O’Sullivan. Petitioner’s argument here is unavailing. Petitioner must not only
have presented his grounds to the state courts as he contends, but he also must have presented
them for discretionary review to the court of last resort. O’Sullivan, 526 at 848. Petitioner,
however, did not present his ineffective assistance of appellate counsel claim to the Ohio
Supreme Court.
Petitioner next argues that his failure to appeal to the Ohio Supreme Court is excused
because he never received notice that his application for reopening had been denied and he had
limited access to the internet. Petitioner’s argument about lack of notice is also unpersuasive.
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Petitioner fails to explain how his limitation on internet access barred him from ascertaining the
status of his case. In any event, lack of access to resources is generally insufficient cause in a
habeas case. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004). The record indicates that
Petitioner moved the appellate court to serve him personally with the orders and motions in his
application for reopening and that this motion was granted. (Doc. 4-1 p. 135). Petitioner points
out that the record only indicates that the “orders were issued to attorneys by regular mail” on
August 23, 2012. As he was acting pro se, Petitioner argues that no notice was not sent to him.
The document pointed to by Petitioner does indeed indicate that notice was sent to attorneys.
From it alone, it is unclear whether Petitioner had notice of the denial of his application to
reopen. “Federal courts may take judicial notice of proceedings in other courts of record.” Rodic
v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (quoting Granader v. Public
Bank, 417 F.2d 75, 82–83 (6th Cir. 1969)); Harbison v. Bell, 408 F.3d 823, 842 (6th Cir. 2005)
(same). The Court, therefore, takes judicial notice of the service records for Petitioner’s case
which indicate that service was directed to him at the place of his incarceration by regular mail
on August 23, 2012. See State v. Miles, No. 26187 (Ohio Ct. App. 9 2012), appeal not allowed,
2012-Ohio-4902, 133 Ohio St. 3d 1425, 976 N.E.2d 915. As such, Petitioner may not rely on a
procedurally defaulted claim as an excuse for procedural default.
Finally, Petitioner argues that his filing of a delayed Rule 26(B) appeal to the Ohio
Supreme Court, which was denied around December 11, 2012, means that he has exhausted his
state remedies. Petitioner is incorrect. Petitioner’s delayed Rule 26(B) appeal was denied
because Supreme Court Rule 2.2(A)(4)(c) does not permit delayed review of Rule 26(B) appeals.
(Doc. 13-3). Petitioner failed to timely file an appeal of his application for reopening with the
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Ohio Supreme Court and doing so late did not fairly present his issues to Ohio’s court of last
resort. Consequently, Petitioner has procedurally defaulted on his ineffective assistance of
appellate counsel claim.
The Magistrate Judge next considered Petitioner’s Motion to Dismiss (Doc. 6).
Petitioner requests that the Court sever and dismiss the ineffective assistance of trial counsel
claims and keep the ineffective assistance of appellate counsel claims. The Magistrate Judge
concluded, and this Court agrees, that “keeping” the ineffective assistance of appellate counsel
claims is futile inasmuch as the Court has already determined that the ineffective assistance of
appellate counsel claim is also procedurally defaulted.
Petitioner has also moved the Court for default judgement pursuant to Fed. R. Civ. P.
55(2)(c) because Respondent did not file a responsive pleading within 15 days from the filing of
Petitioner’s Traverse. The Magistrate Judge correctly dismissed this argument, noting that §
2254 cases are governed by the Rules Governing Section 2254 Cases in the United States
District Courts, a discrete set of rules from the Federal Rules of Civil Procedure. Under these
rules, the government is not required to make a legal argument in response to the traverse.
Consequently, this Court agrees and adopts the Magistrate Judge’s recommendation that
Petitioner’s Motion for Default Judgement be denied.
Conclusion
Accordingly, the Report and Recommendation is ACCEPTED. The Petition for Writ of
Habeas Corpus is DENIED, Petitioner’s Motion to Dismiss is DENIED, and Petitioner’s Motion
for Default Judgement is DENIED. Furthermore, for the reasons stated herein and in the Report
and Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal
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from this decision could not be taken in good faith, and that there is no basis upon which to issue
a certificate of appealability. 28 U.S.C. 2253(c); Fed.R.App.P. 22(b). Petitioner’s Request for a
Certificate of Appealability is DENIED (Doc. 12).
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 3/11/14
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